Acosta v. USA

Filing 15

ORDER that the 13 Report and Recommendation is ADOPTED in full. ORDERED the 1 Motion to Vacate, Set Aside or Correct Sentence is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED. Signed by Chief Judge Roslyn O Silver on 3/4/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff/Respondent,

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vs.

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Hanoi Barbaro Acosta,
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Defendant/Movant.
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Nos. CV-12-00367-PHX-ROS (MEA)
CR-07-00871-PHX-ROS
ORDER

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Pending before the Court is a Report and Recommendation (“R&R”) and Defendant-

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Movant’s (“Defendant”) objections thereto. For the reasons below, the Court will adopt the

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R&R.

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A.

Procedural Background

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On July 25, 2007, a grand jury indicted Defendant on two counts: Child Sex

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Trafficking in violation of 18 U.S.C. §1591(a) and Interstate Transportation of a Minor for

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Prostitution in violation of 18 U.S.C. §2423(a) and (e). On May 23, 2008, after a seven-day

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trial, a jury returned a guilty verdict on interstate transportation of a minor for prostitution,

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but the jury was unable to reach a verdict on child sex trafficking. On July 23, 2008, the

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Court granted the government’s motion to dismiss the child sex trafficking charge. On

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October 15, 2008, the Court sentenced Defendant to 262 months imprisonment for interstate

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transportation of a minor for prostitution.

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At his request, Defendant was appointed new counsel for direct appeal. On appeal,

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Defendant argued the District Court erred by finding certain enhancements under the wrong

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standard and by sentencing Defendant to a 262-month prison term. The Ninth Circuit

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affirmed the conviction and sentence. On November 15, 2010, the United States Supreme

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Court denied Defendant’s petition for certiorari.

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On December 14, 2011, Defendant filed a motion in CV-11-2473 seeking additional

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time to file a § 2255 action. The Court denied the motion because it was “not able to

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construe the Motion Seeking Permission as a § 2255 motion because it [was] not filed on the

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court-approved form for filing a § 2255 motion, [did] not specify any grounds for habeas

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corpus relief, [did] not set forth any facts supporting and grounds, and [did] not specify the

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habeas relief requested.” See CV-11-2473 at (Doc. 5).

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On February 21, 2012, Defendant filed the pending Motion to Vacate, Set Aside, and

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Correct Sentence pursuant to 28 U.S.C. § 2255 (the “Motion”). Defendant argues the Court

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denied him his right to a speedy trial when it granted his trial counsel’s motions to continue

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his trial date, “constituting ineffective assistance of counsel.” Defendant argues the Court

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improperly found he was a leader and organizer of crimes resulting in an enhanced sentence,

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and his counsel failed to “argue [the application of the sentencing enhancements] in a

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constitutional manner. Constituting ineffective assistance of counsel.” Defendant also argues

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his trial counsel gave him “erroneous” advice concerning a plea agreement.

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B.

Analysis

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1.

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has

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filed timely objections to the magistrate judge's report and recommendations, the district

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court’s review of the part objected to is to be de novo. Id.; see also United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003).

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Legal Standard

To prevail on his claim of ineffective assistance of counsel, Defendant must prove (1)
his counsel’s performance fell below an objective standard of reasonableness, and (2) the
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deficiency in counsel’s performance prejudiced him. Strickland v. Washington, 466 U.S.

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668, 688, 692 (1984); United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005). The

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Court must evaluate counsel’s actions from counsel’s perspective at the time of trial,

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“without the distorting effects of hindsight.” Strickland, 466 U.S. at 689. The Court “must

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be highly deferential” and “indulge a strong presumption that counsel’s conduct falls within

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the wide range of reasonable professional assistance.” Id. When evaluating whether

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counsel’s actions prejudiced Defendant, this Court must determine whether “a reasonable

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probability” exists that “but for counsel’s unprofessional errors, the result of the proceeding

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would have been different.” Id. at 694.

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2.

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A one-year statute of limitations for § 2255 petitions begins to run from “the date on

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which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). For habeas

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review, a conviction is final when a judgment is rendered, “the availability of appeal

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exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally

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denied.’” United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (quoting Griffith

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v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708, 712 n.6 (1987)). “The statute of

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limitations contained in § 2255 is subject to equitable tolling.” United States v. Battles, 362

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F.3d 1195, 1197 (9th Cir. 2004). Equitable tolling applies where there are extraordinary

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circumstances that made it impossible for the petitioner to timely file the petition, and the

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extraordinary circumstances caused the untimeliness. Id.

Statute of Limitations

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Defendant’s conviction became final on November 15, 2010 when the United States

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Supreme Court denied certiorari. Therefore, the one-year statute of limitations ran on

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November 15, 2011. Defendant did not file his § 2255 motion until February 21, 2012.

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Defendant argues the statute of limitations should be equitably tolled because he was

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transferred from one prison to another in October 2011 and lacked access to his legal papers

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until February of 2012. Defendant has not explained why he could not have filed his Motion

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prior to his October 2012 transfer. As such, the Court does not find grounds to apply

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equitable tolling.
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3.

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Assuming the Motion was timely, it would be denied. Defendant raises three

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arguments, two of which are procedurally defaulted because he did not raise them on direct

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appeal. “If a criminal defendant could have raised a claim of error on direct appeal but

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nonetheless failed to do so, he must demonstrate both cause excusing his procedural default,

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and actual prejudice resulting from the claim of error.” United States v. Johnson, 988 F.2d

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941, 945 (9th Cir. 1993)(citing United States v. Frady, 456 U.S. 152, 168 (1982)). “Section

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2255 is not designed to provide criminal defendants repeated opportunities to overturn their

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convictions on grounds which could have been raised on direct appeal.” United States v.

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Waiver

Dunham, 767 F.2d 1395, 1396 (9th Cir. 1985).

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In his § 2255 Motion, Defendant argues that his right to a speedy trial was violated,

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his attorney failed to object to various sentencing enhancements, and that his attorney gave

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him “erroneous advice” concerning the plea agreement. The first and third arguments are

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denied because Defendant did not raise the first or third issue on direct appeal. Johnson, 988

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F.2d at 945; Frady, 456 U.S. at 168; Dunham, 767 F.2d at 1396.

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Even if the Court were to consider the first and third arguments, they would fail for

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the reasons stated in Plaintiff’s Response. (Doc. 9). The Court properly granted Defendant’s

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motion to continue so defense counsel could prepare a computer expert, prepare to cross-

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examine nine government witnesses, and prepare to call seven witnesses. There was no

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speedy trial violation because all time was properly excluded. 18 U.S.C. § 3161(h)(1)(D);

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United States v. Daychild, 357 F.3d 1082, 1094-95 (9th Cir. 2004) (pretrial delay is

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excludable despite defendant claiming defense counsel’s motions to continue were filed

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without his consent). Defendant gives no explanation as to how the continuances prejudiced

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him. See United States v. Baker, 63 F.3d 1478, 1497 (9 Cir. 1995). Further, the alleged late

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disclosure by prosecution is neither supported by the record nor does it bear on the

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ineffective assistance of counsel. In addition, Defendant claims trial counsel failed to move

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the court for a dismissal of the case, but trial counsel filed two written motions to dismiss and

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made an oral motion for directed verdict. Last, Defendant argues the prosecution’s
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“manipulation of the proceedings” prevented him from taking a plea agreement. This

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argument does not implicate an ineffective assistance of counsel claim against Defendant’s

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counsel, but instead criticizes the prosecution’s decision.

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4.

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Defendant asserts counsel was ineffective because counsel failed to object to the

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leader/organizer enhancement under U.S.S.G. § 3B1.1(c). The record overwhelmingly

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shows Defendant led and organized women across state lines for prostitution. For example,

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Defendant organized the trip to Las Vegas, ordered the women to get dressed for prostitution,

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ordered them to “work tonight” and bring back any money they made, and told the women

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to “watch out” because it was a “vice night.” Defendant took pictures for the advertisements

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and posted advertisements online. When the women did not make money in Las Vegas,

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Defendant ordered the women into the car and drove them to Los Angeles. One woman

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made money from prostitution, but the men took the money. Defendant beat the woman up

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for not having the money. In light of the evidence regarding Defendant leading or organizing

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this group of women for prostitution, counsel was not deficient by failing to object to this

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enhancement. E.g., Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (failure to raise

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meritless argument does not constitute ineffective assistance of counsel). The Ninth Circuit

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found the enhancements were supported by “clear and convincing evidence.” Defendant has

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not established deficient performance under Strickland. As such, Defendant’s ineffective

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assistance of counsel claim fails.

Enhancements

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 13) is ADOPTED in full.

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IT IS FURTHER ORDERED the Motion to Vacate, Set Aside or Correct Sentence

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(Doc. 1) is DENIED.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in

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forma pauperis on appeal is DENIED because the dismissal of the Petition is justified by a

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plain procedural bar and jurists of reason would not find the procedural ruling debatable.

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DATED this 4th day of March, 2013.

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