Martin v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge M. James Lorenz on 11/22/2016.(sjt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Criminal Case No.: 11-cr-04250
Civil Case No.: 15-cv-0443

TIMOTHY MARTIN,
Petitioner,

12
13

v.

14

UNITED STATES OF AMERICA,

ORDER:
(1) DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
TO VACATE CONVICTION AND
SENTENCE [Doc. 180] and

Respondent.

15
16
17

(2) DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL [Doc. 179]

18
19
20

On February 26, 2015, Petitioner Timothy Martin (“Petitioner”), through pro bono

21
22
23
24
25
26
27
28

Counsel, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
conviction and sentence, along with a motion for appointment of counsel. Respondent
filed a response and opposition to which Petitioner replied. The Court has reviewed the
record, the submissions of the parties and supporting exhibits, and for the reasons set
forth below, DENIES Petitioner’s motions.
//
//
1
11-cr-04250
Civil Case No.: 15-cv-0443

1
2

I.

BACKGROUND
On August 21, 2011, Petitioner and Crystal Rios (“Rios”) were arrested by the U.S.

3

Immigration & Customs Enforcement for Importation of Cocaine in violation of 21

4

U.S.C. §§ 952 & 960. (See Compl. [Doc. 1].) Petitioner, the driver and registered owner

5

of the vehicle, and Rios, the passenger, were traveling into the U.S. from Mexico through

6

the Calexico, California West Port of Entry. (Id.) In secondary inspection, the vehicle

7

revealed 27 packages of cocaine and $11,989.00 USD. (Id.) A pat-down search of Rios

8

also revealed a medicine bottle containing ecstasy pills. (Id.)

9

On the evening of their arrest, Rios made a post-arrest statement to ICE Special

10

Agents providing, among other trip details, that she and Petitioner traveled to Mexicali on

11

August 20, 2011 and stayed at a hotel together that night. (Gov’t Trial Memo [Doc. 136]

12

6:13–17.) Rios stated that the two utilized the hotel’s valet service but Petitioner

13

retained possession of the vehicle’s keys while it was parked overnight. (Id.) Rios

14

further stated she did not meet anyone that night, did not know anyone in Mexicali, and

15

was with Petitioner throughout almost the entirety of the trip. (Id.)

16

On September 21, 2011, Petitioner and Rios were charged by federal grand jury

17

Indictment for Importation of Cocaine, in violation of 21 U.S.C. §§ 952 & 960 and 18

18

U.S.C. § 2. (See Indictment [Doc. 19].) However, on August 15, 2013, Rios entered a

19

guilty plea for misdemeanor possession of ecstasy in which the Government agreed to

20

dismiss the Indictment charging her with cocaine importation. (See Plea Agreement

21

[Doc. 107].) The Court granted the Government’s motion to dismiss Rios’ cocaine

22

importation charge, sentenced her to one year of probation, and entered judgment on

23

August 26, 2013. (See Rios J. [Doc. 108].)

24

On August 21, 2013, between her plea agreement and sentencing, Rios participated

25

in a voluntary proffer with law enforcement agents. In her statement she provided that on

26

the way to Mexico, Petitioner met with four individuals. One of whom, Rudy Rodriguez,

27

asked Petitioner to drive two of the others to Mexico to pick up one of their vehicles.

28

(Gov’t Trial Memo 7:21–8:4.) Petitioner agreed and the group drove directly to the hotel
2
11-cr-04250
Civil Case No.: 15-cv-0443

1

in Mexico. (Id.) After Petitioner parked, the other two passengers departed. (Id. at

2

7:21–8:6.)

3

A few months later, on December 6, 2013, Petitioner was charged in a second

4

Superseding Indictment for Importation of Cocaine in violation of 21 U.S.C. §§ 952 &

5

960. (2nd Superseding Indictment [Doc. 129].) On January 7, 2014, Petitioner

6

proceeded to trial.1 Petitioner put forward a third-party culpability defense that the drugs

7

ultimately found in his car were placed there without his knowledge. Petitioner argued

8

that Rudy Rodriguez may have been responsible for the drugs found in his car. Petitioner

9

argues that Rios’ statements and potential testimony would have bolstered his defense

10

that others, including Rodriguez, had access to Petitioner’s car; and that it was less likely,

11

based on the time they spent together, that Petitioner had the opportunity to load or

12

arrange for the drugs to be loaded into the car. (M. to Vacate 9:1–9.) However, Rios did

13

not testify and her statements were found inadmissible at trial. On January 8, 2014, the

14

jury returned a guilty verdict. (See Jury Verdict [Doc. 141].) On November 25, 2014,

15

the Court sentenced Petitioner to 60 months imprisonment and 3 years of supervised

16

release. (See Martin J. [Doc. 173].)

