De Alvarez v. United States of America

Filing 25

MEMORANDUM OPINION AND ORDER denying in part and reserving in part 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR11-4049-MWB-2). See text of Order for details. Evidentiary Hearing on the ineffective assistance of counsel claim alleged as Ground Three is set for 3/31/2015 03:00 PM in SC 3rd Fl Ct before Judge Mark W Bennett. The United States Marshals Service is directed to transport petitioner Sandra Garcia De Alvarez to appear personally for this evidentiary hearing on 3/31/15. Signed by Judge Mark W Bennett on 2/6/15. (eUSM) (djs) (Additional attachment(s) added on 2/6/2015: # 1 Confirmation Receipt) (djs).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SANDRA GARCIA DE ALVAREZ,
No. C 13-4026-MWB
(No. CR 11-4049-2-MWB)

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT A
SENTENCE

___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
Factual Background ............................................................... 2 
B. 
Criminal Proceedings .............................................................. 3 
C. 
Section 2255 Proceedings ......................................................... 5 

II. 

LEGAL ANALYSIS ........................................................................ 6 
A. 
Standards For § 2255 Relief ...................................................... 7 
1. 
Grounds for relief .......................................................... 7 
2. 
Standards for an evidentiary hearing ................................. 10 
B. 
Garcia De Alvarez’s “Ineffective Assistance Of Counsel”
Claims............................................................................... 12 
1. 
Failure to seek a bill of particulars ................................... 12 
2. 
Failure to explain alternatives to trial in “laymen’s”
terms ........................................................................ 13 
3. 
Failure to challenge drug quantity and purity ...................... 15 
4. 
Failure to interview and present witnesses .......................... 16 
a. 
Additional witnesses ............................................. 16 
b. 
Arguments of the parties ....................................... 19 
c. 
Analysis ............................................................ 20 
C. 
Certificate Of Appealability ..................................................... 23 

III. 

CONCLUSION ............................................................................ 24 

This case is before me on petitioner Sandra Garcia De Alvarez’s Motion Under
28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody (§ 2255 Motion) (Civ. docket no. 1), filed on March 4, 2013. Garcia De Alvarez
claims that her trial attorney provided her with ineffective assistance of counsel in several
respects. The respondent denies that Garcia De Alvarez is entitled to any relief on her
claims.
I.
A.

INTRODUCTION
Factual Background

The trial transcript reflects that, in October of 2010, law enforcement officers
conducted a controlled buy, involving the purchase of three ounces of methamphetamine
for $6,000 by a confidential informant, from Garcia De Alvarez’s husband, Lorenzo
Alvarez. Law enforcement officers used the same confidential informant to set up a
second meeting with Lorenzo, on November 16, 2010, purportedly to purchase another
ten ounces of methamphetamine. When Lorenzo arrived at the place agreed upon to
complete the transaction, law enforcement officers arrested him and seized additional
methamphetamine.
That same evening, law enforcement officers obtained and executed a search
warrant for Lorenzo’s residence in Denison, Iowa, which he shared with Garcia De
Alvarez and their five children. Garcia De Alvarez was asleep at the time that the law
enforcement officers arrived at the residence to execute the warrant. During the search,
law enforcement officers seized items, including the following: a total of $4,790 in cash
found in a sewing container located in the closet next to the master bedroom where Garcia
De Alvarez had been sleeping; approximately six ounces of methamphetamine found in

a plastic container in the master bathroom; packaging materials found in the master
bathroom; and two gram scales found in the master bedroom/bathroom areas. Garcia De
Alvarez denied any knowledge of or involvement in her husband’s drug activities.
Nevertheless, law enforcement officers arrested her after concluding their search of the
residence.
B.

Criminal Proceedings

In an Indictment (Crim. docket no. 1), handed down March 24, 2011, a Grand
Jury charged Lorenzo with possessing with intent to distribute 50 grams or more of actual
(pure) methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In a
Superseding Indictment (Crim. docket no. 17), handed down May 19, 2011, the Grand
Jury reiterated the “possession with intent” charge against Lorenzo in Count 1, and added
Count 2 charging Garcia De Alvarez (but not Lorenzo) with conspiracy to distribute 500
grams or more of a methamphetamine mixture containing 50 grams or more of actual
(pure) methamphetamine, in violation of 21 U.S.C. § 846. At her arraignment on June
24, 2011, Garcia De Alvarez pleaded not guilty and was released on bond. Minutes Of
Initial Appearance And Arraignment (Crim. docket no. 29); Order (Crim. docket no.
30). The parties also stipulated to the standard “open file” discovery order. Id. By
Order (Crim. docket no. 31), the court set a jury trial on the “conspiracy” charge against
Garcia De Alvarez for the two-week period beginning August 1, 2011, the same date for
which Lorenzo’s trial on the “possession with intent” charge against him was already set.
See Order (Crim. docket no. 27). By separate Order (Crim. docket no. 33), the court
appointed counsel to represent Garcia De Alvarez.
By Order (Crim. docket no. 35), dated June 28, 2011, the court set a guilty plea
hearing for Lorenzo for July 12, 2011, and struck the trial as to him. On July 12, 2011,
Lorenzo pleaded guilty to the “possession with intent” charge against him pursuant to a
3

written plea agreement.

