RODRIGUEZ v. UNITED STATES OF AMERICA

Filing 18

ENTRY - Petitioner's motion for relief pursuant to § 2255 is DENIED, and this action is DISMISSED with prejudice. Judgment consistent with this Entry shall now issue. The court also DENIES a certificate of appealability. Signed by Judge Tanya Walton Pratt on 7/20/2011.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ANTONIO RODRIGUEZ,
Petitioner,
vs.

UNITED STATES OF AMERICA.

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1:08-cv-982-TWP-DML

Entry Denying Motion for Relief Pursuant to
28 U.S.C. § 2255 and Denying Certificate of Appealability
This matter is before the Court on the Petitioner’s Motion to Vacate, Set Aside or
Correct Sentence (Dkt. 1) and the Motion to Compel the Court to Respond (Dkt. 17). To
begin, the Court apologizes for the dely in providing a ruling.
Petitioner Antonio Rodriguez (“Rodriguez”) was found guilty on two counts of
possessing methamphetamine with intent to distribute in cause number IP 04-CR-155-03P/F. Because of the drug quantity and Rodriguez's prior conviction for a felony drug
offense, on July 19, 2006 he received the statutory mandatory minimum sentence of 240
months' imprisonment. Rodriguez’s direct appeal of his conviction was unsuccessful and
he now seeks to vacate, set aside, or correct the sentence imposed in his criminal case
pursuant to 28 U.S.C. § 2255.
Section 2255 allows a court to grant relief from a federal conviction or sentence
“upon the ground that the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a).