17

Petitioner argues he received ineffective assistance of counsel at trial and requests

18

an evidentiary hearing, should additional evidence be necessary to resolve his claim. 2 In

19

addition, Petitioner has filed a motion requesting appointment of counsel pursuant to 18

20

U.S.C. § 3006A.

21

The Government responds that Petitioner’s § 2255 motion should be denied

22

because his ineffective assistance of counsel claim is without merit. Further, the

23

Government argues that Petitioner’s request for an evidentiary hearing should be denied

24
25

26

1

27

2

28

Petitioner and Rios married at some time after their arrest date but prior to Petitioner’s trial.

On March 11, 2015, the Ninth Circuit granted Petitioner’s motion to dismiss his direct appeal. United
States v. Martin, No. 15-50535, Docket No. 6 (9th Cir. 2015). Thus, Petitioner’s petition under § 2255
is properly before the Court.
3
11-cr-04250
Civil Case No.: 15-cv-0443

1

because the submissions provide a sufficient factual basis to decide Petitioner’s claim,

2

rendering an evidentiary hearing unnecessary. However, if the Court finds additional

3

argument is necessary, the Government responds with no objection to Petitioner’s request

4

for appointment of counsel.

5
6
7

II.

DISCUSSION
Petitioner claims that his trial counsel (“Counsel”) rendered ineffective assistance

8

for (1) failure to conduct a reasonable investigation of Rios, a material and relevant

9

witness; and (2) failure to secure Rios’ testimony at trial. Petitioner asserts that as a

10

result of Counsel’s failures he was denied material, exculpatory evidence in his defense

11

and thus was prejudiced. For the reasons set forth below, the Court concludes that

12

Counsel’s representation was not constitutionally ineffective and thus denies Petitioner’s

13

motion.

14

Claims of ineffective assistance of counsel are governed by the principles set forth

15

in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance

16

of counsel claim, a petitioner must show that (1) counsel’s performance was deficient and

17

(2) counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.

18

Performance is constitutionally deficient if counsel’s representation “fell below an

19

objective standard of reasonableness” such that it was outside “the range of competence

20

demanded of attorneys in criminal cases.” Id. at 687–88 (internal quotation marks

21

omitted). Such assessment must be made “from counsel’s perspective at the time,” so as

22

“to eliminate the distorting effects of hindsight.” Id. at 689. In assessing trial counsel’s

23

performance, there is a “strong presumption that counsel’s conduct falls within the wide

24

range of reasonable professional assistance,” and hence “[j]udicial scrutiny of counsel’s

25

performance must be highly deferential.” Id.

26

To establish prejudice, “the defendant must show that there is a reasonable

27

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

28

would have been different.” Id. at 694. “A reasonable probability is a probability
4
11-cr-04250
Civil Case No.: 15-cv-0443

1

sufficient to undermine confidence in the outcome.” Id. If the court concludes that the

2

defendant fails to satisfy either prong of the Strickland standard, it need not address the

3

other. Stanley v. Schriro, 598 F.3d 612, 619 (9th Cir. 2010) (citing Strickland, 466 U.S.

4

at 697). “Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky,

5

559 U.S. ––––, 130 S.Ct. 1473, 1485 (2010).

6
7

A.

8

Petitioner argues counsel’s “failure to secure the testimony of a known, willing,

9

Performance

available and relevant witness was unreasonable” without conducting the necessary

10

investigation to see if that witness would testify. (Mot. to Vacate 5:5–9.) Specifically,

11

Petitioner argues that Counsel should have spoken, or at least requested to speak, with

12

Rios herself prior to Petitioner’s trial to ascertain her willingness to testify. (See Traverse

13

3:1–4.) The Government contends this argument lacks merit because Counsel

14

investigated Rios’ testimony, attempted to call her as a witness, and attempted otherwise

15

to present her testimony to the jury. (Resp. [Doc. 184] 1:25–28.)