See Minutes (Crim. docket no. 42); Report And

Recommendation Concerning Plea Of Guilty (Crim. docket no. 43). I accepted his guilty
plea the same day. See Order (Crim. docket no. 46). At various times, Lorenzo gave
conflicting statements about whether or not Garcia De Alvarez was involved in his drug
business.
Garcia De Alvarez elected to go to trial on the “conspiracy” charge against her.
Jury selection for her trial was on March 29, 2012, and the parties presented evidence
on March 30, 2012. See Minutes (Crim. docket nos. 112 and 114). The evidence at
trial included the testimony of three cooperating witnesses to the effect that Lorenzo was
their methamphetamine dealer, but that, on several occasions, when he was out of town
or unavailable, Garcia De Alvarez would handle the exchange of methamphetamine and
cash. The only defense witness was Garcia De Alvarez herself. She testified that she
did not know anything about money or drugs or anything like that and that she had never
delivered drugs to any of the cooperating witnesses or anyone else. See, e.g., Transcript,
Vol. II, 206:12-207:13. She also testified that she did not try to get a plea agreement
from the prosecution, like other people, “[b]ecause [she was] not going to say something
that [she] did not do.” Id. at 210:6-14.
Counsel made their closing arguments on April 2, 2012. See Minutes (Crim.
docket no. 116). Later that same day, the jury found Garcia De Alvarez guilty of the
“conspiracy” offense. See Verdict Form (Crim. docket no. 117). The jury found Garcia
De Alvarez responsible for 50 grams or more but less than 500 grams of
methamphetamine mixture, not for more than 500 grams of methamphetamine mixture,
as charged in the Superseding Indictment.

Id.

Prior to trial, the prosecution had

abandoned any request that the jurors determine any quantity of actual (pure)
methamphetamine for which Garcia De Alvarez could be held responsible. On July 31,
2012, I sentenced Garcia De Alvarez to 60 months, the mandatory minimum sentence
4

based on her conviction, after granting her Motion For Downward Variance (Crim.
docket no. 143) from a guidelines range of 78 to 97 months, with four years of supervised
release. Minutes (Crim. docket no. 146); Judgment (Crim. docket no. 147).
Garcia De Alvarez filed a Notice Of Appeal (Crim. docket no. 149) on August 7,
2012. She was represented on appeal by her appointed trial counsel. Her counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), “challenging the
sufficiency of the evidence to support the jury’s verdict,” because “the testimony of
cooperating witnesses was unreliable and not credible.” United States v. Garcia De
Alvarez, No. 12-2858, Opinion (per curiam) (Crim. docket no. 163), 2. On February 6,
2013, the Eighth Circuit Court of Appeals affirmed Garcia De Alvarez’s conviction and
sentence, finding “no nonfrivolous issues for appeal.” Id. A Mandate (Crim. docket no.
165) issued on March 8, 2013.
C.

Section 2255 Proceedings

On March 4, 2013, Garcia De Alvarez filed her Motion Under 28 U.S.C. § 2255
To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody (§ 2255
Motion) (Civ. docket no. 1), pro se, which is now before me. She sought relief on four
“ineffective assistance of counsel” claims, based on the following allegations: (1) her
trial counsel failed to establish her “position” in the alleged conspiracy by requesting a
bill of particulars; (2) her trial counsel failed to challenge the amount and purity of the
methamphetamine that was charged against her; (3) her trial counsel failed to call
witnesses who would have testified to her innocence and her trial counsel’s
“unavailability” when she tried to contact him; and (4) her trial counsel failed to explain
in “laymen’s” terms the process of a plea agreement, a guilty plea, or the process of a
jury trial. The respondent filed an Answer (Civ. docket no. 3) on March 6, 2013. By
Order (Civ. docket no. 4), filed March 7, 2013, I directed that counsel be appointed to
5

represent Garcia De Alvarez in this matter and set a briefing schedule on her § 2255
Motion.
On June 18, 2013, counsel filed Petitioner’s Brief (Civ. docket no. 13). Counsel
clarified Garcia De Alvarez’s “ineffective assistance of counsel” claims, as follows:
(1) her trial counsel failed to investigate and interview witnesses, which resulted in a
failure to call witnesses on her behalf at trial; (2) her trial counsel failed to explain in
“laymen’s” terms the processes of a plea agreement, a guilty plea, and a jury trial; (3) her
trial counsel failed to request a bill of particulars; and (4) her trial counsel failed to
challenge the amount and purity of the stated drug that was charged against her. Garcia
De Alvarez attached the affidavits of eight potential witnesses that she claims she told her
trial counsel to interview. In their affidavits, these people summarize the testimony that
they would have given, had they been called as witnesses on Garcia De Alvarez’s behalf
at trial, and aver that they were not contacted by Garcia De Alvarez’s trial counsel prior
to her trial. On September 18, 2013, the respondent filed its Response (Civ. docket no.
18), to which it attached an affidavit from Garcia De Alvarez’s trial counsel, disputing
Garcia De Alvarez’s claims. Garcia De Alvarez’s counsel filed a Reply Brief (Civ.
docket no. 24) on October 18, 2013. Regrettably, there the matter has languished until
now, owing to the press of other work and clerical oversight.
II.

LEGAL ANALYSIS

I will consider each of Garcia De Alvarez’s claims separately. However, I will
first summarize the standards applicable to a claim for § 2255 relief.

6

A. Standards For § 2255 Relief
1.

Grounds for relief

“Section 2255 [of Title 28 of the United States Code] ‘was intended to afford
federal prisoners a remedy identical in scope to federal habeas corpus.’” Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United
States, 417 U.S. 333, 343 (1974)). Nevertheless, “[l]ike habeas corpus, this remedy
‘does not encompass all claimed errors in conviction and sentencing.’” Id. (quoting
United States v. Addonizio, 442 U.S. 178, 185 (1979). Specifically, § 2255 provides as
follows:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground [1] that the sentence was imposed in violation of the
Constitution or laws of the United States, or [2] that the court
was without jurisdiction to impose such sentence, or [3] that
the sentence was in excess of the maximum authorized by law,
or [4] is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a).

