CINDY K. JORGENSON, District Judge.
Pending before the Court is Petitioner Marcos Soto-Mendoza's § 2255 motions. (Docs. 8, 10). The government filed a Response (Docs. 14, 20) and Petitioner a Reply (15, 22).
In April 2013, Petitioner was tried by a jury and convicted of conspiracy to bring five illegal aliens into the United States (Count 1) and illegally bringing each of those five aliens into the United States (Counts 2-6). Petitioner was found not guilty of charges that he was responsible for transporting two illegal aliens to the United States, resulting in their deaths (Counts 7-8). Despite his convictions, Petitioner maintained that he was not the guide for the aliens that had been apprehended.
In Petitioner's presentence report, he was assigned a ten-level enhancement for the deaths of two illegal aliens pursuant to U.S.S.G. § 2L1.1(b)(7)(D). Petitioner's post-trial counsel, Tamara Mulembo, objected to that enhancement claiming that the Supreme Court's ruling in Burrage v. United States, 571 U.S. 204 (2014) precluded enhancements for acquitted conduct. See (Doc. 182).
Petitioner appealed to the Ninth Circuit Court of Appeals and argued, in part, that the Court improperly enhanced his sentence because he was acquitted of the Counts relating to the deaths of the two aliens and, therefore, the Court could not use them to enhance his sentence. See (Doc. 14-1, pg. 77). The Ninth Circuit rejected Petitioner's argument writing:
(Doc. 14-2, pg. 6).
Subsequently, Petitioner filed the pending § 2255 motions alleging that Ms. Mulembo was ineffective "for not taking the position during Petitioners [sic] sentencing that the District Courts [sic] preponderance of the evidence finding was contradictory to the jurys [sic] verdict which produced an absurd result, [sic] that violated both the Fifth and Sixth Amendment rights of Petitioner. . . ." (Doc. 8, pg. 5). Petitioner also filed an amended § 2255 motion alleging ineffective assistance of counsel by his trial counsel, Clay Hernandez. See (Doc. 10). More specifically, Petitioner claimed Mr. Hernandez was ineffective because he failed to investigate Petitioner's statements relating to cell phones recovered from two of the illegal aliens he was convicted of transporting and for allegedly failing to follow Petitioner's trial strategy.
Petitioner advances two arguments in his habeas petition, both relating to the alleged ineffective assistance of his trial and post-trial counsel. To establish an ineffective assistance of counsel claim, Petitioner "must demonstrate both: (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense." Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 688-93 (1984)).
In his amended habeas petition, Petitioner alleges that he overheard two of the aliens he entered the United States with, Juan Garcia and Abad Uriostegui, discussing how to minimize the significance of their roles in transporting themselves, Petitioner, and others to the United States. (Doc. 10, pg. 5). Petitioner states that he informed his trial counsel, Clay Hernandez, that obtaining Mr. Garcia and Mr. Uriostegui's cellular phones was crucial in asserting his defense that he was being guided on the journey to the United States and was not the leader of the trip. Id.
The government opposes Petitioner's argument and attached an affidavit from Mr. Hernandez to its Reply. (Doc. 21-1). In it, Mr. Hernandez states that Petitioner never directed him to obtain cell phone records from all cellular phones seized from the material witnesses and states that only one cellular phone was seized in this case and was determined to belong to Petitioner. Id. That phone was the subject of extensive litigation and was the basis for a Motion for a New Trial filed by Mr. Hernandez after Petitioner was convicted. Id. at 4.
Petitioner claims that that he "made it perfectly clear to [Mr. Hernandez] that he needed to get copies of . . . every cellular phone that was found during the arrest of all individuals, in order to investigate who the owners of those phones were and who was called during the trek from Mexico." Id. at 5. Petitioner also claims that "[he] was prejudiced by the fact that no investigation into the link between Uriostegui and Garcia and the phones recovered from their possession was pursued by defense counsel, as the information gained therefrom could have been used to formulate a proper defense strategy. . . ." Id. at 7.
More specifically, in Petitioner's Motion for a New Trial, he argues that "the government disclosed evidence of a cellular phone the government believed to be taken from the [Petitioner's] person during his arrest. In particular, the government's disclosure included an evidence `log sheet' which indicated that a cellular telephone was collected from the [Petitioner] at the scene of the incident." (Doc. 133, pg. 3).