For the reasons explained below, Rodriguez’s request for relief pursuant to § 2255
and for an evidentiary hearing is DENIED. In addition, the court finds that a certificate of
appealability should not issue.
I. Procedural History and Relevant Facts
Rodriguez was found guilty on two counts of possessing methamphetamine with
intent to distribute. See 21U.S.C. § 841(a)(1). He was represented by appointed counsel,
William Dazey (“defense counsel”). Prior to trial, the United States filed an Information,
pursuant to 21 U.S.C. § 851(a)(1) (“§ 851”), notifying Rodriguez that it intended to rely upon
a prior felony drug conviction of Rodriguez’s for sentencing purposes–specifically, a
conviction in the California Superior Court, Orange County, Cause No. 85CF01738, Case
No. C-58818, for the felony violation of “conspiracy to sell cocaine; sale/transportation
narcotic drug; and possession of a narcotic drug for sale, on or about July 23, 2986” (“state
felony conviction”). See Exhibit A (Dkt. No. 10-1) and Exhibit B (Dkt. No. 10-2). Based on
the state felony conviction, and the quantity of methamphetamine involved in the federal
crimes, Rodriguez received the statutory mandatory minimum sentence of 240 months
imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii).
In United States v. Rodriguez, the Seventh Circuit summarized the evidence
presented at trial:
At Rodriguez’s two-day trial in July 2006, three police officers
described how undercover officer Matt Hall, assisted by an informant,
conducted two controlled buys of methamphetamine from Rodriguez in July
2003. The informant did not testify at trial, having apparently fled to Mexico.
[Sergeant Steven] Swarm testified on direct that in July 2003 the
informant gave him the names of several drug dealers in Indianapolis. When
the prosecutor asked Swarm if he tried to verify the informant’s information,
Swarm replied, “I recognized some of the individuals he was discussing and
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then, subsequently, I had photographs, and in fact showed the photographs,
one being Mr. Antonio Rodriguez, and the informant identified him.” Defense
counsel interposed an objection, which the district court sustained. The
challenged testimony was stricken, and the jury was ordered to disregard it.
On cross-examination, defense counsel had elicited that the
government waited until the eve of trial to prepare transcripts in English of the
audio recordings made during the two undercover buys, both of which were
conducted in Spanish. The prosecutor, following up on that questioning
during redirect, asked Sergeant Swarm why he did not have the transcripts
made sooner. The prosecutor said later that she had expected Swarm to
answer that transcripts are generally not prepared until the eve of trial as a
matter of course. But Swarm answered: “There were several reasons. One,
to be honest, I thought the defendant would plead guilty to the charge.”
Defense counsel objected, and the district court responded: “Sustained.
Ladies and gentlemen, that is highly improper. . . . [Y]ou’ll disregard it. Police
are not entitled to draw those kinds of conclusions.”
The district judge then declared a recess, and defense counsel moved
for a mistrial while the jury was out. The judge denied the motion and stated:
“In my view, it will not be a surprise to the jurors that police think that Mr.
Rodriguez is guilty. And I think the cautionary instruction, the fervor of which
may not be reflected in the transcript, ought to be sufficient in this case.”
The trial continued. Officer Hall testified that at around 5:00 p.m. on
July 9, 2003, he and the informant drove to a residence at 414 South Gray
Street in Indianapolis. Although it is not clear from the record whether
Rodriguez lived there, Sergeant Swarm testified that a van was registered to
Rodriguez at that address, and he had seen Rodriguez leave the house on
at least one occasion. When Hall arrived at the house on South Gray, the
informant introduced him to a man whom Hall recognized as Rodriguez,
having earlier seen his driver's license photograph. Hall, who speaks
Spanish, testified that Rodriguez agreed to sell him two ounces of
methamphetamine and said that it would take him two hours to procure the
drugs.
Later that night the informant placed two telephone calls to Rodriguez
to arrange the handoff, both of which were taped. At trial Hall identified
Rodriguez's voice on the tapes. At around 8:00 p.m., Hall and the informant
met Rodriguez in the parking lot of a grocery store a block away from the
South Gray residence. Rodriguez showed up on foot, climbed into Hall's
truck, and handed him a package in exchange for $800. Testing later
revealed that the package contained 64 grams of a substance containing
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methamphetamine. Hall asked if Rodriguez would sell him a pound of
methamphetamine and whether he could contact Rodriguez directly, without
going through the informant; Rodriguez agreed. After the exchange Hall
drove to South Gray and dropped Rodriguez a quarter of a block from the
house where they had met earlier.
Officer Hall testified that during the July 9 buy Rodriguez was sporting
a goatee and wearing a gray baseball cap, a dark shirt, and jeans. Sergeant
Swarm, who watched the transaction from a distance, testified that he also
recognized Rodriguez from his driver's license photograph and described him
as having facial hair and wearing a gray baseball cap and a dark shirt. At trial
both officers identified Rodriguez as the seller. Both officers remarked that
at trial Rodriguez was missing the goatee he formerly had. Hall noticed that
he was wearing his hair slightly shorter and Swarm observed that he was “a
little bit grayer.”
On July 10, 2003, Officer Hall called Rodriguez to discuss his intended
purchase of one pound of methamphetamine, but Rodriguez pretended to be
someone else and said that Rodriguez was in California. After the informant
called Rodriguez and reassured him that it was safe to deal with Hall, Hall
was able to arrange a second buy with Rodriguez over the phone. At
approximately 6:00 or 6:30 p.m. on July 18, 2003, Hall drove to the parking
lot of a restaurant, again within a couple of blocks of 414 South Gray.
Rodriguez again arrived on foot, climbed into Hall's truck, and placed a
package under the passenger's seat. Hall gave Rodriguez $4,500. Testing
later revealed that the package contained a little over a pound of a substance
containing methamphetamine, with approximately 71 grams of pure
methamphetamine. After completing the transaction—which took three to
four minutes—Hall drove Rodriguez to a location a couple of blocks away
from the restaurant. Sergeant Swarm and Sergeant James Wilkinson both
participated in surveillance during the July 18 buy, and at trial both identified
Rodriguez as the seller.
The defense did not present any evidence at trial. The final
instructions to the jurors reminded them “not to pay attention to any testimony
that was stricken, or any statements of counsel made to the court concerning
those matters.”
United States v. Rodriguez, 239 Fed.Appx. 294, 295-96 (7th Cir. 2007) (unpublished).

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On appeal, represented by Michael J. Gonring (“appellate counsel” or “Attorney
Gonring”), Rodriguez argued that the trial court “should have declared a mistrial after
Sergeant Swarm described an out-of-court identification of Rodriguez by an informant and
volunteered that prior to trial he had assumed that Rodriguez would plead guilty.”
Rodriguez, 239 Fed. Appx. at 295. The Seventh Circuit affirmed Rodriguez’s conviction
holding that “[i]n light of the extensive evidence of Rodriguez’s guilt, these two
statements— which were stricken and which the jury was instructed to ignore—did not
deprive him of a fair trial.” Id.
II. Section 2255
The scope of relief available under 28 U.S.C. § 2255 is narrow. The parameters of
available relief under this statute have been previously addressed by the Seventh Circuit:

Section 2255 is not a way to advance arguments that could have been
presented earlier–especially not when the arguments rest entirely on a
statute. See Reed v. Farley, 512 U.S. 339 (1994). Although § 2255 ¶ 1
permits a collateral attack on the ground that ‘the sentence was imposed in
violation of the Constitution or laws of the United States,’ only a small portion
of statutory claims demonstrate that the sentence or conviction is itself a
violation of law. The error must be so fundamental that a ‘complete
miscarriage of justice’ has occurred. Reed, 512 U.S. at 348 (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)). Other ‘non-constitutional errors
which could have been raised on appeal but were not are barred on collateral
review–regardless of cause and prejudice.’ Bontkowski v. United States, 850
F.2d 306, 313 (7th Cir. 1988).
Young v. United States, 124 F.3d 794, 796 (7th Cir. 1997) (internal citations altered). Thus,
relief pursuant to § 2255 is limited to an error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a complete miscarriage of
justice. Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991).

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Rodriguez’s three grounds for relief are based on the theory that he was denied his
Sixth Amendment right to the effective assistance of counsel.

1.

Rodriguez claims that counsel failed to move for mistrial after Sergeant
Steven Swarm described an out-of-court identification of Rodriguez by an
informant and volunteered that prior to trial he had assumed that Rodriguez
would plead guilty. Rodriguez claims that both trial and appellate counsel
were ineffective by their failure to challenge Swarm’s testimony on these
grounds. Rodriguez briefly mentions that counsel should have also objected
to the use of the tape recordings of his conversations (in Spanish) with the
informant, Officer Hall and Rodriguez which were transcribed by police officer
Jesus Soria (“Officer Soria”).

2.

Rodriguez claims that the sentencing court erred when it relied on the state
felony conviction to apply the mandatory minimum 240 month sentence
provision of 841(b)(1)(A)(viii). He claims he did not have counsel relative to
the state felony conviction and that defense counsel was ineffective by his
failure to investigate and argue this fact at sentencing.

3.

Rodriguez claims that his right to a speedy trial under the Speedy Trial Act
was violated by 254 days where the court allegedly failed to make the “ends
of justice findings required under § 3161.” Again, he claims that defense
counsel was ineffective for not bringing this issue before the court.

Rodriguez seeks an evidentiary hearing relative to his challenges to the law enforcement
testimony and defense counsel’s failure to investigate his prior state felony conviction, but
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makes no such request concerning his speedy trial claim.

A. Ineffective Assistance of Counsel
Under the Sixth Amendment to the U.S. Constitution, the accused has a right to
“reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687
(1984). The right to the effective assistance of counsel is denied when the performance of
counsel falls below an objective standard of reasonable professional conduct and thereby
prejudices the defense. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland v.
Washington, 466 U.S. 668, 688-94 (1984)). For a petitioner to establish that his "counsel's
assistance was so defective as to require reversal" of a conviction or a sentence, he must
make two showings: (1) deficient performance that (2) prejudiced his defense. Strickland,
466 U.S. at 687.
With respect to the first prong, "[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional norms." Wiggins v. Smith,
539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). “Judicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689. To that end,
the defendant “must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). In addition, the performance of counsel under
Strickland should be evaluated from counsel's perspective at that time, making every effort
to “eliminate the distorting effects of hindsight.” Wiggins, 539 U.S. at 523 (quoting
Strickland, 466 U.S. at 688); see also Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir.
1997).

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With respect to the prejudice requirement, it must be shown that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Benefiel
v. Davis, 357 F.3d 655, 661 (7th Cir. 2004). It is not enough for a petitioner to show that
"the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466
U.S. at 693. A petitioner must specifically explain how the outcome at trial would have been
different absent counsel's ineffective assistance. Berkey v. United States, 318 F. 3d 768,
773 (7th Cir. 2003). A court “need not consider the first prong of the Strickland test if [it]
find[s] that counsel’s alleged deficiency did not prejudice the defendant.” Berkey, 318 F.3d
at 772 (citing Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001)). “If it is easier
to dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
The standards for establishing ineffective assistance of counsel when handling
appeals are identical to those established by Strickland. Gray v. Greer, 800 F.2d 644, 646
(7th Cir. 1986) (holding that only appellate counsel’s failure to challenge “significant and
obvious” issues will result in a finding of deficiency).

1. Officer Testimony
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the
admissions of testimonial hearsay evidence in a criminal trial, where the defendant has no
opportunity to cross-examine the witness, violates the confrontation clause, regardless of
whether such statements are deemed reliable. Crawford, 541 U.S. 53-55. Rodriguez

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argues that Officer Swarm and Officer Soria’s testimony violated the confrontation clause
and that his counsel was ineffective for failing to object to such testimony.
a. Officer Swarm’s Testimony
Rodriguez’s objections to Officer Swarm’s testimony were already considered in the
direct appeal of this action. On appeal Rodriguez argued that the trial court “should have
declared a mistrial after Sergeant Swarm described an out-of-court identification of
Rodriguez by an informant and volunteered that prior to trial he had assumed that
Rodriguez would plead guilty.” Rodriguez, 239 Fed. Appx. at 295. In denying Rodriguez’s
appeal, the Seventh Circuit recognized that the testimony at issue was improper but found
that the comments were not so prejudicial as to make a new trial the only permissible
remedy. The Seventh Circuit affirmed Rodriguez’s conviction holding that “[i]n light of the
extensive evidence of Rodriguez’s guilt, these two statements— which were stricken and
which the jury was instructed to ignore—did not deprive him of a fair trial.” Id.
The government argues that given the ruling on direct appeal, Rodriguez is barred
from relitigating his challenge to Officer Swarm’s testimony in his § 2255 motion. The
government is correct. In Fuller v. United States, the Seventh Circuit explained that “the
‘law of the case’ doctrine dictates that ‘once this court has decided the merits of a ground
of appeal, that decision establishes the law of the case and is binding on a [court] asked
to decide the same issue in a later phase of the same case, unless there is some good
reason for reexamining it.’” 398 F.3d 644, 648 (7th Cir. 2005) (quoting United States v.
Mazak, 789 F.2d 580,581 (7th Cir. 1986). See also Varela v. United States, 481 F.3d 932,
935-36 (7th Cir. 2007) (“Issues that were raised on direct appeal may not be reconsidered
on a § 2255 motion absent changed circumstances.”).

