Acuna v. USA
Filing
3
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255 re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/21/12. (emt, )CERTIFICATE OF SERVICEPa rticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Benjamin Acuna served by first class mail at the address of record on May 21, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BENJAMIN ACUNA,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
)
Respondent.
_____________________________ )
CRIM. NO. 07-00615 SOM
CIV. NO. 12-00087 SOM/BMK
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT
A SENTENCE BY A PERSON IN
FEDERAL CUSTODY UNDER 28
U.S.C. § 2255
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A
SENTENCE BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255
I.
INTRODUCTION.
Benjamin Acuna is currently serving a 384-month (32-
year) sentence.
He was convicted of conspiring to distribute
methamphetamine and to commit money laundering.
Acuna now seeks
to vacate his sentence pursuant to 28 U.S.C. § 2255 on the ground
that his trial counsel provided ineffective assistance.
The
court denies his motion.
II.
BACKGROUND.
Acuna was indicted on November 17, 2007.
A superseding
indictment, filed on July 2, 2008, charged Acuna with conspiring
to distribute and possess with intent to distribute 50 grams of
more of methamphetamine, its salts, isomers, and salts of its
isomers (Count 1), and conspiring to commit money laundering
(Count 3).
Counts 2 and 4 sought criminal forfeiture of the
proceeds and property derived from his criminal activities if he
was convicted of Counts 1 and 3.
Acuna pled not guilty, and a jury trial commenced on
August 6, 2008.
The United States presented evidence showing
Acuna’s leadership role in a sophisticated conspiracy to
transport thousands of pounds of methamphetamine from Mexico to
Las Vegas, then to Oahu.
Acuna and some of his co-conspirators
were alleged to have owned stores in Nevada that they used to
hide the income they derived from their drug sales.
On September 2, 2008, a jury convicted Acuna of Counts
1 and 3, and found him subject to criminal forfeiture for
obtaining $8 million in proceeds, property in Nevada, and money
held in various bank accounts from the drug and money laundering
conspiracies.
See ECF Nos. 370, 386.
This court held a sentencing hearing on January 5,
2009.
With respect to Count 1, the court sentenced Acuna to 384
months in prison and five years of supervised release.
With
respect to Count 3, Acuna was sentenced to 240 months in prison
and three years of supervised release.
served concurrently.
The terms are being
On December 15, 2010, the Ninth Circuit
affirmed Acuna’s conviction and sentence.
See ECF No. 636.
On February 13, 2012, Acuna moved to vacate his
sentence pursuant to 28 U.S.C. § 2255, on the ground that his
counsel’s ineffectiveness had denied him his Sixth Amendment
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right to counsel.
He seeks an evidentiary hearing.
This court
conducted a telephone hearing at which Acuna, proceeding pro se,
presented arguments through an interpreter.
No live testimony
was taken, and the court finds this matter suitable for
disposition without an evidentiary hearing.
The court now denies
Acuna’s motion.
III.
LEGAL STANDARD.
A federal prisoner may move to vacate, set aside, or
correct his or her sentence if it “was imposed in violation of
the Constitution or laws of the United States, . . . the court
was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack . . . .”
§ 2255.
28 U.S.C.
A petitioner must allege specific facts that, if true,
entitle the petitioner to relief.
See United States v. Howard,
381 F.3d 873, 877 (9th Cir. 2004); United States v. Rodrigues,
347 F.3d 818, 824 (9th Cir. 2003) (citing United States v.
McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)).
A judge may dismiss a § 2255 motion if “it plainly
appears from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief.”
Rule 4(b), Section 2255 Rules.
A court need not hold
an evidentiary hearing if the allegations are “palpably
incredible or patently frivolous,” or if the issues can be
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conclusively decided on the basis of the evidence in the record.
See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also
United States v. Mejia–Mesa, 153 F.3d 925, 929 (9th Cir. 1998)
(noting that a “district court has discretion to deny an
evidentiary hearing on a § 2255 claim where the files and records
conclusively show that the movant is not entitled to relief”);
Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
IV.
