Lara v. United States of America
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/23/2015. (JLC)
2015 Sep-23 PM 04:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOAQUIN LARA JR.,
UNITED STATES OF AMERICA,
Case No.: 4:14-CV-8003-VEH
Petitioner Joaquin Lara, Jr. a federal inmate proceeding pro se, has filed a
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Having carefully considered Petitioner's motion, the memoranda in support thereof,
the memorandum in opposition, the reply, and the record, the undersigned finds that
no evidentiary hearing is required, that this action is due to be dismissed, and that
judgment is due to be entered in favor of Respondent, the United States of America,
and against Petitioner, Joaquin Lara, Jr.
I. FACTUAL AND PROCEDURAL BACKGROUND1
All references to documents in this portion of the opinion are to documents filed in the
related criminal case, 4:10-cr-484-VEH-RRA.
On December 29, 2010, Lara was indicted for: conspiracy to possess with
intent to distribute and possess with intent to distribute 50 grams or more of
methamphetamine in violation of 21 U.S.C. § 846 (Count 1); and distribution of a
mixture and substance containing a detectable amount of methamphetamine on two
separate occasions in violation of 21 U.S.C. § 841(a)(1) (Counts Two and Five).
Attorney Donald L. Colee, Jr. was appointed to represent Lara and
represented him during the trial of this case and on direct appeal. The trial
commenced on May 23, 2011. At the close of the Government’s case, Lara, through
counsel, moved for a judgment of acquittal. The court reserved ruling. Lara’s
counsel also moved for a mistrial. The mistrial motion was denied. On May 25,
2011, the jury found Lara guilty of all three counts against him (Counts 1, 2, and 5).
Following the trial, Attorney Colee filed a Motion for New Trial (doc. 73)
and a renewed Motion for Judgment of Acquittal (doc. 74). The Government filed a
combined response to both motions. (Doc. 88). The court denied both motions.
Attorney Colee filed objections to the presentence investigation report
(“PSR”). (Docs.103 and 104). A sentencing hearing was conducted on October 12,
Attorney Colee objected to application of the enhancement under Section
3B1.1(c) of the sentencing guidelines. The Government argued that the enhancement
was proper as Lara was a manager or supervisor of co-conspirators Omar Franco
Perez and Hector Favian Tafolla regarding the delivery of drugs. The Government
specifically referenced the trial testimony of Officer Acquaviva that, when the drug
purchase with Tafolla was being set up, a man came on the telephone to cancel the
deal. The Government argued that it was reasonable to infer that that man was Lara.
Mr. Colee responded and pointed out that the voice was not identified as Lara’s
voice. The court sustained this objection and found that the Government had not
shown, by a preponderance of the evidence, that Lara was a manager or supervisor.
Attorney Colee’s other objection was not to the existence of the prior drug
offenses set out in the Section 851 information, but rather that the use of such
offenses to enhance Lara’s sentence constituted“double jeopardy.” As explained by
Attorney Colee at the sentencing hearing, this objection was made before the court
had denied Lara’s post-trial motions, and would only properly be before the court if
the court had granted Lara’s motion for judgment of acquittal as to the conspiracy
count (Count One). Because the court had denied Lara’s post-trial motions,
Attorney Colee agreed that the objection was not properly before the court at
sentencing. Accordingly, the objection was preserved in the event that the jury
verdict was over-turned on appeal. (Doc. 114, Sentencing Hearing Transcript, at p.
8, l. 24 - p. 10, l. 4).
The court then imposed the statutory mandatory minimum sentence of life as
to Count One and a sentence of 120 months on Counts 2 and 5 separately, with each
count -- 1, 2, and 5 -- to be served concurrently with the other. In addition, 10 years
supervised release and a special assessment of $300 were imposed. (Doc. 114).
On October 13, 2011, Lara, through Attorney Colee, filed a written Notice of
Appeal. (Doc. 109). In his direct appeal, Lara argued that the district court
committed reversible error by admitting into evidence out-of-court statements made
by three of his alleged co-conspirators, Karen Hernandez, Omar Perez, and Hector
Tafolla. He contended that the statements were made during the course of, and in
furtherance of, two smaller drug distribution conspiracies to which he was not a
party, and, therefore, that the district court abused its discretion by admitting the
statements pursuant to Federal Rule of Evidence 801(d)(2)(E). (See Doc. 118,
Eleventh Circuit Opinion & Judgment).
On July 17, 2012, the Eleventh Circuit Court of Appeals affirmed Lara’s
conviction and sentence, and the mandate of the appellate court issued August 16,
2012. (Id.) That court found
The district court did not clearly err in determining that the
government had demonstrated, by a preponderance of the evidence,
that an overarching single conspiracy existed between Apri1 20l0 and
December 2010 for the purpose of distributing methamphetamine; that
Lara was a party to the conspiracy at the time of Hernandez, Perez, and
Tafolla's statements in June 2010, and that these statements were made
during the course of and in furtherance of the conspiracy. Thus, the
district court did not abuse its discretion by allowing the government to
use these co-conspirators' statements at trial.
