Caballero v. USA

Filing 2

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/20/2017 DENYING 73 Motion to Vacate (2255) as to Cesar Caballero. The Clerk is directed to close the companion civil case, No. 2:16-cv-00865-EFB. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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No. 2:11-mj-00035-EFB-1

Respondent,
ORDER

vs.
CESAR CABALLERO,

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Movant.

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Movant Cesar Caballero, a former federal prisoner, is proceeding pro se with a motion to

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vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1 Caballero alleges the

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following grounds in support of that motion: (1) the Ninth Circuit’s decision in a separate civil

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case undermines the basis for his conviction; (2) the time he spent incarcerated for civil contempt

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should be credited toward the criminal sentence in this case; (3) his attorney was ineffective by

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failing to contest federal jurisdiction; (4) the court erred in admitting ‘self-serving declarations’;

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and (5) that he has been subjected to multiple punishments in violation of the Fifth Amendment’s

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Double Jeopardy Clause. The Government has filed a combined opposition and motion to

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dismiss. ECF No. 79. Upon careful consideration of the record and the applicable law, the fourth

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and fifth claims will be dismissed as procedurally defaulted and the remainder of Caballero’s

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§ 2255 motion will be denied on its merits.

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This motion was assigned, for statistical purposes, the following civil case number: No.
2:16-cv-00865-EFB.
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I.

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Law Applicable to Motions Pursuant to 28 U.S.C. § 2255
A federal prisoner making a collateral attack against the validity of his or her conviction

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or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to

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28 U.S.C. § 2255, filed in the court which imposed sentence. United States v. Monreal, 301 F.3d

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1127, 1130 (9th Cir. 2002). Under § 2255, the federal sentencing court may grant relief if it

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concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the

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United States. Davis v. United States, 417 U.S. 333, 344-45 (1974); United States v. Barron, 172

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F.3d 1153, 1157 (9th Cir. 1999). To warrant relief, a movant must demonstrate the existence of

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an error of constitutional magnitude which had a substantial and injurious effect or influence on

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the guilty plea or the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also

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United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht’s

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harmless error standard applies to habeas cases under section 2255, just as it does to those under

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section 2254.”) Relief is warranted only where a petitioner has shown “a fundamental defect

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which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at 346. See also

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United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).

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Under § 2255, “a district court must grant a hearing to determine the validity of a petition

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brought under that section, ‘[u]nless the motions and the files and records of the case conclusively

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show that the prisoner is entitled to no relief.’” United States v. Blaylock, 20 F.3d 1458, 1465

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(9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant’s

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allegations, viewed against the record, fail to state a claim for relief or “are so palpably incredible

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or patently frivolous as to warrant summary dismissal.” United States v. McMullen, 98 F.3d

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1155, 1159 (9th Cir. 1996) (internal quotation marks omitted). See also United States v. Withers,

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638 F.3d 1055, 1062-63 (9th Cir. 2011); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir.

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2003). To warrant a hearing, therefore, the movant must make specific factual allegations which,

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if true, would entitle him to relief. Withers, 638 F.3d at 1062; McMullen, 98 F.3d at 1159. Mere

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conclusory assertions in a § 2255 motion are insufficient, without more, to require a hearing.

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United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

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Claims or arguments raised on appeal are not cognizable in a § 2255 motion. See United

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States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (claims previously raised on appeal “cannot be

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the basis of a § 2255 motion.”); United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979)

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(“[i]ssues disposed of on a previous direct appeal are not reviewable in a subsequent § 2255

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proceeding.”). See also Davis v. United States, 417 U.S. 333, 342 (1974) (issues determined in a

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previous appeal are not cognizable in a § 2255 motion absent an intervening change in the law).

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Further, claims challenging the sufficiency of the evidence are not cognizable in § 2255 motions.

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See United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (movant’s “evidence-based”

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claim that “called into doubt the overall weight of the evidence against him” was not cognizable

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in § 2255 motion); Barkan v. United States, 362 F.2d 158, 160 (7th Cir. 1966) (“a collateral

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proceeding under section 2255 cannot be utilized in lieu of an appeal and does not give persons

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adjudged guilty of a crime the right to have a trial on the question of the sufficiency of the

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evidence or errors of law which should have been raised in a timely appeal”); United States v.

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Collins, 1999 WL 179809 (N.D. Cal. Mar. 25, 1999) (insufficiency of the evidence is not a

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cognizable attack under section 2255).

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Claims that could have been, but were not, raised on appeal are not cognizable in § 2255

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motions. United States v. Frady, 456 U.S. 152, 168 (1982( (a collateral challenge is not a

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substitute for an appeal); Sunal v. Large, 332 U.S. 174, 178 (1947) (“So far as convictions

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obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will

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not be allowed to do service for an appeal”); Unites States v. Dunham, 767 F.2d 1395, 1397 (9th

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Cir. 1985) (“Section 2255 is not designed to provide criminal defendants repeated opportunities

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to overturn their convictions on grounds which could have been raised on direct appeal”).

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“Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the

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claim may be raised in habeas only if the defendant can first demonstrate either “cause” and

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actual “prejudice,” or that he is “actually innocent.” Bousley v. United States, 523 U.S. 614, 622

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(1998) (citations omitted); United States v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007) (same).

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“Ineffective assistance of counsel constitutes ‘cause’ for failure to raise a challenge prior to

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section 2255 collateral review.” United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993).
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II.

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Factual and Procedural Background
In an information dated February 2, 2011, Caballero was charged with three counts of

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obstruction of mail in contravention of 18 U.S.C. § 1701. ECF No. 1. On August 30, 2011, he

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was found guilty of all three counts after a trial in the United States District Court for the Eastern

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District of California in Case No. 11-mj-00035-EFB. ECF Nos. 1 & 13. On April 30, 2012, he

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was sentenced to ninety days incarceration – thirty days for each count to be served

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consecutively. ECF No. 25.

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Caballero appealed (ECF No. 29) and, before the Ninth Circuit, argued that: (1) the
evidence used to convict him was insufficient; (2) that variance between the evidence at trial and

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the information deprived him of an opportunity to present a defense and exposed him to

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unanticipated evidence; (3) he was denied the right to allocute; and (4) that his sentence was

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unreasonable. United States v. Caballero, 583 F. App’x 806 (9th Cir. 2014). The Ninth Circuit

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vacated one of Caballero’s three convictions based on insufficient evidence and affirmed the

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other two. Id. He was resentenced on June 29, 2015 to two thirty day terms of imprisonment to

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be served consecutively. ECF No. 63.

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On April 26, 2016, Caballero filed the current motion to vacate, set aside, or correct his

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sentence. ECF No. 73. The government filed its answer on June 29, 2016 (ECF No. 79) and

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Caballero filed a response to the answer (ECF No. 81) on July 15, 2016. The sixty day sentence

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imposed by this court was completed on April 27, 2016. ECF No. 79 at 3.

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III.

Government’s Motion to Dismiss

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A.

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As noted above, the government’s response also contains a motion to dismiss three of

Procedural Default

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Caballero’s claims due to his failure to raise them in his direct appeal. Id. at 4-5. These claims

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are: (1) that the time he spent incarcerated for civil contempt should be credited toward the

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criminal sentence in this case; (2) that this court erred in admitting ‘self-serving declarations’

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during his trial; and (3) that he has been subjected to multiple punishments in violation of the

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Fifth Amendment’s Double Jeopardy Clause. Id. “The general rule in federal habeas cases is that

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a defendant who fails to raise a claim on direct appeal is barred from raising the claim on
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collateral review.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006); United States v.

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Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims

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by not raising them on direct appeal and not showing cause and prejudice or actual innocence in

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response to the default.”).

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A review of the appellate record confirms that these claims were not raised on direct

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appeal and Caballero’s response (ECF No. 81) offers no countervailing arguments demonstrating

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either cause and prejudice or actual innocence. The court has determined, however, that it is

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unclear whether Caballero could actually have raised the entirety of his civil contempt claim on

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direct appeal. The docket in Shingle Springs Band of Miwok Indians v. Caballero, 2:08-cv-

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03133-JAM-AC (attached as exhibit A to the government’s response) indicates that Caballero

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was first imprisoned for contempt on November 14, 2011. ECF No. 79-1 at 20. That contempt

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order was vacated on April 3, 2012. Id. at 23. Then, Caballero was imprisoned for contempt a

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second time on November 30, 2013. Id. at 32. A review of the appellate record indicates that he

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filed his appellate brief in the present case on April 22, 2013. See Ninth Circuit Court of Appeals

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Docket # 12-10524. Accordingly, out of an abundance of caution, the court will address

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Caballero’s civil contempt claim on its merits. However, the court agrees that the claims

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regarding ‘self-serving declarations’ and double jeopardy are procedurally defaulted and must be

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dismissed on that basis.

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B.

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The government argues that Caballero’s motion is moot insofar as it attacks the validity of

Mootness

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his sentence because he has completed his sixty-day term of imprisonment. ECF No. 79 at 5.

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The court agrees. That being said, the government acknowledges that Caballero’s release does

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not moot his challenge to his conviction. Id. at 5 n. 2. This acknowledgement comports with the

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precedent of the Supreme Court and the Ninth Circuit. See Sibron v. New York, 392 U.S. 40, 57

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(1968) (“[A] criminal case is moot only if it is shown that there is no possibility that any

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collateral legal consequences will be imposed on the basis of the challenged conviction.”);

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Hirabayashi v. United States, 828 F.2d 591, 606 (9th Cir. 1987) (“We have repeatedly reaffirmed

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the presumption that collateral consequences flow from any criminal conviction.”). Accordingly,

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the court will consider Caballero’s non-defaulted claims on their merits.

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C.

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Merits
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Ninth Circuit’s Decision in Shingle Springs Band of Miwok Indians v.
Caballero

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Caballero argues that the favorable summary judgment decision in Shingle Springs Band

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of Miwok Indians v. Caballero, 2:08-cv-3133-JAM-AC (E.D. Cal.), 630 F. App’x. 708 (9th Cir.

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2015) (unpub.) undermines his conviction in this case. ECF No. 73 at 4. He does not offer any

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specific legal basis in support of this argument, however. The government has, reasonably in this

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court’s view, construed this argument as one sounding in issue preclusion. ECF No. 79 at 6. Its

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arguments against giving the Ninth Circuit’s decision in Shingle Springs Band of Miwok Indians

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preclusive effect are persuasive. Issue preclusion appropriately lies where:

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(1) there was a full and fair opportunity to litigate the identical issue in the prior
action; (2) the issue was actually litigated in the prior action; (3) the issue was
decided in a final judgment; and (4) the party against whom the issue preclusion is
asserted was a party in privity with a party to the prior action.

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Syverson v. International Bus. Machs. Corp., 472 F.3d 1072, 1078 (9th Cir. 2006). Caballero has

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not met any of these elements. First, Shingle Springs Band of Miwok Indians raised various civil

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trademark claims and unfair competition claims (2:08-cv-3133-JAM-AC (E.D. Cal.) at ECF No.

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1), a far cry from the criminal obstruction of mail charges relevant to the immediate case. As

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such, the Ninth Circuit’s decision in Shingle Springs Band of Miwok Indians has no logical

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bearing on Caballero’s conviction in this case. Second, the Ninth Circuit’s decision in Shingle

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Springs Band of Miwok Indians did not render final judgment insofar as it only reversed the

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district court’s summary judgment decision against Caballero and remanded for further

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proceedings. Shingle Springs Band of Miwok Indians v. Caballero, 630 F. App’x 708, 709-711

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(9th Cir. 2015). As the government correctly points out, denial of summary judgment is not a

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final judgment. See Jones-Hamilton Co. v. Beazer Materials & Servs., 973 F.2d 688, 694 (9th

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Cir. 1992) (“Denial of a motion for summary judgment is generally not a final order . . .”). Third,

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the government’s contention that it had no involvement in the civil suit is uncontroverted.

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Based on the foregoing, this claim is denied.

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2.

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Time Spent Incarcerated for Civil Contempt

Caballero argues that the time he spent incarcerated for civil contempt in Shingle Springs

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Band of Miwok Indians should be credited against his sentence in this case. ECF No. 73 at 5. He

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offers no authority in support of this frankly illogical proposition. To the contrary, the Ninth

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Circuit has held that a “civil contempt proceeding is an entirely separate court action from [a]

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criminal case . . .” In re Garmon, 572 F.2d 1373, 1377 (9th Cir. 1978). Accordingly, this claim

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is denied.

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3.

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Ineffective Assistance of Counsel

Finally, Caballero argues that his counsel was ineffective by failing to raise the issue of

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“federal court jurisdiction” in this case. ECF No. 73 at 7. The clearly established federal law

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governing ineffective assistance of counsel claims is that set forth by the Supreme Court in

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Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant

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must show that (1) his counsel's performance was deficient and that (2) the “deficient

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performance prejudiced the defense.” Id. at 687. Counsel is constitutionally deficient if his or

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her representation “fell below an objective standard of reasonableness” such that it was outside

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“the range of competence demanded of attorneys in criminal cases.” Id. at 687-88 (internal

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quotation marks omitted). “Counsel's errors must be ‘so serious as to deprive the defendant of a

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fair trial, a trial whose result is reliable.’” Richter, 562 at 104 (quoting Strickland, 466 U.S. at

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687).

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Prejudice is found where “there is a reasonable probability that, but for counsel's

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unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

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U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the

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outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.”

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Richter, 131 S. Ct. at 792.

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As the government notes, Caballero was charged and convicted of obstructing the mail in

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violation of 18 U.S.C. § 1701 – an offense arising under federal law. “The district courts of the

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United States have original jurisdiction . . . of all offenses against the laws of the United States.”

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18 U.S.C. § 3231. Caballero does not explain how, faced with this obvious fact, his counsel

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could reasonably have contested federal jurisdiction. It is well settled that “[t]he failure to raise a

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meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v.

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United States, 692 F.2d 565, 572 (9th Cir. 1982). This claim is, accordingly, denied.

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IV.

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Conclusion
For the foregoing reasons, Caballero’s motion pursuant to 28 U.S.C. § 2255 (ECF No. 73)

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is denied. The Clerk is directed to close the companion civil case, No. 2:16-cv-00865-EFB.

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Dated: November 20, 2017.

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