Thus, § 2255 “provides a remedy for jurisdictional and

constitutional errors,” but “[b]eyond that, the permissible scope of a § 2255 collateral
attack on a final conviction or sentence is severely limited; ‘an error of law does not
provide a basis for collateral attack unless the claimed error constituted “a fundamental
defect which inherently results in a complete miscarriage of justice.”’” Sun Bear, 688
F.3d at 704 (quoting Addonizio, 442 U.S. at 185, in turn quoting Hill v. United States,
368 U.S. 424, 428 (1962); accord Walking Eagle v. United States, 742 F.3d 1079, 108182 (8th Cir. 2014) (“‘Relief under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could not have been raised on

7

direct appeal and, if uncorrected, would result in a complete miscarriage of justice.’”
(quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).
In addition, a petitioner who fails to raise a claim on direct appeal generally may
not raise that claim in a § 2255 motion. Walking Eagle, 742 F.3d at 1082. A petitioner
may overcome this “procedural default,” however, if the petitioner establishes both
“‘cause for the procedural default and actual prejudice resulting from the error.’” Id.
(quoting Apfel, 97 F.3d at 1076, in turn citing United States v. Frady, 456 U.S. 152,
167-68 (1982)). “‘Absent unusual circumstances, a showing of ineffective assistance of
counsel satisfies both cause and prejudice.’” Id. (quoting Apfel, 97 F.3d at 1076)).
Indeed, “ineffective assistance of counsel” claims are not procedurally defaulted when
brought for the first time pursuant to § 2255. Massaro v. United States, 538 U.S. 500,
508 (2003). The Eighth Circuit Court of Appeals has also expressly recognized that a
claim of “ineffective assistance of counsel” should be raised in a § 2255 proceeding,
rather than on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir.
2003) (“When claims of ineffective assistance of trial counsel are asserted on direct
appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”). Therefore, when
I can construe a petitioner’s claim as a claim of ineffective assistance of counsel, I will
consider that claim on the merits.
Not only does ineffective assistance of counsel establish “cause and prejudice” to
overcome procedural default, in my experience, such claims are far and away the most
common claims for § 2255 relief. The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. Thus, a criminal
defendant is constitutionally entitled to the effective assistance of counsel not only at trial,
but at sentencing, on direct appeal, and during other “critical” phases of the criminal
proceedings. Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (negotiation of a plea
8

bargain); Burger v. Kemp, 483 U.S. 776, 803–04 (1987) (pretrial plea negotiations).;
Evitts v. Lucey, 469 U.S. 387, 396 (1985) (direct appeal); Gardner v. Florida, 430 U.S.
349, 358 (1977) (sentencing). The Eighth Circuit Court of Appeals has recognized that,
if a defendant was denied the effective assistance of counsel guaranteed by the Sixth
Amendment, “then his sentence was imposed ‘in violation of the Constitution,’ . . . and
he is entitled to relief” pursuant to § 2255(a). King v. United States, 595 F.3d 844, 852
(8th Cir. 2010).
As the Eighth Circuit Court of Appeals has explained,
“Normally, in order to succeed on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s
performance was ‘deficient’ and that the ‘deficient
performance prejudiced the defense.’” Walking Eagle v.
United States, 742 F.3d 1079, 1082 (8th Cir.2014) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984)).
Sweeney v. United States, 766 F.3d 857, 859-60 (8th Cir. 2014). These two prongs
require some further explication.
“Deficient” performance is performance that falls “‘below an objective standard
of reasonableness,’” Lafler v. Cooper, ___ U.S. ___, ___, 132 U.S. 1376, 1384 (2012)
(quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)), that is, conduct that failed to conform
to the degree of skill, care, and diligence of a reasonably competent attorney. Strickland
v. Washington, 466 U.S. 668, 687 (1984); Donnell v. United States, 765 F.3d 817, 821
(8th Cir. 2014). Thus, “[t]he challenger’s burden is to show ‘that counsel made errors
so serious that counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 787
(2011) (quoting Strickland, 466 U.S. at 687)).
“To establish Strickland prejudice a defendant must ‘show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
9

proceeding would have been different.’” Lafler, ___ U.S. at ___, 132 S. Ct. at 1384
(quoting Strickland, 466 U.S. at 694). The Court has explained more specifically what
a “reasonable probability” means:
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” [Strickland, 466 U.S.
at 694]. That requires a “substantial,” not just “conceivable,”
likelihood of a different result. Richter, 562 U.S., at ___, 131
S. Ct., at 791.
Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388, 1403 (2011). Ultimately, a
showing of “prejudice” requires counsel’s errors to be “‘so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.’” Richter, ___ U.S. at ___, 131
S. Ct. at 787-88 (quoting Strickland, 466 U.S. at 687). As the Eighth Circuit Court of
Appeals has explained, however,
[P]rejudice may be presumed when the defendant experiences
a “complete denial of counsel” at a critical stage of his trial.
United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039,
80 L.Ed.2d 657 (1984). “[T]he trial is the paradigmatic
critical stage.” United States v. Turner, 975 F.2d 490, 496
(8th Cir.1992).
Sweeney, 766 F.3d at 859-60.
I will discuss the Strickland standards for ineffective assistance of counsel claims
in more detail, if necessary, when I turn to consideration of Garcia De Alvarez’s specific
claims, below.
2.