(Doc. 118 at 5) (internal citation omitted)(footnotes omitted). On February 25, 2013,
the Supreme Court of the United States denied Lara’s pro se petition for writ of
certiorari. (See Doc. 120, Supreme Court Order).
On January 15, 2014, Lara filed the instant pro se motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1 in 14-8003). In
support of his request for habeas relief, Lara alleges several instances of ineffective
assistance of Attorney Colee at trial and on appeal (Id.) The Government filed a
Response in opposition to Lara’s motion to vacate, set aside, or correct sentence,
alleging that Lara’s § 2255 motion is due to be denied because Lara failed to show
how Attorney Colee’s performance was constitutionally deficient. (Doc. 4 in 148003). On February 28, 2014, Lara filed a Reply in support of his motion. (Doc. 6 in
II. APPLICABLE STANDARDS
Collateral review is not a substitute for direct appeal; thus, the grounds for
collateral attack on final judgments pursuant to § 2255 are extremely limited. A
prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1)
violated the Constitution or laws of the United States, (2) exceeded its jurisdiction,
(3) exceeded the maximum authorized by law or (4) is otherwise subject to
collateral attack. 28 U.S.C. § 2255; Thomas v. Crosby, 371 F.3d 782, 811 (11th
Cir.2004); Hill v. United States, 368 U.S. 424, 426–27, 82 S.Ct. 468, 7 L.Ed.2d
417 (1962)). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of
constitutional rights and for that narrow compass of other injury that could not have
been raised in direct appeal and would, if condoned, result in a complete
miscarriage of justice.’” Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir.2004) (citations omitted).
Further, absent an intervening change in controlling law, issues raised and
considered on direct appeal cannot be relitigated through a Section 2255 petition.
See United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir.2000) (“Once a matter
has been decided adversely to a defendant on direct appeal it cannot be re-litigated
in a collateral attack under section 2255” (alteration, citation, and quotation marks
A defendant can avoid a procedural bar only by establishing one of the
two exceptions to the procedural default rule. Under the first exception, a
defendant must show cause for not raising the claim of error on direct appeal
and actual prejudice from the alleged error. Under the second exception, a
court may allow a defendant to proceed with a § 2255 motion despite his
failure to show cause for procedural default if “ ‘a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’ ”
Id. at 1234-35 (internal citations omitted). A meritorious claim of ineffective
assistance of counsel can constitute cause. United States v. Nyhuis, 211 F.3d at
To prevail under Strickland on a claim of ineffective assistance of trial
counsel, a petitioner must show that (1) counsel’s performance was so deficient that
“counsel was not functioning as the ‘counsel’ guaranteed” by the Sixth Amendment
and (2) that counsel’s performance prejudiced the defense to the extent that the
defendant was deprived of a fair, reliable trial. Strickland v. Washington, 466 U.S.
668 at 687, 104 S. Ct. 2052 at 2064 (1984). A court need not conduct this analysis
in a particular sequence, and a court need not address both prongs if a petitioner
fails to make a required showing on one of them. Id. at 697, 104 S. Ct. at 2069.
Establishing deficient performance requires the petitioner to demonstrate that
“‘counsel’s representation fell below an objective standard of reasonableness.’”
Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787 (2011) (quoting
Strickland). A court applies a strong presumption that counsel’s representation fell
within the wide range of reasonable professional conduct. Id. To show prejudice, a
petitioner “must demonstrate ‘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. (quoting Strickland). Claims of ineffective assistance of appellate
counsel are evaluated under the same Strickland standards. Philmore v. McNeil,
575 F.3d 1251, 1264 (11th Cir. 2009) (per curiam).
“Conclusory allegations of ineffective assistance are insufficient.” Wilson v.
United States, 962 F.2d 996, 997 (11th Cir.1992) (internal quotes omitted). In
addition, “the failure to raise nonmeritorious issues does not constitute ineffective
assistance” of counsel. Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.1994).
Rather, an attorney's performance may be found ineffective in the constitutional
sense only if “counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.
All references to document numbers in this portion of the court’s opinion are to the
pending civil action, 4:14-cv-08003-VEH, unless otherwise noted. All references to page numbers
are to the pagination assigned by the court’s electronic filing system.
As explained supra, absent an intervening change in controlling law, once a matter has
been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral
attack under section 2255. Lara has not even identified, much less argued, any intervening change
in controlling law regarding the issues decided by the Eleventh Circuit during his direct appeal,
specifically: (1) that the Government had proven the existence of an overarching single conspiracy
between Apri1 20l0 and December 2010 for the purpose of distributing methamphetamine; (2)
As noted supra, Lara filed a pro se motion to vacate, set aside, or correct
sentence pursuant to § 2255 and supporting memorandum, on or about January 15,
2014. (Doc. 1). In his motion, he alleges that his counsel was constitutionally
ineffective both at trial and on appeal. According to Lara, his counsel's
constitutionally ineffective assistance entitles him to the relief afforded by 28 U.S.C.