Petitioner's claim is problematic and does not meet the standard for an ineffective assistance of counsel claim established in Strickland v. Washington. Not only does Petitioner provide no evidentiary support to establish that either Mr. Uriostegui or Mr. Garcia were in possession of a separate cellular phone, he presupposes that their hypothetical phones would contain exculpatory evidence. See (Doc. 10, pg. 7) ("Petitioner was prejudiced by the fact that no investigation into the link between Uriostegui and Garcia and the phones recovered from their possession was pursued by defense counsel. . . ."). Strickland requires that Mr. Hernandez's performance be deficient and prejudicial. Not only does the record indicate that Mr. Hernandez properly investigated and litigated issues related to the single discovered cellular phone, even if he had not, the phone was examined and there is no indication that it contained any exculpatory evidence. Thus, Petitioner's claim of ineffective assistance of counsel pertaining to cellular phones fails.
Petitioner also alleges that during depositions, he directed Mr. Hernandez to ask specific "questions in order to contradict [witnesses'] version of events, and in order to highlight the inconsistencies" in the witnesses' testimony. (Doc. 10, pg. 5). Petitioner states that Mr. Hernandez failed to ask these questions, leading "to a complete breakdown in communication between Mr. Hernandez and [Petitioner]." Id. 5-6. The Court notes that Petitioner did not specify in his pleadings what questions he directed Mr. Hernandez to ask. Petitioner claims that as a result of this, he was forced "to move forward to trial unprepared to defend himself properly" and that "[n]o defense was affirmatively put forward." Id. at 6. Contrary to Petitioner's allegations, Mr. Hernandez states that, in preparation for trial, "[he] had several discussions with [Petitioner] about the incident which resulted in the indictment he was facing. During these discussions, [Petitioner] stated that he was not the guide for the aliens that had been apprehended and/or found deceased in the desert." (Doc. 20-1, pg. 3). Only Mr. Hernandez's version of events is supported by the record.
During trial, Petitioner's testimony was solely focused around his defense that he was not a guide. See (Doc. 138, pg. 66)
Furthermore, in Petitioner's Motion for a new trial, Mr. Hernandez writes:
(Doc. 133, pg. 7-8).
Id. at 8.
As is evident, Petitioner put forth a defense specifically denying his leadership role in guiding the group. Petitioner has advanced zero evidence that Mr. Hernandez ignored his requests or failed to properly prepare him for trial. Petitioner has failed to show that Mr. Hernandez's performance was deficient in any way and Petitioner's argument that Mr. Hernandez was ineffective fails.
Petitioner alleges that his claims involve "[s]everal issues . . . which at the very least justify an evidentiary hearing." (Doc. 22, pg. 1). Ordinarily, "a hearing is not automatically required on every section 2255 petition. Nonetheless, a hearing is mandatory whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner's claims." Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (internal citations omitted).
Here, Petitioner states that an evidentiary hearing is required because of Mr. Hernandez's alleged failure to obtain records and other evidence in order to demonstrate that Petitioner was not culpable as charged. A hearing is required if Petitioner makes "specific factual allegations which, if true, would entitle him to relief." Id. Rather than advance specific factual allegations, Petitioner provides mere conclusory statements that if specific pieces of evidence were recovered, he would be exonerated. However, Petitioner fails to explain why those specific pieces of evidence would exonerate him. For example, Petitioner alleges that he "instructed [Mr.] Hernandez to examine and get copies of the hospital records, and all property seized from anyone arrested relative to this attempt to travel to the USA. This information/evidence would have exonerated Movant." (Doc. 22, pg. 6). Petitioner fails to explain how the hospital records or property seized from those individuals arrested would exonerate him or even what information would be contained within those records.
Similarly, Petitioner alleges that he instructed Mr. Hernandez "to obtain not just the phone [Petitioner] had given [Mr. Uriostegui] — or records of the calls made while in his possession — but the records of all cell phone [sic] seized from parties arrested by the agents." (Doc. 22, pg. 6). Again, Petitioner appears to presuppose the existence of multiple cellular phones without providing any evidence that a cellular phone, other than his own, was recovered during the investigation. The singular cellular phone that was seized was thoroughly inspected, with the phone's contents, including contacts, incoming calls, outgoing calls, text messages, and images being recovered. (Doc. 157, pg. 216-36).
Petitioner also argues that his post-trial counsel, Tamara Mulembo, rendered ineffective assistance of counsel at sentencing.
In his habeas petition, Petitioner argues:
(Doc. 8-1, pg. 1).
Petitioner's argument fails. Contrary to Petitioner's assertion, Ms. Mulembo raised this exact issue in her Reply to Objections to Petitioner's Presentence Report. (Doc. 195).
Therefore, despite Petitioner's assertion that Ms. Mulembo was ineffective for failing to raise an argument pertaining to burdens of proof and Petitioner's Fifth and Sixth Amendment rights, Ms. Mulembo properly raised the argument and the alleged representational error never occurred. Strickland requires deficient performance. There was no such deficient performance and Petitioner's argument fails.
Accordingly, IT IS ORDERED:
