Viarrial v. USA

Filing 16

REPORT AND RECOMMENDATIONS by Magistrate Judge Steven C. Yarbrough regarding 1 Motion to Vacate and 15 Motion to Supplement. Objections to R&R due by 07/16/2020. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

GERALD JAMES VIARRIAL,
Petitioner,
v.

Civ. 19-361 MV/SCY
Cr. 15-214 MV/SCY 1

UNITED STATES OF AMERICA,
Respondent.
PROPOSED FINDINGS & RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody. Criminal (“CR”) Doc.
157; Civil (“CV”) Doc. 1. Pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil
Procedure 72(a), United States District Judge Martha Vázquez referred this matter to me to
conduct hearings, if warranted, and to perform any legal analysis required to recommend an
ultimate disposition of the case. CV Doc. 3. Consistent with that order of reference and having
reviewed the pleadings and record before the Court, I recommend that the Court deny the Motion
to Vacate.
BACKGROUND
The underlying criminal case arise from two incidents involving Petitioner Gerald James
Viarrial and members of his family. Petitioner and his former partner, Jane Doe, have seven
children together. CR Doc. 156-1 at 2. In August 2010, Petitioner took his entire family to a field
for target practice with firearms. Id. After they returned home, Petitioner realized a set of keys
was lost and he took his partner and children back to the field where he commanded them to find
the missing keys. Id. When his family was unsuccessful, he ordered them into a line and walked

around them, threatening them with a firearm, shouting profanity, and telling them their bodies
would not be found after he killed them. Id. The altercation ended when Petitioner’s cell phone
rang. Id. Threats and physical abuse continued for years, including a March 24, 2014 incident in
which Petitioner choked his oldest son, John Doe 1. See CR Doc. 2 at 3. John Doe 1 eventually
reported his father to the authorities and on January 21, 2015, a grand jury indicted Petitioner on
seven counts: Counts 1-3 assault with a dangerous weapon in violation of 18 U.S.C. §§ 2, 1153,
113(a)(3) for the August 2010 incident; Count 4 abandonment or abuse of a child in violation of
18 U.S.C. §§ 13, 1153 and N.M.S.A. 1978, 30-6-1(D) for the August 2010 incident; Count 5
using, carrying, possessing, and brandishing a firearm during and in relation to and in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) for the August 2010
incident; Count 6 assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6)
for the March 2014 incident; Count 7 abandonment or abuse of a child in violation of 18 U.S.C.
§§ 13, 1153 and N.M.S.A. 1978, 30-6-1(D) for the March 2014 incident. CR Doc. 2. Shortly
thereafter, attorney Todd Hotchkiss entered his appearance on behalf of Petitioner. CR Doc. 9.
Petitioner proceeded to trial on December 14, 2015 and a jury found him guilty on
Counts 1, 2, 3, 5, and 6. CR Doc. 95. On January 7, 2016 Petitioner’s attorney, Todd Hotchkiss
moved to withdraw from the case, indicating that following the trial Petitioner expressed a lack
of confidence and trust in Mr. Hotchkiss. CR Doc. 99. The Court granted that motion on January
13, 2016, CR Doc. 100, and appointed attorney Wayne Baker, CR Doc. 101. On June 20, 2016,
Petitioner filed a Motion to Substitute Attorney, explaining that he gathered “sufficient resources
to retain private counsel for the purposes of sentencing and any appeal.” CR Doc. 113. The Court
granted that motion, allowing Mr. Baker to withdraw and Stephen Aarons to represent Petitioner.
CR Doc. 114.

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On January 26, 2017, the Court sentenced Petitioner to a 240 months’ imprisonment
followed by 5 years’ supervised release. CR Doc. 130. Following entry of judgment on March 8,
2017, Petitioner filed a Notice of Appeal. CR Doc. 131. Mr. Aarons filed the notice of appeal but
did not address payment of the filing fee. After Petitioner filed a financial declaration stating he
no longer had the funds to pay for his hired attorney, the Tenth Circuit ordered his attorney, Mr.
Aarons, to file a compliant motion to withdraw. CR Doc. 139. When Mr. Aarons failed to
respond, the Tenth Circuit removed him as counsel of record and appointed a federal public
defender. CR Doc. 140. On May 18, 2017, attorney Oliver Sanderford entered his appearance,
CR docket entry May 8, 2017, and completed the designation of record for appeal, CR Doc. 141.
On April 16, 2018, the Tenth Circuit affirmed Petitioner’s conviction. CR Doc. 156-1.
On April 19, 2019, Petitioner, proceeding pro se, filed the present Motion to Vacate
Under 28 U.S.C. § 2255. CR Doc. 157; CV Doc. 1. The Court conducted an initial screening and
ordered the United States to respond the Motion to Vacate. CV Doc. 2. After receiving an
extension of time, CV Doc. 6, the United States files its response on September 30, 2019. CV
Doc. 7.
On December 11, 2019, Petitioner filed a Motion to Amend. The Court ordered Petitioner
to supplement his Motion to Amend and submit his proposed amended motion to vacate. CV
Doc. 10. Petitioner did not submit the required supplement, but instead submitted an untimely
reply to his original Motion to Amend. CV Doc. 12. Accordingly, on my recommendation, the
Court denied Petitioner’s Motion to Amend. CV Docs. 11, 13. Although Petitioner’s untimely
reply did not satisfy the Court’s Order to supplement his Motion to Amend, to the extent the

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reply bears on Petitioner’s Motion to Vacate, I recommend the Court consider it, given
Petitioner’s pro se status.1
Presently before the Court is Petitioner’s original Motion to Vacate Under 28 U.S.C. §
2255. CV Doc. 1. In that motion, Petitioner states eight grounds on which he asserts he is being
held in violation of the Constitution, laws, or treaties of the United States. Each ground is a
different claim regarding ineffective assistance of counsel either during trial or at sentencing. Id.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, a federal prisoner who “claim[s] the right to be released
upon the ground that the sentence was imposed in violation of the Constitution or laws of the
United States . . . , or 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. Relief is
available under Section 2255 only if “the claimed error constituted a fundamental defect which
inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178,
185 (1979) (internal quotation marks and citation omitted). The court must presume “that the
proceedings leading to the conviction were correct”; the burden is on the petitioner to
demonstrate otherwise. Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989) (citing United
States v. Morgan, 346 U.S. 502, 512 (1954)).
When a party proceeds pro se, the court generally construes his pleadings liberally,
holding them to a less stringent standard than those filed by a party represented by counsel. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not fashion

Petitioner’s reply is 56 pages, including hand-written and type-written arguments, letters, and
court documents. While I recommend considering the reply in addressing the merits of
Petitioner’s Motion to Vacate, I do not recommend considering any new arguments, of which
there are many, raised for the first time in reply. See Gutierrez v. Cobos, 841 F.3d 895, 902 (10th
Cir. 2016).
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Petitioner’s “arguments for him where his allegations are merely conclusory in nature without
supporting factual averments.” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
ANALYSIS
It is well established that defendants have a Sixth Amendment right to effective counsel.
See Strickland v. Washington, 466 U.S. 668, 685-86 (1984). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Id. at 686. Accordingly, the Supreme Court in Strickland devised a two-step inquiry to
determine whether a lawyer’s poor performance deprived an accused of his Sixth Amendment
right to assistance of counsel. Id. at 686-87. In order to establish an ineffective assistance claim,
a movant must demonstrate (1) “counsel’s representation fell below an objective standard of
reasonableness,” and (2) “the deficient performance prejudiced the defense.” Id. at 687-88.
Under the first prong, “the performance inquiry must be whether counsel’s assistance was
reasonable considering all circumstances.” Id. at 688. However, review of an attorney’s
performance “must be highly deferential,” and the court must “evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. Indeed, “the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. (citation omitted). The question to determine deficient performance “is whether
[the] representation amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common custom.” Simpson v. Carpenter, 912
F.3d 542, 593 (10th Cir. 2018) (citing Harrington v. Richter, 562 U.S. 86, 105 (2011)).
The inquiry does not stop there; rather, “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error

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had no effect on the judgment.” Strickland, 466 U.S. at 691. Under the second prong of the
inquiry, the movant must establish prejudice by showing “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id. Courts may analyze either prong first and need only address one
prong if the movant fails to make a sufficient showing on that prong. Id. at 697.
1. Ground One: Speedy Trial Act violation
Petitioner first alleges that his trial attorney, Mr. Hotchkiss, was ineffective by allowing
violations of the Speedy Trial Act. The Speedy Trial Act requires that “a criminal trial
commence within seventy days of the filing of the indictment or information or the defendant’s
appearance, whichever occurs last.” United States v. Toombs, 574 F.3d 1262, 1268 (10th Cir.
2009). Excluded from the seventy-day requirement is
Any period of delay resulting from a continuance granted by any judge on his own
motion or at the request of the defendant or his counsel or at the request of the
attorney for the Government, if the judge granted such continuance on the basis of
his findings that the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.
Id. (quoting 18 U.S.C. § 3161(h)(7)(A)). When using the ends-of-justice provision, the court
must set “forth, in the record of the case, either orally or in writing, its reasons for finding that
the ends of justice served by the granting of such continuance outweigh the best interests of the
public and the defendant in a speedy trial,” considering the factors listed in 18 U.S.C. §
3161(h)(7)(B)(i)-(iv). Id.
In this case, Petitioner first appeared in Court on January 29, 2015. CR Doc. 5. The Court
initially set trial for March 16, 2015. CR Doc. 16. On March 6, 2015, Mr. Hotchkiss filed the
first unopposed motion to continue. Id. In granting that continuance and the next two

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continuances, the Court looked at the specific issues of the case and found that granting a
continuance to resolve certain issues outweighed the public’s and defendant’s interest in a
speedy trial. CR Docs. 17, 19, 32. Accordingly, such time did not count against the seventy-day
time limit and less than seventy days passed from Petitioner’s initial appearance to his trial.
Petitioner has not shown that Mr. Hotchkiss was ineffective for allowing a Speedy Trial Act
violation because the record reflects that no Speedy Trial Act violation occurred.
In connection with his argument that Mr. Hotchkiss allowed a Speedy Trial Act violation,
Petitioner also asserts that Mr. Hotchkiss did not adequately prepare for trial. As evidence,
Petitioner quotes language from the Court’s order denying Petitioner’s fourth motion for a trial
continuance. CR Doc. 1 at 4. In that Order, the Court found that Mr. Hotchkiss, by arguing that
he needed more time “for an investigation of the complicated circumstances to occur, and to
evaluate the case to be able to render adequate and effective assistance of counsel,” effectively
admitted that he “has not appropriately managed his time or diligently prepared for trial.” CR
Doc. 45 at 4, 5. Petitioner’s argument that Mr. Hotchkiss did not adequately prepare for trial,
however, does not logically relate to his argument that Mr. Hotchkiss allowed a violation of the
Speedy Trial Act to occur. As a result, the Court addresses Petitioner’s argument that Mr.
Hotchkiss did not adequately prepare for trial later in this PFRD when it addresses Petitioner’s
eighth ground for relief, in which Petitioner again alleges that Mr. Hotchkiss failed to adequately
investigate and prepare for trial.
For these reasons, I recommend finding that Petitioner is not entitled to relief based on
Ground One of his Motion to Vacate.

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2. Ground Three: Government’s expert, Dr. Hawley
Because my analysis of Petitioner’s third ground for relief informs my analysis of his
second ground for relief, I address Petitioner’s third ground before I address his second ground.
In his third ground for relief, Petitioner asserts that Mr. Hotchkiss was ineffective by not
objecting “to Dr. Hawley being allowed to testify about the out of court statement by Ricky on
which he based his opinion.” CV Doc. 1 at 6. Petitioner explains that “[t]hose statements were
hearsay and thus inadmissible. Federal Rule of Evidence 703 allows an expert to testify about
inadmissible evidence that forms the basis of his opinion only if the probative value of the
evidence substantially outweighs its prejudice effect. Attorney did not make an objection on this
ground.” Id.
Petitioner is wrong about Mr. Hotchkiss not making this objection. Leading up to trial,
the government filed a Notice of Intention to Offer Expert Testimony, providing notice that Dr.
Dean Hawley would testify regarding “the Defendant’s strangulation of John Doe 1 (R.V.).” CR
Doc. 53. Dr. Hawley’s report indicated that he reviewed a number of documents, including an
interview of Ricky, documenting that Ricky stated that his dad (Petitioner) choked him with his
hand. CR Doc. 53-2 at 2, 3. Dr. Hawley concluded that:
It is my opinion that Ricky Viarrial did sustain a manual strangulation assault. It is
my opinion that his symptoms, “he could not breathe” (attributed to Agent
Montowine, page 45 of 1-194 file, during interview with RV on 3/28/14) and that
“he thought he was going to die” (attributed to Agent Montowine, interview
5/15/15) are typical of a serious, life threatening strangulation assault. In my
opinion, failure to remember specifics about pain and other symptoms is typical of
serious strangulation assaults, where there is significant fear of death.
Id. at 3-4.
Mr. Hotchkiss filed a response to the Notice, objecting to Dr. Hawley’s testimony
because “[t]he very questionable probative value of the proposed testimony would be

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substantially outweighed by the danger of unfair prejudice.” CR Doc. 78 at 8-9. He further
argued that “[t]he expertise of the witness is not relevant to the particular facts and circumstances
of this case[,]” and that “the proposed expert testimony is not adequately based on relevant
empirical research.” Id. at 8-9. The trial judge, Judge Vasquez, held a hearing on this issue2 at
which Mr. Hotchkiss again challenged the foundation of Dr. Hawley’s testimony. CR Doc. 91 at
8:20-25. Judge Vasquez ruled that Dr. Hawley would be allowed to testify, finding that any
potential inconsistency could be addressed by impeachment and cross-examination. Id. at 20:2021:3. During trial, Dr. Hawley testified and Mr. Hotchkiss lodged his prior objections. CR Doc.
107 at 106:20-22. Based on this series of events and the facts Petitioner presents in his Motion, I
reject Petitioner’s argument that Mr. Hotchkiss was professionally unreasonable for failing to
object to Mr. Hawley’s testimony. In contrast to Petitioner’s allegations, the record clearly
demonstrates that Mr. Hotchkiss did object to Dr. Hawley’s testimony—both before and during
trial.
Petitioner is particularly upset that Dr. Hawley testified about “out of court statements by
Ricky on which he based his opinion,” and that Mr. Hotchkiss did not object to Dr. Hawley’s
testimony on the basis of hearsay. CV Doc. 1 at 6; CV Doc. 12 at 11. Indeed, Dr. Hawley
testified at trial that he based his opinion on statements from Ricky and he summarized those
statements for the jury. CR Doc. 107 at 107:8-108:2. Given that Mr. Hotchkiss objected to this
testimony, however, Petitioner’s gripe is with the Court, which made the ruling he does not like,
rather than with Mr. Hotchkiss, who strenuously objected to that ruling. To the extent Petitioner
believes the Court made an erroneous ruling, his proper avenue for redress is through direct

The Notice of Hearing and the transcript are sealed to case participants only because Judge
Vasquez heard several issues at the hearing, including an ex parte motion. CV Doc. 79.
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appeal, not through a § 2255 motion in which he must establish that his counsel, who strenuously
objected to the ruling, was ineffective.
Further, to the extent Petitioner argues that Mr. Hotchkiss should have objected to the
statement as hearsay, I note that such an argument would be futile, given that the statement was
not offered for the truth of the matter asserted and the Court did not allow the statement to be
introduced into evidence for the truth of the matter asserted. As even Petitioner correctly points
out, Dr. Hawley’s testimony about Ricky’s statement was not admitted as “substantive evidence
but only to explain [the] basis of his opinion. Indeed, Dr. Hawley made clear that he was not
testifying to the truth of the statements, and this his opinion was simply based on assumption that
the statements were true.” CV Doc. 12 at 10; see also Fed. R. Evid. 801(c)(2) (“Hearsay means a
statement that a party offers in evidence to provide the truth of the matter asserted in the
statement.”). In sum, Mr. Hotchkiss objected to the jury hearing this statement, whether it came
in through the front door or the back door. In doing so, Mr. Hotchkiss was not ineffective.
Finally, Ricky himself testified about the same statements Dr. Hawley discussed. Thus,
Petitioner was able to confront those statements through cross-examination of Ricky. This
lessens any potential prejudice of letting Dr. Hawley discuss those statements, even assuming
letting him do so was error. Thus, even if Mr. Hotchkiss had not objected to Dr. Hawley’s
testimony, and even assuming the Court erred in allowing the testimony, Petitioner has not
demonstrated prejudice and so his argument would still fail.3 See CR Doc. 107 at 173:1-2, 174:8175:25.
For these reasons, I recommend denying Petitioner’s Motion as to Ground Three.

Petitioner also asserts that his counsel was ineffective for not insisting that Dr. Hawley testify
after Ricky testified. CV Doc. 12 at 11. Petitioner raises this argument for the first time in reply
and so I will not consider it.
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3. Ground Two: Eliciting hearsay statements on cross-examination
Petitioner argues in ground two that his trial counsel, Mr. Hotchkiss, was ineffective by
“eliciting on cross-examination of Eric Johnson that Ricky said that petitioner had choked him to
the point he could not . . . It was not a Fact for Ricky’s statement because it was not detailed.
Attorney elicited Ricky’s out-of-court statement by not cross-examination of Eric Johnson for
the squeezed to the point on that throat where Ricky had a hard time breathing [sic].” CV Doc. 1
at 5 (ellipses in original).4
Eric Johnson is a Pojoaque Police Lieutenant and Ricky, also referred to as John Doe 1, is
one of Petitioner’s sons. On direct examination, Lieutenant Johnson testified that he became
involved in this case on March 24, 2014 after receiving information that a young man requested
help for him and his sibling to get away from their father. CR Doc. 106 at 56:2-22. Lieutenant
Johnson testified that on March 28, 2014 he spoke with Petitioner’s son, Ricky Viarrial. Id. at
58:4-8, 59:5-9. On cross-examination, Mr. Hotchkiss asked Lieutenant Johnson about the March
28 interview with Ricky. Id. at 84:20-85:1. Mr. Hotchkiss had the following exchange with
Lieutenant Johnson:
Q. (Mr. Hotchkiss) When you interviewed Ricky on the 28th of March, you
reached a conclusion about whether Mr. Viarrial, his father, had choked Ricky on
March 24th. Isn’t that correct?
A. Well, I made a determination it needed to be investigated further, and further
interviews as well would be needed.
Q. Okay, so you didn’t make a conclusion about whether Mr. Viarrial had choked
Ricky and Ricky couldn’t breathe?
A. Well, I obtained the information. And I would later use that as – his statement
as probable cause in the case.

 The ellipses in the quoted language are in the original and do not signify the omission of any

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text.

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Q. So, did you make that conclusion, then?
A. Based on Ricky’s and Refugio’s statements, I would say yes.
Q. Do you remember what Ricky told you about that?
A. Basically, Ricky explained that his dad had choked him on Monday, the 24th.
He said that he grabbed him by the throat, and reared back and as if he was going
to punch him. And when I asked him to describe what he meant by choking, he
said he put his hand on his throat and squeezed his throat to the point that he had a
hard time breathing.
Q. Okay. Now, you didn’t put anything about squeezing of the throat in your
report, did you?
A. Well, it’s from what he described.
Q. But you didn’t put that in your report?
A. I don’t recall. I believe the way I worded it was “choked.”
Q. As a result of interviewing Ricky and Refugio, you made the determination
that they should be interviewed at a Safehouse.
A. That is correct.
Q. And, part of the reason you did that is because Safehouse interviews are a
better place for children to reveal information, isn’t that correct?
A. I would say a more comfortable place.
Q. It’s more forthcoming?
A. I would say more encouraging, yes.
Q. Okay. And do you believe the statements made there are more reliable?
A. Well, from what I’ve been trained, it’s my understanding it’s a method to
obtain more information.
Id. at 86:3- 87:22 (emphasis added).
Petitioner’s argument ignores the context in which this cross-examination occurred. As
set forth above, over Mr. Hotchkiss’ written and oral objections, the Court ruled that the

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government’s expert, Dr. Hawley, could discuss Ricky’s statement for the purpose of explaining
the basis for his opinion, assuming the statement were true. It would not be unreasonable for Mr.
Hotchkiss to harbor concerns that, in spite of any limiting instruction the Court might give, the
distinction between what Ricky’s statement was admitted for, and what it was not admitted for,
might be lost on the jury. Knowing, based on the Court’s pretrial ruling, that the jury was going
to hear about the choking incident, it was not unreasonable for Mr. Hotchkiss to attempt to draw
the sting out of this statement through Lieutenant Johnson, the government’s first witness.
It is clear from Mr. Hotchkiss’ exchange with Lieutenant Johnson that he was trying to
cast doubt on the allegation that Petitioner choked Ricky. First, he asked questions that implied
Lieutenant Johnson too quickly concluded that that Petitioner choked Ricky. Second, Mr.
Hotchkiss attempted to cast doubt on Lieutenant Johnson’s testimony that Ricky said Petitioner
squeezed his throat by noting that Lieutenant Johnson did not say this in his report. Third, Mr.
Hotchkiss attempted to cast further doubt on Ricky’s statement by implying through his
questions that statements made at safehouses are less reliable because the setting is designed to
elicit statements that are favorable to law enforcement. I do not find that these attempts to cast
doubt on Ricky’s statement to Lieutenant Johnson fall below an objective standard of
reasonableness; instead, they constitute reasonable attempts to reduce the adverse impact of
Ricky’s statement that Mr. Hotchkiss already knew the jury was going to hear.
Additionally, even if Mr. Hotchkiss’ performance was deficient for eliciting hearsay
testimony that Petitioner choked his son Ricky, Petitioner fails to present any facts showing he
was prejudiced by such testimony. Petitioner argues that Lieutenant Johnson’s testimony was the
“only evidence from which the jury could find that [he] strangled Ricky.” CV Doc 12 at 10. On
the contrary, Ricky also testified at trial, on direct examination by the government, that Petitioner

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put his hand on Ricky’s throat and that it was difficult to breathe. See CR Doc. 174:8-22. True,
after Ricky testified that he had a hard time breathing, he also testified that Petitioner did not
squeeze his neck and that he didn’t have a hard time breathing. CR Doc. 175:18-25. While such
testimony certainly impacts the weight of Ricky’s original testimony, it does not negate the fact
that Ricky, in addition to Lieutenant Johnson, testified that Petitioner placed his hand on Ricky’s
throat making it hard to breathe. As such, I do not find a reasonable probability that the outcome
of the trial would have been different had Mr. Hotchkiss not questioned Lieutenant Johnson
about the choking incident. For these reasons, I recommend denying Petitioner’s Motion as to
Ground Two for relief.
4. Ground Four: Jury note
For his fourth ground for relief, Petitioner argues that Mr. Hotchkiss was ineffective “on
how he litigated the note that the jury sent during deliberations.” CV Doc. 1 at 8. Jury Instruction
No. 23 read
In order to sustain its burden of proof for the crime of assault resulting in serious
bodily injury as charged in Count 6 of the Indictment, the government must prove
the following four (4) essential elements beyond a reasonable doubt:
First: The Defendant intentionally struck or strangled John Doe 1;
Second: The incident occurred in Indian Country:
Third: The Defendant is an Indian; and
Fourth: As a result of the assault, John Doe 1 suffered serious bodily injury.
The term “serious bodily injury means bodily injury which involves(A)
A substantial risk of death;
(B)
Extreme physical pain;
(C)
Protracted and obvious disfigurement; or
(D)
Protracted loss of impairment of the function of a bodily member, organ or
mental faculty.
CR Doc. 92 at 27. During deliberations, the jury sent out a note, which read, “On jury instruction
#23, what is included in the term ‘mental faculty’?” CR Doc. 93 at 1. Mr. Hotchkiss and the

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attorneys for the government produced a joint response, approved by the Court, which stated that
“‘Mental faculty,’ as that term is used in Instruction No. 23, should be defined by the jury in
light of its common sense and experience.” Id. at 2.
Petitioner takes issue with this response, arguing that “[t]his note suggests that at least
some of the jurors were considering convicting on the ground that Ricky [John Doe 1] suffered
such impairment.” CV Doc. 1 at 8. However, Petitioner’s argument fails to address how Mr.
Hotchkiss’ response to the jury note fell below an objective standard of reasonableness and I find
no error.5 Similarly, in United States v. Valenciano, the jury asked for a clarification on a jury
instruction that included the word “knowingly.” No. 06-373 BB/WPL, 2006 WL 8443577, at *6
(D.N.M. Oct. 2006) (Report and Recommendation adopted, 2007 WL 9734788). The trial judge
responded that members of the jury “must use common sense to decide that question.” Id. On a
Section 2255 petition, the petitioner argued that his counsel was ineffective for not challenging
the trial judge’s response. Id. The court, however, found that “trial counsel’s decision not to
object to the court’s refusal to issue clarifying instructions did not fall below an objective
standard of reasonableness.” Id.
Additionally, Petitioner offers no facts that show that there is a reasonable probability
that the outcome of his case would have been different had Mr. Hotchkiss’ response to the jury

Petitioner argues in his reply brief that the jury note indicated that the jury was considering
convicting Petitioner on assault resulting in serious bodily injury because John Doe 1 suffered an
impairment to mental faculty. CV Doc. 12 at 14. He argues that the government’s theory of the
case never included injury to Ricky’s mental faculty, and so Mr. Hotchkiss “should have asked
the judge to instruct the jury that it could not convict on that theory. He should have asked that
all parts of the definition of serious bodily injury in instruction #23 be stricken except substantial
risk of death.” CV Doc. 12 at 14. This argument takes issue with Mr. Hotchkiss’ litigation of
Jury Instruction No. 23 itself, not with the jury note. Because Petitioner raises this argument for
the first time in reply, I recommend not considering it.

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note been different. Because Petitioner makes no showing of deficient performance or prejudice,
I recommend denying relief on Ground Four.
5. Ground Five: Failing to request instruction on lesser-included offense
Counts 1, 2, and 3 of the indictment charge Petitioner with assault with a dangerous
weapon. CR Doc. 2. For those counts, the government had to prove beyond a reasonable doubt
that
First: The Defendant assaulted Jane Doe, John Doe 1, and John Doe 2 by
intentionally using a display of force that reasonably caused her or him to fear
immediate bodily harm;
Second: The Defendant used a dangerous weapon, that is, a handgun;
Third: The Defendant acted with the intent to do bodily harm to the victim;
Fourth: The incident occurred in Indian Country; and
Fifth: The Defendant is an Indian.
CR Doc. 92 at 22-24 (Jury instructions No. 19, 20, 21).
Petitioner argues that his trial counsel, Mr. Hotchkiss, was ineffective by not requesting a
jury instruction on the lesser-included offense of aggravated assault or even “just assault.” CV
Doc. 1 at 13. Aggravated assault is not a federal offense.6 However, simple assault is a lesserincluded offense of assault with a dangerous weapon. United States v. Bruce, 458 F.3d 1157,
1164 n.4 (10th Cir. 2006).7 A defendant “may be entitled to a lesser offense instruction if the

Petitioner asserts that Mr. Hotchkiss should have requested an instruction on the lesser offense
of aggravated assault under New Mexico law. However, Petitioner makes no argument to
establish that the Assimilative Crimes Act, which permits reference to state law crimes in federal
court when federal law supplies no similar offense, applies to assault with a dangerous weapon
and New Mexico’s aggravated assault. See United States v. Abeyta, 27 F.3d 470, 472, 476 (10th
Cir. 1994).
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7

Title 18 U.S.C. § 113 lists various types of assaults that have varying penalties and only §
113(a)(5) refers to simple assault. However, the distinction between § 113(a)(3) and the other
felony assaults described in § 113 (even if they have a lesser penalty) is irrelevant to the present
analysis. Therefore, for ease of reference, I refer to the assault described in § 113(a)(3) (the
crime with which Petitioner was charged) as assault with a dangerous weapon; any lesser assault
described in § 113, I describe as simple assault.

16

evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of
the greater.” United States v. Young, 862 F.2d 815, 820 (10th Cir. 1988). A four-part test is used
to determine if a lesser offense instruction is warranted: (1) “the defendant must properly request
the instruction;” (2) “the elements of the lesser included offense must be a subset of the elements
of the charged offense;” (3) “the element required for the greater, charged offense that is not an
element of the lesser offense must be in dispute;” and (4) “the evidence must be such that the
jury could rationally acquit the defendant on the greater offense and convict on the lesser
offense.” Bruce, 458 F.3d at 1162. In this case, “[t]he elements differentiating assault with a
dangerous weapon from simple assault are the use of a deadly weapon and the intent to commit
bodily harm.” Id. at 1164 n.4 (citation omitted). “[T]o be entitled to a simple assault instruction
the defendant must contest both elements differentiating simple assault from assault with a
dangerous weapon, i.e., intent to commit bodily harm and the use of a dangerous weapon.” Id.
Here, Mr. Hotchkiss was not ineffective in declining to dispute the dangerous weapon
element. After all, the setting of the alleged assaults was a place Petitioner took his children for
recreational shooting. Petitioner does not dispute that he possessed a gun at the time of the
alleged assault; he just asserts that he did not assault his children at all. See CV Doc. 12 at 16.
But if he did assault them, as the jury found, there is not a dispute that he did it with a gun. No
jury could rationally acquit Petitioner of assault with a dangerous weapon but convict him of a
lesser assault. Indeed, in addition to the undisputed fact that Petitioner possessed a gun at the
time, three of his family members testified at trial that Petitioner pointed a gun at them while
yelling and making them feel that he was going to shoot them. CR Doc. 107 at 13:11-14:12; CR
Doc. 107 at 169:7-17; CR Doc. 108 at 13:3-14:19. Because Petitioner’s use of a dangerous
weapon is undisputed, any argument Mr. Hotchkiss would have made for a lesser included

17

instruction would have been futile. Mr. Hotchkiss did not act ineffectively in declining to pursue
a futile argument.
Similarly, Mr. Hotchkiss was not ineffective in seeking an instruction that did not contain
the element of intent to commit bodily harm. Indeed, Petitioner’s argument is that the weakest
part of the government’s case against him was its ability to prove he intended to commit bodily
harm. CV Doc. 12 at 16 (“the evidence that I intended to cause anyone bodily harm was weak.
After all, no one was physically harmed.”). By ensuring that the instructions to the jury would
include the requirement that the government prove intent to commit bodily harm in order to
obtain a conviction, Mr. Hotchkiss kept what Petitioner views as a weak link in the government’s
chain. Had Mr. Hotchkiss successfully argued for a lesser included instruction that did not
require proof of intent to commit bodily harm, this weak link would not have been available to
attack. In other words, the government’s path to conviction, albeit to a lesser offense, would have
been easier. Although the jury ultimately convicted Petitioner of assault with a dangerous
weapon, to the extent Mr. Hotchkiss made a tactical decision not to request a lesser included
offense instruction, that decision was not unreasonable.
Moreover, even assuming Mr. Hotchkiss’ performance was professionally unreasonable
for failing to request a jury instruction on simple assault, Petitioner makes no showing that there
is a reasonable probability that the outcome would have been different. He merely alleges that
Mr. Hotchkiss caused prejudice to his case and concludes the “outcome would have been
different.” CV Doc. 1 at 13. True, had the trial court included a jury instruction for simple
assault, and had the jury found Petitioner guilty of simple assault but not guilty of assault with a
dangerous weapon, the outcome of Petitioner’s trial and sentence would have been different.
However, speculation is not enough to show prejudice. See Byrd v. Workman, 645 F.3d 1159,

18

1168 (10th Cir. 2011) (“A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial; it does not require that the petitioner show that counsel’s
deficient conduct more likely than not altered the outcome in the case. However, mere
speculation is not sufficient to satisfy this burden.” (citations omitted)).
For these reasons, I recommend denying the Motion to Vacate on Ground Five.
6. Ground Six: Failing to challenge the 18 U.S.C. § 924(c) charge
Petitioner contends that Mr. Hotchkiss was ineffective for failing to argue that “there was
no actual violent [sic] and no one was harmed to constitute aggravated assault.” CV Doc. 1 at 13.
He further states his counsel failed to argue that “the count 5 petitioner is charged with has no
element under the categorical approach.” Id. While Petitioner provides no further details to
clarify this argument, his argument appears to track an argument his appellant counsel made
regarding his charge under 18 U.S.C. § 924(c). Specifically, counsel on appeal argued that
Petitioner’s “conviction under 18 U.S.C. § 924(c) [Count 5] must be vacated because the
underlying predicate offense- assault with a dangerous weapon under section 113(a)(3)- is not a
crime of violence.” Appellant’s Opening Brief at 25, United States v. Viarrial, No. 17-2032
(10th Cir. Aug. 16, 2017). Because this argument was not raised at the district court level, appeal
counsel argued that it constituted plain error. Id. However, in reply briefing, appeal counsel
conceded that United States v. Onitveros, 875 F.3d 533 (10th Cir. 2017), foreclosed Petitioner’s
“challenge to his conviction under 18 U.S.C. § 924(c), at least for the purposes of review by a
three-judge panel of this Court.” Appellant’s Reply Brief at 5 n.1, United States v. Viarrial, No.
17-2032 (10th Cir. Nov. 27, 2017). Accordingly, the Tenth Circuit did not address the Section
924(c) argument. CR Doc. 156-1 at 11.

19

The government argues that Petitioner is procedurally barred from “raising this claim as
it was already addressed and disposed of on direct appeal.” CV Doc. 7 at 15. Indeed, “[a]bsent an
intervening change in the law of a circuit, issues disposed of on direct appeal generally will not
be considered on a collateral attack by a motion pursuant to § 2255.” United States v. Temple,
480 F. App’x 478, 480 (10th Cir. 2012). However here, while Petitioner raised the Section
924(c) argument on direct appeal, he is not raising the same argument in the present motion.
Instead, he is arguing for the first time that his trial counsel was ineffective for failing to raise the
Section 924(c) argument at the district court level. Indeed, the Tenth Circuit has held that the
procedural bar does not apply to claims of ineffective assistance of counsel “where new reasons
are advanced in support of that claim.” United States v. Galloway, 56 F.3d 1239, 1242-43 (10th
Cir. 1995). Accordingly, I recommend finding that this claim is not procedurally barred and
addressing it on the merits.
Petitioner is correct that his trial counsel, Mr. Hotchkiss, did not raise the Section 924(c)
argument to the district court; it was first raised on appeal. The government argues that because
Petitioner conceded his Section 924(c) argument on direct appeal, Mr. Hotchkiss could not have
been ineffective for failing to raise it with the district court. This argument is tricky. Petitioner
conceded the Section 924(c) argument on appeal only after the Tenth Circuit issued an opinion
on November 7, 2017 in Onitveros which he determined foreclosed his argument. That decision
did not exist at the time Mr. Hotchkiss was representing Petitioner before the district court and so
could hardly be the reason Mr. Hotchkiss did not raise the Section 924(c) argument.
However, it is not at all clear that the Section 924(c) argument was a winning argument
prior to the Tenth Circuit decision in Onitveros. This is illustrated by the government’s vigorous
opposition to the argument on appeal. See Appellee’s Answer Brief at 37-40, United States v.

20

Viarrial, No. 17-2032 (10th Cir. Oct. 23, 2017). As such, Mr. Hotchkiss could have chosen not
to raise the argument to the district court as a valid trial strategy. And Petitioner presents no facts
to overcome the presumption that Mr. Hotchkiss’ decision was a valid trial strategy. Petitioner
merely states, in a conclusory fashion, that Mr. Hotchkiss was ineffective for not raising the
Section 924(c) argument.
More significantly, even assuming Mr. Hotchkiss’ performance was deficient for failing
to raise the argument, Petitioner presents no facts to show that there is a reasonable probability
that he would have succeeded on the Section 924(c) argument and that the outcome of his case
would have been different. Indeed, we now know based on the Tenth Circuit’s decision in
Ontiveros that assault with a dangerous weapon is a crime of violence. Petitioner cannot
demonstrate he was prejudiced by his attorney’s decision not to raise a legal argument that, while
not resolved by binding precedent at the time of Petitioner’s trial, was later found meritless by
binding precedent. For these reasons, I recommend finding that Petitioner has not met his burden
to show ineffective assistance of counsel on this ground.
7. Ground Seven: Failing to object on the basis of double jeopardy
Petitioner next asserts that his counsel was ineffective for failing to object to his
conviction and sentence on the basis of double jeopardy. CV Doc. 1 at 13. Specifically,
Petitioner was convicted for three counts of assault with a dangerous weapon—each count for
assault against a different victim family member, stemming from the one incident in the field in
August 2010. He argues that the government only established one assault and so a conviction on
three counts violates his right to be free from double jeopardy. He alleges that his trial counsel,
Mr. Hotchkiss, was ineffective for failing to object to his conviction on this ground and his

21

counsel at sentencing, Mr. Aarons, was ineffective for failing to raise this issue during
sentencing.
Petitioner’s appeal counsel raised this issue on appeal, asserting that the charging statute,
18 U.S.C. § 113(a)(3), is act-based rather than victim-based in its language. Appellant’s
Opening Brief at 13-25, United States v. Viarrial, No. 17-2032. That is, “[b]ecause the evidence
at trial established only one assault, albeit one with multiple victims, [Petitioner’s] conviction for
more than one violation of the statute cannot stand.” Id. at 13. On plain error review, the Tenth
Circuit rejected this argument, holding that the absence of well-settled law on the unit of
prosecution under 18 U.S.C. § 113(a)(3) forecloses a plain error finding. CR Doc. 156-1 at 7-8
(“Neither [the Tenth Circuit] nor any other circuit has ruled on the unit of prosecution for 18
U.S.C. § 113(a)(3) . . . .”). However, the Tenth Circuit further held that “the evidence presented
in this case was sufficient regardless of whether the proper unit of prosecution was victim-based
or act-based.” Id. at 8.
In the present Motion, the government again argues that because this issue was raised and
disposed of on direct appeal, Petitioner is procedurally barred from raising this argument in his
current collateral attack. However, as explained above, the procedural-bar doctrine does not
apply to ineffective assistance of counsel claims. See Galloway, 56 F.3d at 1242-43. As such, I
recommend addressing this ground for relief on its merits.
Petitioner is correct that his counsel did not raise this argument to the district court. See
Appellant’s Opening Brief at 13, United States v. Viarrial, No. 17-2032 (arguing the plain error
standard on appeal because the issue was not raised below). However, as the Tenth Circuit
pointed out, whether Section 113(a)(3) is action-based or victim-based is a question that no
circuit court has ruled on. Mr. Hotchkiss and Mr. Aarons may have determined it was not a

22

winning argument and so chose to devote their resources to other areas of Petitioner’s defense.
Petitioner offers no facts to overcome the presumption that their actions were reasonable.
Further, even assuming Mr. Hotchkiss’ and Mr. Aarons’ performance was deficient for
failing to make this argument at trial and at sentencing, I do not find a reasonable probability that
the outcome of the case would have been different. As the Tenth Circuit held, evidence at trial
was sufficient for a conviction on all three counts regardless of whether Section 113(a)(3) is
victim-based or act-based. To establish prejudice, Petitioner alleges that the failure “may be
harmless but it effects my chance to go to RDAP.” CV Doc. 1 at 13. The government explains
that RDAP is the Residential Abuse Program, a nine-month, 500-hour substance abuse
rehabilitation program administered by the Bureau of Prisons. CV Doc. 7 at 16 n.7. As the
government further points out, Petitioner does not explain how three convictions for assault with
a dangerous weapon, compared to one, bars him from the program. Further, Petitioner fails to
establish that disqualification from a Bureau of Prisons rehabilitation program constitutes a
sufficient collateral consequence that is addressable through section 2255. See United States v.
Meyers, 200 F.3d 715, 718 (10th Cir. 2000). As such, Petitioner has failed to show prejudice as a
result of his counsel failing to make the double jeopardy argument to the district court.
For these reasons, I recommend denying relief based on Ground Seven of the Motion to
Vacate.
8. Ground Eight: Failure to investigate and prepare and miscellaneous complaints
In his eighth ground for relief, Petitioner primarily argues that his trial counsel, Mr.
Hotchkiss, failed to effectively investigate and prepare for trial. CV Doc. 1 at 15.8 The Court

Petitioner repeats the argument in Grounds One and Eight. Compare CV Doc. 1 at 4, with CV
Doc. 1 at 15. I only address this argument once, now in my Ground Eight analysis. 
8

23

should reject this argument because Petitioner has not shown either that Mr. Hotchkiss failed to
adequately investigate or prepare for trial or that Mr. Hotchkiss’ alleged inadequate investigation
and preparation prejudiced him.
Petitioner’s argument finds some purchase in the Court’s order rejecting his fourth
motion for a trial continuance. There, the Court found that Mr. Hotchkiss, by arguing that he
needed more time “for an investigation of the complicated circumstances to occur, and to
evaluate the case to be able to render adequate and effective assistance of counsel,” effectively
admitted that he “has not appropriately managed his time or diligently prepared for trial.” CR
Doc. 45 at 4, 5. By way of background, Mr. Hotchkiss requested to continue the trial setting
three times following Petitioner’s January 21, 2015 indictment. CR Docs. 16, 18, 24. The trial
was originally set for March 16, 2015, and upon an unopposed request, the Court continued trial
to June 22, 2015. CR Doc. 17. Upon a second and third unopposed motion to continue, CR.
Docs. 18, 24, the Court again continued the trial to August 17, 2015, CR Doc. 19, and then to
December 14, 2015, CR Doc. 32. After the Court denied Petitioner’s fourth unopposed Motion to
Continue, CR Doc. 45, the case proceeded to trial on December 14, 2015. CR Doc. 97. Despite
the above language Petitioner quotes from the Court’s order denying his fourth motion for a
continuance, I reject Petitioner’s argument upon a close analysis of Mr. Hotchkiss’ stated reasons
for seeking a trial continuance, consideration of other language in the Court’s various orders, and
a review of what Mr. Hotchkiss actually did to prepare for trial.
In seeking a fourth continuance, Mr. Hotchkiss wrote, “discovery contains many
uncharged allegations and counsel needs additional time to put together what is going to be a
long and exhaustive motion in limine pertaining to uncharged conduct in this case.” CR Doc. 43
at 3. Relevant to Petitioner’s present argument that Mr. Hotchkiss did not adequately prepare for

24

trial is whether, despite the Court’s denial of Petitioner’s motion to continue, Mr. Hotchkiss
prepared this motion in limine. The answer to this question is yes: Petitioner filed the motion in
limine on November 25, 2015. CR Doc. 61. Further, this motion caused the government to
represent in its Response that it would not seek to admit much of the evidence Petitioner was
concerned about. CR Doc. 66 at 1-2; see also CR Doc. 86 (denying Petitioner’s motion, in part,
as moot).9 Petitioner filed a reply to the government’s response on December 7, 2015, CR Doc.
81, the Court heard argument on non-mooted issues on December 10, 2015, CR Doc. 90, and the
Court issued an order on non-mooted issues on December 14, 2015, CR Doc. 89. Thus, while
Mr. Hotchkiss might have been concerned on November 16, 2015 that, without a continuance, he
would not have time to file his motion in limine, history reveals that Mr. Hotchkiss did manage
to file such a motion, that the Court held a hearing on that motion, and that the motion was
successful in causing the United States not to seek to admit much of the evidence Mr. Hotchkiss
was concerned about. That Mr. Hotchkiss actually completed one of the tasks he was concerned
about not being able to get done without a continuance undermines one of Petitioner’s primary
arguments that Mr. Hotchkiss was unable to adequately prepare for trial.
In his fourth motion to continue, Mr. Hotchkiss also represented that he needed more
time to contact Petitioner’s family. Petitioner, however, does not allege that in the approximately
one-month period Mr. Hotchkiss had between the time he filed his motion for a fourth
continuance and the time trial began that Mr. Hotchkiss was unable to contact Petitioner’s family
(assuming they were willing to speak to Mr. Hotchkiss). Moreover, one month is an objectively
sufficient period of time to accomplish the task of speaking to family members. Without having

 Access to this and related documents are restricted to the parties and the Court. Therefore, I will

9

discuss them in general rather than specific terms.

25

alleged that Mr. Hotchkiss did not attempt to contact family members or how contacting those
family members in advance of trial would have affected the trial, Petitioner cannot meet his
burden under § 2255.
As grounds for his request for a fourth trial continuance, Mr. Hotchkiss also noted that he
had other impending trials scheduled: one on December 14, 2015 and another on January 11,
2016. CR Doc. 43 at 4. As to this first trial, the Court noted in its order denying the continuance
that it resolved this conflict by continuing the conflicting trial. CR Doc. 45 at 5. And, because the
January 11, 2016 trial was scheduled to begin after Petitioner’s trial, that trial setting posed less
of a threat to Mr. Hotchkiss’ preparation of Petitioner’s case.
In its order denying the fourth motion for a trial continuance, the Court also noted the
“apparent simplicity of the factual allegations and legal issues” involved in the case. CR Doc. 45
at 5. Because of the simplicity of factual and legal issues involved in the case, the additional time
Mr. Hotchkiss needed to prepare for trial was limited. Thus, even if Mr. Hotchkiss should have
done more to prepare for Petitioner’s case as of November 16, 2015 when he filed his fourth
motion for a continuance, Petitioner presents no reason to believe that Mr. Hotchkiss was unable
to complete the remaining work necessary to adequately prepare for trial in the one-month period
between his fourth motion for a continuance and trial. See Strickland, 466 U.S. at 690 (“A
convicted defendant making a claim of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.”).
After making his primary argument, Petitioner levies 31 additional complaints about the
way Mr. Hotchkiss handled his case. But Petitioner provides little detail as to any of the 31
allegations of ineffective conduct. For example, Petitioner alleges that his “attorney made a false
strategy move saying that petitioner’s dad had a pony tail.” CV Doc. 1 at 16. Without more

26

information, it is unclear exactly what deficient performance Petitioner is referencing. Although
Petitioner’s pro se pleadings are liberally construed, the court will not “assume the role of
advocate” and “fashion arguments for him.” United States v. Hall, 746 F. App’x 773, 776 (10th
Cir. 2018) (quotations omitted).
For all the 31 allegations, Petitioner merely states that his counsel was ineffective. He
does not attempt to establish that Mr. Hotchkiss’ action, or lack of action, prejudiced him.
Further, prejudice is not otherwise apparent. I recommend rejecting Petitioner’s remaining 31
complaints without analyzing whether Petitioner demonstrated that Mr. Hotchkiss committed
error because, even if he did, Petitioner has failed to establish that these alleged errors prejudiced
him. His conclusory allegations are not enough to satisfy his burden to establish ineffective
assistance of counsel. See Hall, 746 F. App’x at 776 (“[C]onclusory allegations alone, without
supporting factual averments, are insufficient to state a valid claim under § 2255.”).
For these reasons, I recommend denying relief on all grounds presented in Ground Eight.
9. Evidentiary Hearing
Where the record for a Section 2255 motion “conclusively and expressly belie[s]
[Petitioner’s] claims,” no evidentiary hearing is required. Machibroda v. United States, 368 U.S.
487, 495 (1962); see also United Sates v. Lopez, 100 F.3d 113, 120-21 (10th Cir. 1996); 28
U.S.C. § 2255(b). Additionally, “general conclusory allegations of ineffective assistance of
counsel impose no obligation on the district court to conduct an evidentiary hearing.” Hall, 746
F. App’x at 776. For the reasons discussed above, the record is sufficient to dispose of each of
Petitioner’s allegations of ineffective assistance of counsel and his general conclusory allegations
do not warrant a hearing. Therefore, I do not recommend that an evidentiary hearing be held.

27

10. Motion to Supplement
Fourteen months after filing his initial Motion to Vacate, and almost four months after
filing his untimely reply, Petitioner filed a motion requesting to supplement his reply. CV Doc.
15. Petitioner seeks to supplement his reply with “documented materials,” case law, statutes, and
copies of interviews that support the arguments made in his reply. Id. I recommend denying the
untimely motion to supplement. Petitioner cannot continue to file additional documents at any
time he chooses. Petitioner has had over a year since filing his Petition to move to supplement
and has already filed a 56-page reply. The Court also gave Petitioner a chance to present an
amended motion to the vacate to the Court for review, CV Doc. 10, which Petitioner did not do,
CV Docs. 11, 13.
Additionally, in the middle of his Motion to Vacate, Petitioner includes a Motion for
Continuance, asking for “more time to prepare his case” because he did not have access to the
court documents he would like. Because I recommend considering his untimely reply, I also
recommend denying as moot Petitioner’s request for a continuance, as he had over five months
from the time the government filed its answer to prepare his reply.
Finally, on June 12, 2020, Petitioner filed a notice listing errors and corrections to be made to
his reply. CV Doc. 14. I have reviewed the corrections and find that none impact the analysis
listed above.
11. Certificate of appealability
Finally, I consider whether Petitioner is entitled to a certificate of appealability. See 28
U.S.C. § 2253(c)(1)(B) (providing no appeal may be taken from a “final order in a proceeding
under section 2255” unless the petitioner first obtains a certificate of appealability). A certificate
of appealability may issue only if Petitioner “has made a substantial showing of the denial of a

28

constitutional right.” 28 U.S.C. § 2253(c)(2). As discussed in this Proposed Finding and
Recommended Disposition, I recommend finding that Petitioner has failed to make the requisite
showing of a denial of a constitutional right. I therefore recommend not issuing a certificate of
appealability.
CONCLUSION
For the above-stated reasons, I recommend the following:
1. Consider Petitioner’s untimely reply and deny his request for continuance as moot;
2. Deny Petitioner’s Motion to Supplement (CV Doc. 15);
3. Deny relief on all eights grounds of Petitioner’s Motion to Vacate under 28 U.S.C. §
2255 (CV Doc. 1; CR Doc. 157), without the need to hold an evidentiary hearing, and
dismiss this case; and
4. Decline to issue a certificate of appealability because Petitioner has not made a
substantial slowing of the denial of a constitutional right.

____________________________________
STEVEN C. YARBROUGH
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file
written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

29