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)

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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

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