Martinez v. USA

Filing 27

Memorandum Opinion and ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255) Signed by U. S. District Judge Lawrence L. Piersol on 3/19/12. (SLW)

FILED
MAR 192012
UNITED STATES DISTRICT COURT

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DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

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INES HERRERA MARTINEZ,
CIV. 09-4037
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CR. 02-40036-01
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Movant,
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vs.
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MEMORANDUM OPINION
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UNITED STATES OF AMERICA,
AND ORDER
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Respondent.
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Ines Herrera Martinez ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255. The government filed a response to the motion but did not address
the merits ofthe claims. Movant filed a reply brief. In a Memorandum Opinion and Order issued on
February 24, 2011, the Court denied some ofthe claims and directed the government to respond to
the merits ofthe remaining claims. For the following reasons, the remaining § 2255 claims will be
denied.

BACKGROUND
On October 10, 2002, a jury convicted Movant of possession with intent to distribute a
controlled substance, and further found him guilty of illegal reentry after deportation. Initially,
Movant was represented by the Federal Public Defender's Office. Movant then retained Michael
Hanson and Glenn Osajima, who represented him before, during and after

tria~

including at his

sentencing. Movant was sentenced to 120 months ofimprisonment and 8 years supervised release.
After Movant established his inability to continue paying for a lawyer, Michael Hanson was appointed
to represent Movant on appeal. In his direct appeal to the Eighth Circuit, Movant challenged this
Court's denial of his suppression motion, arguing that the initial traffic stop and the continued
detention by law enforcement officials were both illegal. The Eighth Circuit affirmed the Judgment
and this Court's ruling on Movant's suppression motions. See United States v. Herrera Martinez,
354 F.3d 932, 934 (8th Cir.2004) (per curiam), vacated on other grounds, 549 U.S. 1164 (2007)

(vacating Herrera Martinez's sentence on Booker} grounds). Movant's requests for rehearing and
rehearing en bane were denied by the Eighth Circuit on March I, 2004.

On May 26,2005, Movant filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant
to 28 U.S.c. § 2255. See CIV 05-4074. He alleged that his lawyer on appeal was ineffective for the
following reasons: I) for failing to file a petition for certiorari; 2) for failing to raise a violation of
the Vienna Convention/ and; 3) for failing to argue that Booker should be applied retroactively to
give him a lesser sentence. After holding an evidentiary hearing on the lawyer's failure to file a
petition for certiorari, this Court granted the § 2255 motion on July 3, 2006, finding that ineffective
assistance of counsel resulted in the Movant losing the opportunity to file a petition for a writ of
certiorari with the United States Supreme Court. 3 This Court then requested an order from the
Eighth Circuit vacating its Mandate in the Movant's criminal case in order to allow filing 0 fa petition
for a writ of certiorari with the United States Supreme Court. The Eighth Circuit recalled its
Mandate and appointed Kevin Schad to represent the Movant and file a petition for writ ofcertiorari
with the Supreme Court. A petition was filed and the Supreme Court granted certiorari. On January
16, 2007, the Supreme Court remanded the case to the Eighth Circuit "for further consideration in
light of United States v. Booker, 543 U.S. 220 (2005)." (Doc. 176.) On remand, the Eighth Circuit
held that Booker had no effect on the Movant's sentence because the sentence was governed by a
statutory mandatory minimum and not by the sentencing guidelines, the mandatory nature ofwhich

I

United States v. Booker, 543 U.S. 220 (2005).

2The Vienna Convention was adopted by the United Nations in 1964 and ratified by the
United States in 1969. See Breard v. Greene, 523 U.S. 371, 376 (1998); Gomez v. United States,
100 F.Supp.2d 1038, 1047 (D. S.D. 2000). It requires authorities to inform a foreign national ofhis
rights to notifY and communicate with his country's consulate fol1owing his arrest. See id.
3The Eighth Circuit has since clarified that there is no constitutional right to effective
assistance of counsel in seeking certiorari review in the Supreme Court. See Steele v. United States,
518 F.3d 986, 988 (8th Cir. 2008). Thus, a § 2255 claim for ineffective assistance for failing to file
a certiorari petition cannot succeed. See id.
2

was found unconstitutional in Booker. On January 18, 2008, the Eighth Circuit issued its Mandate
again affirming this Court's Judgment in Movant's criminal case.

The current § 2255 Motion was filed on March 30, 2009, claiming lawyer Kevin Schad
provided ineffective assistance of counsel in the 2007 remand to the Eighth Circuit by: 1) failing to
file a petition for certiorari after the Eighth Circuit again affinned his sentence; 2) failing to raise a
violation ofthe Vienna Convention, and 3) failing to challenge the lawfulness of his detention and
arrest. The § 2255 motion also raised various claims of ineffective assistance of trial counsel.
Movant claimed his lawyer at trial should have challenged his arrest and the arresting officer's
testimony. Movant alleged that the interpreter involved in pre-trial proceedings was threatening and
tried to pressure Movant into pleading guilty, and that his trial lawyer should have challenged the
effectiveness of the interpreter.

In its first response to the pending § 2255 motion, the government did not address the merits
ofthe claims but rather argued that the motion should be dismissed for failure to request permission
to file a second or successive motion from the Eighth Circuit pursuant to 28 U.S.C. § 2255(h). The
Court agreed with the government that the ineffective assistance oftrial counsel claims that Movant
could have raised in his first § 2255 motion in 2005, when he had already been through the trial,
amounted to a second or successive motion. The Court held that, because Movant did not raise the
claims in his first § 2255, reviewing those claims on the merits now would frustrate the Antiterrorism
and Effective Death Penalty Act of 1996's ("AEDPA") concern with delay and with the finality of
Movant's 2002 conviction.

See, e.g., Crouch v. Norris, 251 F.3d 720, 724 (8th Cir. 2001)

(AEDPA's habeas restrictions reflect Congress' concern with delay and finality). Movant's claims
ofineffective assistance 0 ftrial counsel were dismissed, and Movant was advised that should he seek
to proceed to challenge his 2002 conviction and sentence on those grounds, he must seek
authorization from the Eighth Circuit and must obtain such authorization before the claims may be
3

presented to this Court. The claim asserting ineffective assistance of appellate counsel for failing to
file a petition for certiorari after the Eighth Circuit's 2008 decision on remand was denied based on
the ruling in Steele, 518 F.3d at 988 (there is no constitutional right to effective assistance ofcounsel
in seeking certiorari review in the Supreme Court).

The government was directed to respond to the merits of Movant's claims of ineffective
assistance of his appellate counsel for (1) failing to challenge the lawfulness of his arrest and
detention, and (2) failing to allege a violation ofthe Vienna Convention. 4

The government first argues that rclief is not available under § 2255 for the remaining claims
because Movant is no longer in custody.5 The government quotes the languageof28 U.S.C. § 2255
which states that "[a] prisoner in custody under sentence of a court... may move the court which
imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The
Supreme Court has held, however, that where a petitioner makes a claim for relief under 28 U.S.C.

§ 2255 before being released from confinement, the claim does not automatically become moot upon

his release. Spencer v. Kemna, 523 U.S. 1,7 (1998); see also Nguyen v. United States, 114 F.3d
699, 703 (8th Cir. 1997) (case not moot even though movant was released from prison because the
federal conviction could have collateral consequences in the future and movant was still in custody
when he filed the § 2255). The Supreme Court stated that "[a]n incarcerated convict's ... challenge
to the validity of his conviction always satisfies the case-or-controversy requirement, because the
incarceration ... constitutes a concrete injury, caused by the conviction and redress able by invalidation

4In his initial § 2255 motion, Movant alleged that appellate counsel in his direct appeal was
ineffective for failing to raise a violation ofthe Vienna Convention, but the merits ofthat claim were
not addressed due to Movant's success on his claim allowing him to file a petition for a writ of
certiorari. That claim will be addressed in this Memorandum Opinion.
5Movant was released from custody on December 23,2010, and he was deported to Mexico
the same day.

4

of the conviction." Spencer, 523 U.S. at 7. The Court went on to say that after the convict's
sentence expires, "some concrete and continuing injury other than the now-ended incarceration [
]-some 'collateral consequence' ofthe conviction-must exist ifthe suit is to be maintained." Id.
Because Movant attacks the validity of his conviction, as opposed to his sentence, the existence of
collateral consequences is presumed. See id. Movant's criminal convictions for intent to distribute
a controlled substance and illegal reentry after deportation undoubtedly entail adverse collateral legal
consequences, and the merits ofhis § 2255 motion will be addressed. See id. at 12. ("In the context
ofcriminal conviction, the presumption 0 f significant co llateral consequences is likely to comport with
reality.").

The government also asserts that the Eighth Circuit did not have the ability to consider the
Fourth Amendment and Vienna Convention issues under the limited Supreme Court mandate "for
further consideration in light of United States v. Booker. ..." The Court will assume without
deciding that Movant's counsel could have raised these issues in the 2007 remand to the Eighth
Circuit.
DISCUSSION

To establish a claim of ineffective assistance of appellate counsel, Movant must show that
(1) counsel's performance was so deficient that it fell below an objective standard ofreasonableness,

and (2) that prejudice resulted from that deficiency. Strickland v. Washington, 466 U. S. 668, 687-88
(1984). The deficient performance standard is high. Because ofthe "distorting effects ofhindsight,"
a court's highly deferential scrutiny of counsel's performance "indulge[ s] a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
"Experienced advocates since time beyond memory have emphasized the importance of winnowing
out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few
key issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Absent contrary evidence, "we assume
that appellate counsel's failure to raise a claim was an exercise of sound appellate strategy." Roe v.

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Delo, 160 F.3d 416, 418 (8th Cir.l998) (quotation omitted). The prejudice standard is equally
rigorous. Movant must show that "the result of the proceeding would have been different" had he
raised a violation ofthe Vienna Convention and had the lawfulness of his arrest and detention been
challenged again following remand to the Eighth Circuit in 2007. See, e.g., Becht v. United States,
403 F.3d 541, 546, 549 (8th Cir.2005). "It is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding." Pfau v. Ault, 409 F.3d 933, 939
(8th Cir.2005) (quoting Strickland, 466 U.S. at 693). There must be a substantial likelihood of a
different result. Harrington v. Richter, - - - U.S. - - -, 131 S.Ct. 770, 792 (2011).

A. Arrest and Detention
Movant's first claim ofineffective assistance ofappellate counsel is based on counsel's failure
on remand to raise a claim that Movant's arrest and detention violated his Fourth Amendment rights.
This issue, however, was raised and rejected in Movant's direct appeal. See Herrera Martinez, 354
F.3d at 934. Movant does not explain how he could have succeeded on the merits of this claim on
remand. As a result, he cannot overcome the presumption that appellate counsel acted properly in
focusing on the Booker issue which was the reason for the Supreme Court's remand of the case to
the Eighth Circuit. See Smith v. Robbins, 528 U.S. 259,288 (2000) ("Generally, only when ignored
issues are clearly stronger than those presented, will the presumption ofeffective assistance 0 f counsel
be overcome.") (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.l986». Furthermore, Movant
is unable to establish prejudice. The Eighth Circuit had already rejected the Fourth Amendment
challenge on direct appeal and it is unlikely the Court would have overturned his conviction based
on the same argument had it been raised again on remand. See Ramsey v. Bowersox, 149 F.3d 749,
760 (8th Cir. 1998)("One panel ofthis court is bound by the decisions ofother panels....")(citing
United States v. Rodamaker, 56 F.3d 898, 903 (8th Cir. 1995».

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B. Violation of the Vienna Convention
Movant's second claim is that appellate counsel in both the direct appeal and appellate counsel
on remand were ineffective for failing to raise a violation ofthe Vienna Convention. Movant asserts
that "the fruits ofms seizure should have been suppressed" as a result of the Vienna Convention
violation. (Doc. 2 at p. 20.).

The Eighth Circuit has described Article 36 ofthe Vienna Convention on Consular Relations
as requiring authorities "to inform detained or arrested foreign nationals that they may have their
consulates notified of their status." United States v. Santos, 235 F.3d 1105, 1107 (Sth Cir. 2000).
[I]f[the detainee] so requests, the competent authorities ofthe receiving State shall,
without delay, inform the consular post of the sending State if, within its consular
district, a national of that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or detention shall also be
forwarded by the said authorities without delay. The said authorities shall inform the
person concerned without delay of his rights under this sub-paragraph ...
Id. (quoting Vienna Convention on Consular Relations, Art. 36(b), April 24, 1963,21 U.S.T. 77,596

U.N.T.S. 261). It is not clear exactly how or when Movant contends the alleged Vienna Convention
violation occurred. 6 The record demonstrates that Movant was informed of his right to contact the
Mexican consulate at his initial appearance before Magistrate Judge Simko on April 10, 2002, two
days after his arrest on AprilS. The Clerk's minutes from the hearing reflect that an interpreter was
present, Movant was made aware of the right to have the Mexican consulate notified ofhis status,
and he chose to defer a decision on it. (CR 02-40036, Doc. 2.)

The transcript of the initial

appearance on April 10, 2002, indicates that Movant said he could "perfectly" understand the
interpreter. (CR 02-40036, Doc. 30 at p. S.) The prosecutor represented to Magistrate Simko that
prior to the hearing he provided consular notice forms to both defendants and that the interpreter read

6IfMovant is asserting that he never was informed of his right to consular notification, the
record reveals otherwise.
7

them to the defendants. (Id. at p.29-30.) Movant's lawyer responded that he had discussed it with
Movant, that Movant was aware ofhis right to notifY the consulate, and that he was "going to hold
off on that for a while." (ld. at p. 30.) Magistrate Simko followed up by advising Movant in open
court that he was entitled to have the consulate for his government notified ifhe so desired and urged
him to tell his lawyer whether or not he wanted the consulate notified. (Id.)

Based on the record, the Court believes Movant is claiming the arresting officer should have
notified Movant of his right to have Mexican consulate notified of his arrest, but failed to do so.
Movant does not explain, however, how the Mexican consulate could have, or whether the consulate
would have, assisted him had they immediately been notified ofhis detention or arrest. 7 As a result,
he cannot overcome the presumption that appellate counsel acted properly by not raising the issue.
Movant's lawyers, therefore, were not ineffective for failing to raise a violation of the Vienna
Convention before the Eighth Circuit in the 2005 direct appeal or in the 2007 remand.

Movant also fails to meet the prejudice prong ofthe Strickland test. IfArticle 36 was violated
(and if appellate counsel should have raised the issue before the Eighth Circuit), that would not
warrant exclusion of Movant's statements or the cocaine found in the vehicle. At the time of
Movant's direct appeal in 2003, the Eighth Circuit had, on at least two occasions, considered the
issue whether the Vienna Convention creates judicially enforceable individual rights. In both cases,
which were direct appeals, the Eighth Circuit assumed without deciding the existence ofan individual
right, but denied the defendants' requests for suppression of evidence. See Ortiz, 315 F. 3d at 886­
887 (assuming without deciding that the Vienna Convention creates judicially enforceable rights, but

7In United States v. Ortiz, 315 F.3d 873, 887 (8th Cir. 2002), the Eighth Circuit observed that
the Vienna Convention does not require an interrogation to cease until consular contact is made. As
the Supreme Court has observed, the Convention merely provides for consular notification of a
foreign national's arrest; it does not guarantee intervention by the consulate. Sanchez-Llamas v.
Oregon, 548 U.S. 331, 349 (2006).

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holding that suppression is not an appropriate remedy for violation ofthose rights); Santos, 235 F.3d
at 1107 (even if government's violation of Vienna Convention rendered confession involuntary,
conviction would not be overturned; admission of confession was harmless error in light of
overwhelming evidence against defendant). Before Movant's case was remanded to the Eighth
Circuit in 2007, the Supreme Court also assumed without deciding that the Vienna Convention
creates enforceable individual rights, and held that suppression of incriminating evidence via the
exclusionary rule is not an appropriate remedy for its vio lation. Sanchez-Llamas v. Oregon, 548 U.S.
331 (2006). 8

The Sanchez-Llamas Court stated that, "[E]ven assuming the [Vienna] Convention creates
judicially enforceable rights, [the] suppression [of evidence] is not an appropriate remedy for a
violation ofArticle 36 ...." Id. at 337. The Court noted that "[t]he exclusionary rule as we know
it is an entirely American legal creation" and is not accepted elsewhere, so "[i]t is implausible that
other signatories to the Convention thought it to require a remedy that nearly all refuse to recognize
as a matter ofdomestic law." Id. at 343-44. "Under our domestic law, the exclusionary rule is not
a remedy we apply lightly," id. at 347, and it does not apply to violations ofthe Vienna Convention,
because, among other things, "[t ]he violation ofthe right to consular notification ... is at best remotely
connected to the gathering of evidence," id. at 349; "Article 36 does not guarantee defendants any
assistance at all [from their consulates]," id.; "[t]he failure to inform a defendant ofhis Article 36
rights is unlikely, with any frequency, to produce unreliable confessions," id.; and "unlike the
search-and-seizure context-where the need to obtain valuable evidence may tempt authorities to
transgress Fourth Amendment limitations-police win little, ifany, practical advantage from violating

8The Supreme Court has never decided whether the Vienna Convention creates enforceable
individual rights. The Eighth Circuit has noted that "the federal courts are not in agreement as to
whether Article 36 of the Convention creates a right enforceable by an individual who has been
arrested." Ortiz, 315 F.3d 873, 886 (citing Santos, 235 F.3d at 1107-08)).
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Article 36," id. Consequently, "[s]uppression would be a vastly disproportionate remedy for an
Article 36 violation." Id.

Sanchez-Llamas forecloses any argument that Movant suffered prejudice by appellate
counsels' failure to raise a Vienna Convention violation. The law is clear: suppression is not a remedy
for a violation ofArticle 36 ofthe Vienna Convention. Movant makes no other showing ofpossible
prejudice resulting from his lawyers' failure to assert a Vienna Convention violation, therefore
Movant has failed to show prejudice under Strickland. See, e.g., Sandoval v. United States, 574 F.3d
847 (7th Cir. 2009) (affinning denial ofevidentiary hearing and § 2255 relief where petitioner failed
to show whether and how Mexican consulate would have assisted in his defense).

Evidentiary Hearing
The "motion and the files and the records of the case conclusively show that the prisoner is
entitled to no relief." For this reason, an evidentiary hearing is unnecessary. See 28 U.S.c.

§ 2255(b).

Certificate of Appealability
When the district court has denied a motion under 28 U.S.C. § 2255, the petitioner may not
appeal without a certificate ofappealability. Such a certificate may issue "only ifthe applicant has
made a substantial showing ofthe denial of a constitutional right." See 28 U.S.c. § 2253(c)(2). A
"substantial showing" under this section is a showing that "reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S.
473,484 (2000). In other words, a "substantial showing" is made if"a court could resolve the issues
differently, or the issues deserve further proceedings." Cox v. Norris, 133 F.3d 565, 569 (8th Crr.
1997). Movant has not made a substantial showing ofa denial ofa constitutional right. Accordingly,

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IT IS ORDERED:
1.

That the Motion to Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C. § 2255, Doc. 1, is denied it its entirety; and

2.

That a Certificate ofAppealability shall not issue on any ofthe issues
raised in the § 2255 motion.

Dated this 19th day 0 f March, 2012.

BY THE COURT:

~lhUfJ'-U.l~!:O.L
wrence L. Piersol
United States District Judge

ATTEST:

JOSEPH HAAS, ~

By

5u.Deputy
(flXYIDl

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