ANALYSIS.
Acuna’s motion asserts three ineffective assistance of
counsel claims.
To establish ineffective assistance of counsel,
Acuna must show that (1) his counsel’s performance was deficient,
and (2) the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
There is “a
strong presumption” that counsel's conduct was reasonable and
that counsel's representation did not fall below “an objective
standard of reasonableness” under “prevailing professional
norms.”
Id. at 688.
Even if a petitioner can overcome the presumption of
effectiveness, that petitioner must show a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at 694.
Because “[i]t is all too tempting for a defendant to second-guess
counsel’s assistance after conviction,” judicial scrutiny of
counsel’s performance is highly deferential.
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Id. at 689.
A.
Claims One and Two.
In Claim One and Claim Two, Acuna argues that his
counsel was ineffective in advising him to stand trial instead of
to plead guilty or nolo contendere.
With respect to the first Strickland prong, Acuna
alleges that his counsel did not fully advise him of the facts
and law necessary for him to make an informed decision about
whether he should proceed to trial or plead guilty.
He says he
does not understand English well, and he alleges that his counsel
failed to explain his pleading options in a way he could
understand.
Acuna appears to be complaining not about the
quality of the Spanish interpreter’s services, but about the
substance of the explanations his counsel provided.
He allegedly
thought his only options were to plead guilty and enter into a
plea agreement for a life sentence, or proceed to a jury trial.
Acuna’s motion says that, had he been fully informed of
the law, Acuna would have pled guilty or nolo contendere, or
sought a bench trial on stipulated facts.
He contends that his
counsel should have explained to him that “there was virtually no
chance he could prevail at [a jury] trial due to the overwhelming
weight and quality of the government’s evidence.”
Mot. to Vacate
Sentence Pursuant to 28 U.S.C. § 2255 ¶ 27, Feb. 13, 2012, ECF
No. 651.
He says he was “misadvised” that the only way he could
obtain a benefit with respect to his sentence was by helping the
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government prosecute others.
He allegedly did not know that the
United States Sentencing Commission Guidelines Manual provides
for a reduction of the guideline range of a defendant who accepts
responsibility for a charged offense. U.S. SENTENCING GUIDELINES
MANUAL § 3E1.1 (2008).
He also allegedly did not know that, even
if he pled guilty or nolo contendere, he could have raised
mitigating factors that might lessen his sentence.
Thus, Acuna
argues, his not guilty plea was not voluntary and intelligent.
See, e.g., United States v. Diaz-Ramirez, 646 F.3d 653, 656-57
(9th Cir. 2011) (“[I]t has ‘long been recognized’ that a guilty
plea must be both ‘intelligent and voluntary’ to satisfy due
process.” (quoting Brady v. United States, 397 U.S. 742, 747 n.4
(1970))).
The United States argues that Acuna was aware of all
available options when he pled not guilty.
A declaration by
Acuna’s counsel states that Acuna was fully informed of his
option to plead guilty.
United States’ Response to Def.’s Mot.
Under 28 U.S.C. § 2255, Ex. C. ¶ 9, ECF No. 666.
Counsel states
that he was “very mindful” that English was not Acuna’s first
language.
Id. ¶ 5.
He therefore only spoke to Acuna with a
certified Spanish interpreter when discussing any material or
substantive matters.
Id.
He says that at no time did he feel
there was a communication gap between himself and Acuna.
Id.
According to counsel, Acuna said he was not guilty, and he was
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“adamant and unequivocal about going to trial.”
Id. ¶ 9.
Counsel says that, based on the information provided by Acuna, he
“could not ethically advise [Acuna] to plead guilty as he denied
any involvement in any of the allegations against him.”
Id. ¶ 8.
Counsel says that it was because Acuna denied guilt that counsel
did not discuss with Acuna the potential reduction of his
sentencing guideline range if he accepted responsibility.
¶ 12.
Id.
Counsel says that he did, however, inform Acuna that “the
decision to plead guilty or not guilty was his alone.”