Standards for an evidentiary hearing

One further procedural matter that is often of considerable importance in § 2255
proceedings is the standard for an evidentiary hearing. As the Eighth Circuit Court of
Appeals recently explained,
“Evidentiary hearings on 28 U.S.C. § 2255 motions are
preferred, and the general rule is that a hearing is necessary
10

prior to the motion’s disposition if a factual dispute exists.”
[Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir.
2013)]. “The district court is not permitted to make a
credibility determination on the affidavits alone.” Id. at 1206.
United States v. Sellner, 773 F.3d 927, 929 (8th Cir. 2014).

Indeed, “‘[w]here

petitioner’s allegations, if true, amount to ineffective assistance of counsel, a hearing
must be held unless the record ‘affirmatively refutes the factual assertions upon which
[the claim] is based.’’” Franco v. United States, 762 F.3d 761, 763 (8th Cir. 2014)
(citing Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007), in turn quoting Shaw
v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994)).
On the other hand,
[The district court] may . . . deny an evidentiary hearing if
“(1) the [petitioner’s] allegations, accepted as true, would not
entitle the [petitioner] to relief, or (2) the allegations cannot
be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than
statements of fact.” [Thomas, 737 F.3d] at 1206–07
(alterations in original) (quoting Buster v. United States, 447
F.3d 1130, 1132 (8th Cir.2006)).
Sellner, 773 F.3d at 929-930; accord Anderson v. United States, 762 F.3d 787, 792 (8th
Cir. 2014) (citing 28 U.S.C. § 2255(b)); Franco, 762 F.3d at 763; Winters v. United
States, 716 F.3d 1098, 1103 (8th Cir. 2013).
The district court’s denial of an evidentiary hearing is reviewed for abuse of
discretion. Sellner, 773 F.3d at 929; see also United States v. Fausto, 754 F.3d 640,
642 (8th Cir. 2014) (explaining that, to determine whether the district court abused its
discretion in denying an evidentiary hearing, the court must review de novo the validity
of a petitioner’s § 2255 claims).

11

B.

Garcia De Alvarez’s “Ineffective
Assistance Of Counsel” Claims

As mentioned above, Garcia De Alvarez asserts four separate “ineffective
assistance of counsel” claims. I will consider them in turn, but in the order that the
alleged errors occurred during trial counsel’s representation of Garcia De Alvarez.
1.

Failure to seek a bill of particulars

Garcia De Alvarez offers scant argument in support of her claim that trial counsel
provided ineffective assistance of counsel by failing to request a bill of particulars.
Indeed, her current counsel only requests that, at an evidentiary hearing, Garcia De
Alvarez be given the opportunity to present evidence and argument as to this claim.
Garcia De Alvarez’s pro se § 2255 Motion suggests that the evidence that her trial counsel
should have sought by a bill of particulars concerned her alleged “position” in the alleged
“conspiracy.” The respondent argues that Garcia De Alvarez does not specify any basis
for a bill of particulars or any specific information or evidence that she could have sought
by doing so. The respondent argues that her counsel had full access to the prosecution’s
“discovery file” and timely received all Jenks material. Thus, the respondent argues that
there is no support for this claim in the record.
“Where the plain language of an indictment fails to alert a defendant of the ‘precise
nature of the government’s allegations,’ a bill of particulars can cure deficiencies in the
indictment’s form.” United States v. Mann, 701 F.3d 274, 288 (8th Cir. 2012) (citing
United States v. Dolan, 120 F.3d 856, 866 (8th Cir. 1997)). Courts “will not overturn
a conviction for want of a bill of particulars unless the defendant suffered actual prejudice
due to surprise at trial.” United States v. Beasley, 688 F.3d 523, 532 (8th Cir. 2012).
As I have explained, “[N]umerous courts have held that no bill of particulars is required
when the defendant has access to the necessary detail about the charges to prepare a
defense, for example, in the form of ‘open file’ discovery or ‘some other satisfactory
12

form.’” United States v. Johnson, 225 F. Supp. 2d 982, 994 (N.D. Iowa 2002) (citing
cases).
Here, there are no factual allegations to suggest that, as to failing to request a bill
of particulars, Garcia De Alvarez’s trial counsel’s performance fell “‘below an objective
standard of reasonableness,’” Lafler, ___ U.S. at ___, 132 U.S. at 1384 (quoting Hill,
474 U.S. at 57), that is, failed to conform to the degree of skill, care, and diligence of a
reasonably competent attorney. Strickland, 466 U.S. at 687; Donnell, 765 F.3d at 821.
Nor are there any factual allegations suggesting that, had her trial counsel done so, there
is a “‘reasonable probability that . . . the result of the proceeding would have been
different.’” Lafler, ___ U.S. at ___, 132 S. Ct. at 1384 (quoting Strickland, 466 U.S.
at 694). Mere conclusions are not enough to warrant an evidentiary hearing, and no
factual disputes that can only be resolved by an evidentiary hearing are apparent.
Sellner, 773 F.3d at 929-30. Rather, the record shows beyond dispute that trial counsel
had access to “open file” discovery, see Johnson, 225 F. Supp. 2d at 994, and Garcia
De Alvarez does not allege that she was “surprised” by anything at trial. See Beasley,
688 F.3d at 532. Garcia De Alvarez cannot show that her trial counsel performed
deficiently by failing to raise a meritless demand for a bill of particulars. See, e.g., Thai
v. Mapes, 412 F.3d 970, 978 (8th Cir. 2005).
Garcia De Alvarez is not entitled to an evidentiary hearing or any relief on this
claim.
2.

