CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on Derrick Anthony Sandoval's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. (Doc. # 104.) For the reasons discussed below, the motion is denied.
On December 3, 2014, a jury convicted Mr. Sandoval of: (1) possession of firearms and ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1); (2) possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A); and (4) possession of body armor by a violent felon in violation of 18 U.S.C. § 931. (Doc. # 55.) Mr. Sandoval appealed his conviction on August 27, 2015, and the Tenth Circuit affirmed Mr. Sandoval's conviction on March 3, 2017. (Doc. # 102.) On May 23, 2018, proceeding pro se, Mr. Sandoval timely filed this 28 U.S.C. § 2255 habeas petition, wherein he asserts nine claims for relief arising from an overall allegation that his attorney, R. Scott Reisch, provided ineffective assistance of counsel. (Doc. # 104 at 4-6C.)
Mr. Sandoval is proceeding pro se, therefore, the Court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court is "not required to fashion [a d]efendant's arguments for him where his allegations are merely conclusory in nature and without supporting factual averments." United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Indeed, "[i]t is [not] the proper function of the district court to assume the role of advocate for the pro se litigant." Hall, 935 F.2d at 1110; Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a [movant's] complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the [movant] in the absence of any discussion of those issues."). Further, pro se litigants are still subject to the Federal Rules of Civil Procedure. Abdelsamed v. Colorado, 6 F. App'x 771, 772 (10th Cir. 2001).
The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The Supreme Court has recognized that "the right to counsel is the right to the effective assistance of counsel" and has set forth two factors to assess whether a particular counsel's representation was constitutionally ineffective. Strickland v. Washington, 466 U.S. 668, 686-87 (1984).
First, Mr. Sandoval must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. This is no easy proposition, as "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Otherwise, "it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002). Further, Mr. Sandoval "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 164 (1955)). A court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690.
Second, Mr. Sandoval must identify acts or omissions made by the attorney that resulted in prejudice to him. Id. A defendant is prejudiced when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "The proper focus is on whether counsel's ineffectiveness rendered the proceedings fundamentally unfair or unreliable." LaFevers v. Gibson, 182 F.3d 705, 724 (10th Cir. 1999) (citing Lockhart v. Fretwell, 506 U.S. 364, 369-73 (1993)).
To support his § 2255 claim of ineffective assistance, Mr. Sandoval asserts his trial counsel failed to: (1) object regarding whether fleeing and eluding was a valid predicate violent crime; (2) object regarding whether conspiracy to commit menacing was a valid predicate violent crime; (3) object regarding whether Mr. Sandoval was a violent offender and subject to an "enhancement" for possession of body armor; (4) allow him to testify in his own defense; (5) object regarding whether his prior drug offense was serious; (6) present the rule of lenity; (7) defend him by agreeing with the prosecution that Mr. Sandoval is a career criminal; (8) investigate his "background"; and (9) preserve his due process rights. (Doc. # 104 at 4-6C.)
While Mr. Sandoval makes a general argument for ineffective assistance of counsel, some of his claims fail to show how his counsel acted unreasonably, other claims fail to show prejudice, and three claims are procedurally defaulted from consideration. The Court considers each claim in its appropriate section below.
The Court finds that in in Claims 1-3 and 5-8, Mr. Sandoval has not met the first component of the Strickland test—that his counsel's representation fell below an objective standard of reasonableness.
Most of Mr. Sandoval's allegations challenge his counsel's strategic trial decisions. The decision of which witnesses to interview or subpoena, what pre-trial motions to file, when to object during a court proceeding, and what legal arguments to raise at sentencing are quintessentially matters of strategy for the trial attorney. DeLozier v. Sirmons, 531 F.3d 1306, 1323-24 (10th Cir. 2008); Yarrington v. Davies, 992 F.2d 1077, 1080 (10th Cir. 1993). An attorney is "entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies." Harrington v. Richter, 562 U.S. 86, 107 (2011); see Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008). A defendant "may prevail on an ineffective assistance claim relating to trial strategy only if he can show counsel's strategy decisions would not be considered sound." Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995).
Although displeased with his attorney's performance, Mr. Sandoval does not adequately demonstrate in the following seven claims how his attorney's strategic decisions were objectively unsound.
Mr. Sandoval alleges his counsel was ineffective for failing to object to the trial court's determination that Mr. Sandoval's felony conviction for conspiracy to commit vehicular eluding as an offense that qualified him for the armed career criminal enhancement provided in the United States Sentencing Guidelines Manual ("U.S.S.G."), § 4B1.4. (Doc. # 104 at 4.)