Id. ¶ 9.
At the hearing on this motion, Acuna reiterated the
argument presented in his brief that, had he understood his
attorney, he would have pled guilty.
However, he said that he
would have pled guilty to conspiring to distribute only 30 pounds
of methamphetamine, which is the amount he says he personally
distributed.
Acuna conceded that he did tell his counsel he was
not guilty, and that he expected his counsel to believe him.
He
takes the position that his counsel should have advised him to
plead guilty anyway because he had no chance of being acquitted
by a jury.
Even if Acuna did not understand his counsel, Acuna
does not show that his counsel was ineffective.
To demonstrate
deficient performance Acuna must show that counsel's performance
“‘fell below an objective standard of reasonableness’ based on
‘the facts of the particular case [and] viewed as of the time of
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counsel's conduct.’”
Gonzalez v. Wong, 667 F.3d 965, 987 (9th
Cir. 2011) (quoting Strickland, 466 U.S. at 688–90) (modification
in original).
Even if Acuna’s counsel did not ensure that Acuna
fully understood that a guilty plea could result in a lower
sentence and that the United States had a strong case against him
(a matter this court does not actually find), counsel’s
performance could not be said to have been unreasonable.
It is
undisputed that Acuna told his counsel that he was not guilty.
Acuna’s counsel had no duty tell Acuna that, despite being
innocent, he would be better off pleading guilty.
Acuna’s
counsel clearly could not have represented to the court that
Acuna was guilty while Acuna was asserting his innocence.
An
evidentiary hearing is unnecessary on this point, as there is no
dispute that Acuna told his counsel that he was not guilty and
expected his counsel to believe him.
Even if Acuna could establish that counsel’s
performance fell below an objective standard of reasonableness,
it is not clear that Acuna could establish the second Strickland
prong, which requires a petitioner to show actual prejudice
flowing from the alleged inefficiency of counsel.
“An 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.”
Strickland, 466 U.S. at 692.
Acuna argues that he was prejudiced by his counsel’s failure to
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fully inform him of his option to plead guilty and accept
responsibility because a guilty plea could have resulted in a
lower sentence.
This court relied on the applicable United States
Sentencing Guidelines Manual (effective November 1, 2008) and
determined that Acuna’s offense level was 46.
Transcript of
Proceedings on Jan. 5, 2009, (“Sentencing Transcript”) at 20:13,
ECF No. 574.
The sentencing guideline for a level 46 offense is
life in prison.
Acuna’s base offense level for conspiring to
distribute 907.2 kilograms of methamphetamine (Count 1) was 38.
The court added two levels because Acuna possessed a firearm,
four levels because Acuna was a leader in the conspiracy, and two
levels for obstructing justice.
Acuna argues that, had he pled
guilty or nolo contendere or stipulated to the facts, he would
not have received the two-level increase for obstructing justice,
as that related to his trial testimony, and he would have
received a three-level reduction for accepting responsibility
pursuant to § 3E1.1 of the United States Sentencing Commission
Guidelines Manual.
Acuna thus argues that his offense level
would have been 41.
The court sentenced Acuna to 384 months, which happens
to fall within the guideline range of 324 to 405 months at level
41.
Although 384 months is on the higher end of the range for a
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level 41 offense, Acuna would not necessarily have received a
sentence shorter than 384 months.
Under 18 U.S.C. § 3553(a)(1)(6), a court is to
consider, among other things, “the need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct.”
Even if Acuna had
pled guilty, this court would have been required to take into
account the sentence of Acuna’s wife and co-defendant, Anabel
Valenzuela, who was also convicted of all counts in the
indictment.
This court sentenced Valenzuela to 384 months in
custody for the drug conspiracy.
Given the similar conduct by
Valenzuela and Acuna, even if Acuna had pled guilty, he would not
necessarily have received a sentence lower than Valenzuela’s.
In addition, in sentencing Acuna to 384 months in
custody, this court relied on factors that would have been
present even if Acuna had pled guilty or stipulated to facts such
as his leadership role in the conspiracy.
at 23:12-16.
