Gonzales v. United States of America
MEMORANDUM OPINION. Signed by Judge C Lynwood Smith, Jr on 3/28/2014. (AHI )
2014 Mar-28 PM 02:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
THE UNITED STATES OF
This is a motion to vacate, set aside, or correct a sentence, brought by a federal
prisoner, pursuant to 28 U.S.C. § 2255.
The movant, Altemio Gonzales, was convicted in this court on July 20, 2007,
of one count of possession with intent to distribute cocaine hydrochloride, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He was sentenced on October 16,
2007, to 240 months in prison to be followed by a 120-month term of supervised
On appeal, Gonzales argued:
1) the district court violated his rights under the Sixth Amendment’s
Confrontation Clause by accepting a stipulation to the identity of the
purported cocaine, to which his counsel had agreed, but to which
Gonzales himself objected; and
2) the district court erred in denying his motion to suppress the
purported cocaine seized from the tractor-trailer in which he was a
passenger, because the combined traffic stop and administrative
inspection of the tractor-trailer was unreasonably long and
unsupported by reasonable suspicion.
On August 5, 2009, the Eleventh Circuit Court of Appeals affirmed Gonzales’
conviction. United States v. Gonzales, 342 Fed. App’x 446 (11th Cir. 2009).
In support of his motion to vacate, Gonzales claims that trial counsel was
constitutionally ineffective because counsel failed to:
1) investigate Officer Gonzalez’s and Hoover Police Department’s
legal relationship with DOT;
2) object to the due process violation and to challenge planted
3) investigate presiding law and present results to rebut prosecutor’s
introduction of the invalid and repealed 1998 Alabama Statute
In response to the court’s order to show cause, the respondent filed an answer
in which he argues that the motion to vacate is due to be denied because the claims
are without merit.2
By order of the court, the parties were advised that the
Doc. no. 3 at 6, 14, 20.
Doc. no. 13.
respondent’s answer would be treated as a motion for summary dismissal.3 The
movant was advised that in responding to the motion for summary dismissal, he must
supply the court with counter affidavits and/or documents to set forth specific facts
showing that there are genuine issues of material fact to be decided. In response, the
movant has filed a traverse.4
The United States Supreme Court has established a national standard for
judging the effectiveness of criminal defense counsel under the Sixth Amendment.
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied upon as having produced a just result.” Strickland v. Washington,
466 U.S. 668 (1984). The Court elaborated:
A convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction or
death sentence has two components. First, the defendant
must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant
Doc. no. 14.
Doc. no. 16.
of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. “Because the [petitioner] must prove both deficiency and
prejudice, a [petitioner’s] failure to prove either will be fatal to his claim.” Johnson
v. Scott, 68 F.3d 106, 109 (5th Cir. 1995) (alterations supplied).
Under the Strickland test, the petitioner must initially show that counsel’s
representation fell below an “objective standard of reasonableness.” Strickland, 466
U.S. at 688. “While it need not be errorless, counsel’s advice ‘must be within the
realm of competence demanded of attorneys representing criminal defendants.’”
Jones v. White, 992 F.2d 1548, 1557 (11th Cir. 1993)(quoting Stano v. Dugger, 921
F.2d 1125, 1151 (11th Cir.)(en banc), cert. denied, 502 U.S. 835 (1991)). In making
such an evaluation, “the court should recognize that counsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Strickland, 466 U.S. at 690. The effectiveness
or ineffectiveness of counsel must be evaluated by consideration of the totality of the
circumstances. Stanley v. Zant, 697 F.2d 955, 962 (11th Cir. 1983), cert. denied, 467
U.S. 1219 (1984).
The second requisite element in a claim of ineffective assistance of counsel is
a showing of prejudice. Even if counsel made an error so egregious as to be outside
the broad scope of competence expected of attorneys, a movant can obtain relief only
if the error caused actual prejudice. Strickland, 466 U.S. at 691-92. In order to
establish actual prejudice, a petitioner must show that “there is a reasonable
probability that but for the attorney’s unprofessional errors, the result of the
proceeding would have been different.” Armstead v. Scott, 37 F.3d 202, 207 (5th Cir.