On February 9, 2015, Mr. Reisch did file an objection to the presentence investigation report, wherein he challenged this qualification. (Doc. # 70 at 4-5.) Following the Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015), the probation officer revised Mr. Sandoval's presentence report to omit the armed career criminal enhancement. (Doc. # 72 at 1.) Although the armed career criminal enhancement was omitted, the trial court clarified that Mr. Sandoval still qualified as a career criminal under U.S.S.G. § 4B1.1
The Court agrees with the Government that the trial court properly determined that Mr. Sandoval's prior conviction for conspiracy to commit vehicular fleeing and eluding was a crime of violence. In United States v. Atkins, the Tenth Circuit found the "Colorado crime of vehicular eluding constitutes a crime of violence." 379 F. App'x 762, 764 (10th Cir. 2010) (unpublished). Therefore, Mr. Reisch was reasonable to accept the trial court's finding that Mr. Sandoval was a career criminal pursuant to U.S.S.G. § 4B1.1 without further objection.
Next, Mr. Sandoval asserts his trial counsel was ineffective for failing to object to the use of his prior felony conviction for conspiracy to commit menacing as a violent crime predicate under the career offender guidelines. (Doc. # 104 at 5.) During sentencing, Mr. Sandoval affirmed that he reviewed the presentence report that contained the menacing charge, affirmed that his trial counsel explained the contents of that report to Mr. Sandoval, and affirmed that he understood the contents of the report. (Doc. # 94 at 5.) When the trial court subsequently addressed the career offender classification, Mr. Reisch then agreed that "based upon [Mr. Sandoval's] criminal history," Mr. Sandoval still qualified as a career offender. (Id.)
A "crime of violence" may include any offense that "has an element [of] the use, attempted use, or threatened use of physical force against the person of another" and thus includes conspiring to commit qualifying offenses. U.S.S.G. § 4B1.2(a)(1), note 1. Under Colorado law, a person commits the crime of menacing when he "knowingly places or attempts to place another person in fear of imminent serious bodily injury." Colo. Rev. Stat. Ann. § 18-3-206. Mr. Sandoval was convicted for conspiracy to commit menacing after he threatened and pointed a knife at his ex-girlfriend's cousin, which fits the definition of a crime of violence by attempting or threatening to use physical force against another person. (Doc. # 71 at 21.) Thus, Mr. Reisch was reasonable to accept this prior conviction as a crime of violence.
Mr. Sandoval claims Mr. Reisch acted unreasonably when he failed to object to the enhancement to his sentence for possession of body armor.
As an initial matter, the Court observes that Mr. Sandoval did not receive an "enhancement" for possession of body armor under the United States Sentencing Guidelines. Instead, Mr. Sandoval was convicted at trial for possession of body armor by a violent felon in violation of 18 U.S.C. § 931. (Doc. # 55 at 2.)
Conviction of a felony that is a crime of violence is a necessary element of Mr. Sandoval's fourth conviction for possession of body armor.
As previously discussed by the Court, Mr. Sandoval's prior convictions of conspiracy to commit vehicular eluding and conspiracy to commit menacing are crimes of violence. Thus, by persuading the government to agree to a simple stipulation that Mr. Sandoval had been convicted of a prior crime of violence, Mr. Reisch acted reasonably because such a stipulation blunted the impact of having multiple crimes and the underlying facts relating to these crimes admitted into evidence.
Mr. Sandoval relies on Johnson, 135 S.Ct. 2552, and "Dimaya v. U.S."
Mr. Sandoval has a prior felony conviction for possession with intent to distribute a Schedule II controlled substance. (Doc. # 71 at 22-23.) In his fifth claim, he asserts Mr. Reisch provided ineffective assistance of counsel by failing to object to this prior conviction being classified as a serious drug offense, which then served as a violent crime predicate for Mr. Sandoval's classification as a career offender. (Doc. # 104 at 6A.) He further argues in his seventh claim that his counsel acted unreasonably when Mr. Reisch agreed that Mr. Sandoval was a career criminal, partially based on the predicate serious drug offense. (Doc. # 104 at 6B).
U.S.S.G. § 4B1.2, which defines terms used in § 4B1.1, states a "controlled substance offense" is "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the . . . distribution, or dispensing of a controlled substance . . . with intent to . . . distribute. . . ." Mr. Sandoval's prior drug offense of possession with intent to distribute fits this definition because Mr. Sandoval paid someone to repair his motorcycle with methamphetamine. Mr. Reisch had no legal basis to support an objection to the trial court's determination that Mr. Sandoval's prior drug offense was a serious drug offense and that Mr. Sandoval was properly classified as a career criminal. As such, his failure to object was reasonable.
Mr. Sandoval alleges that his trial counsel acted unreasonably when he failed to present the Rule of Lenity as a basis for excluding Mr. Sandoval's prior drug trafficking offense as a predicate for the career offender enhancement. (Doc. # 6A.)
"The rule of lenity applies where a statute is facially ambiguous and resort to the legislative history does not reveal the congressional intent of the language." United States v. Wilson, 10 F.3d 734, 736 (10th Cir. 1993) (citing Ladner v. United States, 358 U.S. 169 (1958)). "This rule, however, is not to be invoked lightly. It is not applicable unless `there is a grievous ambiguity or uncertainty in the language and structure of the Act.'" Id. (quoting Chapman v. United States, 111 S.Ct. 1919, 1926 (1991) (further citations and internal punctuation omitted)). "The rule of lenity may not be invoked to manufacture ambiguity." United States v. Oxx, 127 F.3d 1277, 1279 (10th Cir. 1997) (citing Albernaz v. United States, 450 U.S. 333, 342 (1981)).