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In Rodriguez’s direct appeal, the Seventh Circuit held that while the testimony at
issue was improper, “[i]n light of the extensive evidence of Rodriguez’s guilt” and because
the statement was stricken and the jury was instructed to ignore it, Rodriguez was not
deprived of a fair trial. Rodriguez, 239 Fed. Appx. at 295. Rodriguez does not offer any
changed circumstances warranting a reconsideration of the issue. For these reasons, this
court is bound by the Seventh Circuit’s decision that defense counsel and appellate counsel
did not provide ineffective assistance.
b. Officer Soria
Rodriguez argues that the admission of the translation of the wiretap conversations
provided by Officer Soria into evidence constituted testimonial hearsay and that defense
counsel was ineffective by failing to object to the admissibility of the transcript or to
question Officer Soria regarding the accuracy of his translations. In addition, appellate
counsel was ineffective for failing to raise this issue on direct appeal.
To ensure these benefits of cross-examination, the Sixth Amendment bars the
admission of “testimonial hearsay” against a criminal defendant unless (1) the declarant is
unavailable at trial; and (2) the defendant had a prior opportunity to cross-examine that
declarant. Crawford, 541 U.S. at 68. Therefore, Rodriguez’s right to confrontation was
violated if Officer Soria’s statement (1) was testimonial; and (2) was hearsay. See id. at 68.
As to the first element, Crawford declined to “spell out a comprehensive definition of
‘testimonial,’” id., but the term clearly pertains to statements made “in anticipation of or with
an eye toward a criminal prosecution.” Jones v. Basinger, 635 F.3d 1030, 1041 (7th Cir.
2011).
In this case, the government Exhibit 20T was admitted into evidence. Exhibit 20T
is a translation of the audio tape of the phone calls leading up to the drug buy. See Trans.,
dkt 59 at pages 82-87. Officer Matt Hall testified that the transcript was of two calls made
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by the confidential informant in his presence. The calls were recorded and transcribed by
Jesus Soria a law enforcement officer and native Spanish speaker. Matt Hall testified that
he also speaks Spanish and that the translation correctly labeled the speakers, and that
he reviewed the transcript while listening to the tape recording and that the transcript truly
and accurately reflects the conversation in English that occurred in Spanish. Hall also
testified that he was able to identify the confidential informant and Rodriguez’s voice on the
tape. As the tape and transcript were admitted into evidence, the court issued a cautionary
instruction to the jury, stating “You should carefully consider any evidence relevant to the
accuracy or the reliability of the English transcript and, to the extent there’s any conflict, the
Spanish original has to be the guide to what was actually said in that conversation.” Trans.
p. 89.
Rodriguez did not object to the accuracy of Soria’s transcript at trial nor does he
object to its accuracy in his motion for relief pursuant to § 2255. Instead, Rodriguez first
argues that his counsel was ineffective for failing to object to the admissibility of Officer
Soria’s translation of the two recordings. This argument is not persuasive, because defense
counsel did indeed object to the admission of the transcripts. Defense counsel argued:
“I’d repeat the objections I made to the previous transcript, Your Honor, but
for the additional reason, of course, that the transcriber or translator who
purports to have done this isn’t in court and subject to cross-examination,
either to his expertise or the accuracy of the translation.”
Trans., dkt 59, p. 87. Defense counsel’s performance cannot be found deficient for making
an objection which was overruled by the court.
Rodriguez’s second argument is also unpersuasive. Rodriguez argues that his
counsel was ineffective in failing to call Officer Soria to question him about the accuracy

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of the transcript. Rodriguez was not prejudiced by this decision. There is no evidence that
questioning Soria regarding the accuracy of the transcript would have changed the
outcome of the trial. The evidence against Rodriguez was overwhelming and there is
nothing before this Court to dispute that the transcript was, in fact, accurate. Because no
prejudice has been shown, Rodriguez cannot prevail on this claim of ineffective assistance
of counsel.
Rodriguez’s final argument is that appellate counsel should have raised this issue
on appeal. This argument must also be rejected. Even if the failure to call Soria, the original
transcriber, constituted error it was not plain. Rodriguez has not cited any case law
supporting his position that his rights under the Confrontation Clause were violated by the
fact that the transcriber who produced the transcript did not appear along with Officer Hall
who confirmed the accuracy of the translation. Neither the Supreme Court nor the Seventh
Circuit has addressed this issue. The Eleventh Circuit addressed a similar issue in U.S. v.
Sardinas, 386 Fed. Appx. 927, 942-43, 1020 WL 2803393, at *14 (11th Cir. 2010) and held
that even if the absence of testimony from the initial transcribers constituted error, that error
was not plain.
In U.S. V. Sutherland, 656 F.2d 1181, 1201 (5th Cir. 1981), the Fifth Circuit held that
the government failed to authenticate the transcripts because the government introduced
no testimony that the transcripts were accurate reproductions of the taped conversations
and no testimony as to the accuracy of the government’s translation of certain Spanish
portions of the conversations. The Fifth Circuit concluded, however, that the defendants
were not prejudiced by the government’s failure to verify the accuracy of their transcriptions
because there was independent evidence of the content of the subject conversations. Id.
In this case, the government introduced evidence through Officer Hall to support the
authenticity and accuracy of Soria’s translation. In addition, there was independent

