Anzaldo-Contreras v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. A certificate of appealability is denied. Signed by Judge Larry Alan Burns on 3/20/15.(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

CASE NO. 11cr1447-LAB-2
and 15cv594-LAB
Plaintiff,

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vs.

ORDER DENYING MOTION
PURSUANT TO 28 U.S.C. § 2255

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PABLO OSCAR ANAZALDOCONTRERAS,
Defendant.

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On June 17, 2011, Defendant Pablo Oscar Anzaldo-Contreras was convicted by a jury

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of possession of marijuana with intent to distribute, importation of marijuana, and conspiracy

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to distribute marijuana. He took an appeal, which was unsuccessful. The Ninth Circuit issued

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its judgment on November 6, 2013, affirming the Court’s judgment, and the mandate was

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entered on November 29, 2013. (See Docket no. 107.)

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Anzaldo-Contreras later filed a motion to vacate, pursuant to 28 U.S.C. § 2255.

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(Docket no. 115.) The motion was received on March 11, 2015, but is dated February 28,

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2015. For purposes of applying the prisoner mailbox rule, the Court’s working assumption

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is that he delivered his motion to authorities for mailing on February 28, 2015. See Lewis v.

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Mitchell, 173 F.Supp.2d 1057, 1059 (C.D. Cal., 2001) (citing cases for the principle that, in

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the absence of other evidence, the date a pleading is signed is presumed to be the date the

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prisoner delivered it to prison authorities, for purposes of the prisoner mailbox rule). Because
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Anzaldo-Contreras petitioned for certiorari, his conviction became final on March 3, 2013, the

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date the Supreme Court denied his petition.

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Anzaldo-Contreras raises claims of ineffective assistance of trial and appellate

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counsel. To the extent he raises issues in his motion that he unsuccessfully raised on appeal,

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the Court has no authority to overrule the Ninth Circuit’s decision rejecting those claims.

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The entire argument consists of nitpicking his attorney’s performance, suggesting

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arguments or suggestions he should have made. In the introductory section, he argues his

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counsel should have disputed the suggestion that he stole some of the marijuana. (Motion

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at 11–12, 30.) He argues his counsel should have objected to his being punished for failing

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to admit guilt. (Id. at 11–12, 23, 33–35.) He also suggests that after the parties had

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presented their arguments and the Court was making its findings, his counsel should have

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interrupted the Court to object. (Id. at 23.). In the main section of his motion, Anzaldo-

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Contreras argues his counsel should have moved to suppress his arrest. (Motion at 29–30.)

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He argues his counsel was ineffective for failing to request minor role. (Id. at 30–31.) He

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repeats his claim that he did not steal any marijuana and claims his counsel "slept through"

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this. (Id. at 32–33.) He argues his counsel was ineffective for not insisting that he receive

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credit for acceptance of responsibility. (Id. at 34–35.) He also argues his appellate counsel

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was ineffective for failing to raise these ineffective assistance of counsel claims. (Id. at

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35–37.) He argues that an evidentiary hearing is required, and seeks to have his sentence

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vacated. None of these arguments have any merit.

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The transcript of sentencing was lodged in connection with Anzaldo-Contreras’

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appeal, and is filed in the docket. (Docket no. 77.) Claims of ineffective assistance of

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counsel are analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668,

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687–88 (1984). Measured by this standard, Anzaldo-Contreras’ claims of ineffectiveness of

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trial and appellate counsel easily fail.

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First, the government contested the discrepancy in the weight of marijuana, which

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gave rise to a suspicion that Anzaldo-Contreras might have stolen some of it. (See Tr.,

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17:12–19:10.) And Anzaldo-Contreras himself contested it. (Id. at 30:2–7.) There was no
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need for defense counsel to contest it too. Moreover, the Court was not completely

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convinced he had stolen any (id., 23:17–19), although it suspected he did. (Id. at 39:9–13.)

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And in any event, the possibility that he had stolen marijuana made no real difference.

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The Court principally relied on the possibility when it was considering whether there was any

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reason to sentence him to less than the low end of the guidelines sentence. (Id. at

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38:20–39:18.) Even if the Court were convinced he had not stolen or planned to steal any

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marijuana, a defendant’s not having stolen marijuana is not a reason to reduce his sentence.

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The allegedly unconstitutional seizure Anzaldo-Contreras thinks his attorney should

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have challenged was Anzaldo-Contreras’ own arrest, rather than evidence obtained in

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connection with the arrest. (Motion at 29–30.) But such a challenge would have been

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unsuccessful, under the Ker-Frisbie doctrine. See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032,

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1039–40 (1984) (explaining that the defendant and his identity are not suppressible even if

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the arrest was unlawful).

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Anzaldo-Contreras was not entitled to credit for acceptance of responsibility after he

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went to trial and even after trial denied having done anything wrong. His attorney was

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therefore not ineffective for failing to ask for it, or for failing to object to the Court’s

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observation that he continued to maintain his innocence. He was also not entitled to minor

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role, and would not have received it even if his attorney requested it. (See Tr. at 23:12–16

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(Court’s observation that evidence at trial had shown Anzaldo-Contreras "was involved in this

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up to his hips"); 39:1–8 (emphasizing the huge amount of marijuana involved and Anzaldo-

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Contreras’ close involvement in it); 41:23–25 (emphasizing that Anzaldo-Contreras "had a

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big part" in the criminal enterprise).)

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The claim that defense counsel should have interrupted the Court to dispute its

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findings (Motion at 23) is frivolous. After both sides make their arguments, it is time for the

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Court to discuss the various sentencing factors and sentence the defendant. What is more,

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the objections Anzaldo-Contreras thinks his counsel should have made (id.) would have

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failed.

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In short, Anzaldo-Contreras wishes his trial counsel had argued differently. But this

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does not give rise to an ineffective assistance of counsel claim. The Court has reviewed the

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motion, and he has not identified any way in which his trial counsel was ineffective. Because

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of this, his appellate counsel was not ineffective for failing to claim that his trial counsel was

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ineffective. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (“[T]rial counsel

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cannot have been ineffective for failing to raise a meritless objection.”); Rupe v. Wood, 93

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F.3d 1434, 1445 (9th Cir.1996) (“[T]he failure to take a futile action can never be deficient

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performance . . . .”)

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The motion is DENIED and a certificate of appealability is also DENIED.

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IT IS SO ORDERED.
DATED: March 20, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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