1994). A reasonable probability is a probability sufficient to undermine confidence
in the outcome of the proceedings. Strickland, 466 U.S. at 694. Furthermore, in
addition to showing that the outcome would have been different, a petitioner must
prove that “counsel’s deficient performance caused the outcome to be unreliable or
the proceeding to be fundamentally unfair.” Armstead v. Scott, 37 F.3d 202, 207 (5th
Cir. 1994)(citing Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993)). “In other words,
a ‘counsel’s unprofessional errors [must] so upset the adversarial balance between the
defense and prosecution that the trial was rendered unfair and the verdict suspect.’”
Weekley v. Jones, 56 F.3d 889, 897 (8th Cir. 1995) (quoting Fretwell, 113 S. Ct. at
842) (alteration in original). “Unreliability or unfairness does not result if the
ineffectiveness of counsel does not deprive the defendant of any substantive or
procedural right to which the law entitles him.” Fretwell, 113 S. Ct. at 844.
Gonzales was indicted on one charge of possession with intent to distribute five
kilograms or more of a mixture and substance containing a detectable amount of
cocaine hydrochloride.5 The cocaine was found during a traffic stop, in an 18wheeler truck in which Gonzales was a passenger.6 Gonzales and his co-defendant
filed motions to suppress the search of the truck. 7 The court conducted a suppression
hearing on June 19, 2007.
Claim 1. Failure to Investigate Officer Gonzalez’s and the Hoover Police
Department’s Legal Relationship with the Department of
During the suppression hearing, Officer Alejandro Gonzalez testified that he
is a police officer for the City of Hoover, in the Interstate Criminal Enforcement unit.8
In describing his training and experience, Officer Gonzalez offered the following:
I’ve had over 700 hours of formalized training in
criminal interdiction. I’ve had -- as far as traffic, I’ve had
40 hours back in Los Angeles County, when I went
through the academy. Also had an eight-hour block in
Georgia where I’m also post-certified in that state. And
here in Alabama, the state of Alabama, about four hours of
formalized just traffic.
As far as commercial motor vehicles, DOT authority
for the Federal Motor Carrier Safety Administration, that’s
a 40-hour block, and in vehicle -- commercial motor
Criminal doc. no. 1. In this Memorandum Opinion, citations to “Criminal doc. no. __”
are to the docket number from the criminal case, 2:07-cr-0177-CLS-JHE.
Criminal doc. no. 32 at 13-23.
Criminal doc. no. 10 and 12.
Criminal doc. no. 32 at 6.
I’ve also had over 200 hours of formalized training
in criminal interdiction, as far as commercial motor
Over 700 hours of formalized training; over 200 in
commercial motor vehicle. I'm also an instructor for the
NHTSA, which is the National Highway Traffic Safety
Administration. I’m a Georgia post-certified instructor.
Also, I’m an EPIC instructor, which is the El Paso
Intelligence Center, which is part of the DEA and
Department of Justice. Also, DIAP, which is the Drug
Interdiction Assistance Program, and is basically a branch
of the Federal Motor Carrier Safety Administration. I’ve
also trained hundreds of local, state and federal agents
throughout the country, both in classroom setting, as well
as hands-on training.9
During the hearing, the court received into evidence Government’s Exhibit 1,
consisting of certificates issued by the United States Department of Transportation,
Federal Motor Carrier Safety Administration, indicating that Officer Gonzalez
successfully completed courses in North American Standard Level I and Level III.10
Gonzalez further testified that the City of Hoover has an agreement with the
Department of Transportation pursuant to which the city assumes responsibility for
inspecting commercial vehicles, specifically 18-wheelers.11 Gonzalez inspects the
Id. at 6-7.
Id. at 11-12; Doc. no. 4-1 at 8-9.
Criminal doc. no. 32 at 42.
trucks under the authority of Ala. Code § 32-9A-3.12 He explained that under the
After you’ve gone through the training, the Director
of Alabama Department of Public Safety authorizes us to
do an inspection. We can stop a truck for no violations,
solely to inspect the truck. And also we can go to place of
business - - which in this case when a truck is moving,
that’s his place of business - - to inspect his paperwork, his
Gonzales claims that “strange indicators showed that Officer Gonzalez lacked
DOT-Qualifications,” so he advised counsel at their first jailhouse meeting and during
the suppression hearing that he needed to investigate Officer Gonzalez’ DOT
qualifications and whether the City of Hoover had an agreement with the DOT to
inspect 18-wheelers.14 Gonzales claims that despite his warnings, counsel agreed to
let Officer Gonzalez testify at the suppression hearing, conceding that Officer
Gonzalez was qualified to testify as an expert.15 Gonzales contends that after he was
convicted, he learned that Officer Gonzalez was not DOT qualified and should not
have been allowed to testify as an expert.16 He alleges that if counsel had pursued the
issue of Officer Gonzalez’ qualifications, he would have learned that Officer
Id. at 63.
Id. at 64.
Doc. no. 3 at 6-13.
Id. at 7.
Id. at 6-13.
Gonzalez was “criminally impersonating a Federal DOT-Official during the stop and
during Petitioner’s Suppression Hearing with both false statements and counterfeited
In response to this claim, Gonzales’ trial attorney, Samuel Ray Holmes,
submitted an affidavit18 in which he states:
This argument is false and without merit. On June 19,
2007, this Honorable Court, held a hearing as to
Defendant’s Motion to Suppress, United States District
Judge U. W. Clemon presiding. During this hearing,
Counsel specifically elicited testimony as to the Hoover
Police Department’s certification and ability to conduct
Department of Transportation inspections. The Honorable
U. W. Clemon at the conclusion of the hearing found that
there were no grounds for suppression of the evidence.19
According to Gonzales, prior to and during the suppression hearing, he told
counsel he was suspicious that Officer Gonzalez was not DOT-certified and requested
that he investigate his credentials. However, at the hearing, the government presented
certificates confirming that Officer Gonzalez was in fact certified by the DOT.
Regardless of whether Gonzales has since learned that the certificates presented by
Id. at 13.
Gonzales argues that Mr. Holmes’ affidavit should be stricken because it did not contain
the words “true and correct under penalty of perjury,” as required by 28 U.S.C. § 1746. Doc. 16 at
9. However, Mr. Holmes’ affidavit is sufficient because it is properly notarized.
Doc. no. 13-2 at 1.
Officer Gonzalez were fraudulent,20 prior
to his conviction, there was nothing more than the movant’s suspicion upon which
counsel could have mounted a challenge to Officer Gonzalez’ credentials. It was not
unreasonable for counsel to accept as valid, the certificates offered by the
government, showing Officer Gonzalez’ training and experience. This claim is due
to be DENIED.
Claim 2. Failure to Object to Due Process Violations during Suppression
Gonzales claims that counsel was ineffective for failing to object to due process
violations that occurred during the suppression hearing.21 Gonzales alleges that his
due process rights were violated by the prosecution’s failure to discover that Officer
Gonzalez had fabricated and presented counterfeit DOT certificates and lied about his
qualifications;22 the prosecution’s use of an “ex-bomb sniffing dog to attempt to
establish ‘probable cause’ after the fact that the unauthorized inspection was
completed and concluded”;23 and the prosecution’s use of “planted” evidence and
photographs of that evidence “for the sole purpose of deceiving the Court and Jury.”24
The court offers no opinion as to whether Officer Gonzalez’ credentials were or are
legitimate or not.
Doc. no. 3 at 14.
Id. at 16.
Id. at 19.
Id. at 17-19.
Gonzales further alleges that his attorney was ineffective for stipulating “with the
Government that an independent drug analysis was not necessary,” despite his
Gonzales first claims that his attorney was ineffective for failing to object to
the prosecution’s failure to discover that Officer Gonzalez had fabricated and
presented counterfeit DOT certificates and lied about his qualifications.26 However,
even assuming that Officer Gonzalez fabricated his DOT certificates and lied about
his qualifications, there is nothing to indicate that the prosecution knew this during
the suppression hearing or that counsel had any reason to know Officer Gonzalez’
credentials were false or that the prosecution knew or should have known they were
false. Thus, counsel was not deficient for failing to raise such an objection. This
claim is due to be DENIED.
