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rejecting § 2255 movant's ineffective-assistance claim where claim was not “sufficiently developed” for movant's failure to show a “reasonable attorney” would have pursued the course of action proposed by movant and a “‘substantial, not just conceivable' likelihood of a different result” had the attorney done so
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No. CV 15-1678-PHX-DGC (ESW) No. CR 11-1622-PHX-DGC
03-21-2017
United States of America, Plaintiff/Respondent, v. Leonardo Rabanales-Casia, Defendant/Movant.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Leonardo Rabanales-Casia's ("Movant") "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (the "Motion to Vacate") (Doc. 1). The Government has responded (Doc. 9), and Movant has replied (Doc. 12). The matter is deemed ripe for consideration.
Citations to "Doc." are to the docket in CV 15-1678-PHX-DGC (ESW). Citations to "CR Doc." are to the docket in the underlying criminal case, CR-11-1622-PHX-DGC.
On December 12, 2016, Movant filed an "Addendum" (Doc. 13) to the Motion to Vacate in which Movant appears to argue that Movant's enhanced sentence is unconstitutional in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Movant's argument is without merit as Movant was acquitted of the charge brought under 18 U.S.C. § 924(c) and Movant's sentence was not enhanced based on a prior conviction that was deemed a crime of violence. (CR Doc. 328, Doc. 373 at 16). In addition, the December 12, 2016 filing (Doc. 13) may be struck as an unauthorized sur-reply.
The Motion to Vacate contains three ineffective assistance of counsel ("IAC") claims and one claim alleging that Movant is innocent of the crimes for which he was convicted. The undersigned finds that the record conclusively shows that Movant is entitled to no relief. It is therefore recommended that the Court deny Movant's request for an evidentiary hearing and deny the Motion to Vacate. See Dukes v. United States, 492 F.2d 1187, 1188 (9th Cir. 1974) ("The record shows on its face that the [Section 2255] petitioner was not entitled to relief, and an evidentiary hearing was not required.").
I. BACKGROUND
In October 2012, a jury convicted Movant on the following four counts contained in the September 20, 2011 Superseding Indictment: (i) Conspiracy to Commit Hostage Taking, a Class A felony offense; (ii) Hostage Taking, Aiding and Abetting, a Class A felony offense; (iii) Bringing in Illegal Aliens, Aiding and Abetting, a Class C felony offense; and (iv) Harboring Illegal Aliens, Aiding and Abetting, a Class C felony offense. (CR Docs. 42, 328). The jury found Movant not guilty on Count Five of the Superseding Indictment, which charged Movant with using and carrying a firearm during and in relation to a crime of violence and aiding and abetting such use in violation of 18 U.S.C. §§ 924(c)(1)(A) and (2). (CR Doc. 328).
At a January 14, 2013 sentencing hearing, the Court sentenced Movant to separate 25-year prison terms on Counts One and Two and to separate 120-month prison terms on Counts Three and Four. (CR Doc. 328). All prison terms run concurrently with one another. (Id.).
Movant appealed his convictions and sentences, which the Ninth Circuit Court of Appeals affirmed on June 12, 2014. (Doc. 9-2 at 89-91). On August 24, 2015, Movant timely filed the Motion to Vacate (Doc. 1).
II. DISCUSSION
A. Legal Standards Applicable to IAC Claims
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the U.S. Supreme Court explained that a defendant arguing an IAC claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the defendant. This is a deferential standard, and "[s]urmounting Strickland's high bar is never an easy task." Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
The Strickland test applies to challenges to guilty pleas that are based on IAC claims. Jeronimo, 398 F.3d at 1155. To establish the test's performance prong in that context, a defendant must establish that his or her counsel's advice regarding the guilty plea was outside "the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56-58 (1985). Regarding the prejudice prong, a defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Washington v. Lampert, 422 F.3d at 873 (quoting Hill, 474 U.S. at 58-59)).
