Zelaya v. USA - 2255
Filing
1
MEMORANDUM OPINION (c/m to Mr. Zelaya and AUSA Hur 8/20/13 sat). Signed by Chief Judge Deborah K. Chasanow on 8/20/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
HENRY ZELAYA
:
v.
:
Civil Action No. DKC 10-2509
Criminal Case No. DKC 05-0393
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion to
vacate, set aside, or correct sentence filed by Petitioner Henry
Zelaya.
(ECF No. 1664).
The relevant issues have been briefed
and the court now rules pursuant to Local Rule 105.6, no hearing
being deemed necessary.
For the reasons that follow, the motion
will be denied.
I.
Background
By a superseding indictment filed April 3, 2006, Petitioner
Henry
Zelaya
was
charged
with
conspiracy
to
participate
in
racketeering activity in violation of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d).
(ECF No. 274).1
He was appointed counsel under the Criminal
Justice Act and, following the denial of pre-trial motions, his
case proceeded to trial on March 6, 2007.
1
In opposing Petitioner’s motion, the government attaches a
fourth superseding indictment, which does not name Petitioner.
(ECF No. 1700-1).
At trial, the government established that Petitioner was a
member of La Mara Salvatrucha, or MS-13, a criminal organization
consisting
of
approximately
presented
a
succession
numerous
gang
of
10,000
members
witnesses,
members,
who
worldwide.
including
testified
It
experts
regarding
and
the
organizational structure of the enterprise.
The evidence showed
that
of
MS-13
is
“cliques,”
organized
that
geographical
are
areas
into
a
series
generally
and
operate
groups,
associated
under
a
with
common
set
called
distinct
of
rules
established by international leadership based in El Salvador and
Los Angeles.
Petitioner was the founder and leader of a clique based in
Prince
George’s
Salvatruchos
County,
(“TLS”).
Maryland,
In
known
addition
to
as
Teclas
conducting
Locos
regular
meetings of TLS, collecting dues, maintaining records, enforcing
rules,
other
punishing
cliques,
Petitioner
disobedience,
and
reporting
personally
other TLS members.
coordinating
to
participated
leaders
in
activities
in
criminal
El
with
Salvador,
conduct
with
This conduct included, but was not limited
to, the murder of a rival gang member in April 2003; the gang
rapes of two teenage girls in May 2003; the armed robbery of a
prostitution
aggravated
house
in
assault
of
August
a
man
2003;
in
the
retaliation
altercation with another MS-13 member.
2
and
October
of
a
2003
previous
Even while incarcerated,
Petitioner continued to direct the activities of TLS until at
least
February
2004,
when
he
instructed
members
as
to
how
leadership responsibilities were to be handled in his absence.
On April 27, 2007, following an eight-week trial, the jury
returned a verdict finding Petitioner guilty as charged.
He was
sentenced on July 30, 2007, to a term of life imprisonment.
Petitioner appealed to the United States Court of Appeals for
the
Fourth
Circuit,
which
affirmed
by
a
per
curiam
opinion
issued July 7, 2009, see United States v. Zelaya, 336 Fed.Appx.
355 (4th Cir. 2009), and the Supreme Court of the United States
denied his petition for writ of certiorari on April 5, 2010, see
Zelaya v. United States, 130 S.Ct. 2341 (2010).2
On
September
10,
2010,
Petitioner,
proceeding
pro
se,
filed the pending motion pursuant to 28 U.S.C. § 2255, alleging
ineffective assistance of counsel and constitutional error in
jury selection, in the government’s presentation of evidence,
and in sentencing.
(ECF No. 1664).3
The government was directed
2
Petitioner erroneously asserts in his motion that his
counsel failed to file a petition for writ of certiorari on his
behalf. (ECF No. 1664 ¶ 6).
3
The petition mentions a number of other issues in purely
conclusory fashion.
In several instances, Petitioner alleges
that the testimony of various witnesses was “fabricated and
prepare[d] by the prosecution to taint [his] image in the mind
of the jury.” (ECF No. 1664 ¶ 34; id. at ¶ 55). He also faults
the court for failing to take unspecified corrective action with
respect to two jurors, who he asserts were “mocking and laughing
every time counsel for petitioner was addressing the court” (id.
3
to respond, and did so on March 1, 2011.
Petitioner filed reply papers on May 23, 2011.
II.
(ECF No. 1700).
(ECF No. 1718).
Standard of Review
Title
28
U.S.C.
§
2255
requires
a
petitioner
asserting
constitutional error to prove by a preponderance of the evidence
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.”
movant
is
entitled
to
have
his
arguments
While a pro se
reviewed
with
appropriate deference, see Gordon v. Leeke, 574 F.2d 1147, 1151–
53 (4th Cir. 1978), if the § 2255 motion, along with the files
and
records
of
the
case,
conclusively
shows
that
he
is
not
entitled to relief, a hearing on the motion is unnecessary and
the claims raised in the motion may be summarily denied.