§ 2255. He develops this allegation in multiple subparts.4 In its Response (Doc. 4),
the Government used the same paragraph numbers as Lara. The undersigned will do
the same as to the issues raised by Lara and responded to by the Government.
3) Trial counsel, Attorney Colee, did not investigate or explore
possible defenses, nor did he consult with Petitioner about possible
defenses. Attorney Colee did not file a motion for expert voice analyst.
He did not interview informant witnesses. He failed to allege facts to
establish a credible defense and standing at a suppression/motion in
limine hearing. He failed to present rebuttal witnesses. He failed to
ask proper questions on cross examination. He failed to object to the
that Lara was a party to the conspiracy at the time of the statements made by Hernandez, Perez,
and Tafolla in June 2010, and (3) that these statements were made during the course of and in
furtherance of the conspiracy and accordingly were admissible co-conspirators' statements.
Lara also filed a reply to the Government’s response. Doc. 6, filed February 28, 2014.
The undersigned has considered and incorporated arguments made in Lara’s reply into the
paragraph numbering used in the initial motion and the Government’s response to that motion.
Paragraphs 1 and 2 as set out in Lara’s brief (attached to his motion) are general
statements that are more specifically addressed elsewhere in his pleadings and therefore are
appropriately addressed later in this opinion when discussing those arguments. Further, many of
Lara’s allegations are repeated throughout the 48-page brief attached to his motion. The court has
addressed each contention, but has attempted to do so only once.
jury instructions on a single conspiracy rather than multiple
(Doc. 1 at 27, 33).
Several of these complaints lack specificity and are simply generalized
statements for which no support in fact or law is given. For instance, Lara identifies
no exculpatory or otherwise helpful “facts” that Attorney Colee could have
discovered, nor does he identify any “defenses” that Attorney Colee should have,
but did not, explore, nor any rebuttal witnesses that he should have called.
Further, the allegations that Attorney Colee did not explore, or consult with
Lara about, possible defenses is clearly rebutted by Attorney Colee’s affidavit (doc.
4-1), attached to the Government’s response. In that affidavit, Attorney Colee
clearly lays out the defense strategy that was agreed upon by Attorney Colee and
Lara. As Attorney Colee states, and a review of the court records confirms, Lara
was charged in Count One with a general conspiracy with four other co-defendants.
(Doc. 4-1 at 1). He was charged in Counts Two and Five with specific acts of
distribution. (Id.). The distribution act charged in Count Two was recorded and
Lara’s voice could be heard on that recording. (Id.). Additionally, the purchaser of
the drugs relating to Count Two was an informant who knew Lara. (Id.). That
informant was going to testify about the events in Count Two. (Id.). Lara had two
prior serious drug offenses and therefore was facing enhancements under Section
851 that would result in a mandatory life sentence. (Id.) (See also, doc. 31 in
4:10-cr-00484-VEH-JHE, Information Relating to Previous Felony Drug
Convictions (alleging two prior felony drug convictions)). As stated by Attorney
In looking at all the evidence in the case[,] Lara and I decided that our
best course of action was to acknowledge the acts in count two (2)[,]
but argue that they were acts totally separate from the conspiracy
allegations in count one (1). We also decided we would challenge all of
the other evidence[,] including count five’s allegations of a specific
distribution that Lara made. This particular distribution was [video]
recorded. However, Lara’s voice did not appear on the recording [as to
Count Five]. The only evidence that tied Lara to this [Count Five]
transaction was from his co-defendant Jashua Deleon, who was a
friend of his. If we were successful and he was only found guilty of
count two (2)[,] he would not be facing the mandatory punishment of
life imprisonment without parole. This was an agreed upon strategy and
was quite frankly our only hope of avoiding the life without parole
(Doc. 4-1 at 1).
Lara does not say why a voice expert would help as to Count Two, and the
court can discern no reason, as an informant was going to testify that the recorded
distribution was by Lara to that very informant. Lara asserts that the distinctiveness
of his voice was never an issue at trial, and he is correct in that assertion. Because
the informant, who participated in the recorded drug transaction, testified that Lara
was speaking, there was no need to discuss Lara’s voice. Attorney Colee’s response
points out both that fact and additionally states that any challenge to that informant’s
identification of Lara’s voice would have been made more difficult (in Attorney
Colee’s professional judgment) because Lara’s voice was distinctive. In light of
these facts, Lara has failed to show why a voice expert would have helped him
contest the charge against him in Count Two. Further, Lara’s voice was not even on
the video recording of the distribution charged at Count Five,6 so there is no basis
for Lara to claim that a voice expert was needed to help him contest that charge
Counsel is presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. See
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. This court will not second guess
Attorney Colee’s trial strategy and sees no possible harm from the failure to call a
voice expert under the facts of this case.7
Similarly, counsel is not ineffective for failing to raise a non-meritorious
objection. Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001). Failure to raise a
There was no audible voice recording of this transaction.
