CASTRO v. UNITED STATES OF AMERICA

Filing 22

ENTRY discussing motion for relief 28:2255 and denying certificate of appealability (cm via first class mail to the movant). Signed by Judge Larry J. McKinney on 7/24/2012.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

RIGOBERTO CASTRO, also known as
JOSE BARRAGAN,
Movant,
vs.
UNITED STATES OF AMERICA.

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1:09-cv-419-LJM-MJD

Entry Discussing Motion for Relief Pursuant to 28
U.S.C. ' 2255 and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Rigoberto Castro
(“Castro”) for relief pursuant to 28 U.S.C. ' 2255 must be denied and the action
dismissed with prejudice. In addition, the court finds that a certificate of
appealability should not issue.
I. The ' 2255 Motion
A. Background
Castro faced three charges in an Indictment returned in No. IP 06-CR-92. In
Count 1 of the indictment, Castro was charged with conspiracy to possess with intent
to distribute and/or distribution of 500 grams or more of a mixture or substance
containing cocaine. In count 2 of the indictment, Castro was charged with possession
with intent to distribute a substance containing cocaine, a violation of 21 U.S.C.
§ 841(a)(1). Count 3 charged Castro with being unlawfully in the United States after
previously having been deported.
Castro filed a petition to enter a plea of guilty as to the immigration charge.
The court determined Castro entered the plea knowingly and voluntarily and that an
independent basis in fact was established to support the plea. The guilty plea as to
Count 3 was accepted.

Castro went to trial on Counts 1 and 2 and was found guilty as charged as to
Count 2, but the jury was unable to reach a verdict as to Count 1, the conspiracy
count. Count 1 was subsequently dismissed. Castro was sentenced to an aggregate
executed term of imprisonment of 165 months. Castro’s sentence was affirmed on
appeal in United States v. Castro, 277 Fed.Appx. 603 (7th Cir. May 12,
2008)(unpublished).
B. Discussion
Castro now seeks relief pursuant to 28 U.S.C. § 2255, which 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) (internal citations omitted).
Separate from his ineffective assistance of counsel claim examined forth below,
Castro claims that his rights were violated under the First, Second, Fourth, Sixth and
Eighth Amendments. These claims were not raised in Castro’s direct appeal and in
the circumstances presented here are not available for review. Prewitt v. U.S., 83
F.3d 812, 816 (7th Cir. 1996)(AAn issue not raised on direct appeal is barred from
collateral review absent a showing of both good cause for the failure to raise the
claims on direct appeal and actual prejudice from the failure to raise those claims, or
if a refusal to consider the issue would lead to a fundamental miscarriage of
justice.@)(emphasis in original). Apart from the question of procedural default, the
court=s view is that Castro received all that the Constitution requires. Gall v. Parker,
231 F.3d 265, 277-78 (6th Cir. 2000)(“For a trial to be constitutionally sound requires
. . . a trial where the prosecutor must prove all elements of a crime beyond a
reasonable doubt in order to convict; where the prosecutor adheres to certain rules of
conduct that guarantee a fair trial and a proper consideration of the defendant=s
theories and supporting evidence; where the jurors consider only evidence adduced by
the parties and that a defendant has had an opportunity to rebut; and where a
defendant enjoys the right to cross-examine adverse witnesses.”).
This leaves for consideration Castro’s claim that he was denied the effective
assistance of counsel. Castro presents three specifications, viz., (1) during the
sentencing proceedings, (2) during the plea process, and (3) due to multiple errors
during his representation of Castro.
“To establish ineffective assistance of counsel, the defendant must show that
counsel's performance was deficient and that the deficient performance prejudiced
the defense.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).

The Supreme Court has recently "declined to articulate specific guidelines for
appropriate attorney conduct and instead [ ] emphasized that '[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). To establish prejudice, Castro must demonstrate “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.” Id. at 694. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must
be “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. The likelihood of a different result must be substantial, not just
conceivable. Id. at 693.
Castro’s specifications of ineffective assistance of counsel are unpersuasive
here.
•

Castro claims that but for his counsel’s alleged ineffectiveness at his
sentencing hearing, he would not have received an enhancement. On direct
appeal, Castro argued that the court erred in assessing the enhancement.
The Seventh Circuit considered and rejected this argument. U.S. v. Castro,
277 Fed.Appx. 603, 606-07 (7th Cir. 2008)(“In this case, the district court
did not commit clear error in assessing Castro a four-level enhancement
under U.S.S.G. § 3B1.1(a). . . . [T]he evidence was more than sufficient to
support the district court's conclusion that Castro controlled Loredo. . . first
by recruiting her into the organization and then by directing her to take
drugs to different locations and to return with the money paid for those
drugs. Castro also directed Loredo to make wire transfers of money, which
Loredo testified were to pay for future drug shipments. Additionally, the
evidence established that the criminal enterprise involved five or more
participants, namely Castro, Loredo, Martinez, Marco, Castro's nephew, the
16-year-old juvenile, and another unidentified man.”). In doing so, the Court
of Appeals has also explained why Castro could not satisfy the prejudice
element of a Strickland analysis.

•

Castro claims that his sentence would have been lessened by pleading
guilty to all three counts or alternatively, that his counsel was ineffective
for not negotiating a plea agreement. The resolution of the three charges
against Castro has been identified. This was a resolution favorable to
Castro under all the circumstances. Castro has not shown that there is a
reasonable probability that, but for counsel’s failure to negotiate a plea
agreement as to all three counts, he would have pled guilty to all three
counts and fared better than he did by entering a guilty plea as to the
immigration charge and going to trial on the other two charges, particularly
when the drug conspiracy charge was dismissed following the jury deadlock.