Failure to explain alternatives to trial in “laymen’s” terms

Garcia De Alvarez also asserts that her trial counsel was ineffective in failing to
explain in “laymen’s” terms the processes of a plea agreement, a guilty plea, and a jury
trial. Although Garcia De Alvarez’s counsel cites my decision in United States v.
Hernandez, 450 F. Supp. 2d 950 (N.D. Iowa 2006), as indicating that trial counsel can
be ineffective for failing to explain these matters, counsel ultimately argues only that
13

Garcia De Alvarez should be given the opportunity to present evidence and argument as
to this claim. Garcia De Alvarez’s pro se § 2255 Motion is no more illuminating on this
claim. The respondent contends that the record demonstrates that this claim is without
foundation, because trial counsel, who had considerable trial experience, avers that he
did discuss with Garcia De Alvarez the benefits of accepting a proposed plea agreement
by the prosecution (to misprision of a felony), on four separate occasions, with an
interpreter, but Garcia De Alvarez was not interested. The respondent argues that Garcia
De Alvarez has failed to allege, let alone establish, any specific issues regarding her lack
of knowledge regarding the evidence against her, the possibilities of a plea agreement,
or the general plea/trial process.
Again, there are no factual allegations to suggest that, in failing to explain the plea
or trial process to her, Garcia De Alvarez’s trial counsel’s performance fell “‘below an
objective standard of reasonableness,’” Lafler, ___ U.S. at ___, 132 U.S. at 1384
(quoting Hill, 474 U.S. at 57), that is, failed to conform to the degree of skill, care, and
diligence of a reasonably competent attorney, Strickland, 466 U.S. at 687; Donnell, 765
F.3d at 821. Nor are there any factual allegations suggesting that, had her trial counsel
done so, there is a “‘reasonable probability that . . . the result of the proceeding would
have been different.’” Lafler, ___ U.S. at ___, 132 S. Ct. at 1384 (quoting Strickland,
466 U.S. at 694). Mere conclusions are not enough to warrant an evidentiary hearing;
Garcia De Alvarez’s trial counsel avers that he did provide the pertinent information,
through an interpreter, on more than one occasion; Garcia De Alvarez does not assert
that she was given no information about pleading versus going to trial; and Garcia De
Alvarez admits that she was aware that “other people” had obtained benefits from
entering into plea agreements, see Trial Transcript, Vol. 2, at 210:6-14, so that no factual
disputes that can only be resolved by an evidentiary hearing are apparent. Sellner, 773
F.3d at 929-30. Indeed, Garcia De Alvarez’s trial testimony that she did not try to get a
14

plea agreement from the prosecution, like other people, “[b]ecause [she was] not going
to say something that [she] did not do,” Trial Transcript, Vol. 2, at 210:6-14, stands as
an insurmountable barrier to proof of prejudice under Strickland, in the absence of any
other evidence suggesting that there were circumstances in which Garcia De Alvarez
would have considered a plea agreement.
Garcia De Alvarez is not entitled to an evidentiary hearing or any relief on this
claim.
3.

Failure to challenge drug quantity and purity

Next, I will consider Garcia De Alvarez’s claim that her trial counsel provided
ineffective assistance by failing to challenge the amount and purity of the stated drug that
was charged against her. As with the previous claim, Garcia De Alvarez’s current
counsel offers no argument or evidence to support this claim, but states only that Garcia
De Alvarez requests the opportunity to present relevant evidence and argument at an
evidentiary hearing. Garcia De Alvarez’s pro se § 2255 Motion, likewise, provides
neither relevant factual allegations nor argument.

The respondent points out that,

although Garcia De Alvarez was charged with quantities of methamphetamine mixture
and actual (pure) methamphetamine that would have subjected her to a ten-year
mandatory minimum sentence, the prosecution did not put on any evidence about any
quantity of actual (pure) methamphetamine, and that the jury found a quantity of
methamphetamine mixture that subjected Garcia De Alvarez only to a five-year
mandatory minimum sentence. The respondent also argues that Garcia De Alvarez’s
defense was based on lack of knowledge of or involvement in any drug offenses, not on
purity or drug quantity, which was a reasonable trial strategy or tactic.
Again, there are no factual allegations to suggest that, in failing to challenge drug
quantity or purity, Garcia De Alvarez’s trial counsel’s performance fell “‘below an
objective standard of reasonableness,’” Lafler, ___ U.S. at ___, 132 U.S. at 1384
15

(quoting Hill, 474 U.S. at 57), that is, failed to conform to the degree of skill, care, and
diligence of a reasonably competent attorney, Strickland, 466 U.S. at 687; Donnell, 765
F.3d at 821. Nor are there any factual allegations suggesting that, had her trial counsel
done so, there is a “‘reasonable probability that . . . the result of the proceeding would
have been different.’” Lafler, ___ U.S. at ___, 132 S. Ct. at 1384 (quoting Strickland,
466 U.S. at 694). Mere conclusions are not enough to warrant an evidentiary hearing,
and no factual disputes that can only be resolved by an evidentiary hearing are apparent.
Sellner, 773 F.3d at 929-30. Garcia De Alvarez offers nothing to suggest that the quantity
of methamphetamine mixture ultimately attributed to her by the jury was wrong. See
Pruitt v. United States, 233 F.3d 570, 572 (8th Cir. 2000). Nor does she offer anything
to show that, where the prosecution did not present evidence of purity, it was
unreasonable for defense counsel to focus on a defense based on lack of knowledge or
involvement, rather than to make a meritless challenge to drug quantity or purity. See,
e.g., Thai, 412 F.3d at 978.
Garcia De Alvarez is not entitled to an evidentiary hearing or any relief on this
claim.
4.