See 28
U.S.C. § 2255(b).
at ¶ 77), providing no citation to the record or corroborative
evidence. Furthermore, he alludes to a violation of the rule of
Brady v. Maryland, 373 U.S. 83 (1963), but does not identify any
exculpatory evidence that was allegedly withheld by the
government. “Such vague and conclusory allegations preclude the
[c]ourt from identifying any alleged errors which might have
prejudiced Petitioner.”
Tineo v. United States, 977 F.Supp.
245, 259 (S.D.N.Y. 1996) (emphasis removed) (citing United
States v. Glass, Nos. 88 Civ. 3756, 87 Cr. 136, 1988 WL 105347,
at *3 (N.D.Ill. Sept. 30, 1988)); see also Rule 2(c)(2) of the
Rules Governing Proceedings under 28 U.S.C. §§ 2254 or 2255 (the
petition must “state the facts supporting each ground”).
Insofar as Petitioner intended to present these issues as
freestanding claims, they will be summarily denied.
4
III. Analysis
A.
Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are governed by
the
well-settled
standard
Strickland
v.
Strickland
standard,
attorney’s
performance
adopted
Washington,
reasonableness
and
the
466
the
Supreme
U.S.
668
petitioner
must
show
Court
(1984).
fell
that
by
he
Strickland, 466 U.S. at 687.
below
an
Under
actual
the
that
his
both
objective
suffered
in
standard
prejudice.
of
See
To demonstrate actual prejudice,
Petitioner must show there is a “reasonable probability that,
but
for
counsel’s
unprofessional
errors,
proceeding would have been different.”
In
the
Strickland
analysis,
the
result
of
the
Id. at 694.
there
exists
a
strong
presumption that counsel’s conduct falls within a wide range of
reasonably
professional
conduct,
and
courts
must
deferential in scrutinizing counsel’s performance.
be
highly
Strickland,
466 U.S. at 688–89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4th
Cir. 1991).
Courts must assess the reasonableness of attorney
conduct
of
“as
the
time
their
actions
conduct’s consequences after the fact.”
897, 906 (4th Cir. 2000).
occurred,
not
the
Frye v. Lee, 235 F.3d
Furthermore, a determination need not
be made concerning an attorney’s performance if it is clear that
no
prejudice
deficiency.
could
have
resulted
from
See Strickland, 466 U.S. at 697.
5
some
performance
1.
Failure to Present Plea Offer
In his initial motion papers, Petitioner faults his trial
counsel for failing to communicate to the government that he
would accept an offer to plead guilty, rather than proceed to
trial, as long as the terms of an agreement did not require him
to cooperate.
The government attaches to its response a formal
plea offer, dated January 4, 2007 (ECF No. 1700-4), along with
the declaration of Petitioner’s trial counsel, who asserts that
he presented the offer to Petitioner and that it was rejected
(ECF Nos. 1700-5).
The plea offer, which appears to comport
with the specifications Petitioner allegedly communicated to his
counsel (i.e., it does not require his cooperation with the
government), essentially proposes a plea to the indictment.4
In
his reply, Petitioner insists that the offer was never presented
to him.5
The Supreme Court recently clarified that, “as a general
rule, defense counsel has the duty to communicate formal offers
4
Had he accepted the plea offer, Petitioner would have been
required to plead guilty to the RICO conspiracy, the first count
of the superseding indictment.
(ECF No. 1700-4 ¶ 1).
Petitioner was also named in count thirty-two, alleging
conspiracy to commit assaults with a deadly weapon, but that
count was later dismissed by the government.
5
He asserts, however, that another plea offer was
presented: “[T]he only offer to plea[d] presented to petitioner
was the one which include[d] a cooperation agreement and not the
one the prosecution is alleging in its Response. It was either
plead guilty and cooperate[] or go to trial and face a life
sentence.” (ECF No. 1718 ¶ 12).
6
from the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.”
Missouri v. Frye, ---
U.S. ----, 132 S.Ct. 1399, 1408 (2012).
Any failure in this
regard falls below an objective standard of reasonableness and,
therefore,
constitutes
prong of Strickland.
deficient
performance
under
the
first
With regard to the second prong, the Court
explained:
To show prejudice from ineffective
assistance of counsel where a plea offer has
lapsed or been rejected because of counsel’s
deficient
performance,
defendants
must
demonstrate a reasonable probability they
would have accepted the earlier offer had
they been afforded effective assistance of
counsel[;] . . . [that] the plea would have
been
entered
without
the
prosecution
canceling it or the trial court refusing to
accept it[;] . . . [and] that the end result
of the criminal process would have been more
favorable by reason of a plea to a lesser
charge or a sentence of less prison time.
Id. at 1409.
Here,
assuming
that
Petitioner’s
trial
counsel
did
not
present the formal plea offer and that Petitioner would have
accepted the offer if it had been presented, he cannot establish
ineffective
assistance
of
counsel
because
he
fails
to
demonstrate a reasonable probability that “the end result of the
criminal process would have been more favorable.”
S.Ct. at 1409.
Frye, 132
Petitioner was sentenced to a term of life
imprisonment based, in part, on a determination that his offense
7
level under the advisory sentencing guidelines was 43.6
formal
plea
contemplates
offer
a
attached
guilty
plea
to
to
the
the
government’s
same
offense
The
response
of
which
Petitioner was convicted after trial and includes a stipulation
to an adjusted offense level of 41 – i.e., after a two-level
reduction
for
acceptance
of
responsibility
and
one-level
reduction for timely notification of intention to plead guilty.
(ECF No. 1700-4 ¶ 6).
While the adjusted offense level set
forth in the plea offer is two levels lower than the level
applied
at
sentencing,
the
government
expressly
reserved
the
right to seek a role enhancement of up to four levels pursuant
to U.S.S.G. § 3B1.1.
(Id. at ¶ 8).7
At sentencing, upon the
6
An offense level of 43 yielded an advisory guidelines
sentence of life imprisonment under any criminal history
category. See U.S.S.G., ch. 5, pt. A (Nov. 2006).
7
Section 3B1.1 of the United States Sentencing Guidelines
provides:
Based on the defendant’s role in the
offense, increase the offense level as
follows:
(a) If the defendant was an organizer or
leader of a criminal activity that
involved five or more participants or was
otherwise
extensive,
increase
by
4
levels.
(b) If the defendant was a manager or
supervisor (but not an organizer or
leader)
and
the
criminal
activity
involved five or more participants or was
8
government’s
motion
and
after
extensive
argument,
the
court
applied a four-level enhancement based on overwhelming evidence
of Petitioner’s leadership role in the TLS clique.8
There is no reason to believe that a role enhancement under
§ 3B1.1 would not also have applied if Petitioner had accepted
the plea offer.
Notably, even a minimum two-level enhancement
would have resulted in an offense level of 43, which was the
same
level
trial.
been
used
to
determine
Petitioner’s
guidelines
after
Indeed, if Petitioner had signed the plea, he would have
required
to
stipulate
to
the
truth
of
the
attached
statement of facts, which reflects, in no uncertain terms, that
he was the founder and leader of the TLS clique and that he
participated
with
other
gang
members
in
criminal
including murder, rape, and aggravated assault.
4, at 8-11).
(ECF No. 1700-
There is simply no view of the evidence that
Petitioner
did
not
enterprise
such
that
Consequently,
activity,
had
occupy
a
role
Petitioner
otherwise
levels.
a
leadership
enhancement
accepted
extensive,
the
increase
position
would
in
not
government’s
by
the
apply.
plea
3
(c) If the defendant was an organizer,
leader, manager, or supervisor in any
criminal activity other than described in
(a) or (b), increase by 2 levels.
8
The court ultimately determined that Petitioner’s offense
level was either 46 or 48, but observed that 43 was the highest
level on sentencing table. (T. 6/30/07, at 43).
9
offer, his guideline range would almost certainly have been the
same as it was after trial.
“When
guideline
a
defendant
range
would
have
notwithstanding
been
subject
counsel’s
to
same
error,
alleged
the
the
defendant must demonstrate a reasonable probability that, in the
absence of the error, the specific sentence would have been
lower.”
Shaheed v. United States, Civ. No. 07-1167, Crim. No.
03-71, 2010 WL 3809854, at *6 (W.D.Pa. Sept. 22, 2010) (citing
United States v. Ivory, No. 09-2376, 2010 WL 1816236, at *3
(D.Kan. Feb. 26, 2010); Pena-Carrizoza v. United States, No. 04475, 2006 WL 2992556, at *4 (D.Utah Oct. 17, 2006)).
has not, and cannot, make that showing here.
Petitioner
Accordingly, his
initial claim of ineffective assistance of counsel must fail.
2.
Failure to Confront Witnesses
Petitioner next alleges ineffective assistance based on his
counsel’s
failure
rebuttal
evidence
Initially,
he
to
cross-examine
in
the
asserts
manner
that
he
witnesses
he
told
or
to
suggested
counsel
present
at
that
trial.
“he
was
incarcerated in the [c]ounty jail” on the date of the rapes, and
that “no affirmative action was taken” in response.
1664
¶
30).
directly,
but
Petitioner’s
being
in
The
the
trial
the
government
fails
attached
counsel
[c]ounty
address
“no
at
10
memory
the
of
time,
this
claim
indicates
declaration
has
jail
to
(ECF No.
that
the
and
petitioner
.
.