The applicable sentencing definition is not ambiguous. Under U.S.S.G. § 4B1.1(a), "[a] defendant is a career offender if . . . the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." As explained above, U.S.S.G. § 4B1.2 clearly defines a controlled substance offense. "A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses." United States v. Water Supply & Storage Co., 546 F.Supp.2d 1148, 1151 (D. Colo. 2008) (quoting McGraw v. Barnhart, 450 F.3d 493, 498 (10th Cir.2006)). It is unambiguously clear that Mr. Sandoval's prior drug offense fits the definition of a controlled substance offense. Therefore, Mr. Reisch acted reasonably when he did not argue the rule of lenity to the court.
Mr. Sandoval claims Mr. Reisch provided ineffective assistance of counsel by failing to investigate Mr. Sandoval's background. However, Mr. Sandoval does not provide any support or explanation for this claim. (Doc. # 104 at 6B.)
Though defense attorneys have "a duty to investigate in all cases, and to determine whether there is a sufficient factual basis for criminal charges," Mr. Sandoval fails to explain how it is that Mr. Reisch did not meet this duty. See CRIMINAL JUSTICE STANDARDS FOR THE DEFENSE FUNCTION STANDARD 4-4.1(A) (AM. BAR. ASSOC. 2018). Therefore, this claim fails.
Mr. Sandoval has also not established the second prong of the Strickland test— that any purported error by his counsel was prejudicial. Mr. Sandoval generally asserts he suffered the prejudice of having an enhanced sentence due to his classification as a career criminal and the failure of his counsel to object to this classification. (Doc. # 104.) As discussed above, the trial court's conclusion that he is a career criminal is sound.
In certain circumstances, prejudice can be presumed if a defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." Strickland, 466 U.S. at 692 (citing Cuyler v. Sullivan, 466 U.S. 335, 349-350 (1980)). Mr. Sandoval does not raise either of those contentions here, nor does he provide this Court with any other facts or argument to support the prejudice prong of the Strickland test.
Mr. Sandoval is not prejudiced by stipulating that he was a violent felon for purposes of his body armor conviction. Moreover, Mr. Sandoval is not serving any additional time in prison as a result of this conviction. (Doc. # 75 at 3.) Instead, Mr. Sandoval's sentence for this conviction runs concurrently with his convictions for Counts 1 and 2. (Id.)
If a defendant does not raise a claim on direct appeal, that claim is generally barred from collateral review unless he can demonstrate "cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed." United States v. McGaughy, 670 F.3d 1149, 1159 (10th Cir. 2012) (citing United States v. Hollis, 552 F.3d 1191, 1193-94 (10th Cir. 2009)); United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).
Next, Mr. Sandoval argues that Mr. Reisch was ineffective and violated his substantive and procedural due process rights because he did not allow Mr. Sandoval to testify in his own defense. (Doc. # 104 at 6, 6C.)
"Criminal defendants have a right to testify in their own behalf." Rock v. Arkansas, 483 U.S. 44, 44 (1987). "The decision whether to testify [lies] squarely with the defendant; it is not counsel's decision." Cannon v. Mullin, 383 F.3d 1152, 1171 (10th Cir. 2004). "A defendant must alert the trial court that he desires to testify or that there is a disagreement with defense counsel regarding whether he should take the stand." United States v. Webber, 208 F.3d 545, 550 (6th Cir. 2000). "When a defendant does not alert the trial court of a disagreement [with his counsel regarding his right to testify], waiver of the right to testify may be inferred from the defendant's conduct." United States v. Williams, 139 F. App'x 974, 976 (10th Cir. 2005) (quoting Webber, 208 F.3d at 550).
Although Mr. Sandoval alleges he did not testify because Mr. Reisch threatened to withdraw from his case if he chose to testify, Mr. Sandoval never notified the Court nor the Court of Appeals of this allegation. The Court notes there is nothing in the record to indicate Mr. Sandoval ever raised this issue with the trial court. Moreover, the Court notes that, in his direct appeal in this case, Mr. Sandoval did not raise this issue. (Claim 4 and 9). (Doc # 102.) Mr. Sandoval also fails to adequately address how he has been prejudiced nor does he argue that enforcing a procedural default would lead to a potential miscarriage of justice in his case. Therefore, the Court finds Mr. Sandoval waived his right to assert this claim as a basis for habeas relief.
The Court accordingly finds that Claims 4 and 9 are procedurally defaulted.
A certificate of appealability is warranted only if petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Such a showing may include a demonstration that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
In this case, Mr. Sandoval alleged his substantive and procedural due process rights were violated. (Doc. # 104.) However, Mr. Sandoval failed to argue or present evidence of how and why his rights were violated for all the reasons stated above.
On review of petitioner's motion and the record of this case, the Court concludes that a certificate of appealability is not warranted in this case.
Based on the foregoing, Mr. Sandoval's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. # 104) is DENIED.