evidence of the content of the subject conversations, that being the drug buys that occurred
between Rodriguez and Officer Hall. Under these circumstances, Rodriguez has not shown
that he was prejudiced by appellate counsel’s failure to raise the introduction of Soria’s
translation in his direct appeal and his claim of ineffective assistance on this basis must fail.
2. Prior Felony Conviction
Rodriguez’s second specification of ineffective assistance of counsel is that his
defense counsel was ineffective in failing to challenge the validity of the state felony
conviction.
This claim is also without merit. Title 21, United States Code, Section 851(e)
provides that “[n]o person who stands convicted of an offense under this part may
challenge the validity of any prior conviction alleged under this section which occurred more
than five years before the date of the information alleging such prior conviction.” The courts
have recognized one exception to the § 851(e) bar at sentencing. With the “sole exception
of convictions obtained in violation of the right to counsel,” a defendant may not collaterally
attack in a federal criminal sentencing proceeding his prior state court convictions. Custis
v. United States, 511 U.S. 485, 487 (1994); U.S. v. Woolsey, 535 F.3d 540, 550 (7th Cir.
2008) (“Sentencing is not the right time to collaterally attack a prior conviction unless the
prior conviction was obtained in violation of the right to counsel.”) (citing cases). “[A] prior
conviction is presumptively void for sentencing purposes only where an unconstitutional
deprivation of counsel is ‘plainly detectable from a facial examination of the record.’” United
States v. Redding, 104 F.3d 96, 99 (7th Cir. 1996) (quoting United States v. Mitchell, 18
F.3d 1355, 1361 (7th Cir.), cert. denied, 513 U.S. 1045 (1994)). Given the strong
presumption of constitutional validity to state judicial proceedings, an ambiguous record is
an insufficient basis for collaterally attacking a prior state conviction at sentencing. Id.
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Attached to the government’s response Exhibit B (Dkt. 10-2) is the state court
record. The record shows that Rodriguez was represented when he made the decision to
plead guilty to the drug conspiracy and that he entered his pleas of guilty knowingly and
voluntarily. Rodriguez argues that ambiguity exists. Specifically, he asserts that Exhibit B
does not indicate whether Rodriguez was in court with his attorney, Roger M. Carey, on
July 23, 1986. Although the record contains a slight ambiguity, this omission is an
insufficient basis for collaterally attacking his prior conviction when the record clearly
reflects that Rodriguez was represented by counsel. The results of the sentencing would
have been the same even if defense counsel would have further investigated the state
felony conviction. Because Rodriguez can show no prejudice, defense counsel was not
ineffective.
Rodriguez’s claim of ineffective assistance of counsel on the ground that one of his
prior felony drug offenses as described in the Information should have been contested is
rejected because counsel is not ineffective for failing to raise a meritless claim.

3. Right to a Speedy Trial
Rodriguez’s final specification of ineffective assistance of counsel is that his right to
a speedy trial under the Speedy Trial Act was violated by 254 days where the court
allegedly failed to make the “ends of justice findings required under § 3161.” Again, he
claims that defense counsel was ineffective for not raising this issue with the court.
The Speedy Trial Act (“STA”), 18 U.S.C. § 3161, provides that criminal defendants
must be brought to trial within seventy days of the first federal court appearance of the last
co-defendant to appear. 18 U.S.C. § 3161(h)(7). See also Henderson v. United States, 476
U.S. 321, 323 n.2 (1986) (noting that in multi-defendant cases, the seventy-day clock does

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not begin until the last co-defendant has been arraigned); United States v. Farmer, 543
F.3d 363, 368 (7th Cir. 2008) (when more than one defendant is charged in an indictment,
the STA clock begins to run on the date of the last codefendant’s initial appearance, which
is usually arraignment).
The STA allows the exclusion of various periods of time from the seventy-day limit.
In other words, the seventy days is not necessarily seventy straight days on the calender
for reasons which will be discussed as relevant to Rodriguez’s case. One proper basis of
exclusion is any period of “delay resulting from any pre-trial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt disposition of, such
motion.” 18 U.S.C. § 3161(h)(1)(F). Any period resulting from a continuance can also be
excluded from the STA count if the ends of justice served by the continuance outweigh the
interest of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(8)(A). When
defendants are joined for trial, the delay of one defendant may be ascribed to all codefendants in the same case. 18 U.S.C. § 3161(h)(7). See also United States v. Stephens,
489 F.3d 647, 654 (5th Cir. 2007); United States v. Owokoniran, 840 F.2d 373, 375 (7th
Cir. 1987).
There was no violation of the STA. Rodriguez was indicted on September 22, 2004,
along with four other co-defendants, and this criminal action proceeding to trial consistent
with the following time line:

•

Rodriguez made his initial appearance on August 22, 2005.