Sentencing Transcript
The court considered Acuna’s status as an
undocumented immigrant who, at the time he was sentenced, had
been deported three times and had previously been in prison after
having been found with methamphetamine.
Id. at 24:2-10.
Based
on his history, this court was concerned that, even after serving
a long prison sentence, Acuna would return to drug dealing.
at 24:23 - 25:2.
The court also considered the sentences of
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Id.
others involved in the conspiracy, such as the 20-year sentence
given to Antonio Santos.
The court concluded that, given Acuna’s
leadership role, Acuna’s sentence should be at least 50 percent
longer that Santos’s.
Id. at 25:12-17.
Acuna may now be attempting to argue that his offense
level should have been even lower than 41.
At the hearing on
this motion, he stated that he would have pled guilty to
conspiring to distribute only the 30 pounds of methamphetamine
that he personally delivered.
At trial, Acuna admitted that he had sold roughly only
25 grams of methamphetamine.
Transcript of Proceedings on August
26, 2008, at 121:8-11, 134:6-8, ECF No. 563.
This court need not
resolve the discrepancy between 25 grams and 30 pounds, as the
record conclusively shows that Acuna cannot succeed on this
motion on that ground.
First, the one-year statute of limitations bars Acuna
from now contesting the drug amount.
See 28 U.S.C. § 2255(f).
Acuna did not contest the drug amount in his § 2255 motion or the
memorandum in support of his motion, which were timely filed.
He
raised the issue for the first time with respect to his § 2255
petition at his hearing on this motion on May 15, 2012.
At the
hearing, Acuna advanced no reason for having failed to raise it
within one year of when his judgment on appeal became final in
March 2011.
Clay v. United States, 537 U.S. 522, 524-25 (2003)
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(holding that, when a defendant appeals his or her conviction to
the Circuit Court of Appeals, but does not request a writ of
certiorari from the Supreme Court, a judgment becomes final and
the limitations period begins to run upon the expiration of the
time to petition for a writ of certiorari to the Supreme Court);
United States v. Garcia, 210 F.3d 1058 (9th Cir. 2000)
(“Following the Supreme Court's definition of finality in the
context of habeas review, we hold that the one-year limitations
period for a federal prisoner who does not file a petition for a
writ of certiorari begins to run when the time for filing the
petition expires.”); Sup. Ct. R. 13(1) (requiring certiorari to
be sought within 90 days).
Second, the Ninth Circuit has already addressed Acuna’s
argument.
A § 2255 petition cannot be based on a claim that has
already been disposed of by an underlying criminal judgment and
appeal.
As the Ninth Circuit stated in Olney v. United States,
433 F.2d 161, 162 (9th Cir. 1970), “Having raised this point
unsuccessfully on direct appeal, appellant cannot now seek to
relitigate it as part of a petition under § 2255.”
On appeal,
Acuna argued that the evidence at trial showed the existence of
multiple conspiracies, not one over-arching conspiracy.
In
particular, he argued that he was not involved in the
distribution of any methamphetamine in Hawaii.
The Ninth Circuit
rejected Acuna’s argument and held, in a memorandum disposition,
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that sufficient evidence demonstrated that Acuna was a leader and
organizer of the single drug conspiracy that was described in the
indictment.
Memorandum at 3, Dec. 15, 2010, ECF No. 636 (citing
United States v. Mincoff, 574 F.3d 1186, 1196 (9th Cir. 2009)).
Acuna fails to understand the nature of a conspiracy charge when
he protests that he delivered only 30 pounds.
As a leader of the
drug conspiracy, Acuna was not limited to being responsible for
only what he himself delivered.
Under his logic a drug kingpin
who directed others to make all deliveries would never be
responsible for any drug amount.
Acuna was properly sentenced
based on the 2,000 pounds of methamphetamine attributed to him
and his co-conspirators in furtherance of the conspiracy.