Additionally, the court would have to speculate that such an expert would say the voice
on the recorded distribution was not Lara’s.
meritless issue cannot prejudice a client. United States v. Winfield, 960 F.2d 970,
974 (11th Cir. 1992). Lara asserts that Attorney Colee was constitutionally
ineffective for failing to challenge the authenticity of both of the tapes.8 (Doc. 6 at 58). He specifically criticizes Attorney Colee’s failure to “question Officer
Abercrombie regarding the handling or authenticity of the recorded tape [of the
April 30, 2010 transaction]. (Id. at 6). However, the informant participated in that
the April 30, 2010 transaction9 was the person who recorded it and she testified that
the recording was accurate. (Trial transcript at 266, 291). She also testified that the
“male voice ... heard on that recording” was Mr. Lara’s. (Id. at 267). There is no
requirement that another witness also authenticate the recording. That same
informant participated in and recorded the June 1, 2010 transaction10 and testified
that that recording was accurate. (Id. at 271). One of the cooperating coconspirators participated in and authenticated the November 30, 2010 meeting that
was recorded.11 (Id. at 367) He testified that, during that meeting, he, another coconspirator, Lara, and a confidential informant set up the drug transaction that
Lara relies on FED. R. EVID. 901.
Government’s trial exhibit 1.
Government’s trial exhibit 2.
Government’s trial exhibit 3.
occurred on December 1, 2010. (Id. at 376). The authenticity of each of the
recordings was established by a witness with personal knowledge and an objection
to any of them on that basis would have been fruitless. Therefore, failure to make
such an objection was not ineffective assistance.
Lara’s complaint that Attorney Colee failed to allege facts to establish a
credible defense and standing at a suppression/motion in limine hearing simply
makes no sense. No motions to suppress were filed and Lara has not identified any
bases for such a motion to succeed. A motion in limine hearing does not require
standing. Lara states that Attorney Colee should have moved to exclude the
recordings under Rule 901 as not properly authenticated. However, for the reasons
stated in the prior paragraph of this opinion, the court finds that the recordings were
properly authenticated at trial. Thus, any such motion would have failed.
The court notes that Attorney Colee made several objections throughout the
proceedings that multiple conspiracies --- rather than a single conspiracy — were at
issue. He argued it when objecting to certain statements as hearsay. (Trial transcript,
Vol. 1, p. 4, l. 5). He argued it during a lengthy pre-trial hearing on his motion in
limine to keep out certain statements and evidence. (Id. at 59-67, 178-244). He
renewed his objection and motion in limine and argued in support of multiple
conspiracies at the end of the government’s case. (Id. at 494, l.12-p. 498, l.3, p.
502-530). These objections and arguments are entirely consistent with Attorney
Colee’s description of his agreed-upon-with-Lara trial strategy. While Lara asserts
that Attorney Colee was consitutionally ineffective because “[h]e failed to object to
the jury instructions on a single conspiracy rather than multiple conspiracies,” the
court rejects this argument because Attorney Colee preserved for appeal the
argument that insufficient evidence was presented to show a single conspiracy —
rather than multiple conspiracies — existed. The Eleventh Circuit’s decision on
Lara’s direct appeal affirmed this court’s determination that a single conspiracy was
shown at trial. Lara has failed to show that Attorney Colee’s trial conduct was
ineffective for his failure, under these circumstances, to object to the court’s jury
Lara has pointed to no failure by Attorney Colee to exclude evidence that was
properly excludable.12 The record also reflects that Mr. Collee’s overall
performance during trial was entirely professional, thorough, and appropriately
aggressive. In addition, the record reflects that he was knowledgeable of the facts of
the case, made appropriate objections, and moved for judgment of acquittal at the
close of the Government's case-in-chief and renewed the motion for judgment of
While Lara argues that “there was insufficient evidence connecting him to any
conspiracy as to Count One, Two, and Five” (doc. 6 at 10), the Eleventh Circuit decision on
Lara’s direct appeal is to the contrary. This argument is procedurally barred.
acquittal at the close of all the evidence. Lara has failed to show that his counsel
was deficient in his performance on these grounds.
4-7) Counsel failed to consult with Lara as to the trial strategy [to
concede guilt on Count Two and to argue innocence/insufficient
evidence to convict as to Counts One and Five]. Petitioner claims that
he was surprised when trial counsel admitted his guilt as to Count
As stated above, Attorney Colee’s affidavit establishes that this was part of
the trial strategy about which Attorney Colee consulted Lara and to which Lara
agreed. Lara contends that Attorney Colee ‘s “trial defense strategy was leading the
jury to believe that his client is innocent of the conspiracy, and then upon the closing
argument, concedes that his client is guilty to Count Two (2), which contradicts
the defense he’s been arguing throughout the trial.” (Doc. 6 at 4). However, this is
exactly the defense strategy that Attorney Colee outlined to the court in his oral
motions seeking to exclude all drug transactions that occurred without his client
being present. Further, Attorney Colee did not change his strategy at the end. He
told the jury in his opening statement that Lara admitted that he had been involved
in one drug transaction, but that he was not part of the conspiracy for the quantity
that the Government was trying to hold him responsible for. (Trial Transcript at 255,
Assertions in later paragraphs that simply duplicate issues already identified and
addressed by the court earlier in this opinion are not repeated or addressed again.
