Ruiz-Marin v. USA

Filing 13

MEMORANDUM AND ORDER RE: PETIITON TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255. It is therefore ordered that petitioner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 be, and the same hereby is, DENIED. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF IDAHO

10
----oo0oo---11
12

ROBERTO RUIZ-MARIN,
Petitioner,

13
14
15

v.
UNITED STATES OF AMERICA,

16

Respondent.

CR. NO. 09-102 WBS
CIV. NO. 13-297 WBS
MEMORANDUM AND ORDER RE:
PETITION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER 28
U.S.C. § 2255

17
----oo0oo----

18
19

A jury convicted petitioner Roberto Ruiz-Marin of

20

multiple drug distribution charges and this court sentenced him

21

to a term of 151 months confinement.

22

vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

23

§ 2255.

24

Petitioner now moves to

(Docket No. 1.)
Section 2255 provides that a prisoner “in custody under

25

sentence of a court established by an Act of Congress” may move

26

the court that imposed his sentence to vacate, set aside, or

27

correct the sentence on the grounds that “the sentence was

28
1

1

imposed in violation of the Constitution or laws of the United

2

States, or that the court was without jurisdiction to impose such

3

sentence, or that the sentence was in excess of the maximum

4

authorized by law, or is otherwise subject to collateral attack.”

5

28 U.S.C. § 2255.

6

must allege facts that, if true, would entitle him to relief.

7

United States v. Rodrigues, 354 F.3d 818, 824 (9th Cir. 2003).

8

court must grant an evidentiary hearing on a petitioner’s § 2255

9

motion “[u]nless the motion and the files and records of the case

To prevail on a § 2255 motion, a petitioner

A

10

show conclusively that the prisoner is entitled to no relief.”

11

United States v. Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir.

12

2000) (quoting § 2255).

13

petitioner’s § 2255 motion without a hearing if his allegations

14

“do not state a claim for relief or are so palpably incredible or

15

so patently frivolous as to warrant summary dismissal.”

16

States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).

17

The court may accordingly deny a

United

Petitioner seeks relief from his sentence on two

18

separate grounds: (1) that the court miscalculated the amount of

19

drugs attributable to him; and (2) that he received ineffective

20

assistance of counsel in violation of the Sixth Amendment.

21

I.

Miscalculation of Drug Amounts

22

In general, federal prisoners may not use a § 2255

23

proceeding to relitigate a claim that has been decided on direct

24

appeal.

25

1999); Withrow v. Williams, 507 U.S. 680, 720-21 (1993) (Thomas,

26

J., concurring in part).

27

only in exceptional circumstances, such as an intervening change

28

in the law.

United States v. Scrivner, 189 F.3d 825, 828 (9th Cir.

This relitigation bar may be overridden

Davis v. United States, 417 U.S. 333, 341-42 (1974).
2

1

Petitioner’s first basis for habeas relief is that the

2

court incorrectly calculated the quantity of methamphetamine that

3

he conspired to distribute.

4

Petitioner unsuccessfully raised this argument on direct appeal,

5

see United States v. Ruiz-Marin, 492 Fed. App’x 770, 771 (9th

6

Cir. 2012), and identifies no exceptional circumstances that

7

would permit relitigation of this issue.

8

court’s calculation of drug quantity does not provide a basis for

9

granting petitioner relief.

10

II.

(Pet. at 5 (Docket No. 1).)

Accordingly, the

Ineffective Assistance of Counsel

11

Although a petitioner is ordinarily required to raise

12

his or her claims on direct review before seeking habeas relief

13

under § 2255, the Supreme Court has recognized that “an

14

ineffective assistance-of-counsel claim may be brought in a

15

collateral proceeding under § 2255, whether or not the petitioner

16

could have raised the claim on direct appeal.”

17

States, 538 U.S. 500, 504 (2000).

18

counsel claims are governed by the framework set forth in

19

Strickland v. Washington, which requires petitioner to show that

20

his counsel’s performance “fell below an objective standard of

21

reasonableness” as measured by “prevailing professional norms”

22

and that counsel’s deficient performance prejudiced him.

23

U.S. 688, 694 (1984).

24

reasonableness inquiry as “highly deferential,” id., and has

25

recognized a “strong presumption that counsel’s performance falls

26

within the wide range of professional assistance.”

27

Morrison, 477 U.S. 365, 381 (1986).

28

that counsel’s performance was objectively deficient, he can

Massaro v. United

Ineffective assistance of

466

The Supreme Court has characterized the

3

Kimmelman v.

Even if petitioner can show

1

prevail on his ineffective assistance claim only if he can show

2

prejudice – in other words, that it is “‘reasonably likely’ the

3

result would have been different” but for the ineffective

4

assistance of counsel.

5

S.Ct. 770, 792 (2011) (quoting Strickland, 466 U.S. at 696).

6

Harrington v. Richter, --- U.S. ----, 131

Here, petitioner claims he received ineffective

7

assistance of counsel at trial because his attorney, Paul R.

8

Taber: (1) failed to argue that the government had withheld a

9

“surprise witness” in violation of Brady v. Maryland, 373 U.S. 83

10

(1963) (Pet. at 6); (2) failed to secure an interpreter at trial

11

(id. at 8); and (3) stipulated to the identity, quantity, and

12

schedule of the government’s drug exhibits at trial, (id. at 9).

13

In addition, petitioner claims that he received ineffective

14

assistance of counsel on appeal because his appellate counsel,

15

James K. Ball, failed to argue that Taber’s performance at trial

16

was ineffective.1

17

A.

18

(Id. at 6, 9.)

Failure to Identify a Brady Violation
Petitioner claims that Taber provided ineffective

19

assistance of counsel because he failed to argue that the

20

government had violated Brady by withholding testimony from a

21

“surprise witness.”

22

violation, a defendant must show that: (1) the evidence at issue

(Id. at 6.)

“To establish a Brady

23
1

24
25
26
27
28

Petitioner also argues in his reply brief that he
received ineffective assistance of appellate counsel because Ball
failed to file a motion for reconsideration after the Ninth
Circuit denied his appeal. (Reply at 7-8. (Docket No. 12).)
Because petitioner failed to raise this argument in his § 2255
petition, the court considers it waived. See Delgadillo v.
Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments
raised for the first time in petitioner's reply brief are deemed
waived.” (citation omitted)).
4

1

is favorable to the accused, either because it is exculpatory or

2

because it is impeaching; (2) the evidence was suppressed by the

3

government, regardless of whether the suppression was willful or

4

inadvertent; and (3) the evidence is material to the guilt or

5

innocence of the defendant.”

6

F.3d 885, 899 (9th Cir. 2013) (citing Brady, 373 U.S. at 87).

7

United States v. Sedaghaty, 728

Petitioner’s claim that Taber failed to identify a

8

Brady violation does not constitute ineffective assistance of

9

counsel because the record contains no facts showing that the

10

government violated Brady.

11

that one of petitioner’s co-conspirators would testify at trial,

12

that he informed petitioner that he would do so, and that he

13

informed petitioner of his strategy for impeaching this witness

14

at trial. (Taber Aff. at 1-2 (Docket No. 9-8).)

15

surprised by the witness’s testimony, (id.), and told Ball that

16

he believed there was no viable Brady claim on which petitioner

17

could base his appeal.

18

(“My review of the case did not reveal any Brady issues . . . I

19

visited with trial counsel about the case and he did not indicate

20

that he thought there were any issues in this regard.”).)

21

Taber represents that he was aware

Taber was not

(See Ball Aff. at ¶ 5 (Docket No. 9-9)

Petitioner contends that even if Taber knew that this

22

witness would testify, he was nonetheless unaware that the

23

witness would change his testimony until four days before the

24

trial began.

25

shortly before trial, petitioner does not allege any “government

26

action to throw the defendant off the path of the alleged Brady

27

information.”

28

Cir. 2009).

Whether or not this witness changed his testimony

United States v. Bond, 552 F.3d 1092, 1096 (9th

Nor has petitioner demonstrated that Taber was
5

1

unaware of the substance of the witness’s testimony at trial.

2

See United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991)

3

(noting that where a “defendant has enough information to be able

4

to ascertain the supposed Brady material on his own, there is no

5

suppression”).

6

to highlight the differences between the witness’s trial

7

testimony and his prior statements to government agents and argue

8

that those differences undermined his credibility.

9

Indeed, petitioner concedes that Taber was able

(Reply at 6.)

In short, petitioner has not alleged that the

10

government failed to disclose witness testimony or any other

11

Brady material, that he was prejudiced by any such nondisclosure,

12

or that Taber provided ineffective assistance of counsel by

13

failing to identify this purported Brady violation.

14

Taber’s failure to pursue a Brady claim provides no basis for

15

granting petitioner relief.

16
17

B.

Accordingly,

Failure to Secure an Interpreter
Petitioner claims that Taber provided ineffective

18

assistance of counsel because he failed to secure an interpreter,

19

which petitioner required because he is a Mexican national who

20

“does not fully understand the various interpretations or

21

applications of the [E]nglish language.”

22

a defendant is not entitled to an interpreter when he “waive[s]

23

his right to an interpreter by not taking advantage of the

24

interpreter’s services.”

United States v. Si, 333 F.3d 1041,

25

1044-45 (9th Cir. 2003).

As the Ninth Circuit noted on direct

26

appeal, petitioner “waived his right to an interpreter at the six

27

earlier proceedings before the court — including the jury trial

28

at which Ruiz testified without an interpreter.”
6

(Pet. at 8.)

However,

Ruiz-Marin, 492

1

Fed. App’x at 772.

2

to an interpreter at trial,2 his assertion that Taber’s failure

3

to secure an interpreter constituted ineffective assistance of

4

counsel is unavailing.

5

Because petitioner expressly waived his right

Nor did petitioner indicate to Taber that he required

6

an interpreter.

7

[petitioner] ever mentioning that he was having trouble

8

understanding the English [l]anguage before or during the trial,”

9

and that “[a]t no time before the trial did [petitioner] appear

Taber represents that he “do[es] not recall

10

to me not to understand what I was saying to him.”

11

at 2.)

12

English language, there is no evidence that the need for an

13

interpreter “should have been obvious to competent counsel in

14

this situation.”

Gonzalez v. United States, 33 F.3d 1047, 1051

15

(9th Cir. 1994).

Accordingly, Taber’s failure to secure an

16

interpreter provides no basis for granting petitioner relief.

17

C.

18

(Taber Aff.

Despite petitioner’s professed difficulties with the

Stipulation to Drug Quantity
Petitioner claims that Taber provided ineffective

19

assistance of counsel because he stipulated to the quantity of

20

drugs in thirty-two of the government’s exhibits at trial.

21

at 9.)

22

attributed the drugs to him because he was the only defendant on

23

trial, the stipulation plainly related only to the weight,

24

identity, and schedule of the government’s drug exhibits at

25

trial.

(Pet.

Contrary to petitioner’s claim that the stipulation

(See Trial Stipulation (Docket No. 9-5).)

Taber states

26
27
28

2

When petitioner made his initial appearance, the court
asked him: “do you need the services of an interpreter?”
Petitioner responded “[n]o, ma’am.” (Docket No. 9-1.)
7

1

that he so stipulated because he was convinced that the

2

government would be able to prove the weight and identity of each

3

substance and because he felt that the stipulation would not

4

weaken petitioner’s defense – that he was not present for or

5

aware of the actions of his alleged co-conspirators.

6

at 3.)

7

(Taber Aff.

Taber’s choice to “focus[] on some issues to the

8

exclusion of others” is “strongly presum[ed]” to be a reasonable

9

tactical choice, rather than evidence of ineffective assistance

10

of counsel.

11

instance, an attorney who stipulated that his client possessed

12

over seventy-five pounds of marijuana did not provide ineffective

13

assistance of counsel when he did so in order to focus on his

14

claim that the defendant did not know the marijuana was in his

15

car.

16

Likewise, an attorney who stipulated to the admissibility of

17

checks and financial records introduced by the prosecution did

18

not provide ineffective assistance when he “vigorously contested”

19

the government’s evidence of other elements of its case, such as

20

the defendant’s mental state.

21

449, 452 (9th Cir. 2010).

22

to execute this stipulation as a “tactical choice” that he made

23

in order to focus the defense on the claim that petitioner was

24

not part of a conspiracy to distribute these drugs.

25

at 3.)

26

exhibits is not a basis for granting petitioner relief.

27
28

Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

For

Gibson v. Shepard, 246 Fed. App’x 431, 433 (9th Cir. 2007).

D.

Allerdice v. Ryan, 395 Fed. App’x

Here, Taber characterizes his decision

(Taber Aff.

Accordingly, Taber’s stipulation to the government’s drug

Failure to Argue Ineffective Assistance of Counsel
Petitioner claims that Ball provided ineffective
8

1

as
ssistance on dire
e
ect appea becaus he fai
al
se
iled to argue th
hat Taber

2

ha provid
ad
ded ineff
fective assistanc of cou
a
ce
unsel.

3

Be
ecause pe
etitioner has not shown t
r
t
that he r
received ineffective

4

as
ssistance of coun
e
nsel at trial, th
t
his claim cannot provide a basis
m

5

fo habeas relief.
or
s
.

6

de
eficient, Ball’s failure to raise this is
,
e
ssue on appeal w
would not

7

co
onstitute ineffec
e
ctive ass
sistance of couns
sel because “[c]laims of

8

in
neffectiv assist
ve
tance of counsel are gene
erally inappropriate on

9

di
irect app
peal.”

(Pet. at 6, 9.)

Even if Taber’ perfor
i
’s
rmance at trial were

United St
U
tates v. Ross, 20 F.3d 896, 900 (9th
06

10

Ci
ir. 2000) (citati
)
ion omitt
ted).

11

ar
rgue that Taber provided ineffect
t
p
tive assi
istance of counsel

12

pr
rovides no basis for gran
n
nting pet
titioner relief.

13

Ac
ccordingl
ly, Ball’s failure to

IT IS TH
HEREFORE ORDERED that pet
titioner’s motion to

14

va
acate, se aside, or corr
et
,
rect his sentence under 28 U.S.C. § 2255
e

15

be and th same hereby is DENIED
e,
he
h
s,
D.

16

Da
ated:

De
ecember 18, 2013
1

17
18
19
20
21
22
23
24
25
26
27
28
9