Failure to interview and present witnesses

Garcia De Alvarez’s remaining claim is that her trial counsel provided ineffective
assistance by failing to investigate and interview witnesses that she had identified, which
resulted in a failure to call witnesses on her behalf at trial. This claim requires some
examination of what the potential witnesses in question would have said at trial.
a.

Additional witnesses

Garcia De Alvarez asserts that she identified at least eight potential witnesses to
her trial counsel, but trial counsel did not interview or call any of them at trial. She has
attached affidavits from eight such potential witnesses. Joaquin Santos, who is an uncle
of Garcia De Alvarez’s husband, Lorenzo, and the person with whom Garcia De
16

Alvarez’s five children currently reside, avers that he saw Garcia De Alvarez “practically
every day.” Gloria Nieto, who is Garcia De Alvarez’s husband’s aunt, avers that she
has known Garcia De Alvarez for approximately eleven years, that she also saw Garcia
De Alvarez “practically every day,” and that Garcia De Alvarez babysat her daughter
for approximately five years. Miguel Alvarez, who is the eldest of Garcia De Alvarez’s
children, now an adult, avers that he was living with his mother at the time of her arrest.
Francisca Santos avers that she has known Garcia De Alvarez for approximately thirteen
or fourteen years and that she used to see her and visit her several times each week.
Leyber Carrizales avers that she has known Garcia De Alvarez for approximately five
years and that, until her arrest, she used to see her and visit with her several times each
week. Sandra Calderon avers that she has known Garcia De Alvarez for approximately
five or six years and would see her and visit with her several times each week and also
see her at church. Gloria Ayala avers that she has known Garcia De Alvarez for
approximately five years, that she has been her co-worker, and that she also used to see
her at church.

Adolfo Vargas avers that he has known Garcia De Alvarez for

approximately four years, that he met her through church, and that he used to see her
there several times each week and around town.
All of these potential witnesses aver that they had no knowledge or suspicion of
any drug activity taking place at Garcia De Alvarez’s home and that she was too busy
with her children and church to have time for anything else. Each also avers that he or
she would have been willing to testify at trial, but that he or she was not contacted by
any attorney on Garcia De Alvarez’s behalf. Joaquin Santos adds that Lorenzo has
admitted to him that the drug activity was completely his fault and that Garcia De Alvarez
had nothing to do with it. Contrary to the affidavit by Garcia De Alvarez’s trial counsel,
Gloria Nieto avers that she was not contacted by any attorney on Garcia De Alvarez’s
behalf. Nieto also avers that, before Garcia De Alvarez got a job, she sold baked goods
17

to make money for her family, that she had borrowed money from Nieto to send to her
sick father in Mexico, and that she knew that she could do so again, so that she would
not have needed to make money through drug dealing. Adolfo Vargas adds that Garcia
De Alvarez was working 12 to 14 hours each day at Appa Fine Foods and that her family
activities took up all the rest of her time.
Garcia De Alvarez identifies other potential witnesses as Carmen Esquival and
Lorenzo. She contends that Esquival was the interpreter used during the search of Garcia
De Alvarez’s residence, that she would have testified that a search warrant was not
presented to Garcia De Alvarez during the search, and that Esquival did not interpret one
at the time. Garcia De Alvarez asserts that Lorenzo would have testified that he was
solely responsible for the drug trafficking and that Garcia De Alvarez neither knew about
it nor participated in it.
The respondent offers the affidavit of Garcia De Alvarez’s trial counsel in support
of its Resistance. In response to the allegation that he was ineffective for failing to
investigate and interview witnesses, which resulted in a failure to call witnesses on behalf
of Garcia De Alvarez, trial counsel avers as follows:
1.

The most troublesome evidence against [Garcia De]
Alvarez was the 175 g of methamphetamine found in
the bathroom attached to the master bedroom and the
drug paraphernalia and money found in the master
bedroom where she slept. Counsel did interview
Gloria Nieto. Counsel did not interview the other
witnesses listed in petitioner’s brief. The summary of
the testimony of said witnesses would have been that
they never saw [Garcia De] Alvarez deal drugs. There
were no witnesses who had any particularized
knowledge about any of the cooperating witnesses or
her husband’s, Lorenzo, drug dealing. Each of the
witnesses listed would likely have testified they never
saw [Garcia De Alvarez] dealing drugs. Of course,
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those same witnesses would have testified they never
saw her husband, Lorenzo, dealing drugs either.
Counsel did not believe the other witnesses’
testimonies would have been relevant.
2.

Counsel did interview Lorenzo Alvarez on two
separate occasions in the presence of Mr. Alvarez’s
legal counsel. In the first occasion, Mr. Alvarez
claimed that [Garcia De Alvarez] was involved in
dealing drugs. On the second occasion, which was
shortly before the commencement of trial, Lorenzo
Alvarez claimed [Garcia De Alvarez] was not
involved.
However, it became obvious to the
undersigned that Lorenzo was lying about several
important events on the night of [Garcia De Alvarez’s]
arrest. It was felt the undersigned could not ethically
call Lorenzo to testify. Furthermore, it was the
opinion of the undersigned that if called to testify,
Lorenzo’s lies would have been obvious and would
have substantially hurt the case.

Respondent’s Resistance, Trial Counsel’s Affidavit (docket no. 18-1), ¶¶ 1-2.
b.