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a defendant has failed to meet one factor. Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
B. Ground One: Claimed IAC for Alleged Failure to Notify Movant of Government Witness
The Court held a joint trial with Movant and Movant's co-defendant, Domingo Agustin-Simon. The charges against Movant and his co-defendant relate to the smuggling of undocumented immigrants into the United States and the subsequent holding of the immigrants hostage until the immigrants' families paid a fee. At the trial, the Government called a witness who testified that she was raped by Movant's co-defendant while being detained by Movant and his co-defendant.
In Ground One, Movant argues that his trial counsel's performance was constitutionally deficient for allegedly failing to notify Movant that the Government was planning to call the rape victim at trial. (Doc. 1 at 5, 15-16). Movant argues that this alleged failure denied Movant the opportunity "to prepare a defense against the new developments" and to "prepare questions as to the motives of said late witness to appear after a year declaring that she had been molested . . . ." (Id. at 16). Movant makes clear that he does not contend that his counsel should have moved to sever the trial from Movant's co-defendant. (Id.) ("[Movant] will not claim that a severance motion will have had made a difference on the outcome of his proceedings.").
To the extent Movant is arguing that he was denied the opportunity to personally cross-examine the victim, the argument is without merit. A defendant does not have a federal constitutional right to be represented by counsel and to simultaneous self-representation. See United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994) ("A defendant does not have a constitutional right to "hybrid" representation."); McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) (discussing the inherent conflict between the right to self-representation and the right to the effective assistance of counsel).
At trial, the rape victim was cross-examined by both Movant's defense counsel and counsel for Movant's co-defendant. Defense counsel for Movant's co-defendant cross-examined the victim first. As shown in the following excerpt from the trial transcript, counsel for Movant's co-defendant inquired as to why the victim delayed reporting the rape:
Q . . . . [D]uring that August 11th interview you didn't mention anything about a rape because you thought that you would be detained longer if you did, right?"
A Yes, I thought they would get me and maybe question me more.
Q Now, you just a minute ago mentioned that you signed a deportation. In fact, you got a notice to appear from immigration, not a deportation. Correct?
A Yes.
Q And that notice to appear released you in the United States without a bond, on your own recognizance; isn't that correct?
A Yes.
Q And this was on a condition that you agreed to be a material witness in the prosecution of this case. Right?
A Yes.
Q And also in exchange for your testimony, not only did you get to be in the United States legally, but the government agreed not to prosecute you. Right?
A I haven't been promised anything. I'm cooperating because I don't want these guys to go and do bad things to people like me.(CR Doc. 369 at 122-23).
Q So your main motive in August for not telling people about guns or money or rape was because you didn't want to be held any longer; is that correct?
A Yes.
Q Because being detained by immigration is no fun, right?
A It's not.
Q When you first mentioned the rape, it was last week, right?(Id. at 127).
A Yes.
Q You said right now you didn't talk to anybody about it before that, right?
A Right.
Q And just now you said, "If a woman had showed up back in September of last year, I would have talked about it then." Didn't you just say that?
A Yes.
Q You're saying that you didn't ask to talk to any women at that time, did you?
A I didn't.
Q When you were getting interviewed last week and started talking about it and you broke down, you said, "I want to have a female agent here, I want to talk about this with women present." So you actually did do that last week, but not a year ago.
A Right.
Q Since the government has allowed you to stay in our country in exchange for your testimony, you've learned a lot about the United States, living and working here, right?
A More or less. Some.
Q You learned about visas for victims of sexual assault,
right?(Id. at 136-37).
A If you hire a lawyer you have options.
Q So you do know that victims of sexual assault can get special visas so that they can stay and perhaps bring their families into the United States; isn't that correct?
A However, I'm not interested in any of that. I just want for these people not to hurt anyone else.
After co-defendant's counsel finished his cross-examination, Movant's counsel asked the victim the following questions:
Q Today here you identified my client as the Bad Gordo. Correct?
A Yes.
Q But in June of this year you did not, correct? Yes or no? You didn't call him Bad Gordo in June, did you?
A I don't remember.
Q And back in September -- on September 19th of last year you didn't refer to him as Bad Gordo either, did you?
A No.
Q And in August 11th of last year you didn't identify him as Bad Gordo either, did you?
A No.
(Id. at 138-39).MR. ERIKSSON: May I have a moment, Your Honor?
THE COURT: You may.
MR. ERIKSSON: No further questions. Thank you, Ms. Garcia.
Because counsel for Movant's co-defendant asked the rape victim the line of questions that Movant argues he was deprived of asking, Movant has failed to show prejudice. Further, a defense attorney's decisions regarding the manner and scope of cross-examination are left to the attorney's sound professional judgment as a matter of trial strategy or trial tactics. See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) ("[C]ounsel's tactical decisions at trial, such as refraining from cross-examining a particular witness or from asking a particular line of questions, are given great deference and must . . . meet only objectively reasonable standards."); see also Gallo v. Kernan, 933 F.Supp. 878, 881 (N.D. Cal. 1996) ("It is well settled that impeachment strategy is a matter of trial tactics."). The undersigned finds that Movant's defense counsel made a reasonable tactical decision not to repeat the line of questioning asked by counsel for Movant's co-defendant. See LaGrand v. Stewart, 133 F.3d 1253, 1274 (9th Cir. 1998) ("If Karl's counsel repeated the questions asked by Walter's counsel, any negative answers would simply have been magnified in the jury's mind. Karl's counsel made a reasonable decision not to add to the questioning of most of the witnesses."); Silva v. Woodford, 279 F.3d 825, 852 (9th Cir. 2002) (finding the failure to impeach witness with prior motorcycle accident "a reasonable tactical decision" where accident could have generated sympathy for the witness). The undersigned does not find that the cross-examination of the victim by Movant's counsel was constitutionally deficient.
As Movant has failed to satisfy both prongs of the Strickland test with respect to the IAC claim in Ground One, the undersigned recommends that the Court dismiss Ground One with prejudice.
In his Reply (Doc. 12 at 5), Movant argues for the first time that the Government knowingly introduced "false testimony" from the rape victim. Movant's argument rests on vague and conclusory allegations that warrant summary dismissal. Moreover, it is improper for a party to raise a new argument in a reply brief. See, e.g., United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (noting that courts generally decline to consider arguments raised for the first time in a reply brief); United States v. Boggi, 74 F.3d 470, 478 (3d Cir. 1996) (noting that considering arguments raised for first time in reply brief deprives opposing party of adequate opportunity to respond); Playboy Enters., Inc. v. Dumas, 960 F.Supp. 710, 720 n. 7 (S.D.N.Y 1997) ("Arguments made for the first time in a reply brief need not be considered by a court.").
C. Ground Two: Claimed IAC for Alleged Inadequate Consultation
In Ground Two, Movant argues that his trial counsel was constitutionally ineffective for:
failing to request a change on his trial date to be able to prepare an [sic] consult with his client for a better defense and or to advice [sic] his client that the 5 to 10 years offer made by the government at the start of the case, was still stending [sic] and that it was his professional advice for him to plead to the offer.(Doc. 1 at 16-17).
The undersigned finds that Movant's vague and conclusory allegations in Ground Two do not support a Section 2255 motion. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (vague or conclusory claims without supporting factual allegations warrant summary dismissal of § 2255 motion); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1996). Other than Movant's own self-serving statements, there is no evidence that Movant's defense counsel failed to adequately consult with him or explain the terms of the Government's plea offer. See Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (rejecting IAC claim alleging that counsel neglected to discuss potential defenses where "[o]ther than [defendant's] own self-serving statement, there is no evidence that his attorney failed to discuss potential defenses with him"); Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (rejecting defendant's claim that counsel failed to discuss in detail the significance of an offered plea agreement where defendant's claim was based on defendant's self-serving statement that he was unaware of a potential death verdict, and stating that "[i]f the rule were otherwise, every rejection of a plea offer, viewed perhaps with more clarity in the light of an unfavorable verdict, could be relitigated upon the defendant's later claim that had his counsel better advised him, he would have accepted the plea offer").
