Gomez v. United States Of America

Filing 2

REPORT AND RECOMMENDATIONS denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Angel Gomez. Petitioner's in forma pauperis status on appeal should likewise be denied. Objections to R&R due by 2/13/2013. Signed by Magistrate Judge G. R. Smith on 1/30/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ANGEL GOMEZ,

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V.

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UNITED STATES OF AMERICA

Case No. CV413-001
CR410-100

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REPORT AND RECOMMENDATION
Angel Gomez moves this Court for 28 U.S.C. § 2255 relief. CR410100. 1 He was convicted of importing controlled substances, 21 U.S.C. §§
960, 952, 851, possessing controlled substances with intent to distribute,

id. §§ 851, 841(a)(1), stowing away on a vessel, 18 U.S.C. § 2199, and
smuggling goods into the United States, id. § 545.

United States v.

Garcia-Duran, 453 F. App'x 950, 950 (llth Cir. 2012); doe. 186 at 1-2.
On his unsuccessful appeal, he argued that (1) the district court abused
its discretion by refusing to give a requested "duress" jury instruction;
and (2) there was a discrepancy in the oral and written judgments
regarding the payment of his fine. Garcia-Duran, 453 F. App'x at 950.

The Court is citing only to the criminal docket and using its docketing software's
pagination; it may not always line up with each paper document's printed pagination.
1

Here Gomez raises oniy one § 2255 ground: that his attorney, Thomas L.
Cole, provided him with ineffective assistance of counsel. 2
When a § 2255 motion is filed, it is subject to preliminary review, at
which time the court is authorized to dismiss the motion summarily "[i]f
it plainly appears from the motion, any attached exhibits, and the record
of the prior proceedings that the moving party is not entitled to relief."
Rule 4(b), Rules Governing Section 2255 Proceedings. The Court
exercises that authority here.
On direct appeal the Eleventh Circuit addressed Gomez's "duress"
defense and explained, as does Gomez himself in his § 2255 motion, that
Rodrigo Temple Wood, Gomez, and Garcia-Duran boarded a ship in
Panama that landed in the United States. 453 F. App'x at 950-51. After
disembarking the ship the men were almost immediately caught

2

For ineffective assistance of counsel to provide a basis for federal habeas relief,
movant must satisfy the two-part test from Strickland v. Washington, 466 U.S. 668,
687 (1984). First, he must show that his counsePs performance was deficient and that
it prejudiced his defense. Id. To show prejudice, he need only demonstrate a
reasonable probability that the result of the proceeding would have been different
absent the error. Id. at 694. A reasonable probability in this context is "a probability
sufficient to undermine confidence in the outcome." Id. Gomez thus must establish
both deficient performance and prejudice in order to establish ineffective assistance
of counsel. Id. at 687. "Surmounting Strickland 's high bar is never an easy task."
Padilla v. Kentucky, - U.S. -, 130 S. Ct. 1473, 1485 (2010); Garcia-Duran v.
United States, 2013 WL 164423 at * 1 n. 2 (S.D. Ga. Jan. 14, 2013).

smuggling drugs. See infra n. 3. Gomez and Garcia-Duran claimed that
Wood forced them to commit the charged offenses. Garcia-Duran, 453 F.
App'x at 951. Yet, said the Eleventh Circuit, they
failed to prove that they could not have availed themselves of
reasonable opportunities to alert law enforcement or escape from
Wood. As they disembarked the ship in the United States, GarciaDuran and Gomez could have, but failed, to reveal the drugs
concealed at their waistbands to either longshoremen or customs
officers. Garcia-Duran, Gomez, and Wood left the dock in a taxi,
but when Wood fled the moving taxi, Garcia-Duran and Gomez fled
too. Neither Garcia-Duran, who is fluent in English, nor Gomez
sought assistance from the taxi driver.

Id. And "[w]hen arrested, Garcia-Duran and Gomez did not assert that
they had acted under duress." Id. Hence, the district court committed no
error in refusing to give a jury instruction on their duress defense. Id.
In his only § 2255 claim, Gomez faults Cole for failing to crossexamine Wood adequately. To support that claim Gomez, via supporting
affidavit, supplies surrounding context by summarizing Wood's
testimony. Wood said that he, Gomez, and Garcia-Duran each carried
two kilograms (evidently of a cocaine and heroin mixture, doc. 16 at 3)
from the ship onto the shore. Doc. 228 at 17. After Wood was arrested,
Gomez told him not to mention anything about the drugs and that Wood
should remember that he has family in Panama. Finally, both Gomez
3

and Garcia-Duran asked Wood to take full responsibility for the offloaded drugs. Id. 3

