Aguilera-Mendoza v. United States of America

Filing 14

ORDER accepting the Report and Recommendation 10 and DENYING the motion to vacate, set aside, or correct sentence 1 . ORDER DENYING a certificate of appealability. Signed by Judge Frederick J Martone on 3/23/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Alvaro Aguilera-Mendoza,

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Petitioner,

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vs.

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United States of America,
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Respondent.
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CV 11-00517-PHX-FJM;
CR 05-00314-10-PHX-FJM
ORDER

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The court has before it petitioner's motion to vacate, set aside, or correct sentence

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pursuant to 28 U.S.C. § 2255 (doc. 1) and memorandum in support of his motion (doc. 3),

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respondent's response (doc. 6), petitioner's reply (doc. 9), and a report and recommendation

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of the United States Magistrate Judge (doc. 10). The court also has before it petitioner's

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objection to the report and recommendation (doc. 13). Respondent did not file a response

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to petitioner's objection, and the time for responding has expired.

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I

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On the second day of trial, petitioner pled guilty to conspiracy to possess with intent

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to distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and

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841(b)(1)(A)(viii). We conducted a sentencing hearing as required by Rule 32, Fed. R. Crim.

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P. Petitioner filed a number of objections to the pre-sentence report. These objections were

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discussed at the hearing. Petitioner’s lawyer argued that defendant’s role in the conspiracy

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was not that of organizer or leader, and raised issues regarding drug amounts, the disparity

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of sentencing between petitioner and his co-defendants, and the calculation of the base

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offense level. We overruled petitioner’s objections to the pre-sentence report’s findings that

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the offense concerned the importation of methamphetamine, that there was evidence to

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support the quantity of methamphetamine, and that he was a leader or organizer of the

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conspiracy. A base offense level of 38 was calculated based on the factual basis of

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petitioner’s plea and the testimony and exhibits received at trial. The court granted a two-

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level downward departure for acceptance of responsibility. Petitioner was sentenced to 200

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months in custody followed by five years of supervised release.

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Petitioner's lawyer filed an Anders brief and moved to withdraw on appeal. The Ninth

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Circuit granted the motion to withdraw, struck the Anders brief, appointed new counsel, and

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ordered further briefing. Appellate counsel raised four issues on appeal: (1) whether

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petitioner knowingly and intelligently waived his right to a jury trial on the quantity of drugs

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involved in the crime; (2) whether the district court properly ruled on the drug quantity

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attributable to petitioner; (3) whether the district court erred in determining that petitioner

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was an organizer or leader for purposes of a sentencing enhancement; and (4) whether the

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district court provided petitioner a proper opportunity to speak at sentencing.

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Petitioner's conviction and sentence were affirmed by the Ninth Circuit. United States

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v. Aguilera-Mendoza, 376 Fed. Appx. 693 (9th Cir. 2010) (unpublished decision). The court

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held that there was no evidence that petitioner's plea was coerced, the district court properly

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overruled petitioner's objection to the pre-sentence report's leadership role adjustment, and

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the district court ruled on the issue of the calculation of drug quantity when it reaffirmed that

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the correct base offense level was 38. Id. The court noted that petitioner did not raise any

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factual disputes on the issue of drug quantity that required the district court's resolution. Id.

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Finally, the panel found that the district court provided petitioner with an adequate

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opportunity to speak. Id.

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Petitioner filed his § 2255 motion on March 18, 2011, asserting three grounds for

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relief: (1) conviction obtained in violation of the Fifth and Sixth Amendments; (2) ineffective

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assistance of counsel by his trial lawyer for not conducting a reasonable investigation; and
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(3) ineffective assistance of counsel by his trial and appellate lawyers concerning his

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sentence. Petitioner complained that his 200 month sentence (based on the quantity of

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methamphetamine and his role as a leader) was disparate compared to the sentences his co-

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defendants received, and that his trial lawyer was ineffective at the sentencing hearing. He

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claimed that his appellate lawyers were ineffective for filing an Anders brief and for failing

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to raise issues of drug calculation, his role, and the scope of the organization on appeal.

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The magistrate judge reviewed petitioner's arguments and issued a report

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recommending that we deny the § 2255 petition. First, he noted that to the extent petitioner

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attempted to re-raise issues concerning his sentencing that were decided against him on

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appeal, he was precluded from doing so. The magistrate judge then concluded that, contrary

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to petitioner's claims, the record shows that his trial lawyer raised the issues of inappropriate

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sentence enhancements, drug amounts, and disparate sentencing at the sentencing hearing.