258). Based on the legal standards by which counsel’s performance must be judged,
Lara fails to establish that his attorney was ineffective. “Even if in retrospect the
strategy appears to have been wrong, the decision will be held ineffective only if it
was so patently unreasonable that no competent attorney would have chosen it.”
Adams v. Wainwright, 709 F.2d 1443, 1446 (11th Cir. 1983) (quoting Washington
v. Strickland, 693 F.2d 1243, 1253-54 (5th Cir. Unit B 1982). Especially given the
overwhelming evidence of Lara’s guilt as to Count Two, there is nothing in the
record to support the contention that this trial strategy was patently unreasonable,
nor is there anything to support the allegation that this decision prejudiced Lara such
that a different result would have been achieved if Attorney Colee had disputed
Lara’s guilt as to Count Two. Moreover, even accepting Lara’s version — that
Attorney Colee did not disclose this trial strategy to Lara before trial and that, if he
had, Lara “would have refused to accept counsel’s course of defense” (doc. 6 at 5
and 18) — there is nothing to support the contentions that this trial strategy was
patently unreasonable, nor is there anything to support the allegation that this
decision prejudiced Lara such that a different result would have been achieved if
Attorney Colee had disputed Lara’s guilt as to Count Two. Binding Eleventh Circuit
law forecloses Lara’s argument that Attorney Colee’s conceding his guilt as to
Count Two, even if the court rejects accepts Lara’s contention that Attorney Colee
did not consult him before making such concession, was ineffective assistance of
counsel. United States v. Darden, 708 F.3d 1225 (11th Cir. 2013) cert. denied, 133
S. Ct. 2871, 186 L. Ed. 2d 922 (2013), is directly on point. As in Darden, here, the
evidence against Lara as to Count Two was overwhelming. Accordingly, this court
concludes, as did the Darden court, that “[Attorney Colee] would reasonably find it
strategically advantageous to concede guilt on [Count Two] to preserve credibility
in defending against [Counts One and Five].” Darden v. United States, 708 F.3d at
1230. Further, “defense counsel's ‘failure to consult and obtain consent in and of
itself does not render [his] strategic decision [to concede guilt] presumptively
prejudicial.’” Darden v. United States, 708 F.3d at 1233, quoting United States v.
Thomas, 417 F.3d 1053 (9th Cir.2005), cert. denied, Thomas v. United States, 546
U.S. 1121, 126 S.Ct. 1095, 163 L.Ed.2d 909 (2006)(alterations in original).
Further, even though Attorney Colee set out this trial strategy in his opening
statement, Lara never acted surprised or upset and never advised the undersigned
that he did not want Attorney Colee to continue to represent him. Indeed, Attorney
Colee represented Lara, without objection by Lara, on appeal.
8) Trial counsel did not present a credible defense to Count V which relied
on testimony from co-defendant, DeLeon.
(Doc. 1 at 28).
Once again, the record does not support Lara’s claims. Attorney Colee
rigorously cross examined Mr. DeLeon. He specifically questioned DeLeon about
the fact that Lara never came out of the bedroom during the drug transaction. (Trial
transcript, Vol. 2, p. 413, l.8 and p. 414, l.7-p.415, l.5). Attorney Colee specifically
questioned the case agent about lack of phone records for Lara’s phone as it related
to certain text messages that were sent to arrange a drug transaction. (Id. at
445-447). He pointed out DeLeon’s cooperation agreement with the Government.
He reiterated all of these points in his closing argument to the jury. Lara has failed
to show that counsel was deficient in his performance.
9) Trial counsel did not object or file motions in limine to the
co-conspirator’s out of court statements. He did not object to the defective
inaudible video that was shown to the jury.
(Doc. 1 at 29).
In fact, Attorney Colee did object. The court has already discussed Attorney
Colee’s repeated objections to the co-conspirators’ out-of-court statements,14 and
the court will not repeat that discussion here. More than one recording was played
for the jury; the “inaudible video” related to Count Five. However, Lara does not
Supra, p. 15.
state what objection should have been but was not made to that video.15
Accordingly, he has failed to carry his burden to show that his counsel was
10) Trial counsel was ineffective when he did not challenge the two prior
convictions that formed the basis of the Section 851 enhancement.
(Doc. 1 at 29).
As discussed above at pages three and four of this opinion, although Attorney
Colee did not object, at sentencing, to the existence of these two prior convictions,
he did specifically object to the use of these convictions to enhance Lara’s
convictions, and this issue was preserved for appeal in the event that Lara’s
conviction was overturned on appeal. Lara’s conviction and sentence were,
however, affirmed on direct appeal. As Attorney Colee explains, “We were both
well aware of Lara’s prior felony convictions. Looking them over I saw no basis to
object to their admissibility. There was no question regarding that.” (Doc. 4-1 at 2).
At the sentencing hearing, Attorney Colee said there was no basis to contest
that the convictions existed, but that he did object, on behalf of his client, to those
convictions being used to enhance his client’s sentence as improperly subjecting his
If Lara is saying that Attorney Colee should have objected to authenticity, the court has
already discussed in this opinion that all recordings were authenticated before being shown to the
client to double jeopardy. Lara admits (doc. 1 at 29, 36) that, at the sentencing
hearing, the undersigned specifically advised him that if he wanted to object to these
two prior convictions, he had to do so at that hearing. Lara stated that he
understood. Lara did not deny the existence of these two prior convictions of him.
(Doc. 114 at 3-4).
Even now, Lara does not contest existence of these two convictions. Counsel
is not obligated to make frivolous arguments. Additionally, Lara has failed to show
that such an argument would have been successful.16
11 and 12) Trial counsel failed to argue the correct law in his post-trial
motions and had a conflict of interest while representing the Petitioner on
(Doc. 1 at 30).
The post-trial motions filed by counsel contradict this “failed to argue the
correct law” assertion. Moreover, Lara has failed to specify what “correct law”
In his Motion for Reconsideration (doc. 3), to which the Government did not respond,
Lara argues that the Supreme Court’s decisions in Alleyne and Descamps are “newly discovered
evidence” that warrant his sentence being vacated. However, neither of these cases overruled that
Court’s prior holding, in Almendarez–Torres v. United States, 523 U.S. 224, 247 (1998), that
judicial factfinding regarding the existence of prior convictions does not violate the Sixth
Amendment. See also Apprendi v. New Jersey, 530 U.S. 446, 490 (2000) (“Other than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis
added)). Significantly, the Alleyne Court flagged in a footnote that it was not overruling
Almendarez–Torres. See Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151 at 2160 n. 1,
186 L.Ed.2d 314 (2013) see also United States v. Flowers, 531 Fed. App'x 975, ––––, 2013 WL
4046024, at *8–9 (11th Cir. Aug. 12, 2013).
should have been, but was not, argued. He has further failed to show that Attorney
Colee had a conflict of interest at any stage of the proceedings, including on appeal.
Lara’s multiple allegations of conflict of interest sometimes appear to relate to
Attorney Colee’s representation of Lara on appeal and imply that Attorney Colee’s
representation of Lara at trial caused him not to criticize, during that appeal, his own
trial effectiveness. At other times, Lara’s allegations appear to relate to Attorney
Colee’s trial tactics or his appellate arguments. None of these allegations are
Initially, the court notes that the Eleventh Circuit does not recognize a per se
violation of the right to effective assistance of counsel. See Pegg v. United States,
253 F.3d 1274, 1277 (11th Cir.2001) (declining to apply the Second Circuit's per se
analysis, but instead using the actual conflict with an adverse effect analysis).
Where an ineffective assistance claim is based on a conflict of interest, “a defendant
must show first, that his attorney had an actual conflict of interest, and second, that
the conflict adversely affected counsel's performance.” Pegg, 253 F.3d at 1277
(emphasis omitted); see also Mickens v. Taylor, 535 U.S. 162, 172 n. 5, 122 S.Ct.
1237, 1244 n. 5, 152 L.Ed.2d 291 (2002) (“An ‘actual conflict,’ for Sixth
Amendment purposes, is a conflict of interest that adversely affects counsel's
performance.”). “An ‘actual conflict’ of interest occurs when a lawyer has
‘inconsistent interests.’ ” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir.1999)
(en banc ) (citation omitted). The conflict cannot be merely possible, speculative, or
hypothetical. Reynolds v. Chapman, 253 F.3d 1337, 1342 (11th Cir.2001).
To distinguish between actual and possible conflicts of interest, the Eleventh
Circuit has stated “[we] will not find an actual conflict of interest unless [the
defendant] can point to specific instances in the record to suggest an actual conflict
or impairment of [his] interests.” Id. at 1343. The defendant “must make a factual
showing of inconsistent interests and must demonstrate that the attorney made a
choice between possible alternative causes of action, such as eliciting (or failing to
elicit) evidence helpful to one client but harmful to [himself]. If he did not make
such a choice, the conflict remain(s) hypothetical.” Id. (citation omitted) (omission
in original). “To prove adverse effect, a defendant needs to demonstrate: (a) that the
defense attorney could have pursued a plausible alternative strategy, (b) that this
alternative strategy was reasonable, and (c) that the alternative strategy was not
followed because it conflicted with the attorney's external loyalties.” Id.
Lara has not even alleged that Attorney Colee had an actual conflict of
interest that adversely effected his representation of Lara. Thus, Lara was not denied
effective assistance of counsel.