•

Trial was set for October 17, 2005.

•

On October 11, 2005, defense counsel filed his first motion to continue the
trial. The trial court granted the motion finding that the “ends of justice served
by the continuance outweigh[ed] the best interests of the public and the
Defendant to a speedy trial.” The trial was continued to January 3, 2006, and
the time lapse between October 17, 2005, and January 3, 2006, was
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excluded under the STA.
•

On November 16, 2005, co-defendant Rogelio Avila made his initial
appearance. See Criminal Docket 1:04-cr-155-04 at 6.

•

On December 15, 2005, defense counsel moved for the second time to
continue the trial stating that “the ends of justice” served by the continuance
outweighed the best interests of the defendant to a speedy trial. Criminal
Docket at 15. The trial court granted the motion, stated its reasons for finding
the ends of justice were served, and excluded the time lapse between
January 3, 2006, and February 21, 2006.

•

On February 9, 2006, co-defendant Avila moved to continue the trial. The
court granted the motion on that same day and set a new trial date of April
10, 2006, finding that the defendant’s interest in adequate trial preparation
and continuity of counsel outweighed the defendant’s and the public’s interest
in a speedier trial, and excluded the time lapse between February 21, 2006
and April 10, 2006.

•

On March 20, 2006, defense counsel moved for a third time to continue the
trial which the trial court granted finding “the ends of justice served.” The trial
was continued to May 8, 2006, and the time that lapses between the April 10,
2006, trial date and May 8, 2006, was found excludable under 18 U.S.C. §
3161.

•

On April 28, 2006, co-defendant Avila moved to continue the trial which the
trial court granted and set a new trial date of June 19, 2006. The court found
that the “ends of justice” was served by granting the continuance and that the
period of delay resulting from the continuance should be excluded from the
STA calculation.

•

On May 31, 2006, defense counsel filed his fourth and final motion to
continue the trial. The trial court granted the motion the next day and set a
new trial date of July 17, 2008, finding “the ends of justice served” and that
the time that lapses between the June 21, 2006, trial date and July 17, 2009,
was excludable under 18 U.S.C. § 3161.

•

On June 20, 2006, the government moved to sever Rodriguez from the
co-defendants’ trial and the trial court granted the motion on July 5, 2006.

Until July 5, 2006 (the date Rodriguez was severed for trial), Rodriguez and Avila
were co-defendants. See United States v. Tanner, 941 F.2d 574, 579-581(7th Cir. 1991).
As such, the speedy trial clock did not begin until co-defendant Avila made his initial
appearance on November 16, 2005. In addition, the continuances granted at the request
16

of both Rodriguez and co-defendant Avila properly excluded the time lapses from the STA
calculation. Tanner, 941 F.2d at 580(the excludable delay of one defendant may be
ascribed to all co-defendants in the same case, absent severance). Contrary to Rodriguez’s
argument, in granting each of the continuances the trial court found the ends of justice
served. All told, 243 days were properly excluded from the speedy trial calculation. For
purposes of the speedy trial rule, 1 day elapsed between when the speedy trial clock
commenced and when Rodriguez’s trial began on July 17, 2006, so the STA would have
provided Rodriguez no relief.
Rodriguez’s counsel did not err by failing to challenge Rodriguez’s conviction on the
basis of a violation of the STA.
III. Conclusion
For the reasons explained above, Rodriguez is not entitled to relief on his § 2255
motion. The trial and appellate record, when considered in light of all the applicable
principles of law, establish conclusively that Rodriguez is not entitled to the relief he seeks
in his post-conviction petition. There was no ineffective assistance of counsel and there is
no need for an evidentiary hearing. Accordingly, his motion for relief pursuant to § 2255 is
DENIED, and this action is dismissed with prejudice. Judgment consistent with this Entry
shall now issue.
IV. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that Rodriguez
has failed to show that reasonable jurists would find this court's “assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court therefore also DENIES a certificate of appealability.

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IT IS SO ORDERED.

Date:

07/20/2011

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
Gerald A. Coraz
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Antonio Rodriguez
07964-028
Ashland FCI
Inmate Mail/Parcels
P.O. Box 6001
Ashland, KY 41105

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