This asserted deficiency also suffers from a more systemic error, moreover,
which is Castro's complete failure to give account for what counsel’s
representation accomplished. Although argued through various
specifications here, “ineffective assistance of counsel is a single ground for
relief no matter how many failings the lawyer may have displayed.” Peoples
v. United States, 403 F.3d 844, 848 (7th Cir. 2005); see also Balfour v. Haws,
892 F.2d 556, 562-63 (7th Cir. 1989) (noting that for specific allegations of
ineffective assistance courts must "weigh the overall quality of
representation provided to the defendant" and not individual shortcomings).
This point was made in Payne v. Brown, 662 F.3d 825, 829 (7th Cir.
2011)(citing Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009)(“It is
essential to evaluate the entire course of the defense, because the question
is not whether the lawyer's work was error-free, or the best possible
approach, or even an average one.”)). It may be added that there is in this
case no single error “‘sufficiently egregious and prejudicial’” to support a
claim of the denial of the effective assistance of counsel. Williams, 557 F.3d
at 538 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
•

Castro claims that he was denied a fair trial as a result of the cumulative
effect of trial counsel’s errors and that counsel should have challenged the
purity of the drugs. To demonstrate cumulative error, Castro must establish
that “(1) at least two errors were committed in the course of the trial; (2)
considered together along with the entire record, the multiple errors so
infected the jury's deliberation that they denied the petitioner a
fundamentally fair trial.” Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000),
cert. denied, 531 U.S. 1192 (2001). Here, Castro’s claims of ineffective
assistance of counsel are refuted by the record. Once again, trial counsels’
performance at trial achieved the dismissal of one of the two drug charges.
In addition, as to Castro’s claim regarding counsel’s failure to challenge the
purity of the drugs, Castro admits his guilt as to all three charges and
claims his counsel should have entered into a plea agreement allowing him
to plead guilty to all charges. As recently explained by the Seventh Circuit:
“Since [Castro] has not demonstrated any prejudice under his ineffective
assistance claims, his claim for overall prejudice fails.” Morgan v. Hardy,
662 F.3d 790, (7th Cir. 2011)(citing Alvarez).

It has been observed in the past that criminal defendants frequently “demonize” their
lawyers. “If we are to believe the briefs filed by appellate lawyers, the only reasons
defendants are convicted is the bumbling of their predecessors. But lawyers are not
miracle workers. Most convictions follow ineluctably from the defendants’ illegal
deeds.” United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002). The same is
inescapably true as to Castro’s arguments that he was denied the effective assistance
of counsel. There is no entitlement to relief as to this claim, based on either the
performance prong or the equally important requirement that he suffered prejudice.

“The test for ineffectiveness is not whether counsel could have done more; perfection
is not required. Nor is the test whether the best criminal defense attorneys might
have done more. Instead the test is . . . whether what [counsel] did was within the
‘wide range of reasonable professional assistance.’” Waters v. Thomas, 46 F.3d 1506,
1518 (11th Cir. 1995) (en banc) (quoting Strickland, 466 U.S. at 689). It was
explained in Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997), that:
the question posed by Strickland [is] whether, taking all of the
proceedings into account, counsel made “the adversarial testing process
work in the particular case.” [Strickland,] 466 U.S. at 690, 104 S. Ct. at
2066. Counsel must contest the prosecution’s case and advance a good
defense; if that role has been fulfilled, a writ of habeas corpus should not
issue. See Burris v. Parke, 116 F.3d 256 (7th Cir. 1997).
Castro’s attorney fulfilled this role both at trial and at sentencing.
C. Conclusion
Castro’s request for an evidentiary hearing and motion for appointment of
counsel have also been considered. Counsel would in fact be appointed if the court
found the need to conduct an evidentiary hearing in this case. Chaney v. Lewis, 801
F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). However, such a
proceeding is only necessary when a more extensive factual record must be compiled
to decide an issue. See Newell v. Hanks, 283 F.3d 827, 838 (7th Cir. 2002). That is not
the case here. Accordingly, Castro’s request for an evidentiary hearing and motion for
appointment of counsel are denied.
Castro seeks discovery in his motion for relief pursuant to § 2255. Unlike other
civil proceedings, motions attacking a sentence under 28 U.S.C. § 2255 do not entitle
a movant to discovery as a matter of course. Rather, under Rule 6(a) of the Rules
Governing Section 2255 Proceedings for the United States District Courts, “the court
may authorize discovery for ‘good cause.’” Jones v. U.S., 231 Fed.Appx. 485 (7th Cir.
2007) (citing Hubanks v. Frank, 392 F.3d. 926, 933 (7th Cir. 2004). Castro’s request
for discovery does not support the use of that mechanism in this case, and
accordingly, his request for discovery is denied.
For the reasons explained above, Castro is not entitled to relief in this action.
He has failed to demonstrate a constitutional violation warranting collateral relief.
Accordingly, his motion for relief pursuant to § 2255 is denied, and this action must
be dismissed with prejudice. Castro’s motion for a ruling [20] is granted. Judgment
consistent with this Entry shall now issue.

II. 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 Castro
has failed to show that reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a constitutional right” and “debatable
whether [this court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). The court therefore denies a certificate of appealability.
IT IS SO ORDERED.

07/24/2012
Date: __________________

Distribution:
[e-mail]
Rigoberto Castro
No. 08224-028
Federal Correctional Institution
3600 Guard Road
Lompoc, CA 93436

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana