SUSAN R. BOLTON, District Judge.
The Court now considers Movant Indalecio Castro-Ponce's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1) ("Mot."), as well as his Request for an Evidentiary Hearing (Doc. 21) ("Reply").
The matter was referred to Magistrate Judge John Z. Boyle for a Report and Recommendation. The Magistrate Judge filed his Report and Recommendation on September 25, 2018, recommending that Movant's Motion be denied. (See Doc. 24, R. & R.) He further recommended denying a certificate of appealability because Movant has not made a substantial showing of the denial of a constitutional right. (Id.) Movant filed his Objections to the Report and Recommendation ("Objections") on November 7, 2018. (Doc. 28, Obj. to R. & R.) Having reviewed the record de novo, the Court overrules Movant's Objections, adopts the Report and Recommendation, and denies the Motion.
The background of this case was summarized in the Report and Recommendation and is incorporated herein:
(R. & R. at 2-3.)
Movant filed his Motion and Memorandum of Points and Authorities in Support of Motion ("Memorandum") alleging two grounds of ineffective assistance of counsel on April 5, 2017. (Mot. at 5-6; Doc. 2, Mem. of Points and Authorities in Supp. of Mot. to Vacate, Set Aside or Correct Sentence Under § 2255 ("Mem.") at 2-3.) Respondent, the Government, filed its Response on December 1, 2017. (Doc. 16, Resp.) Movant filed a Reply on February 15, 2018. (Doc. 21, Reply.)
Movant's Motion is timely. Movant's sentences were affirmed on February 29, 2016. See Castro-Ponce, 637 F. App'x 428. The Supreme Court has held that "for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires." Clay v. United States, 537 U.S. 522, 532 (2003). The time for seeking review to the Supreme Court (if no petition for rehearing has been filed in the lower court) expires "90 days after entry of judgment," which is from the "date of entry or order sought to be reviewed, and not from the issuance date of the mandate[.]" Sup. Ct. R. 13(1), 13(3).
A federal prisoner may seek relief under 28 U.S.C. § 2255 if his sentence was "imposed in violation of the United States Constitution or the laws of the United States, . . . was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). When a prisoner moves for post-conviction relief, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a movant files timely objections to the report and recommendation, the district court must make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Id.; see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (stating that the district court is not required "to review, de novo, findings and recommendations that the parties themselves accept as correct").
Movant advances multiple claims alleging ineffective assistance of counsel. To prevail on an ineffective assistance claim, a movant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the second prong, a movant must affirmatively prove prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Movant argues that counsel provided ineffective assistance by failing to object "when a Government agent [Agent Garcia] testified in front of the jury that [Movant] invoked his Fifth Amendment right to remain silent." (Mem. at 12.) Post-Miranda warnings, a suspect may invoke his right to silence at any time during questioning, and that silence may not be used against him at trial (including impeachment). Hurd v. Terhune, 619 F.3d 1080, 1087 (9th Cir. 2010). Here, Agent Garcia commented on Movant's refusal to answer questions after Movant had invoked his right to remain silent, and Movant's counsel should have objected. Counsel's representation fell below the standard of objective reasonableness.
However, the Court agrees with the Report and Recommendation that Movant fails to satisfy the second prong of Strickland. See 466 U.S. at 694-96. The statement made by Agent Garcia was in isolation, was not invoked by the prosecutor, and, ultimately, the weight of the evidence against Movant was compelling. See Castro-Ponce, 585 F. App'x at 577-78; (see also CRDoc. 198 at 244-45). Movant does not address the Report and Recommendation's conclusion regarding this claim in his Objections. (See generally Obj. to R. & R.) The Court adopts the Report and Recommendation with respect to this claim of Ground One.
Movant contends that during the closing argument, the prosecutor "emphasized to the jury many things that [Movant] did not tell agents, after agents specifically told him he could remain silent," and "affirmatively used [Movant's] post-Miranda silence against him during closing arguments." (Mem. at 5, 15.)
Movant argues that counsel provided ineffective assistance by failing to object when the prosecutor engaged in a lengthy discussion concerning the process for obtaining a wiretap authorization, thereby projecting the inference of a "judicial stamp of approval" on the evidence. (Mem. at 16.) "Improper vouching typically occurs in two situations: (1) the prosecutor places the prestige of the government behind a witness expressing his or her personal belief in the veracity of the witness, or (2) the prosecutor indicates that information not presented to the jury supports the witness's testimony." United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002). In the context of wiretap evidence, improper vouching occurs where the government witness "discuss[es] at length the process involved in obtaining a wiretap authorization," thereby implying "that many government attorneys and a federal judge ha[ve] decided that the [defendant] is guilty." United States v. Brooks, 508 F.3d 1205, 1211 (9th Cir. 2007).