Arguments of the parties

Garcia De Alvarez contends that the evidence against her at trial was marginal at
best. Indeed, she argues that the only evidence linking her to the alleged conspiracy was
the testimony of three cooperators, whose credibility was highly suspect. She contends
that, had any of the potential witnesses been called on her behalf, they would have
corroborated her testimony and given the jury evidence to bolster her defense that she
knew nothing about and had no involvement with Lorenzo’s drug activities. She argues
that this evidence presents a reasonable probability that the jurors would have reached a
different result in her case.
The respondent argues that the affidavits of the potential witnesses simply vouch
for Garcia De Alvarez’s character.

The respondent argues that such evidence is
19

inadmissible, pursuant to Rule 404(a) of the Federal Rules of Evidence, because the
character traits described by the potential witnesses are not relevant to the case at hand.
The respondent also argues that character cannot be proved through specific acts. The
respondent also argues that trial counsel has provided a valid tactical or strategic reason
for not considering the potential witnesses’ testimony relevant after interviewing Gloria
Nieto and Lorenzo.
In reply, Garcia De Alvarez argues that the potential witnesses’ testimony is not
just “character” evidence, but also “alibi” evidence, as it shows that she was so occupied
with her work, church, and children that she would not have had the opportunity to be
involved in drug trafficking. She also asserts that, even to the extent that the evidence
from these potential witnesses is “character” evidence, it is relevant to probabilities of
guilt under circuit law, notwithstanding that using such evidence may be a perilous
course. Thus, she contends that her trial counsel was wrong to dismiss the potential
witnesses’ testimony as “irrelevant,” particularly without adequate investigation.
c.

Analysis

The Eighth Circuit Court of Appeals has explained, “‘[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.’” Strong v. Roper, 737 F.3d 506, 517 (8th Cir. 2013)
(quoting Strickland, 466 U.S. at 691). Thus,
Strickland teaches that “strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.” 466 U.S. at 690, 104 S.Ct. 2052.
We have consistently held that a reasoned decision not to call
a witness “is a virtually unchallengeable decision of trial
strategy,” in part because “there is considerable risk inherent
in calling any witness because if the witness does not hold up
well on cross-examination, the jurors might draw unfavorable
inferences.” Staples, 410 F.3d at 488-89, and cases cited.
20

As the Eighth Circuit Court of Appeals has also observed,
“[T]he duty to investigate does not force defense lawyers to
scour the globe on the off chance something will turn up;
reasonably diligent counsel may draw a line when they have
good reason to think further investigation would be a waste.”
Rompilla v. Beard, 545 U.S. 374, 383, 125 S.Ct. 2456, 162
L.Ed.2d 360 (2005). Indeed, Strickland itself presented a
situation where “[c]ounsel's strategy ... decision not to seek
more character or psychological evidence than was already in
hand was ... reasonable.” Strickland, 466 U.S. at 699, 104
S.Ct. 2052. And . . . the Supreme Court again confirmed that
“there comes a point at which evidence from more distant
relatives can reasonably be expected to be only cumulative,
and the search for it distractive from more important duties.”
Bobby v. Van Hook, 558 U.S. 4, 11, 130 S.Ct. 13, 175
L.Ed.2d 255 (2009) (per curiam).
Forrest v. Steele, 764 F.3d 848, 859 (8th Cir. 2014) (additional citations omitted).
On the other hand, as the court has also explained,
“[F]ailing to present mitigating evidence may be ineffective
assistance if, due to inadequate trial preparation and
investigation, ‘counsel has through neglect failed to discover
such evidence.’” Kenley v. Armontrout, 937 F.2d 1298, 1304
(8th Cir.1991) (quoting Laws v. Armontrout, 863 F.2d 1377,
1385 (8th Cir.1988)). “[S]trategy resulting from lack of
diligence in preparation and investigation is not protected by
the presumption in favor of counsel.” Id.
Holder v. United States, 721 F.3d 979, 994 (8th Cir. 2013).
Here, Garcia De Alvarez’s trial counsel may have adequately investigated
Lorenzo’s potential testimony to dismiss it, on reasonable tactical or strategic grounds,
as unlikely to be helpful. Nevertheless, at a minimum, an evidentiary hearing is required
on this claim concerning all of the other potential witnesses, because the record does not
“‘affirmatively refute[ ] the factual assertions upon which [the claim] is based.’’”
21

Franco, 762 F.3d at 763 (citing Watson, 493 F.3d at 964, in turn quoting Shaw, 24 F.3d
at 1043).

Indeed, this claim is an example of when an evidentiary hearing is the

“preferred” method of resolving a § 2255 claim. Sellner, 773 F.3d at 929.
First, the affidavit from Gloria Nieto contradicts trial counsel’s affidavit as to
whether he ever interviewed Ms. Nieto. In the absence of any investigation of the
potential witnesses’ testimony, trial counsel cannot assert that his investigation was
sufficient to support any strategic decision not to call such potential witnesses and he is
entitled to no presumption of effective assistance. See Holder, 721 F.3d at 994. Even
the issue of whether or not further investigation of the testimony of other potential
witnesses was required, after interviewing Ms. Nieto—if trial counsel did, in fact, do
so—presents a factual dispute as to the reasonableness of that decision in the
circumstances presented.
Second, trial counsel’s assertion and respondent’s argument that no evidence from
the potential witnesses is relevant or admissible is not unquestionably correct. As Garcia
De Alvarez argues, the Eighth Circuit Court of Appeals has explained,
The modern rules governing the admissibility of
character evidence at trial are counterintuitive and enigmatic
vestiges of an ancient time when expositions upon the
defendant's moral disposition were commonplace in criminal
proceedings. See 1A Wigmore, Evidence § 58.2, at 1213 &
n. 1 (Tillers rev. 1983). Generally, the contemporary rules
prohibit the Government from introducing evidence of the
defendant's immoral character in an attempt to establish his
propensity to engage in criminal behavior. Fed.R.Evid. 404;
Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct.
213, 218-19, 93 L.Ed. 168 (1948). Character evidence is
undeniably relevant in determining probabilities of guilt,
however, and for this reason the defendant is free to present
evidence, in the form of opinion or reputation testimony, of
pertinent favorable character traits. Fed.R.Evid. 404(a)(1),
22