.
no
recollection whatsoever of the petitioner raising this issue” at
trial.
(ECF No. 1700-5 ¶ 4).
Although
there
is
a
dispute
of
fact
regarding
whether
Petitioner advised his counsel that he, in effect, had an alibi
for the date of the rapes, any failure to present such evidence
could only constitute ineffective assistance if the alibi was,
in fact, true.
“In order to obtain an evidentiary hearing on an
ineffective assistance claim – or, for that matter, on any claim
– a habeas petitioner must come forward with some evidence that
the
claim
might
have
merit,”
and
allegations” are not sufficient.
“[u]nsupported,
conclusory
Nickerson v. Lee, 971 F.2d
1125, 1136 (4th Cir. 1992), superseded on other grounds by Trest
v. Cain, 522 87 (1997), and Gray v. Netherland, 518 U.S. 152
(1996); see also Lemons v. United States, No. 7:10-CR-00083,
2013 WL 819731, at *2 (W.D.Va. Mar. 5, 2013) (“A petitioner must
do more than make bald assertions regarding the effectiveness of
his
counsel
to
prevail
on
a
§
2255
motion”)
(citing
States v. Roane, 378 F.3d 382, 400 (4th Cir. 2005)).
United
Petitioner
points to no evidence that he was incarcerated on the date of
the rapes, however, and there is overwhelming evidence that he
was not.
Indeed, four eyewitnesses – the two victims and two
co-conspirators
–
participant
the
in
testified
rapes
at
and
trial
the
that
he
pre-sentence
was
an
report,
active
which
includes an arrest history, makes no mention of any arrest prior
11
to August 2003.
By itself, Petitioner’s bare allegation that he
was incarcerated on the date of the rapes is insufficient to
show
that
establish
he
was,
any
in
fact,
deficiency
incarcerated.
in
his
counsel’s
Thus,
he
cannot
performance
for
failing to adduce such evidence at trial.
Petitioner also faults his trial counsel for “refus[ing] to
question[]” one of the rape victims as to why “the prosecution
ha[d] to bring into evidence a picture, where a red circle was
drawn to identify him” when she had testified previously that
she “knew [P]etitioner from his school years[.]”
¶ 32).
witness
(ECF No. 1664
He appears to refer to a photographic array by which the
identified
assailants.
Petitioner
to
(T. 3/20/07, at 135).
police
as
one
of
her
Petitioner overlooks that
the admissibility of identification evidence was challenged by
his counsel prior to trial, albeit unsuccessfully.
Moreover,
the witness testified that she knew Petitioner from school; she
positively
identified
him
substantially
corroborated
Therefore,
prejudice
no
in
court;
by
could
and
multiple
have
inured
her
account
other
to
him
was
witnesses.
from
the
introduction of evidence of her prior identification, and there
was little to be gained by counsel challenging the witness in
the manner Petitioner now suggests.
Petitioner next contends that his counsel failed to point
out
“irregularities
and
contradictory
12
testimony”
of
a
co-
conspirator who witnessed Petitioner’s murder of the rival gang
member.
(ECF No. 1664 ¶ 40).
Specifically, he argues that the
witness “told [] the jury that[] he heard a gunshot an[d] when
he turned saw [P]etitioner pointing the gun and taking a second
gunshot
at
the
victim,”
which
was
inconsistent
with
“[t]he
results from the crime laboratory show[ing] that the victim had
only one gunshot impact[.]”
(Id. at ¶ 39).
simply mischaracterizes the testimony.
This argument
The witness in question
testified that Petitioner “shot [the victim] and he fell to the
ground” (T. 3/21/07, at 113), which was entirely consistent with
the testimony of the medical examiner, who observed a single
gunshot wound to the decedent’s head (T. 3/22/07, at 154).
accounts,
moreover,
were
corroborated
by
a
second
Both
co-
conspirator, who also witnessed the shooting and testified that
Petitioner shot the victim once in the head.
Petitioner
also
takes
issue
with
(Id. at 91).
inconsistencies
in
the
testimony of a co-conspirator regarding when he came to the
United States from El Salvador and when he met a local gang
leader.
According to Petitioner, he mentioned these issues to
his counsel at trial, but was “completely ignored.”
1664 ¶ 52).
(ECF No.
Here, too, Petitioner’s argument is belied by the
record, which reflects that counsel thoroughly cross-examined
the
witness
regarding
historical
inconsistencies
in
his
testimony (T. 4/6/07, at 50-54) and argued vigorously in his
13
closing
argument
that
the
testimony
was
unreliable
in
the
murder,
[]
there
for
that
reason (T. 4/25/07, at 37-39).
3.
Failure to Investigate
Regarding
contends
that
his
involvement
“discovery
showed
was
a
Petitioner
witness
who
declared that he saw the one who shot the victim” and it “was
another person[,] not the petitioner.”
