United States of America v. Mojica

Filing 22

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 12/19/2018: Defendant's § 2255 motion 1 is denied, and the Court declines to issue a certificate of appealability. Civil case terminated. [For further details see Statement]. Mailed notice(is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America,
v.
Benito Mojica,
Defendant.

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Case No: 18 C 2087
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated above, Defendant=s ' 2255 motion [1] is denied, and the Court
declines to issue a certificate of appealability. Civil case terminated.
STATEMENT
Background
Defendant was charged in January 2013 with conspiring to possess cocaine with the
intent to distribute and distribute cocaine after allegedly participating in a large-scale
drug-trafficking organization run by an individual known as Gallo. Mojica=s first trial ended in a
mistrial on June 29, 2014 after the jury was unable to reach a unanimous verdict. On July 8, the
government filed a superseding indictment, which charged Mojica with the following crimes:
conspiring to knowingly and intentionally possess with the intent to distribute and to distribute
cocaine, in violation of 21 U.S.C. ' 846 and 18 U.S.C. ' 2; knowingly and intentionally
possessing with the intent to distribute cocaine, in violation of 21 U.S.C. ' 841(a)(1) (Counts
Two and Three); and using a cellular telephone in the commission of a felony, namely,
conspiracy to possess with intent to distribute and distribution of a controlled substance, or
possession with the intent to distribute a controlled substance, in violation of 21 U.S.C. ' 843(b)
(Counts Four through Seven). A trial was held on the charges in the superseding indictment and
Defendant was convicted on all counts. The Court sentenced him to 120 months= imprisonment,
which the Seventh Circuit affirmed. United States v. Mojica, 863 F.3d 727 (7th Cir. 2017). 1
Currently before the Court is Defendant=s motion for relief under 28 U.S.C. ' 2255,
which allows a federal prisoner to move to vacate his sentence or conviction on several grounds,
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The Seventh Circuit also rejected Defendant=s appeal of this Court=s denial of a motion
to suppress evidence obtained during a search of Defendant=s garage, but that issue is not relevant
to the instant motion.

including because Athe sentence was imposed in violation of the Constitution or laws of the
United States . . . or is otherwise subject to collateral attack.@ 28 U.S.C. ' 2255(a). ARelief
under this statute is available only in extraordinary situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has occurred which results in a complete
miscarriage of justice.@ Martin v. United States, No. 16 C 6405, 2017 WL 2805233, at *2 (N.D.
Ill. June 28, 2017) (internal citations and quotation marks omitted). The Court liberally
construes Defendant=s pro se filings. See Echols v. Craig, 855 F.3d 807, 812 (7th Cir. 2017).
Defendant contends that trial counsel was ineffective for failing to call at trial two
codefendants, Luis Ramirez-Padilla and Helein Ramirez-Padilla, as witnesses, and that appellate
counsel was ineffective for failing to raise on appeal trial counsel=s failure to call the
Ramirez-Padilla brothers as witnesses. Defendant also argues that appellate counsel was
ineffective for not challenging on appeal this Court=s rulings allowing two potential defense
witnesses, Laura Zamudio and Rogelio Gallegos, to avoid testifying by invoking their right
against self-incrimination. Defendant further contends that the Court erred in barring the
testimony of an investigator regarding his interview of defense witness Zamudio. Finally,
Defendant asserts that the cumulative nature of trial counsel=s ineffectiveness entitles him to
relief.
Analysis
In addressing Defendant=s claims, the Court assumes knowledge of the extensive
background facts and procedural history of this case, but provides some details when they are
relevant to Defendant=s claims and the Court=s analysis.
A defendant seeking relief for purported ineffective assistance of counsel must
demonstrate that counsel=s performance was so deficient as to be objectively unreasonable under
prevailing professional norms and that he suffered prejudice as a result of counsel=s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.@ Id. at 690.
Defendant first contends that his trial counsel was deficient for having failed to contact or
call Luis and Helein Ramirez-Padilla, two codefendants who pleaded guilty and Awould have
testified that [Defendant] did not provide and rent out his home or apartment to become a >stash
house= for Gallo=s illegal activities, or as part of a conspiracy to distribute cocaine.@ (Def.=s '
2255 Mot., Dkt. # 1, at 8.) AWhere a petitioner claims his trial counsel failed to call a witness,
he must make a specific, affirmative showing as to what the missing evidence would have been
and prove that this witness=s testimony would have produced a different result.@ Bloch v. United
States, No. 12 CR 2, 2018 WL 4491342, at *7 (N.D. Ind. Sept. 18, 2018) (citation and internal
quotation marks omitted). Defendant wholly fails to make such a showing; thus, denial of this
claim is warranted on that basis alone. See Jones v. United States, No. 17 CV 1498, 2018 WL
3609639, at *9 (S.D. Ind. July 27, 2018) (Defendant=s Apetition must be accompanied with a
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detailed and specific affidavit which shows that the petitioner had actual proof of the allegations
going beyond mere unsupported assertions.@) (citation and internal quotation marks omitted). In
any event, trial counsel=s likely strategic decision not to call these individuals was quite
reasonable given that Luis Ramirez-Padilla admitted in his plea declaration that he had delivered
drugs to Gallo=s customers, including Defendant. (United States v. Luis Ramirez-Padilla, 12 CR
755, Plea Decl., Dkt. # 643, at 3.) The same is true for Helein Ramirez-Padilla; trial counsel
was sufficiently concerned about Gallo=s testimony (for the government) that Helein delivered
drugs to Defendant that counsel sought pretrial to exclude such evidence. (Id., Pretrial Conf.
Tr., Dkt. # 1325, at 12-13) (AThe Court: Okay. So you want to exclude any evidence of drug
transactions between your client and his alleged co-conspirators during the months of November
2011 to February 2012? Mr. Sassan: Right, that involved Helein Ramirez-Padilla.@) AIf
counsel has investigated witnesses and consciously decided not to call them, the decision is
probably strategic.@ Jones, 2018 WL 3609639, at *9. Trial counsel=s decision to avoid
testimony by witnesses who could be cross-examined and implicate his client in the alleged
conspiracy is Avirtually unchallengeable.@ Strickland, 466 U.S. at 690. Accordingly, this basis
for relief is denied.
Defendant also argues that appellate counsel was ineffective for not raising on appeal the
failure to call the Ramirez-Padilla brothers. AAppellate ineffective-assistance claims require the
reviewing court to look at the issue that appellate counsel failed to raise, and determine whether
that issue was >obvious and clearly stronger= than issues that appellate counsel did raise.@
Walker v. Griffin, 835 F.3d 705, 709 (7th Cir. 2016) (citation omitted). However, the Court has
concluded that trial counsel=s decision not to call Luis and Helein Ramirez-Padilla as witnesses
was a valid strategic decision; thus, Defendant fails to establish a Areasonable probability that the
issue[] appellate counsel did not raise would have changed the outcome of his appeal.@ Miller v.
United States, No. 16 C 4387, 2018 WL 3973536, at *11 (N.D. Ill. Aug. 20, 2018). 2