16

Under Strickland, Counsel’s performance is deficient if it falls below an “objective

17

standard of reasonableness.” Strickland, 466 U.S. at 688. Where defense counsel’s

18

investigation is at issue, he or she has a “duty to make reasonable investigations or to

19

make a reasonable decision that makes particular investigations unnecessary.” Id. at 691.

20

Counsel must, “at a minimum, conduct a reasonable investigation enabling him to make

21

informed decisions about how best to represent his client.” Hendricks v. Calderon, 70

22

F.3d 1032, 1035 (9th Cir. 1995) (internal citation and quotations omitted). “Strategic

23

choices made after thorough investigation of law and facts relevant to plausible options

24

are virtually unchallengeable.” Strickland, 466 U.S. at 690.

25

The duty to investigate is not limitless and not every conceivable witness needs to

26

be interviewed. See Hendricks, 70 F.3d at 1040; Riley v. Payne, 352 F.3d 1313, 1318

27

(9th Cir. 2003). “Few decisions a lawyer makes draw so heavily on professional

28

judgment as whether or not to proffer a witness at trial.” Lord v. Wood, 184 F.3d 1083,
5
11-cr-04250
Civil Case No.: 15-cv-0443

1

1095 (9th Cir. 1999). Federal jurisprudence typically presumes such decisions are

2

“sound trial strategy.” Cullen v. Pinholster, 563 U.S. 170, 196 (quoting Strickland, 466

3

U.S. at 689.); United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990). “An

4

attorney need not pursue an investigation that would be fruitless.” Harrington v. Richter,

5

562 U.S. 86, 108 (2011). “[T]he duty to investigate does not force defense lawyers to

6

scour the globe on the off chance something will turn up; reasonably diligent counsel

7

may draw a line when they have good reason to think further investigation would be a

8

waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005).

9

In the present case, Counsel understood the importance of Rios’ testimony,

10

intended to call her as a witness, and otherwise attempted in various ways to present her

11

statements before the jury. (See Trial Day Two Tr. “Trial Tr.” [Doc. 150] 15:13–17.)

12

Counsel made statements that he would “prefer to call Ms. Rios” to testify, that the

13

information in her testimony “goes directly to [Petitioner’s] third-party culpability

14

defense,” and that he had “hop[ed] she wasn’t going to invoke” her Fifth Amendment and

15

martial spouse privileges. (Id. at 34:18–19, 36:1–4, 39:24–40:5.) Collectively, Counsel’s

16

statements demonstrate he was not only aware of the importance of Rios’ testimony but

17

he did in fact intend to call her as a witness until she invoked her rights against testifying

18

prior to trial and thus became unavailable. Rios was listed as an intended witness for trial

19

in the Government’s trial brief.

20

At the status hearing on January 6, 2014, Counsel brought Rios’ unavailability to

21

the Court’s attention and provided it was his understanding from speaking with Rios’

22

attorney, Mr. Kirby, and the prosecution, that Rios would be invoking her Fifth

23

Amendment rights and thus would not be a willing participant in Petitioner’s trial. (Status

24

Hr’g Tr. [Doc. 148] 3:11–17.) The Government corroborated this, providing that in

25

response to the Government’s subpoena, Mr. Kirby and Rios herself communicated that

26

she would be invoking her Fifth Amendment privilege as well as her martial spouse

27

privilege. (Status Hr’g 3:23–17.) The Government claims that the prosecutor made it

28

clear during the status hearing that Rios was unavailable, therefore Counsel was not
6
11-cr-04250
Civil Case No.: 15-cv-0443

1

ineffective for failing to procure her testimony at trial. (Opp’n 5:19–21.) In response,

2

Petitioner argues that Counsel should not have relied on the Government’s representation

3

about Rios’ unavailability. (See Traverse 2:9–16.) However, as shown, both Counsel and

4

the Government expressed Rios’ unavailability at the status hearing. Following the status

5

hearing the same day, Counsel asked Mr. Kirby if Rios would be testifying or invoking.

6

(See Trial Tr. 15:13–17.) Mr. Kirby informed Counsel that Rios would be invoking,

7

which Counsel interpreted to mean she would be invoking her Fifth Amendment rights.

8

(Id.)