To the extent that Lara argues that Attorney Colee’s trial representation was
constitutionally ineffective, and that he had a conflict of interest in that he had a duty
to raise his own ineffectiveness on appeal, this argument is foreclosed. “An
ineffective assistance of counsel claim is properly raised in a collateral attack on the
conviction under 28 U.S.C. § 2255.” United States v. Butler, 41 F.3d 1435, 1437 n.
1 (11th Cir.1995). Ineffective assistance of counsel claims need not be raised on
direct appeal, as the Supreme Court has held that “an ineffective-assistance-ofcounsel claim may be brought in a collateral proceeding under § 2255, whether or
not the petitioner could have raised the claim on direct appeal.” Massaro v. United
States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003). Thus,
Lara cannot have suffered any prejudice through Attorney Colee’s failure to assert
his own ineffectiveness on direct appeal because an ineffective-assistance-ofcounsel claim may be brought in a collateral proceeding under § 2255, regardless of
whether it was raised on direct appeal.
13-17) Each of these claims assert that “counsel failed to…present a
colorable claim that the District Court abused its discretion…”.
(Doc. 1 at 30-31).
To the extent that these paragraphs do not make arguments that duplicate
claims previously discussed, this appears to be an objection to the undersigned’s
rulings on evidence during the trial. The Eleventh Circuit has affirmed those rulings
and thus they cannot be raised here. Additionally, to the extent that Lara is arguing
that Attorney Colee inadequately represented him on appeal, Lara has failed to
explain in what manner the undersigned abused its discretion and why Attorney
Colee’s appellate representation was inadequate.
18) Counsel failed to present a credible defense when attacking the
Government’s connection between the text messages and Petitioner.
(Doc. 1 at 31).
This is simply inaccurate. As discussed supra at page 19, Attorney Colee
specifically questioned the case agent about lack of phone records for Lara’s phone
as it related to certain text messages that were sent to arrange a drug transaction. If
Lara wanted Attorney Colee to present some other “defense when attacking the
Government’s connection between the text messages and [Lara],” he has failed to
specify what that other defense should have been.
19) Counsel argued the incorrect legal authority when making his motion
for judgment of acquittal.
(Doc. 1 at 31).
This is, again, simply inaccurate. Attorney Colee’s argument comported with
the standard applicable to a motion for judgment of acquittal.
20) Petitioner claims that counsel was ineffective, because he did not let
Petitioner review the appeal briefs.
(Doc. 1 at 31).
Even assuming that Lara requested that he be allowed to review the appeal
briefs and that Attorney Colee denied that request, Lara has not stated why such
denial had any impact on the outcome of his appeal, nor has he cited any authority
for the proposition that such denial falls below the standard for constitutionally
effective counsel (and the undersigned has been unable to locate any such
21) Petitioner alleges that he was left in “the dark” and this created a
conflict of interest.
(Doc. 1 at 32).
As stated previously, Attorney Colee’s affidavit shows that he met with Lara
several times in preparation for trial. If he is alleging he was left in “the dark” on
appeal, he has failed to state what difference more participation by him would have
had on the outcome of that appeal. Finally, as explained above, this allegation, even
if established, without more simply fails to arise to the level of a conflict of interest.
23) Petitioner believes that trial counsel was ineffective because he did not
file a written objection to hearsay and instead made the objection orally on
the morning of trial.
(Doc. 1 at 33).
This argument is procedurally foreclosed by the Eleventh Circuit’s
determination of Lara’s direct appeal. Additionally, it is without merit. Because the
undersigned did not err in admitting the co-conspirator statements, any failure to
argue about those statements in writing rather than orally could not possibly have
effected the outcome of the trial. Finally, the undersigned finds that a decision to
make a timely oral objection to the admission of evidence at trial rather than a
pretrial written objection falls squarely within the ambit of reasonable trial tactics.
Attorney Colee’s objection was timely made, fully developed, and received the full
consideration of the undersigned before the objections were overruled.
25) Trial counsel failed to argue that Petitioner was not involved in Count
(Doc. 1 at 34).
Again, this is inaccurate. Attorney Colee made those arguments to the jury.
(Trial transcript at p. 562, ll.13-21, and p. 567, ll.5-12).
29) Counsel was ineffective, because he did not cross examine the chemists
from the state toxicology lab about their failure to test for purity of the
(Doc. 1 at 35).
The decision to cross examine a witness and the manner in which it is
conducted are tactical decisions “well within the discretion of a defense attorney.”
Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001) (quoting Messer v. Kemp,
760 F.2d 1080, 1090 (11th Cir. 1985)). Trial counsel is not ineffective for simply
failing to elicit other testimony from those that testified. Id. at 1220. In order to
establish prejudice, a petitioner must show at least one “specific instance where
cross examination arguably could have affected the outcome…of the trial.” Id. (See
also, Aldrich v. Wainwright, 777 F.2d 630, 636-37 (11th Cir. 1985) (a defendant’s
conclusory allegations regarding the testimony of uncalled witnesses are insufficient
to state a claim of ineffective assistance of counsel)).