(ECF No. 1664 ¶ 43).
He
alleges that he “implored counsel to find and interview this
witness,” but “counsel ignored [him] and never questioned the
witness . . . to prove wrong the evidence against him.”
¶ 44).
that
(Id. at
Petitioner’s trial counsel, on the other hand, recalls
there
contradict
was
“some
the
discussion
Government’s
of
finding
allegations,
but
a
witness
there
to
was
no
witness to find since there was no identified witness to the
crime except [] the co-defendants who testified at trial.”
No.
1700-5
¶
5).
Thus,
the
parties
essentially
(ECF
present
conflicting evidence as to whether such a witness was identified
in discovery documents.
An evidentiary hearing is not necessary
to resolve this dispute, however, because even if Petitioner’s
version
of
events
is
showing
of
prejudice
credited,
to
he
establish
cannot
make
ineffective
a
sufficient
assistance
of
counsel.
At trial, two TLS members testified that, on April 19,
2003,
they
were
seated
in
a
car
14
outside
a
liquor
store
in
Langley Park, Maryland, along with Petitioner and two other TLS
members.
They observed three men walking nearby who appeared to
have purchased beer from the store.
Petitioner, the leader of
the TLS clique, said that one of the men “was a member of VL,
which is Vatos Locos,” a rival gang.
(T. 3/21/07, at 110).
Multiple witnesses, including gang members, testified that MS-13
members are obligated to assault, if not murder, rival gang
members, called “chavalas,” on sight.9
Consistent with that
objective, Petitioner and his colleagues “decided that [they]
were going to go and wait for [the rival gang member] at a
corner and do something to him, to jump him or hit him.”
at 111).
(Id.
The group then drove “to a corner of 15th Avenue, and
[] parked in a parking lot, and when [they] saw that [the rival
group was] coming, . . . [they] all got out [of the car], and []
went
over
conspirators
to
them.”
approached
(Id.).
the
rival
Three
gang
hitting him”; one of them “had a bat.”
of
Petitioner’s
member
and
(Id. at 112).
co-
“started
During
the assault, “someone from a building yelled” and the MS-13
group began to return to their car.
(Id. at 113).
As they did,
the rival gang member “said that he was going to come back to
take revenge.”
(Id.).
Petitioner, who was standing nearby,
9
In fact, a female member of MS-13 testified that she was
severely beaten by multiple male members of her clique for
merely assaulting, rather than murdering, a rival gang member
she encountered in the District of Columbia.
(T. 3/28/07, at
128-38).
15
then brandished a gun – which was owned by the TLS clique and
used in multiple crimes – and shot the rival member in the head
from approximately eight to ten feet away.
(Id. at 113, 115; T.
3/22/07, at 51-52, 91).
Assuming that a witness reported seeing another individual
fire the fatal shot, there is no indication in the record that
such witness could have been located by Petitioner’s counsel or
that he or she would have been willing to testify at trial.
Moreover,
the
only
conceivable
alternative
gunman
would
have
been one of the four TLS members who accompanied Petitioner.
Indeed, Petitioner’s counsel attempted to implicate one of the
testifying co-conspirators as the shooter at trial.
Even if it
were true that one of the other TLS members pulled the trigger,
however, Petitioner could still have been liable for murder as a
co-conspirator.
110-11
(4th
See United States v. Chorman, 910 F.2d 102,
Cir.
1990)
(“Federal
courts
consistently
have
followed Pinkerton [v. United States, 328 U.S. 640 (1946),] in
affirming convictions for substantive offenses committed in the
course
of
and
in
furtherance
of
a
conspiracy,
based
on
the
defendant’s knowledge of and participation in that conspiracy”);
United States v. Teran, 496 Fed.Appx. 287, 294 (4th Cir. 2012)
(“A defendant can be found guilty of an offense ‘reasonably
foreseeable
as
a
necessary
or
natural
consequence
of
the
conspiratorial agreement’” (quoting United States v. Aramony, 88
16
F.3d 1369, 1380 (4th Cir. 1996)).
It is undisputed that the
decedent was targeted by the TLS group because he was identified
by Petitioner, the group’s leader, as a chavala.
Moreover, it
was established that a core tenet of MS-13 membership held that
chavalas were to be assaulted or murdered.
question
was
enterprise,
entirely
and
confrontation,
foreseeable
Petitioner,
could
have
a
as
Thus, the murder in
part
primary
been
liable
of
the
instigator
as
a
MS-13
in
the
co-conspirator
regardless of whether he pulled the trigger.
Against all the evidence to the contrary, Petitioner now
purports to have seen a discovery document indicating that an
unspecified witness saw “another person” fire the shot.
No. 1664 ¶ 43).
(ECF
If he could be liable as a co-conspirator,
however, the fact that another TLS member may have been the
shooter would not be likely to alter the outcome of the trial.