9

On January 8, 2014, the second day of Petitioner’s trial, Counsel and the

10

Government again discussed Rios’ unavailability, providing she would be unwilling to

11

testify. Petitioner argues that Counsel “never attempted to confirm or dispel what the

12

prosecutor stated about [Rios’] willingness to testify.” (Traverse 3:3–4.) However,

13

Counsel offered to the Court to contact Mr. Kirby to clarify and confirm Rios’

14

unavailability and the extent she was unwilling to testify.3 (Trial Tr. 39:24–40:5.)

15

Under the circumstances, alleging Counsel should have further investigated Rios’

16

willingness to forgo her privileges would require Counsel to doubt Mr. Kirby’s and the

17

Government’s representations.4 In light of the representations made to him and the

18

Court’s rulings, Counsel’s investigation and belief that Rios was unavailable was

19
20
21
22
23
24
25
26
27

3

Petitioner seems to argue that Counsel had an obligation to do more than “briefly speak with [Mr.
Kirby]” to secure Rios testimony and that he should have done so further in advance to Petitioner’s trial.
(See Traverse 4:3–10.) However, Petitioner has failed to cite any authority, and the Court has found
none, suggesting that Counsel was required to do so. The Strickland inquiry is limited to an objective
standard of reasonableness, not anything higher. Although it may seem untimely, Counsel nevertheless
fulfilled his duty when he spoke to Mr. Kirby prior to trial and learned Rios would be invoking, or
intended to invoke, her privilege against testifying.

4

The Court need not address Petitioner’s claim that Counsel failed to investigate Rios’ right to decline
to testify under the Fifth Amendment. (See M. to Vacate.) Because the Court accepted that Rios
intended to invoke both her Fifth Amendment privilege and martial spouse privilege, even absent the
Fifth Amendment privilege, the outcome would be no different.

28
7
11-cr-04250
Civil Case No.: 15-cv-0443

1

reasonable and his decision not to investigate further was sound trial strategy. See

2

Strickland, 466 U.S. at 691. Counsel made a decision based on “reasonable professional

3

judgments support[ing] the limitations on investigation” and fulfilled his “duty to make

4

reasonable investigations or to make a reasonable decision that makes particular

5

investigations unnecessary.” See id. at 690–91. Counsel is not constitutionally required

6

to attempt to coerce testimony out of a witness when his or her attorney has provided the

7

witness is unwilling.

8

Notwithstanding Rios’ unavailability, Counsel made several attempts to present

9

Rios’ statements and corroborating information at trial because of their significance to

10

Petitioner’s third-party culpability defense. The Court found no exception to the hearsay

11

rule was applicable to allow this information before the jury because Rios was the type of

12

witness that absolutely required cross-examination. (See id. at 10:10–11:5.) In light of

13

that ruling, Counsel went even further and moved to order the Government to grant Rios

14

full immunity so Counsel could require her to testify in the event she did not plan on

15

invoking her spousal privilege. (Id. at 11:13–16 & 11:24–12:4.) The Court denied the

16

motion, relying on the representation that Rios would be invoking both her Fifth

17

Amendment privilege and spousal privilege and thus a grant of immunity could not force

18

her to testify. (Id. at 15.) Based on Counsel’s attempts and efforts to investigate and

19

introduce Rios’ statements at trial, Counsel’s performance cannot be said to be

20

constitutionally deficient. Although Counsel could have done more, or acted sooner, his

21

efforts did not fall outside the “wide range of professional assistance.” Strickland, 466

22

U.S. at 689.

23
24

B.

25

Petitioner argues he was prejudiced by Counsel’s failure to investigate and secure

Prejudice

26

Rios’ testimony because Rios would have been willing to testify, her testimony would

27

have meaningfully strengthened his third-party culpability defense, and Counsel’s

28

failures harmed that defense. (See M. to Vacate 8:3–9:4.) However, even assuming for
8
11-cr-04250
Civil Case No.: 15-cv-0443

1

the sake of argument that Counsel’s performance was deficient, Petitioner’s claim of

2

prejudice is merely speculative and thus his claim for ineffective assistance of counsel

3

must fail.

4

In assessing whether a petitioner has established prejudice, courts consider: (1)

5

whether the witness was available to testify; (2) the substance of the witness's anticipated

6

testimony; and (3) whether the witness's testimony created a reasonable probability that

7

the result of the proceeding would have been different. See Alcala v. Woodford, 334 F.3d

8

862, 872–73 (9th Cir. 2003). Here, Petitioner has not so demonstrated.