405(a); Michelson, 335 U.S. at 476, 69 S.Ct. at 218-19.
Where the defendant chooses this perilous path, though, he
opens the door for the prosecution to introduce in rebuttal its
own opinion or reputation evidence regarding the defendant's
character. Fed.R.Evid. 404(a)(1), 405(a). Furthermore, the
Government may challenge the defendant's character
witnesses by cross-examining them about their knowledge of
“relevant specific instances” of the defendant's conduct.
Fed.R.Evid. 405(a).
United States v. Monteleone, 77 F.3d 1086, 1090 (8th Cir. 1996) (emphasis added).
Although the path that Garcia De Alvarez asserts that her trial counsel should have taken
may have been “perilous,” that does not excuse trial counsel from adequately
investigating the testimony of potential witnesses before making a decision that they
offered only “character” evidence, or that such “character” evidence was not worth the
risk.
The disputed facts warrant an evidentiary hearing on this claim. See Sellner, 773
F.3d at 929; Franco, 762 F.3d at 763. Those factual disputes include, at a minimum,
what, if any, investigation trial counsel undertook before deciding not to call any of the
witnesses that Garcia De Alvarez had identified, what rationale he had for his decision,
and whether he conducted an adequate investigation of the relevance and admissibility of
“character” and other evidence that these witnesses might have provided, as well as
precisely what testimony these witnesses would have presented and the extent to which it
was “character” or “alibi” evidence.
Therefore, an evidentiary hearing on this claim will be set, below.
C.

Certificate Of Appealability

Denial of three of Garcia De Alvarez’s four claims of “ineffective assistance of
counsel” raises the question of whether or not she is entitled to a certificate of
23

appealability on those claims. In order to obtain a certificate of appealability on those
claims, Garcia De Alvarez must make a substantial showing of the denial of a
constitutional right. See Miller–El v. Cockrell, 537 U.S. 322 (2003); Garrett v. United
States, 211 F.3d 1075, 1076–77 (8th Cir. 2000); Mills v. Norris, 187 F.3d 881, 882 n.1
(8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873–74 (8th Cir. 1998); Ramsey v.
Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). “A substantial showing is a showing that issues are debatable among reasonable
jurists, a court could resolve the issues differently, or the issues deserve further
proceedings.” Cox, 133 F.3d at 569. Moreover, the United States Supreme Court
reiterated in Miller–El v. Cockrell that, “‘[w]here a district court has rejected the
constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.’” 537 U.S.
at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). I conclude that Garcia
De Alvarez failed to make a substantial showing that three of her claims of “ineffective
assistance of counsel”—the claims based on allegations that her trial counsel failed to
explain in “laymen’s” terms the processes of a plea agreement, a guilty plea, and a jury
trial; that her trial counsel failed to request a bill of particulars; and that her trial counsel
failed to challenge the amount and purity of the stated drug that was charged against her—
are debatable among reasonable jurists, that a court could resolve any of the issues raised
in those claims differently, or that any question raised in those claims deserves further
proceedings. Consequently, a certificate of appealability is denied as to those claims.
See 28 U.S.C. § 2253(c)(1)(B); Miller-El, 537 U.S. at 335-36; Cox, 133 F.3d at 569.
III.

CONCLUSION

Upon the foregoing,
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1.

Petitioner Sandra Garcia De Alvarez’s March 4, 2013, Motion Under 28

U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody (§ 2255 Motion) (Civ. Docket no. 1), is denied in part and reserved in part,
as follows:
Ground One of Garcia De Alvarez’s § 2255 Motion, alleging
“ineffective assistance of counsel” based on her trial counsel’s failure to request a
bill of particulars, is denied, and a certificate of appealability on that claim is
denied;
Ground Two of Garcia De Alvarez’s § 2255 Motion, alleging
“ineffective assistance of counsel” based on her trial counsel’s failure to challenge
the amount and purity of the stated drug that was charged against her, is denied,
and a certificate of appealability on that claim is denied;
Ground Four of Garcia De Alvarez’s § 2255 Motion, alleging
“ineffective assistance of counsel” based on her trial counsel’s failure to explain
in “laymen’s” terms the processes of a plea agreement, a guilty plea, and a jury
trial is denied, and a certificate of appealability on that claim is denied;
Ruling is reserved on Ground Three of Garcia De Alvarez’s § 2255
Motion, alleging “ineffective assistance of counsel” based on her trial counsel’s
alleged failure to investigate and interview witnesses that she had identified, which
resulted in a failure to call witnesses on her behalf at trial, pending an evidentiary
hearing.
2.

An evidentiary hearing on the “ineffective assistance of counsel” claim

alleged as Ground Three is scheduled for Tuesday, March 31, 2015, at 3:00 p.m.

25

3.

The United States Marshals Service is directed to transport petitioner

Sandra Garcia De Alvarez to appear personally for this evidentiary hearing on March 31,
2015.
IT IS SO ORDERED.
DATED this 6th day of February, 2015.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

26