As
noted,
to
establish
his
ineffective
assistance
claim,
Petitioner must show a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would
have
Assuming,
been
different.”
arguendo,
that
his
Strickland,
counsel
466
failed
U.S.
to
at
694.
investigate;
that, had he done so, he would have located the exculpatory
witness; and that the witness would have been willing to provide
exculpatory
testimony
reasonable
probability
at
trial,
that
the
17
Petitioner
jury
would
has
not
have
shown
found
a
that
first-degree
murder
was
not
among
his
objectives
in
the
conspiracy.
Accordingly, his ineffective assistance claim in
this regard cannot prevail.
4.
Failure to Present Mitigating Evidence
Petitioner further alleges ineffective assistance based on
his counsel’s “fail[ure] to uncover and present any evidence
of[] [his] background from El Salvador” at sentencing.
1664 ¶ 81).
(ECF No.
Consequently, according to Petitioner, the court
“heard almost nothing that would humanize him or allow [it] to
accurately gauge his moral culpability.”
(Id. at ¶ 82).
This
claim is completely at odds with the record, which reflects that
counsel
filed
providing
a
sentencing
substantial
memorandum
detail
of
on
July
27,
Petitioner’s
2007,
background,
attaching childhood photographs of him with family members in El
Salvador (ECF No. 1700-9, at 5-6, 9-10), and that he argued
extensively
at
circumstances
sentencing
should
7/30/07, at 59-65).
be
that
considered
Petitioner’s
as
age
mitigating
and
life
factors
(T.
Indeed, the sentencing court “recognize[d]
that [Petitioner] was a young person at the time he came to this
country
.
.
.
and
that
the
circumstances
of
his
youth
and
upbringing were not ideal,” but nevertheless found there was “no
excuse for turning to the gang life,” and that he did so “not
simply as a refuge, but the way he took on that mantra went well
18
(Id. at 67).10
beyond succumbing to necessity.”
The fact that
the court was ultimately not persuaded by the argument advanced
by his counsel does not provide a basis for Petitioner to impugn
his counsel’s performance.
5.
Trial Preparation
Petitioner
also
presents
two
somewhat-related
regarding pre-trial interactions with his counsel.
complains
that,
“[d]uring
the
pretrial
phase[,]
arguments
He initially
counsel
kept
attacking [him] with questions like[] ‘Why did you commit those
crimes[?’
and]
‘How
[did]
you
become
number
one
of
that
gang?[’]” and accused him of committing murder “to show [his]
followers how capable [he was] to kill anyone that could be an
enemy
of
the
removed)).
gang.”
(ECF
No.
1664
¶¶
21,
22
(emphasis
According to Petitioner, this “line of questioning
as if [counsel] was a prosecutor, every time [he] visit[ed]
[him]
at
the
institution,
affected
the
‘counsel/client’
relationship and prejudiced [him by] preventing the necessary
communication afforded by the Constitution to prepare for the
case.”
that
(Id. at ¶ 25 (emphasis removed)).
the
fact
Petitioner’s
that
native
his
counsel
language,
10
did
“made
He further contends
not
speak
communication
Spanish,
between
As
the
Fourth
Circuit
recognized
in
affirming
Petitioner’s conviction, the mantra of MS-13, as reported by
numerous witnesses at Petitioner’s trial, is “‘mata, viola,
controla,’ which means ‘kill, rape, control.’”
Zelaya, 336
Fed.Appx. at 356.
19
counsel and [P]etitioner almost impossible,” and that “[c]ounsel
came just once to the visit room with an interpreter[.]”
(Id.
at ¶ 17).
While
the
interview
tactics
and
language
skills
of
Petitioner’s trial counsel may have been less than ideal, these
arguments,
deprived
if
of
true,
the
do
right
not
to
establish
counsel
that
Petitioner
guaranteed
by
the
was
Sixth
Amendment.
Indeed, “[t]he Sixth Amendment guarantees reasonable
competence,
not
hindsight.”
perfect
Yarborough
advocacy
v.
judged
Gentry,
with
540
the
U.S.
1,
benefit
8
of
(2003).
Aggressive questioning during client interviews could certainly
be considered part of a sound trial preparation strategy, and
Petitioner has not shown that his attorney’s interview methods
had any effect on the outcome of the trial.
The fact that
Petitioner was not appointed Spanish-speaking counsel is more a
reflection of the enormous strain the MS-13 trials placed on
court
resources
than
of
the
competence
of
his
counsel,
but
Petitioner has failed to demonstrate that a language barrier
resulted in substantial prejudice.
Having complained about the
substance of his communications with counsel “every time [he]
visit[ed]
[him]
at
the
institution”
(ECF
No.