9

At minimum, Petitioner has failed to provide a showing that, at the time of trial,

10

Rios would have been willing to testify and what that testimony would include. United

11

States v. Harden, 846 F.2d 1229, 1231–32 (9th Cir. 1988) (no ineffective assistance

12

because of counsel's failure to call a witness where, among other things, there was no

13

evidence in the record that the witness would have testified). In order to bolster

14

Petitioner’s argument that, had Counsel asked, Rios would have been willing to forgo her

15

martial privilege, Petitioner’s current pro bono counsel points out that he has never had a

16

problem with Rios providing information on request. (See Traverse 3:15–17.)

17

In addition, Petitioner contends that Rios’ testimony would have included who

18

accompanied the two before and during their trip and the entirety of time they spent

19

together, thus providing a factual basis to argue that others had access to the car,

20

strengthening Petitioner’s third-party culpability defense. (See M. to Vacate 8:10–9:14.)

21

However, the problem with Petitioner’s arguments is that they are based solely on

22

the representations of Petitioner, not the witness herself. Mere speculation that a witness

23

would have given helpful information if interviewed by counsel and called to the stand is

24

not enough to establish ineffective assistance. See Bragg v. Galaza, 242 F.3d 1082, 1087

25

(9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). Petitioner has failed to submit any

26

declarations or affidavits from Rios providing that at the time of trial, she was available,

27

willing to testify, and that her testimony would be consistent with and in support of

28

Petitioner’s defense. See Dows v. Wood, 211 F.3d 480, 486 (petitioner should have
9
11-cr-04250
Civil Case No.: 15-cv-0443

1

submitted an affidavit from the alleged witness to demonstrate witness would have

2

provided testimony in support of the defense).5 Absent evidence showing that Rios

3

would have waived her privileges and testified, that such testimony would have been

4

consistent with and in support of Petitioner’s defense, and that such testimony would

5

have impacted the outcome of the case, Petitioner’s claim of prejudice is merely

6

conclusory and does not establish a reasonable probability that the outcome would have

7

been different. See Strickland, 466 U.S. at 694.

8
9
10

Based on the foregoing reasons, Petitioner has failed to establish either prong of
the Strickland standard and therefore his motion to vacate pursuant to 28 U.S.C. § 2255 is
denied.

11

In addition, the Court denies Petitioner’s request for an evidentiary hearing. A

12

court deciding a motion under 28 U.S.C. § 2255 is not required to hold an evidentiary

13

hearing if “the motion and the files and records of the case conclusively show that the

14

prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “Mere conclusory statements by

15

the petitioner do not justify a hearing.” Baumann v. United States, 692 F.2d 565, 571

16

(9th Cir. 1982). Instead, a defendant must make “specific factual allegations which, if

17

true, would entitle him to relief.” Id. As discussed above, Petitioner has failed to provide

18

specific facts or evidence showing a possible right to relief and the record and

19

submissions of the parties are sufficient to resolve his claim. Therefore, an evidentiary

20

hearing is not warranted. Finally, because the Court finds Petitioner’s § 2255 claim can

21

be decided without additional evidence, the Court also denies Petitioner’s motion for

22

appointment of counsel.

23
24
25
26
27
28

5

In addition, the Court is not persuaded that Rios’ testimony, if admitted and consistent with Petitioner’s
defense, would have created a reasonable probability of a different outcome because Rios’ testimony
would arguably lack credibility. The statements Rios’ provided to the government are two inconsistent
versions of who she and Petitioner interacted with during their trip. These inconsistencies, coupled with
the timing of her and Petitioner’s marriage, significantly undermine her credibility. Further, the Court
can only speculate as to which version of Rios’ testimony would have been offered had she testified.
10
11-cr-04250
Civil Case No.: 15-cv-0443

1

III.

CONCLUSION AND ORDER

2

For the foregoing reasons, the Court DENIES Petitioner’s motion to vacate

3

pursuant to 28 U.S.C. § 2255 and DENIES Petitioner’s motion for appointment of

4

counsel pursuant to 18 U.S.C. § 3006A.

5
6

IT IS SO ORDERED.

7
8

Dated: November 22, 2016

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
11-cr-04250
Civil Case No.: 15-cv-0443