The Court agrees with the Report and Recommendation, that even if counsel should have objected, there was ultimately no prejudice. (R. & R. at 8.) Movant does not demonstrate that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been favorable to him. Strickland, 466 U.S. at 694; see also United States v. Sarkisian, 197 F.3d 966, 990 (9th Cir. 1999) ("[E]ven if the prosecutor's statement was improper vouching, we will reverse only if the error was not harmless.") (citing United States v. Edwards, 154 F.3d 915, 923 (9th Cir. 1998)). The Report and Recommendation details the myriad reasons why Movant cannot successfully demonstrate prejudice, and Movant does not address the Report and Recommendation's conclusion regarding this claim in his Objections. (See R. & R. at 10; see generally Obj. to R. & R.) The Court adopts the Report and Recommendation with respect to this claim of Ground One.
Movant first argues that counsel should have objected when a prosecution witness testified that "every phone call a bad guy makes isn't about bad stuff." (Mem. at 25; CRDoc. 195 at 52.) Next, Movant argues that counsel should have objected when a prosecution witness testified that agents "believed" Movant was guilty. (Mem. at 26; CRDoc. 195 at 59.) Counsel did not provide ineffective assistance by failing to object to either statement. With respect to the first statement, the witness was attempting to explain the minimization of phone calls to the jury—namely, that it was inappropriate to intercept phone calls unrelated to the investigation. (CRDoc. 195 at 52-54.) With respect to the second statement, the witness was permissibly stating, based on his own perceptions, his opinion of Movant's role in the drug trafficking organization in a manner that was helpful to the jury and did not require specialized knowledge. See United States v. Torralba-Mendia, 784 F.3d 652, 661 (9th Cir. 2015). And, because the prosecutor did not use the witness's opinion during the closing argument, that single reference was not ultimately prejudicial under Strickland. See 466 U.S. at 694-96. Movant does not address the Report and Recommendation's conclusion regarding this claim in his Objections. (See generally Obj. to R. & R.) The Court adopts the Report and Recommendation with respect to this claim of Ground One.
Movant argues that counsel provided ineffective assistance by failing to object when a prosecution witness testified that David Ochoa-Lugo
Movant argues that counsel provided ineffective assistance by failing to object when the prosecutor referred to the "Castro drug trafficking organization" on six separate occasions during the questioning of a witness. (Mem. at 28-30.) The references to the "Castro drug trafficking organization" were permissible because they furthered the prosecution's goal of distinguishing between two trafficking organizations. (Mem. at 29; R. & R. at 13.) And regardless, whether counsel objected or not, the trial court had wide discretion to admit such evidence. See United States v. Espinosa, 827 F.2d 604, 613 (9th Cir. 1987). The Court concludes that counsel's failure to object did not constitute ineffective assistance. Movant does not address the Report and Recommendation's conclusion regarding this claim in his Objections. (See generally Obj. to R. & R.) The Court adopts the Report and Recommendation with respect to this claim of Ground One.
Movant argues that counsel provided ineffective assistance by failing to object at various points during closing argument.
During closing argument, the prosecutor argued that Movant agreed that Mr. Ochoa-Lugo "was a drug trafficker."
Movant argues that the prosecutor falsely claimed that "TJ," an acquaintance of Movant, was a meth dealer. (Mem. at 32.) Movant argues that counsel should have objected to such "vouching." (Id. at 33.) The Report and Recommendation details the evidence admitted at trial that "TJ" was involved in drug trafficking. (See R. & R. at 15; see also Resp., Ex. K at 6 (a ledger containing an entry, "TJ = 11"); CRDoc. 199 at 129-31 (describing the evidence suggesting "TJ Beltran" was involved with drug trafficking).) Counsel did not provide ineffective assistance by failing to object to the prosecutor's characterization of "TJ." Movant does not address the Report and Recommendation's conclusion regarding this claim in his Objections. (See generally Obj. to R. & R.) The Court adopts the Report and Recommendation with respect to this claim of Ground One.