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He also concluded that petitioner did not point to any other evidence that could have been

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presented or show that any prejudice resulted from the trial lawyer's actions. Next, the

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magistrate judge concluded that petitioner did not show that any prejudice resulted from his

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initial appellate lawyer's filing an Anders brief, as he was appointed new counsel. Finally,

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the magistrate judge indicated that new appellate counsel raised sentencing issues on appeal

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and petitioner had not contended that these arguments were deficient.1
II

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Petitioner raises several objections to the magistrate judge's report and

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recommendations. First, petitioner argues that the magistrate judge is wrong to conclude that

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his ineffective assistance of counsel claims were already litigated and cannot be re-raised.

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This was not the magistrate judge's conclusion. The magistrate judge noted that to the extent

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petitioner is utilizing his § 2255 motion to argue that the district court erred during

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sentencing, this argument is precluded because it was already presented on direct appeal and

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Petitioner does not specifically object to the magistrate judge's recommendation that
his ineffective assistance of counsel claim against the appellate lawyers is without merit.
After review, we adopt this recommendation.
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was decided against him. See Aguilera-Mendoza, 376 Fed. Appx. at 693 (affirming

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petitioner's conviction and sentence). The magistrate judge is correct. See Odom v. United

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States, 455 F.2d 159, 160 (9th Cir. 1972) (law is "clear that when a matter has been decided

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adversely on appeal from a conviction, it cannot be litigated again on a 2255 motion").

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Next, petitioner objects to the magistrate judge's recommendation that the ineffective

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assistance of counsel claim concerning his trial lawyer is without merit. He objects to the

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magistrate judge’s finding that petitioner failed to point to any other evidence that could have

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been presented at sentencing or any prejudice that resulted from his trial lawyer's actions.

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Petitioner contends that he raised arguments in his motion that "border on possible new

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evidence." Objection at 3. Even if this was enough, petitioner does not point to any

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prejudice resulting from his trial lawyer's actions. Without a showing of prejudice, his

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ineffective assistance of counsel claim necessarily fails. See Strickland v. Washington, 466

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U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) (petitioner must show both that counsel's

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representation was objectively deficient and that he was prejudiced by the representation).

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Petitioner raises a new argument in his objections to the report and recommendations

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that the government committed a Brady violation. This argument was not presented in his

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§ 2255 petition. It is unclear what evidence petitioner is now arguing was withheld from him

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by the prosecution. Petitioner asks for discovery to determine whether there is evidence that

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his co-defendants worked with the government to try and "dump" the quantity of drugs and

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leader role onto him. Even if petitioner had timely raised a Brady violation argument,

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ordering discovery in this case would be inappropriate, as petitioner is merely speculating

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that his co-defendants set him up. See Calderon v. U.S. Dist. Court for the N. Dist. of Cal.,

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98 F.3d 1102, 1106 (9th Cir. 1996) (“courts should not allow prisoners to use federal

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discovery for fishing expeditions to investigate mere speculation”).

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Finally, petitioner argues that his trial lawyer did not argue or investigate issues under

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Rule 32, Fed. R. Crim. P., which he alleges is a Sixth Amendment violation. He argues that

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it is error for a district court to place the burden on the defendant to disprove the factual basis

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for a base offense level at sentencing. See United States v. Ameline, 409 F.3d 1073, 1085-86
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(9th Cir. 2005) (government bears burden of proof to establish the basis for a base offense

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level). Petitioner argues that Ameline proves that his counsel did not argue or investigate

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sentencing issues. To the extent that petitioner is using Ameline to argue that the district

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court erred in calculating the base offense level during sentencing, we reiterate that this issue

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was decided against petitioner on direct appeal and cannot be re-litigated in his § 2255

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motion. See Odom, 455 F.2d at 160. Petitioner has not contended that the arguments made

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by appellate counsel were deficient. And as the magistrate judge noted, the record shows that

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petitioner’s trial lawyer raised several sentencing issues - including objections to the

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calculation of the base offense level - at the sentencing hearing. We agree with the

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magistrate judge’s conclusion that petitioner did not point to any new evidence that his

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lawyers could have raised or any prejudice that resulted from his lawyers' actions at either

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the sentencing hearing or on appeal.
III

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IT IS THEREFORE ORDERED accepting the recommendation of the magistrate

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judge (doc. 10) and DENYING the motion to vacate, set aside, or correct sentence (doc. 1).

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IT IS FURTHER ORDERED DENYING a certificate of appealability either because the

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dismissal of the petition is justified by a plain procedural bar and jurists of reason would not

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find the procedural ruling debatable or because petitioner has not made a substantial showing

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of the denial of a constitutional right.

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DATED this 23rd day of March, 2012.

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