Two chemists from the State of Alabama Forensics Laboratory testified about
the methamphetamine they tested. They both testified that their testing did not
include a test for purity. (Trial transcript, Vol. III, p. 483, l.10 and p. 491, l.2125). Because the failure to test for purity was established on direct, there was no
need for Attorney Colee to establish it again on cross-examination. Merely getting
these witnesses to repeat their prior testimony would have made no difference, and
would certainly not have changed the outcome of the proceedings.
34) Petitioner alleges that had he been told of trial counsel’s decision to
concede his guilt to Count Two, then he would have pursued plea
negotiations with the government.
As set out above, Attorney Colee’s affidavit establishes that conceding guilt
as to Count Two (which would be proven both by a recording on which Lara could
be heard speaking and by the testimony of the informant who purchased the drugs)
and aggressively disputing Counts One and Five was the agreed-upon trial strategy.
Moreover, Lara did not ever act surprised or upset when Attorney Colee told the
jury that Lara was guilty of Count Two. Finally, Lara fails to state how this would
have changed the outcome. The only way that he would not have received a life
sentence is if Count One had been dismissed or if he had cooperated and received a
downward departure based on substantial assistance. There is no evidence that
either of these things would have happened if Lara had negotiated a plea with the
Attorney Colee states, “I discussed with Lara the possibilities of cooperating
but he was adamant against that for various reasons.” (Doc. 4-1, p. 1). Lara has
failed to show that Attorney Colee’s trial strategy fell below the standard, and
additionally has failed to show how he was prejudiced by that strategy.
IV. NO HEARING IS NEEDED
A court must order a hearing to determine the issues and findings of fact
“[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief....” 28 U.S.C. § 2255(b). Lara “is entitled to an
evidentiary hearing on [his] claim of ineffective assistance [of counsel] if [he]
alleges facts which, if proven, would entitle [him] to relief.” Ramirez v. United
States, 260 Fed. Appx. 185, 187 (11th Cir.2007) (unpublished). “A district court,
however, need not conduct an evidentiary hearing if it can be conclusively
determined from the record that there was no denial of effective assistance of
Simply stated, the undersigned is not convinced that an evidentiary hearing
would either further the interests of justice or comport with the considerations of
judicial economy. Indeed, no evidentiary hearing is required where, as here, a
petitioner's claim is “affirmatively contradicted by the record,” is otherwise capable
of resolution based on the existing record, or is “patently frivolous” for some other
reason. See Aron v. United States, 291 F.3d 708, 715 (11th Cir.2002); Schultz v.
Wainwright, 701 F.2d 900, 901 (11th Cir.1983). Here, it is clear that Lara's
contentions are unsupported by the record or without merit. “[M]erely conclusory
allegations unsupported by specifics or contentions that in the face of the record are
wholly incredible” do not beget an entitlement to an evidentiary hearing. Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) (internal citations omitted); see also
Lynn v. United States, 365 F.3d at 1239. As such, there is no need for an
evidentiary hearing to be held in this case.
V. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the
undersigned finds that no certificate of appealability (“COA”) in this case should be
granted. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”). The
habeas corpus statute makes clear that an applicant is entitled to appeal a district court's
denial of his habeas corpus petition only where a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may
issue only where “the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, a habeas petition is being
denied on the merits of an underlying constitutional claim, a COA should issue only
when the petitioner demonstrates “that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); see also id. at 483–84,
120 S.Ct. at 1603–1604 (“To obtain a COA under § 2253(c), a habeas prisoner must
make a substantial showing of the denial of a constitutional right, a demonstration that,
under Barefoot, includes showing 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.” ‘ ”); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154
L.Ed.2d 931 (2003) (“Under the controlling standard, a petitioner must ‘sho[w] 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.” ‘ ”). With respect to Lara’s
assertions of ineffective assistance of counsel, reasonable jurists could not debate
whether his § 2255 motion to vacate should be resolved in a different manner or that
the Sixth Amendment issues presented are adequate to deserve encouragement to
proceed further. Similarly, no reasonable jurist could find that Alleyne or Descamps
overruled Almendarez-Torres. Accordingly, Lara is not entitled to a certificate of
appealability, and any motion for leave to appeal in forma pauperis is likewise due to
Based on the foregoing reasons, the undersigned is of the opinion that Lara’s
rights were not violated in this cause. Accordingly, by separate order his request to
vacate, set aside or correct his sentence will be denied, without an evidentiary hearing,
his motion to reconsider will be denied, this action will be dismissed, and judgment will
be entered in favor of Respondent, the United States of America, and against Petitioner
Joaquin Lara, Jr. Further, the undersigned is of the opinion that Petitioner is not entitled
to issuance of a Certificate of Appealability and that any motion for leave to appeal in
forma pauperis will likewise be denied.
DONE this the 23rd day of September, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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