Zambrano Zambrano v. United States of America
Filing
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ORDER denying 1 Motion to Vacate / Set Aside / Correct Sentence (2255). The clerk is directed to enter a judgment against Zambrano, close this case, and enter a copy of this order in the criminal case. Signed by Judge Steven D. Merryday on 11/17/2022. (LSC)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:18-cr-511-SDM-JSS
8:20-cv-156-SDM-JSS
RAMON ELIAS ZAMBRANO
ZAMBRANO
____________________________________
ORDER
Ramon Elias Zambrano Zambrano moves under 28 U.S.C. § 2255 to vacate
his conviction and sentence for possession with intent to distribute cocaine while
aboard a vessel subject to the jurisdiction of the United States, for which he is
imprisoned for 108 months. Zambrano claims he received ineffective assistance of
counsel and challenges the district court’s jurisdiction.
I. BACKGROUND
Under a plea agreement Zambrano pleaded guilty to possession with intent to
distribute five kilograms or more of cocaine while aboard a vessel subject to the
jurisdiction of the United States in violation of 18 U.S.C. § 2,
21 U.S.C. § 960(b)(1)(B)(ii), and 46 U.S.C. §§ 70503(a) and 70506(a). The district
court adjudicated Zambrano guilty and sentenced him to 108 months. Zambrano
filed no appeal.
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Zambrano now moves to vacate his conviction and sentence and claims (1)
that counsel was ineffective for failing to object to a defect in venue, (2) that the
district court lacked jurisdiction over the vessel, and (3) that counsel was ineffective
for failing to move for dismissal of the indictment based on a violation of the Speedy
Trial Act.
II. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains,
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
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defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its
two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.”
466 U.S. at 690. Strickland requires that “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
Zambrano must demonstrate that counsel’s alleged error prejudiced the
defense because “[a]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect
on the judgment.” 466 U.S. at 691–92. To meet this burden, Zambrano must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
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investigation.” 466 U.S. at 690–91. Zambrano cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992); accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
Burger v. Kemp, 483 U.S. 776, 794 (1987)); see also Jones v. Barnes, 463 U.S. 745, 751
(1983) (counsel has no duty to raise a frivolous claim).
III.
GROUND ONE
Zambrano claims that counsel was ineffective for failing to object to a defect in
venue. (Civ. Doc. 1 at 4) He argues that venue is proper only in the United States
District Court for the Southern District of Florida because he first entered the United
States in Miami, Florida.
“A person violating [46 U.S.C. §] 70503” may be tried in any district “if the
offense was begun or committed upon the high seas[.]” 46 U.S.C. § 70504.
Zambrano admitted that the United States Coast Guard interdicted his vessel in
international waters, approximately 230 nautical miles west of Manta, Ecuador.
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Crim. Doc. 24 at 19; see United States v. McPhee, 336 F.3d 1269, 1273 (11th Cir. 2003)
(“The United States generally recognizes the territorial seas of foreign nations up to
twelve nautical miles adjacent to recognized foreign coasts.”). Because the vessel
was interdicted in international waters, Zambrano could be tried in any district,
including the United States District Court for the Middle District of Florida.
Counsel is not ineffective for failing to raise a meritless objection. Denson v. United
States, 804 F.3d 1339, 1342 (11th Cir. 2015) (citing Freeman v. Attorney General,
Florida, 536 F.3d 1225, 1233 (11th Cir. 2008)).
IV.
GROUND TWO
Zambrano claims that the district court lacked jurisdiction over the vessel
because the vessel’s master claimed Ecuadorian nationality and that the district court
found no facts establishing jurisdiction. (Civ. Doc. 1 at 5)
Jurisdictional issues “are preliminary questions of law to be determined solely
by the trial judge.” 46 U.S.C. § 70504. “It is fundamental that parties may not
stipulate to federal jurisdiction[;]” however, parties may “stipulate to facts that bear
on [the court’s] jurisdiction.” United States v. Iguaran, 821 F.3d 1335, 1337 (11th Cir.
2016) (quotations omitted). “A court’s task is to determine whether the stipulated
facts give rise to jurisdiction.” Id. (quotations omitted).
A “vessel subject to the jurisdiction of the United States” includes “a vessel
without nationality.” 46 U.S.C. § 70502(c)(1)(A). A “vessel without nationality”
includes “a vessel aboard which the master or individual in charge fails, on request of
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an officer of the United States authorized to enforce applicable provisions of United
States law, to make a claim of nationality or registry for that vessel[.]”
Id. § 70502(d)(1)(B).
Zambrano’s claim lacks merit because admitted facts establish the district
court’s jurisdiction over the vessel. Zambrano admitted both that the United States
Coast Guard “found no indicia of nationality for the vessel” and that “the
Ecuadorian master of the vessel refused to make a claim of nationality” for the
vessel. (Crim. Doc. 24 at 20). As a result the Coast Guard treated the vessel as a
vessel without nationality and subject to the jurisdiction of the United States. Id. at
20–21; United States v. Obando, 891 F.3d 929, 938 (11th Cir. 2018) (affirming
jurisdiction because “[t]he crew members stipulated that the master of the [vessel]
failed to produce documents evidencing the vessel’s nationality or to make a verbal
claim of nationality or registry”).
V.
GROUND THREE
Zambrano claims that counsel was ineffective for failing to move for dismissal
of the indictment based on a violation of the Speedy Trial Act. (Civ. Doc. 1 at 6) He
erroneously argues that he was indicted more than thirty days after his arrest.
Under the Speedy Trial Act “[a]ny information or indictment charging an
individual with the commission of an offense shall be filed within thirty days from
the date on which such individual was arrested or served with a summons in
connection with such charges.” 18 U.S.C. § 3161(b). An “arrest” occurs when an
individual is “formally charged with an offense.” United States v. Sayers, 698 F.2d
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1128, 1130–31 (11th Cir. 1983); United States v. Kubiak, 704 F.2d 1545, 1548 (11th
Cir. 1983) (affirming denial of a motion to dismiss an indictment because the
defendants “were not held to answer in federal court until they were indicted”);
United States v. Santana, No. 1:22-cr-20220-KMM, 2022 WL 16845104, at *7 (S.D.
Fla. Nov. 9, 2022) (finding “no Eleventh Circuit case holding that arrest may occur
at a time other than the date of charging in the context of a Speedy Trial challenge to
an MDLEA interdiction”).
Zambrano was arrested for purposes of the Speedy Trial act on November 4,
2018. (Crim. Doc. 5) The indictment was issued on October 30, 2018, before he was
arrested. (Crim. Doc. 1) There was no violation of the Speedy Trial Act, and
counsel was not ineffective for failing to raise a meritless objection.
Zambrano’s motion under Section 2255 to vacate, set aside, or correct his
sentence is DENIED. The clerk is directed to enter a judgment against Zambrano,
close this case, and enter a copy of this order in the criminal case.
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Zambrano is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Zambrano must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues
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she seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show
that reasonable jurists would debate either the merits of the claims or the procedural
issues, Zambrano is entitled to neither a certificate of appealability nor an appeal in
forma pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED. Zambrano must obtain permission from the circuit court to appeal in
forma pauperis.
ORDERED in Tampa, Florida, on November 17, 2022.
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