Movant argues that the prosecutor made a "guilt by association" argument when she "insinuated that Mr. Castro-Ponce was guilty because he rode motorcycles with a pair of purportedly unsavory characters." (Mem. at 34.) Movant, however, fails to account for relevant Ninth Circuit law: proof of prior association between alleged co-conspirators is admissible to demonstrate the alleged association at issue, and as circumstantial evidence that they acted in concert. See United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987). Counsel did not provide ineffective assistance by failing to object to the prosecutor's abovementioned argument. Movant does not address the Report and Recommendation's conclusion regarding this claim in his Objections. (See generally Obj. to R. & R.) The Court adopts the Report and Recommendation with respect to this claim of Ground One.
Movant argues that counsel provided ineffective assistance by eliciting "damaging testimony" from an agent monitoring Movant's activity, who suspected that he was "moving cocaine or methamphetamine." (Mem. at 35; CRDoc. 197 at 24.) Yet Movant neglects to cite the agent's subsequent testimony—also elicited by counsel—which revealed that "not a single phone call was intercepted related to cocaine." (Id.) This line of questioning was designed to "loop back into the defense theory that the government lacked any objectivity and without any proof they were going to prove [Movant] of moving cocaine." (Resp., Ex. F at 4.) As discussed above, simply because a tactical decision made by counsel does not result in a favorable outcome does not mean that counsel provided ineffective assistance. Movant does not address the Report and Recommendation's conclusion regarding this claim in his Objections. (See generally Obj. to R. & R.) The Court adopts the Report and Recommendation with respect to this claim of Ground One.
Movant argues that counsel provided ineffective assistance by failing to object to an agent's rebuttal testimony that was designed to impeach Movant's testimony [where Movant denied on cross-examination that he had engaged in drug transactions with two alleged co-conspirators] by contradiction. (Mem. at 36.) Counsel did not provide ineffective assistance because the evidence at issue was admissible to rebut Movant's trial testimony.
Movant alleges that counsel's failure to obtain the services of a second interpreter gives rise to an ineffective assistance claim. (Mem. at 48.) Movant argues that during the jury trial, "[he] could not communicate . . . with his attorney" because an interpreter was not seated at counsel table. (Id.; id. at 52.)
"A criminal defendant who relies principally upon a language other than English has a statutory right to a court-appointed interpreter when his comprehension of the proceedings or ability to communicate with counsel is impaired. 28 U.S.C. § 1827(d)(1) [Court Interpreters Act]." United States v. Lim, 794 F.2d 469, 470 (9th Cir. 1986). In a criminal case, the requirements of the Court Interpreters Act (the "Act") are satisfied "if an interpreter is by the defendant's side `continuously interpreting the proceedings.'" Id. (quoting United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir. 1980)).
By Movant's own admission, "[d]uring trial, [he] was always provided with a Spanish interpreter so that [he] could understand witnesses and what was being said in court." (Mot., Ex. 3 at 3.) Movant takes issue with the presence—or rather, absence—of an additional interpreter at counsel table. (Id.; Mem. at 47-53.) According to Movant, apart from a few notes, he was unable to communicate with counsel during the six-day trial regarding important matters such as voir dire, witness testimony, Movant's decision to testify (as well as his subsequent testimony), and his alleged sleep deprivation. (See Mot., Ex. 3 at 3-4; Mem. at 52-53.) Movant argues that the Act limits a party's ability to waive his right to an interpreter, and that waiver may only occur where the requirements for doing so are met.
Movant is not wrong. But what Movant's quotation and subsequent analysis leaves out is that while there was no second interpreter, there certainly was an interpreter present during the trial proceedings. (See id.) The continuous presence of that interpreter, among other actions taken by counsel detailed in the Report and Recommendation, more than satisfy the Act.
Here, Movant does not allege an inability to understand court proceedings or communicate with counsel during the trial itself.
Under 28 U.S.C § 2255, the Court shall hold an evidentiary hearing on a movant's motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]" The standard for holding an evidentiary hearing is whether the movant has made factual allegations that, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). Here, the Court determines that an evidentiary hearing is unnecessary because the record conclusively shows that Movant's counsel did not provide ineffective assistance either during the trial proceedings, or with respect to the absence of a second interpreter.
Having reviewed the record de novo, the Court adopts the Report and Recommendation and denies Movant's Motion. The Court agrees with the Magistrate Judge's conclusion that Ground One and Ground Two fail on the merits, and an evidentiary hearing is not required.