Gonzales next claims that counsel was ineffective for failing to object to the
prosecution’s use of an “ex-bomb sniffing dog to attempt to establish ‘probable
cause’ after the fact that the unauthorized inspection was completed and concluded.”27
He argues that once a dog has been trained as a bomb dog, she cannot later be trained
Id. at 19-20.
Id. at 16.
Id. at 19.
as a narcotics dog.28 Deputy Sheriff Tim Sanford, a K-9 handler, testified at the
suppression hearing that his narcotics dog, Tika, was used to search the 18-wheeler
in which the cocaine was found.29 The evidence established that Tika was a trained
narcotics dog.30 There is nothing in the record to indicate that Tika was ever trained
as a bomb dog. Thus, counsel was not deficient in failing to raise a baseless
objection. This claim is due to be DENIED.
Gonzales asserts that counsel was ineffective for failing to object to the
prosecution’s use of “planted” evidence and photographs of that evidence “for the
sole purpose of deceiving the Court and Jury.”31 The movant claims that the
prosecution used photographs of “planted” air fresheners to make it appear that he
was trying to cover up the odor of drugs.32 He further claims that the drugs were
planted because Officer Gonzalez testified that the drugs were found in one bag that
was “almost black,” yet Government’s Exhibits 30 and 31 clearly show two different
bags, one silver and one black.33 He adds that “even more condemning against
Officer Gonzalez is that on the video of the arrest, two men in CIVILIAN clothing
Criminal doc. no. 32 at 72-75.
Id. at 69-72.
Id. at 17-19.
Id. at 18.
are seen walking TOWARDS the tractor-trailer carrying an ‘almost black’ bag,” yet
there is “no recorded evidence showing that the suspected drugs were unloaded from
Gonzales has offered nothing more than speculation that either the air
fresheners or the cocaine were planted in the truck. Officer Gonzalez testified at the
suppression hearing and at trial that the photographs of the air fresheners accurately
depicted how he saw the air fresheners at the time of the traffic stop.35
Officer Gonzalez further testified that he found thirty kilo-size packages of
cocaine in a closet in the cab of the truck.36 Officer Gonzalez found the cocaine in
a duffel bag he described at the suppression hearing as “gray, almost black,”37 and at
trial as “gray-blackish.”38 The duffel bag was admitted into evidence at trial as
Government’s Exhibit 17.39 The government also had Exhibits 40 and 41 admitted
at trial.40 Officer Gonzalez described Exhibits 40, 41, and 42 as being “picture[s] of
the bricks of suspected cocaine and duffel bag, air fresheners inside, the duffel bag
Criminal doc. no. 32 at 39; Criminal doc. no. 101 at 136. Photographs of the air fresheners
were admitted at trial as Government Exhibits 31-39. Criminal doc. no. 101 at 136. Gonzales has
submitted copies of Government Exhibits 31-35 as exhibits in this case. Doc. no. 4-2 at 1-7.
Criminal doc. no. 32 at 38; Criminal doc. no. 101 at 113-116.
Criminal doc. no. 32 at 28.
Criminal doc. no. 101 at 113.
Criminal doc. no. 101 at 116.
Id. at 137.
as well as one of the kilo packages.”41
Gonzales has submitted copies of Government Exhibits 40 and 41.42 He
describes Exhibit 40 as showing a silver bag and Exhibit 41 as showing a black bag.43
Gonzales asserts that Exhibits 40 and 41 show two different bags, neither being the
“almost black” duffel bag described by Officer Gonzalez.44 From this, he reasons that
the “almost black” duffel bag must have been planted in his truck by “two men in
CIVILIAN clothing . . . seen [on the video of the arrest] walking TOWARDS the
tractor-trailer carrying an ‘almost black’ bag.”45 The photocopies of Government
Exhibits 40 and 41 submitted by the movant are unclear at best. However, the court
notes that Officer Gonzalez, upon viewing the original photographs at trial, clearly
stated that the photographs were a fair and accurate depiction of the cocaine and the
duffel bag as he saw them that day.46
There is nothing in the record to suggest that counsel had any basis, at the
suppression hearing or at trial, to suspect that Government Exhibits 31-35, 17, 40 or
41 were anything other than the fair and accurate depictions of the air fresheners and
Doc. no. 4-2 at 6-7.
Doc. no. 3 at 18.
Criminal doc. no. 101 at 137.
the bag of cocaine Gonzalez testified they were. In the absence of any evidence that
either the air fresheners or the cocaine were planted in the movant’s truck, there was
absolutely no basis upon which counsel could or should have made an argument that
they were planted. This claim is due to be DENIED.
Gonzales further alleges that his attorney was ineffective for stipulating “with
the Government that an independent drug analysis was not necessary,” despite his
protests.47 On appeal, Gonzales argued that the “district court violated his rights
under the Sixth Amendment by accepting a stipulation to the identity of the purported
cocaine, to which his counsel had agreed, but to which Gonzales himself objected.”
United States v. Gonzales, 342 Fed. App’x 446, 447 (11th Cir. 2009). The Eleventh
Circuit Court of Appeals held that this court erred in accepting the stipulation. Id. at
448. However, the appellate court found that the error was harmless because they
were “persuaded that the arresting officer’s testimony at trial provided sufficient
grounds for a reasonable jury to conclude that the substance was cocaine.” Id.
Because the arresting officer’s testimony was sufficient for a reasonable jury to
conclude that the substance was cocaine, Gonzales is unable to show that he suffered
prejudice from counsel’s stipulation to the cocaine, even over his protests. This claim
is due to be DENIED.
Id. at 19-20.
Claim 3. Failure to Investigate the Law and Challenge the Validity of Ala. Code
Gonzales claims that his attorney “failed to investigate presiding law and
present results to rebut [the] prosecutor’s introduction of the invalid and repealed
1998 Alabama Statute 32-9A-3” at the suppression hearing. He alleges that:
At Petitioner’s Suppression Hearing, the Prosecutor
asked this Court to take “Judicial Notice” of Alabama
Statute, i.e. § 32-9A-3, which had been REPEALED and
made INVALID. This is the Statute which Officer
Gonzalez stated to this Court that such Statute granted him
the authority to inspect Petitioner’s CMV and Business
Records (DOT-credentials). This Court relied on this
Statute to deny Petitioner’s Suppression Motion. The
Judge at the Suppression Hearing was mislead as to the
validity of this ANNULLED law.48
Gonzales contends that if counsel had “investigated such, he would have
learned that the Prosecution offered BAD LAW via ‘Judicial Notice’ to the court.”49
For the “benefit” of the court, Gonzales informs the court that “the 11th Circuit found
such statute, 32-9A-3, as ‘facially unconstitutional’” in the opinion issued on his
direct appeal.50 However, Gonzales is mistaken. In the opinion issued on his direct
appeal, the court noted in a footnote that “[b]ecause Gonzales did not argue in his
brief that § 32-9A-3 is facially unconstitutional, he has abandoned the issue.” United
Doc. no. 3 at 20.
Id. at 23.
Id. at 23.
States v. Gonzales, 342 Fed. App’x 446, 449 n.1 (11th Cir. 2009)(citation omitted).
The court did not find that the statute was facially unconstitutional; it simply stated
that Gonzales had not raised the constitutionality of the statute in his brief on appeal,
so it was not being considered by the court.
Ala. Code § 32-9A-3 is valid. It has never been repealed, made invalid or
nullified in any way. Counsel was not deficient for failing to argue at the suppression
hearing that the law is invalid. This claim is due to be DENIED.
The motion to vacate is due to be DENIED and DISMISSED. An appropriate
order will be entered.
DONE this 28th day of March, 2014.
United States District Judge
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