1664
¶
25),
Petitioner’s argument that he could not understand his counsel
is significantly less persuasive.
reflects
that
Petitioner
was
ably
20
In any event, the record
represented
by
counsel
at
trial and Petitioner has not shown how Spanish-speaking counsel
would
have
obtained
a
different
result.
Accordingly,
his
ineffective assistance claims related to pre-trial preparation
will be denied.
B.
Jury Selection
Petitioner next contends that, during jury selection, he
“requested on various occasions to select Latino descendants to
be part of the jury,” which was “necessary due to the nature of
the RICO charge . . . [that] identified [him] as a leader of a
notorious gang from Central America.”
(ECF No. 1664 ¶ 26).
Relying principally on Batson v. Kentucky, 476 U.S. 79 (1986),
and Strauder v. West Virginia, 100 U.S. 303 (1880), he asserts
that he was “denied a fair trial when [] all possible jurors
from [his] nationality or of South American background” were
excluded from the jury.
(ECF No. 1664 ¶ 27).
The government
argues in response that, “[b]ecause all possible Hispanic jurors
were stricken for cause from the venire, Petitioner has not
presented a cognizable Batson claim.”
(ECF No. 1700, at 8).11
In Batson, 476 U.S. at 89, the Supreme Court held that “the
Equal
Protection
potential
jurors
Clause
forbids
solely
on
the
account
11
prosecutor
of
their
to
race
challenge
or
on
the
While this claim, among others, would appear to be
procedurally defaulted, the government has not raised the issue
and the court declines to do so sua sponte.
21
assumption
that
black
jurors
as
a
impartially
to
consider
the
defendant.”
See also Hernandez v. New York, 500 U.S. 352, 371
State’s
group
case
will
be
against
unable
a
black
(1991) (holding that striking potential jurors on the basis of
ethnicity
also
violates
the
rule
of
Batson).
Petitioner
provides no record citation of an instance during jury selection
in which any party exercised a peremptory challenge to strike a
potential
juror
of
Hispanic
descent.
Indeed,
he
does
not
challenge the government’s assertion that all Hispanic members
of the venire were struck “for cause,” rather than peremptorily.
Thus,
there
could
be
no
Batson
violation.
See
Spencer
v.
Murray, 5 F.3d 758, 764 (4th Cir. 1993) (“Batson prohibits only
the use of discriminatory motives when exercising challenges,
nothing more and nothing less.”).
The thrust of Petitioner’s complaint in this regard appears
to be simply that there were no Hispanic members of the jury.
In
both
of
the
cases
cited
in
his
initial
motion
papers,
however, the Supreme Court recognized that a “defendant has no
right to a ‘petit jury composed in whole or in part of persons
of his own race.’”
100 U.S. at 305).
Batson, 476 U.S. at 85 (quoting Strauder,
The right guaranteed by the Equal Protection
Clause, rather, is that potential jurors sharing a protected
characteristic with the defendant – such as race, gender, or
ethnicity – may not be excluded from the jury on the basis of
22
that characteristic.
The record is clear that no such error
occurred in this case.
Accordingly, this claim will be denied.
C.
Confrontation Clause and Evidentiary Rulings
Petitioner further alleges that the government violated the
Confrontation
against
Clause
hearsay
of
by:
the
(1)
Sixth
Amendment
introducing
and/or
into
the
evidence
rule
a
co-
conspirator’s prior statement to police (ECF No. 1664 ¶ 40); (2)
presenting
the
testimony
of
gang
experts,
who
provided
historical and background information about MS-13 and showed a
video depicting “inmates that supposedly run the prisons in El
Salvador” (id. at ¶¶ 45-46); (3) presenting a police witness who
“was questioned about some pictures, which were shown to the
jury,” containing notations of the gang nicknames of various
members (id. at ¶¶ 70-71); and (4) introducing into evidence
“an[]
album
pictures
of
that
his
was
taken
“family
and
from
[P]etitioner”
friends”
(id.
at
¶
containing
72).
The
government addresses only the third argument, along with the
admission of the prior identification that Petitioner appeared
to raise in the ineffective assistance context, purporting to
demonstrate
that
the
evidence
Fed.R.Evid. 801(d)(1)(C).
was
properly
admitted
under
(ECF No. 1700, at 8-9).
Federal habeas corpus petitioners, however, are limited to
claims
of
constitutional
dimension.
See
United
States
v.
Fazzini, No. 86 CR 1, 97 C 3141, 1998 WL 26161, at *2 (N.D.Ill.
23
Jan. 21, 1998) (“evidentiary rulings are not proper matters for
review in a § 2255 motion”) (citing Williams v. United States,
365 F.2d 21, 22 (7th Cir. 1966); Carrillo v. United States, 332
F.2d 202, 203 (10th Cir. 1964); United States v. Johnpoll, 748
F.Supp. 86, 91-92 (S.D.N.Y. 1990)).
