Villareal v. USA
ORDER entered by Judge Nanette Laughrey. Omar Villareal's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. # 1] is DENIED and a certificate of appealability is not issued. (Kanies, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA
Civil No. 11-00687-CV-W-NKC-P
Crim. No. 07-00115-12-CR-W-NKL
Before the Court is Omar Villareal’s pro se motion to vacate, set aside or correct his
sentence [Doc. # 1], pursuant to 28 U.S.C. § 2255. Upon consideration of Villareal’s
motion, the government’s response [Doc. # 5], and Villareal’s reply [Doc. # 8], the Court
denies the motion for the reasons outlined below.
On February 9, 2009, Omar Villareal was convicted by a jury of conspiracy to
distribute five kilograms or more of cocaine, and on August 27, 2009, was sentenced by the
Court to 210 months’ imprisonment. Villareal appealed to the Eighth Circuit Court of
Appeals, challenging the sufficiency of the evidence to support his conviction and his 210month sentence. Villareal also contested the quantity of drugs and argued that he had been
denied the opportunity to confront certain witnesses. The Eighth Circuit affirmed, finding
the evidence sufficient to convict. United States v. Villareal, 383 Fed. Appx. 580, 581 (8th
Cir. 2010). On July 1, 2011, Villareal filed this motion to vacate his conviction and sentence.
Villareal alleges in his motion four claims for relief: 1) ineffective assistance of
counsel; 2) insufficiency of the evidence to establish his possession of drugs; 3) insufficiency
of evidence to establish that Villareal conspired to distribute drugs; and 4) prosecutorial
Ineffective Assistance of Counsel
To prevail in showing ineffective assistance of counsel, a movant must prove first, that
counsel’s performance was objectively deficient and second, that this deficiency prejudiced
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). In evaluating whether
defense counsel’s performance was deficient, courts must employ “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at
689. Even if defense counsel’s performance is found to be deficient, the conviction will not
be set aside unless “there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
Here, Villareal alleges that his attorney “jeopardized the entire case by misleading and
lying to the defendant” and providing “[b]ad advice.” [Doc. # 1 at 4]. Villareal also alleges
that his counsel failed to investigate mitigating evidence, move to suppress evidence, and
maintain adequate communications with Villareal. Id. at 5. However, Villareal has not
pointed to any mitigating evidence which should have been presented by counsel or any
evidence that should have been suppressed. Villareal has also not pointed to any misleading
statements or poor advice given by his counsel nor explained any specific instances in which
his counsel failed to communicate effectively with him. Because Villareal has not provided
any facts to support his general allegations, he has failed to establish that his counsel’s
performance was objectively deficient. Even if the Court assumed for the purposes of
argument that Villareal had established a showing of objective deficiency, he has not
provided any information to suggest that the outcome of the trial would have been altered as
a result of his counsel’s deficiency. As a result, Villareal’s claim of ineffective assistance
of counsel fails to rise to the level of a constitutional violation and must be denied.
Insufficiency of Evidence Supporting Possession and Conspiracy
In his motion, Villareal challenges his arrest, indictment and conviction for
conspiracy, alleging that his co-defendant’s testimony was insufficient evidence to show he
was in possession of any drugs, or that he conspired to distribute drugs. These claims
challenging the nature and sufficiency of evidence are claims to be brought upon direct
appeal rather than in a § 2255 motion. See e.g. Houser v. United States, 508 F.2d 509, 51316 (8th Cir. 1974) (stating that a “2255 does not give [prisoners] the right to try over again
the cases in which they have been adjudged guilty. Questions as to the sufficiency of the
evidence or involving errors either of law or fact must be raised by timely appeal from the
sentence if the petitioner desires to raise them.”). Villareal’s sufficiency of evidence claims
have already been denied by the Eighth Circuit, which ruled that the evidence “was sufficient
to convict Villareal of conspiring to distribute 5 kilograms or more of cocaine based on the
testimony of his co-conspirators and the investigating drug agents.” Villareal, 383 Fed.
Appx. at 581. Villareal does not provide any facts in his current motion which would suggest
that he is raising new evidentiary claims which were not considered by the Eighth Circuit and
which would affect the fairness of his initial trial or show that the police lacked probable
cause for his initial arrest. See Houser, 508 F.2d at 514 (“[A] matter may not be cognizable
upon a 2255 motion because it is one which could not have denied the substance of a fair trial
or because the matter was raised and considered upon direct appeal.”). Thus, for the reasons
stated above, Villareal’s evidentiary claims cannot be raised in this § 2255 motion.
Villareal also claims that the prosecution introduced false evidence and withheld
material evidence favorable to his case. Specifically, in his complaint, Villareal alleges that
the 150 kilograms of cocaine at issue in the case never existed. As the quantity of drugs was
determined through the testimony of prosecution witnesses, Villareal is effectively alleging
that the testimony was perjured. To vacate a judgment on perjury grounds, a movant must
establish the use of perjured testimony and knowledge by prosecuting officials that the
testimony was perjured. Holt v. United States, 303 F.2d 791, 794 (8th Cir. 1962). However,
Villareal does not provide any specific information to support his perjury claim other than
to state in his reply, in a conclusory fashion, that the government “knew” the cocaine did not
exist. [Doc. # 7 at 8]. Villareal does not identify any of the witnesses at trial as having
specifically perjured themselves, nor does he point to particular parts of testimony as having
been perjured. He offers no supporting affidavits or other evidence to support any claim of
perjury during trial. Regarding any allegations of withheld evidence, Villareal does not
identify the nature of this evidence nor provide any facts to implicate the government in
withholding such evidence. Because Villareal has not provided specific facts in support of
his claims of perjury and withholding evidence, the Court finds that he has failed to move
beyond conclusory allegations concerning prosecutorial misconduct. See Blackledge v.
Allison, 431 U.S. 63, 75 (1977) (finding that a movant’s habeas claim went beyond
conclusory allegations by offering specific factual allegations, including the specific terms
of an alleged promise between attorney and defendant, and the identity of a witness to the
On a motion to vacate, a movant is entitled to an evidentiary hearing when the facts
alleged, if true, would entitle him to relief. See Payne v. United States, 78 F.3d 343 (8th Cir.
1996). However, a claim may be dismissed without an evidentiary hearing if the claim is
inadequate on its face or if the allegations cannot be accepted as true because they are
conclusory allegations unsupported by specifics. Sanders v. United States, 341 F.3d 720,
721 (8th Cir. 2003); Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985). For the
reasons stated above, Villareal’s claims are all either inadequate, composed wholly of
conclusory allegations, or non-cognizable under Section 2255, and thus an evidentiary
hearing must be denied.
Certificate of Appealability
A certificate of appealability will be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As
stated above, Villareal has not made a substantial showing of the denial of a constitutional
right. Therefore, the Court does not issue a certificate of appealability here.
Accordingly, it is hereby ORDERED that Omar Villareal’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. # 1] is DENIED and a certificate
of appealability is not issued.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: October 20, 2011
Jefferson City, Missouri
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?