This summary comports with the trial transcript, though Gomez unsurprisingly
fails to note plenty of testimony incriminating himself. Wood testified that he met
Gomez in Panama, through Gomez's uncle Jorge. Doc. 202 at 72. Twice before Wood
had entered the United States but was caught. Id. at 72-73. Wood wanted to reenter the United States and Jorge convinced him to travel with Gomez and GarciaDuran. Id. at 74. From those conversations Wood came to believe that he would be
paid $10,000, presumably to carry drugs with him into the U.S. Id. at 75.
Jorge gave both Wood and Gomez cell phones. Id. at 76. He also gave all three
men a 1-kilogram package of drugs for each to take ashore. Id. at 77, 88. If Wood got
lost onshore he was to call a contact named "Negro." Id. Wood also was given a bag
with food. Id. While still on the ship in Panama, Wood heard Gomez talking to
Gomez's wife, and "he said to keep the money. That they should save, yes, save their
money." Id. at 80. No one had any weapons. Id. at 81.
When the ship that the men chose to travel on arrived in Savannah, Georgia,
Gomez told Wood to put on a waistband so he could carry two square packages inside
of them. Each of the three men did so. Id. at 82. Wood objected to carrying two but
Gomez "told me I had to take them out, for me to remember that his uncle knows
where my family lives in Panama." Id. at 83. On the night before the ship's arrival,
Gomez instructed Wood to get rid of the food and clothing that had previously been
given to him. Id. at 85.
Once in port, the three men climbed down the ship's ladder to the dock and
Garcia-Duran called a taxi. Id. at 85-86. Wood asked how the men were going to exit
the port and Gomez told him not to worry. Id. at 86. But soon Garcia-Duran argued
with the taxi driver, who said they all needed passes to exit the port. Id. at 86-97.
After Wood said that that he had no pass, Garcia-Duran told him to get out and run,
so he did. Id. at 87. "We all left running." Id.
The police chased them, and Gomez took the drugs from Wood, but soon the police
captured all three men and placed them in a patrol car. Id. at 88. There Gomez
instructed Wood to remain silent about the drugs and reminded him of his family in
Panama. Id. Then Garcia-Duran "told me that I should have the case because they
had, they had drug cases here. And that if I took the case, they were going to talk to
Jorge in Panama to give me a car." Id. Wood later pled guilty and testified against
Garcia-Duran and Gomez. Id. at 88-89.
4

Cole, Gomez contends, deficiently performed by asking Wood just
"one legally proper question . . . . 'How many times have you been in
jail?" Doe. 228 at 17. Wood answered none in the United States, and
only once in his own country, in conjunction with an accident. Doe. 228
at 17. Gomez insists Cole should have asked Wood about his cooperation
agreement with the government, along with his sentencing expectations.
Id. at 17-18. Plus he should have explored "Wood's motives to fabricate
all or part of hIs trial testimony; the role of Gomez in the offense of
conviction; Wood's motive to enter into his cooperation agreement; etc."
Id. at 18.
This claim fails. The burden is on the movant to show prejudice -that the "missed" questioning would have made a difference. See United

States v. Orr, 636 F.3d 944, 953-54 (8th Cir. 2011) (adversarial witness's
testimony regarding defendant's drug distribution was cumulative, and
thus defendant was not prejudiced by counsel's failure to impeach
witness with prior inconsistent statements on cross-examination in
prosecution for various crack cocaine and firearm offenses, precluding
ineffective assistance claim; in addition to witness's unimpeached
testimony, jury heard testimony from law enforcement and confidential
5

informants regarding controlled buys from defendant, and drugs and
drug paraphernalia were seized at defendant's house and linked to
defendant) .
At most Gomez asks this Court to speculate. That is not enough,
especially since: (a) the evidence against him was overwhelming -- the
men were caught red-handed and Gomez does not challenge the Eleventh
Circuit's factual recitation; (b) Gomez has tendered no affidavit or
otherwise shown any of Wood's testimony to be false; and (c) Gomez fails
to show how a rational jury would have been swayed by his proffered
extra layer of cross-examination, as premised on the mere
superillumination of Wood's prior history and bad character.

See also Sowell v. Anderson, 663 F.3d 783, 800 (6th Cir. 2011) (defendant had not
been prejudiced in capital murder trial by trial counsel's alleged ineffective assistance
in not cross-examining witness to shooting, since identity of defendant as shooter was
never in question and witness had not been potential suspect, and even if counsel
would have highlighted inconsistencies between witness' testimony and that of
shooting victim, those inconsistencies concerned somewhat collateral matters);
Manchas v. Superintendent of SCI Huntingdon, 428 F. App'x 184, 191 (3rd Cir.
2011); United States v. Munoz, 605 F.3d 359, 380-81 (6th Cir. 2010) (defense counsel's
re-cross examination of government witness, which failed to highlight the fact that
witness did not tell government that defendant knew the package he delivered
contained drugs until after he entered into plea agreement, was not deficient
assistance in drug conspiracy prosecution for purposes of ineffective assistance of
counsel claim; after skillfully impeaching witness counsel did undermine the
government's attempt to rehabilitate him on different basis that witness's motive to
lie preceded the plea agreement); CRIM. PRo. HANDBOOK § 3:54 (June 2012)
(collecting cases).

Hence, Gomez can meet neither Strickland prong, so his IAC claim
fails. That, in turn, means his § 2255 motion must be denied. Applying
the Certificate of Appealability (COA) standards set forth in Brown v.

United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the
Court discerns no COA-worthy issues at this stage of the litigation, so no
COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211
F.3d 895 7 898 (5th Cir. 2000) (approving sua sponte denial of COA before
movant filed a notice of appeal). And, as there are no non-frivolous
issues to raise on appeal, an appeal would not be taken in good faith.
Thus, in forma pauperis status on appeal should likewise be DENIED.
28 U.S.C. § 1915(a)(3).

SO REPORTED AND RECOMMENDED, this

50

day of

January, 2013.
UNITE"STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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