Thus, Petitioner’s claims
regarding evidentiary rulings are cognizable only insofar as he
alleges violation of his rights under the Confrontation Clause.
In Crawford v. Washington, 541 U.S. 36, 68 (2004), a case relied
upon by Petitioner in his reply papers, the Supreme Court held
that
the
admission
of
“testimonial”
hearsay
violates
the
Confrontation Clause where the declarant is unavailable and the
defendant had no prior opportunity for cross-examination.
Here,
with the exception of the video (which was not testimonial), the
declarants
were
available
for
cross-examination;
concerns addressed in Crawford are not implicated.
thus,
the
Accordingly,
Petitioner has failed to demonstrate a violation of his rights
under the Confrontation Clause.
D.
Eighth Amendment
Prior to sentencing, a dispute arose as to Petitioner’s age
at
the
evidence
time
that
of
the
his
overt
date
acts.
of
birth
While
was
the
court
November
credited
7,
1984,
Petitioner’s trial counsel argued that his proper date of birth
was
in
September
1986.
At
24
the
sentencing
hearing,
the
government stated that uncertainty about Petitioner’s age was a
factor in its decision not to charge the rapes as overt acts:
The reason it wasn’t charged for Mr. Zelaya
has nothing to do with sufficiency [of the
evidence against him].
It had to do with
the ongoing confusion about his age. And at
the time of that particular incident, the
Government was not satisfied [it] could
establish that he was of an age of majority.
Now we are satisfied, and we’ve proven
this up through the course of the trial,
that his RICO activities straddle whatever
his age of majority would be.
In other
words, that his continued involvement in the
gang, even from jail, even writing letters
and directing missives to [his girlfriend],
all validate an adult prosecution of Mr.
Zelaya.
But there’s been enough confusion
and enough different dates of birth used by
Mr. Zelaya during police processing to where
the Government made a decision [not to]
present that as a separate charge.
And,
again, with the instructions that were used,
or I should say the special finding that was
made in this case, his exposure is life,
regardless of that charging decision.
(T. 7/30/07, at 20-21).
Petitioner
now
argues
that
his
sentence
of
life
imprisonment runs afoul of the Eighth Amendment’s prohibition
against cruel and unusual punishment.
(ECF No. 1664 ¶ 85).
He
relies on Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2034
(2010), in which the Supreme Court held that “[t]he Constitution
prohibits the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide.”
25
Petitioner, of
course, was found to have committed first-degree murder; thus,
his sentence was not unconstitutional under Graham.
More recently, after the instant motion was fully briefed,
the Supreme Court decided Miller v. Alabama, --- U.S. ----, 132
S.Ct. 2455, 2460 (2012), holding that a statutory scheme that
calls for a sentence of “mandatory life without parole for those
under the age of 18 at the time of their crimes violates the
Eighth Amendment’s prohibition on cruel and unusual punishments”
because “such a scheme prevents those meting out punishments
from considering a juvenile’s lessened culpability and greater
capacity for change, and runs afoul of . . . [the] requirement
of
individualized
serious
sentencing
penalties.”
for
(Internal
defendants
marks
and
facing
citation
the
most
omitted).
Petitioner, however, was sentenced under the advisory sentencing
guidelines, not pursuant to a mandatory sentencing scheme.
noted,
moreover,
underprivileged
Accordingly,
his
the
court
background
sentence
As
considered
to
age
rendering
in
his
its
sentence.
life
imprisonment
was
and
not
prohibited by the Eighth Amendment.
E.
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. §§ 2254 or 2255, the court is required to issue
or deny a certificate of appealability when it enters a final
order adverse to the petitioner.
26
A certificate of appealability
is a “jurisdictional prerequisite” to an appeal from the court’s
order.
United States v. Hadden, 475 F.3d 652, 659 (4th Cir.
2007).
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Where the court
denies a petitioner’s motion on its merits, a prisoner satisfies
this
standard
find
the
by
demonstrating
court’s
assessment
debatable or wrong.
336–38 (2003);
that
of
reasonable
the
jurists
constitutional
would
claims
See Miller–El v. Cockrell, 537 U.S. 322,
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where a motion is denied on a procedural ground, a certificate
of
appealability
will
not
both
“(1)
that
whether
the
demonstrate
debatable
issue
unless
jurists
petition
of
states
the
reason
a
valid
petitioner
would
claim
can
find
it
of
the
denial of a constitutional right and (2) that jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling.”
Rose v. Lee, 252 F.3d 676, 684 (4th
Cir. 2001) (internal marks omitted).
Upon review of the record, the court finds that Petitioner
does
not
satisfy
the
above
standard.
Accordingly,
decline to issue a certificate of appealability.
27
it
will
IV.
Conclusion
For the foregoing reasons, Petitioner’s motion to vacate,
set aside, or correct sentence will be denied.
A separate order
will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
28
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