Moreover, "there is no established minimum number of meetings between counsel and client prior to trial necessary to prepare an attorney to provide effective assistance of counsel." Moody v. Polk, 408 F.3d 141, 148 (4th Cir. 2005) (citation and internal quotation marks omitted); United States v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988) (an experienced lawyer "can get more out of one conference with his client than a less well-trained lawyer could get out of several"); White v. Godinez, 301 F.3d 796, 800 (7th Cir. 2002) ("A brief consultation does not by itself establish that counsel's performance was inadequate."). Since Movant's conclusory, unsupported allegations do not show "what purpose additional consultation . . . would have served[,]" he has not shown that the amount of time his trial counsel met with him was constitutionally inadequate. United States v. Lucas, 873 F.2d 1279, 1280 (9th Cir. 1989) (per curiam); Chavez v. Pulley, 623 F.Supp. 672, 685 (E.D.Cal. 1985) ("brevity of consultation time between a defendant and his counsel alone cannot support a claim of ineffective assistance of counsel," especially where the defendant "fails to allege what purpose further consultation with his attorney would have served and fails to demonstrate how further consultation with his attorney would have produced a different result"); accord Murray v. Maggio, 736 F.2d 279, 282-83 (5th Cir. 1984).
For the above reasons, the undersigned recommends that the Court dismiss Ground Two with prejudice.
D. Ground Three: Alleged IAC for Failure to Present a Duress Defense
In Ground Three, Movant argues that his defense counsel was ineffective for failing to file a motion that the jury be instructed on duress. (Doc. 1 at 18)
The duress defense has three elements: "(1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm." United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984).
Movant states that
he was forced by threats of harm to himself and to his family in Honduras if he did not pay for his trip with the coyotes, and that because his lack of money to finish paying the coyotes for his services he was forced to remain in their custody until the coyotes released him from their custody. The threat of harm that [Movant] faced was immidiate [sic] and impending.(Doc. 1 at 19). Movant's claims are not sufficiently developed to warrant habeas relief. Movant does not explain what evidence would have established that he acted out of duress or how counsel could have overcome the substantial evidence that the Government presented against Movant at his trial. See Shah, 878 F.2d at 1161; Jones, 66 F.3d at 204-05. Movant has not shown that a reasonable attorney would have pursued a duress defense. Movant therefore has failed to satisfy the performance prong of the Strickland test. Further, given the strength of the Government's case against Movant, Movant has not established a "substantial, not just conceivable" likelihood of a different result if Movant's counsel presented a duress defense. Movant has failed to establish the prejudice prong of the Strickland test.
For instance, agents seized "pollo" ledgers, Western Union receipts, a gun, knives, and an iron pipe from the house in which the undocumented immigrants were kept. (Doc. 9-2 at 10). Agents also seized a cell phone that tied Movant to human smuggling. (CR Doc. 371 at 32-50, 143). A witness testified that she heard Movant (nicknamed "Bad Gordo" and "El Gordo") make collection calls to the hostages' families, saying things like "Pay up for these son of a bitches right away, these people in my hands are worth nothing, they're worth shit." (CR Doc. 369 at 93-94, 104). Another witness also testified that he heard Movant make collection calls and was afraid when Movant made the calls. (Id. at 208). The witness also testified that Movant ordered the hostages to shut up, ordered the women to cook, and touched the hips and buttocks of the female hostages without their consent. (CR Doc. 371 at 144-45; CR Doc. 369 at 104, 113,114, 118). The witness testified that Movant slept by the front door, separate from the hostages, and ate different food than the hostages. (CR Doc. 369 at 106, 113).
For the above reasons, it is recommended that the Court dismiss Ground Three with prejudice.
E. Ground Four: Actual Innocence Claim
In Ground Four, Movant argues that he is actually and legally innocent of the crimes for which he was convicted. (Doc. 1 at 20-23).
The Supreme Court has left open the question of whether a freestanding claim of actual innocence is cognizable on federal habeas review. See District Attorney's Office v. Osborne, 557 U.S. 52, 71 (2009) (whether federal constitutional right to be released upon proof of "actual innocence" exists "is an open question"). The Ninth Circuit has assumed without deciding that freestanding actual innocence claims are cognizable in both capital and non-capital cases. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133 (1998). A defendant "asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. (citing Herrera v. Collins, 506 U.S. 390, 442-44 (1993) (Blackmun, J., dissenting)). The petitioner's burden in such a case is "extraordinarily high" and requires a showing that is "truly persuasive." Id. (quoting Herrera, 506 U.S. at 417); see also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (denying habeas relief where "the totality of the new evidence [did] not undermine the structure of the prosecution's case"), cert. denied, 531 U.S. 995 (2000); Swan v. Peterson, 6 F.3d 1373, 1384-85 (9th Cir. 1993) (denying habeas relief where newly discovered evidence did not contradict materially the evidence presented at trial, did not demonstrate that the state's evidence was false, and was merely equivocal), cert. denied, 513 U.S. 985, 115 S.Ct. 479 (1994). Finally, "'actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Movant argues that he is actually innocent of the crimes for which he was convicted. Like in Ground Three, Movant states that he a "pollo" and the "coyotes" threatened to kill Movant if he did not perform the tasks "that he was forced to perform." (Doc. 1 at 22). Movant claims that he "was in fear of immidiate [sic] harm, and did attempted [sic] to present a defense on duress at trial or to receive a jury instruction on duress and to request from his [] trial attorney to file a motion for a pretrial offer of proof on duress . . . ." (Id. at 22-23).
"[D]uress is an affirmative defense which excuses the defendant's conduct without negating his criminal knowledge." United States v. Meraz-Solomon, 3 F.3d 298, 299 (9th Cir. 1993). "[C]ircuit courts differ on whether a complete affirmative defense to a crime-such as insanity or self-defense-shows factual or only legal innocence." Rozzelle v. Sec'y, Florida Dep't of Corr., 672 F.3d 1000, 1013-14 (11th Cir. 2012). The Ninth Circuit has held that habeas petitioners asserting affirmative defenses are potentially actually innocent, not merely legally innocent. See, e.g., Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003) (deciding actual innocence claim that was based on affirmative defense of justification); Smith v. Baldwin, 510 F.3d 1127, 1140 (9th Cir. 2007) (deciding actual innocence claim that was based on state law affirmative defense to felony murder); Griffin v. Johnson, 350 F.3d 956, 963-64 (9th Cir. 2003) (deciding actual innocence claim that was based on insanity defense); contra Smith v. Addison, 373 F. App'x 886, 889 (10th Cir. 2010) (concluding that actual innocence claim based on duress defense "presents a legal justification for [defendant's] conduct, not a claim of factual innocence") (emphasis in original).
As mentioned, the defense of duress has three elements: "(1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm." Contento-Pachon, 723 F.2d at 693. To establish an actual innocence claim, Movant must prove that it is more likely than not that no reasonable juror would have found that he failed to establish by a preponderance of the evidence any of the three elements of the duress defense. See Smith, 510 F.3d at 1140 ("[T]o pass through the Schlup actual innocence gateway, Smith must prove that it is more likely than not that no reasonable juror would have found that he failed to establish any of the five elements of the affirmative defense by a preponderance of the evidence.") (emphasis in original); Dixon v. United States, 548 U.S. 1, 3 (2006) (holding that "Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence"); Ninth Circuit Model Jury Instructions 6.5 ("The defendant must prove [duress] [coercion] [compulsion] by a preponderance of the evidence."). Movant's vague and conclusory allegations fail to make such a showing. The undersigned recommends that the Court dismiss Ground Four with prejudice.
III. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that Movant's request for an evidentiary hearing be DENIED.
IT IS FURTHER RECOMMENDED that the Motion to Vacate (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis be DENIED because Movant has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated this 21st day of March, 2017.
/s/_________
Eileen S. Willett
United States Magistrate Judge