Third, to the extent Acuna argues that 2,000 pounds was
an incorrect calculation of the methamphetamine actually
distributed by the conspiracy, that argument is procedurally
barred.
Even when a § 2255 petitioner has not raised an alleged
error either at trial or on direct appeal, the petitioner is
procedurally barred from raising an issue in a § 2255 petition if
it could have been raised earlier, unless the petitioner can
demonstrate both “cause” for the delay and “prejudice” resulting
from the alleged error.
See United States v. Frady, 456 U.S.
152, 167-68 (1982) (“[T]o obtain collateral relief based on trial
errors to which no contemporaneous objection was made, a
convicted defendant must show both (1) ‘cause’ excusing his
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double procedural default, and (2) ‘actual prejudice’ resulting
from the errors of which he complains.”); accord Davis v. United
States, 411 U.S. 233, 242 (1973).
Acuna was convicted of
conspiring to distribute 50 grams or more of methamphetamine.
The specific amount in issue (to the extent it was over 50 grams)
became relevant during sentencing, and Acuna could have contested
the amount at that time.
Acuna’s presentence report stated that the drug
conspiracy involved over 2,000 pounds of methamphetamine and
showed how that amount was calculated.
Report at 26, ECF No. 446.
Presentence Investigation
Although, in his sentencing
statement, Acuna asked this court to view the amount of drugs in
light of a possible appeal, he said he was “not acknowledging or
denying” that 2,000 pounds was an accurate figure.
Sentencing Statement at 2, ECF No. 446.
Def.’s
At the sentencing
hearing, Acuna stated that had reviewed the report and that his
counsel had stated all of his objections to the report.
Sentencing Transcript at 4:24 - 5:3.
Nor did Acuna contest the
amount on direct appeal to the Ninth Circuit.
Acuna offers no
reason why he could not have contested the amount during
sentencing or on appeal.
Acuna fails to show that his counsel was ineffective
with respect to Claims One and Two.
An evidentiary hearing is
unnecessary, because, even accepting Acuna’s factual allegations,
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the record conclusively shows that he is not entitled to relief
based on Claims One and Two.
B.
Claim Three.
In Claim Three of his motion, Acuna makes a number of
vague allegations about how his counsel was ineffective
throughout the proceedings.
For example, he alleges that his
counsel failed to conduct investigations concerning exculpatory
evidence, seek the suppression of material evidence, seek to
dismiss the indictment, request appropriate jury instructions,
and present the strongest issues at trial.
Acuna’s motion,
however, offers no specificity as to any of these allegations.
Nor does the memorandum in support of his motion discuss the
merits of Claim Three.
In asserting an ineffective assistance of counsel
claim, “a convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment.”
fails to do that here.
Strickland, 466 U.S. at 690.
Acuna
He does not identify, for example, what
evidence his counsel should have sought to suppress, or on what
ground his counsel should have sought dismissal of the
indictment.
Acuna makes only broad and conclusory allegations of
wrongdoing.
Such vague allegations do not satisfy a movant’s
burden of at least making clear what is in issue.
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C.
The Court Declines To Issue a Certificate of
Appealability.
The court also declines to issue a certificate of
appealability.
An appeal may not be taken to the court of
appeals from a final order in a § 2255 proceeding “[u]nless a
circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(B).
The court shall issue a certificate
of appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2).
28 U.S.C.
When a district court denies a § 2255 petition on
the merits, a petitioner, to satisfy the requirements of section
2253(c)(2), “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.”
(2000).
Slack v. McDaniel, 529 U.S. 473, 484
No reasonable jurist would find this court’s assessment
of the merits of Acuna’s constitutional claims debatable or
wrong.
V.
CONCLUSION.
Acuna’s § 2255 Petition is DENIED.
to issue a certificate of appealability.
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The court declines
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 21, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Acuna v. United States, CRIM. NO. 07-00615 SOM; CIV. NO 11-00750 SOM-RLP; ORDER
DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL
CUSTODY UNDER 28 U.S.C. § 2255.
17
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