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Moreover, Defendant (through new counsel who was retained after Defendant=s
conviction) did not raise in his post-trial motions trial counsel=s failure to call the
Ramirez-Padilla brothers; thus, if appellate counsel had raised an ineffective assistance of
counsel claim in that regard, it would have been subject to the more stringent plain-error standard
of review. United States v. Flores, 739 F.3d 337, 340B41 (7th Cir. 2014) (A[Defendant] never
asked that judge to give him a new trial on the ground that his counsel had furnished ineffective
assistance. This means that appellate review is limited by the plain-error standard of Fed. R.
Crim. P. 52(b). And the Supreme Court has concluded that the plain-error standard is a
demanding one.@).
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Defendant=s next claim relates to the testimony of two witnesses, Laura Zamudio and
Rogelio Gallegos, who exercised their Fifth Amendment right against self-incrimination when
called to testify by Defendant. After Zamudio and Gallegos provided offers of proof outside the
presence of the jury as to how they would invoke the privilege regarding the issues about which
defense counsel wished them to testify (and the government=s proposed cross-examination on
those issues), the Court granted their motions to invoke the privilege and did not require them to
testify. 3 (United States v. Mojica, 12 CR 755 (N.D. Ill.), Dkt. # 766; id., Dkt. # 1355, at
676-681, 728-737.) Defendant contends that appellate counsel was ineffective for not appealing
the Court=s orders allowing these witnesses not to testify, but fails to indicate how the Court=s
rulings were in error; thus, the claim is waived. Nor can this Court discern any successful
challenge on appeal regarding its rulings given that it conducted an offer of proof outside the
presence of the jury, and concluded as to both individuals that the questions, particularly on
cross-examination, could expose both to criminal prosecution. United States v. Longstreet, 567
F.3d 911, 922 (7th Cir. 2009) (A[W]hen a witness invokes his Fifth Amendment right, the district
court should confirm that he >cannot possibly incriminate himself,= and if the >witness=s testimony
may make him vulnerable to prosecution, the trial court may allow him to . . . refuse to testify.=@)
(citation omitted). A review of the trial transcript and the written ruling for Zamudio provides
no basis on which to conclude that appellate counsel=s failure to raise the issue on appeal
constituted ineffective assistance of counsel. Therefore, this basis for relief is denied.
Defendant appears to argue that appellate counsel was ineffective for failing to challenge
the Court=s ruling barring the testimony of defense investigator, Joseph Lahr, who had
interviewed Laura Zamudio after the Court found her invocation of her Fifth Amendment
privilege justified. Defendant sought to call Lahr to testify as to the details of his conversation
with Zamudio. The government objected on the grounds of hearsay. Defendant asserted that
Lahr=s testimony was an exception to the hearsay rule under Federal Rule of Evidence 804(b)(3),
given that Zamudio was unavailable as a witness due to her invocation of her Fifth Amendment
privilege and her statements to Lahr were against her interest. The Court rejected Defendant=s
argument, finding that Zamudio=s statements that Defendant sought to admit through Lahr were
not statements against Zamudio=s interest, and in addition, were not relevant or probative.
(United States v. Mojica, No. 12 CR 755 (N.D. Ill.), Dkt. # 1355, at 714-721.) Defendant makes
no argument in his ' 2255 motion that the Court=s ruling was incorrect or that the issue was
Aobvious and clearly stronger@ than other issues raised on appeal. As such, this basis for relief is
denied.
Finally, Defendant=s assertion that the cumulative effect of counsel=s errors entitles him to
relief is unpersuasive given that the Court has concluded that even considered individually, none
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To the extent Defendant argues that the Court erred in allowing them to invoke the
privilege and avoid testifying at trial, this is an issue that could have been raised on appeal and is
therefore waived in the instant ' 2255 motion. Bechel v. United States, No. 15 C 572, 2016 WL
5369468, at *3 (S.D. Ill. Sept. 26, 2016) (AFailure to raise an issue available at the time of
appeal[] forfeits the claim during a future collateral attack.@).
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of the bases asserted by Defendant demonstrate that counsel=s performance was so deficient as to
be objectively unreasonable under prevailing professional norms. In any event, Defendant has
not demonstrated prejudice.

Conclusion
For the reasons stated above, Defendant=s ' 2255 motion is denied. Under 28 U.S.C. '
2253(c)(2), a petitioner does not have the absolute right to appeal a district court=s denial of his '
2255 motion; instead, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003). A petitioner is entitled to a certificate of appealability only
if he can make a substantial showing of the denial of a constitutional right. Stechauner v. Smith,
852 F.3d 708, 718 (7th Cir. 2017). Under this standard, Defendant must demonstrate that
A>reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.=@ Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). Defendant has failed to make such a showing; therefore, the Court
declines to issue a certificate of appealability.
Date: December 19, 2018

_________________________________
Ronald A. Guzmán
United States District Judge

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