Chavez-Cruz v. United States of America

Filing 44

ORDER granting 36 Motion to Dismiss for Failure to State a Claim; adopting 41 Report and Recommendation; overruling 43 Objection to Report and Recommendation, a certificate of appealability is denied. Signed by U.S. District Judge Karen E. Schreier on 5/25/2018. (JLS) Modified to add text on 5/25/2018 (JLS).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ESTEBAN CHAVEZ-CRUZ,

4:16-CV-04157-KES

Movant,
vs.
UNITED STATES OF AMERICA,

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING MOTION

Respondent.
INTRODUCTION
Movant, Esteban Chavez-Cruz, filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. Docket 1. The government now moves to
dismiss the petition for failure to state a claim. Docket 36. The matter was
assigned to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B) and this court’s October 16, 2014 standing order. Magistrate Judge
Duffy recommends that Chavez-Cruz’s motion be dismissed. Docket 41. ChavezCruz timely filed his objections to the report and recommendation. Docket 43. For
the following reasons, the court adopts Magistrate Judge Duffy’s report and
recommendation and dismisses Chavez-Cruz’s motion.
FACTUAL BACKGROUND
A full factual background was provided by the magistrate judge in her report
and recommendation. Docket 41. Therefore, this court will only give a simple
explanation and point to the magistrate judge’s report and recommendation for the
full background.

A jury found Chavez-Cruz guilty of conspiracy to distribute
methamphetamine. See United States v. Chavez-Cruz, CR No. 14-40021, Docket 2.
The district court sentenced him to a 262-month sentence. CR Docket 59. Michael
W. Hanson represented Chavez-Cruz during the trial and sentencing. Chavez-Cruz
appealed, and the Eighth Circuit Court of Appeals affirmed his conviction. See
United States v. Chavez-Cruz, 612 F. App’x 871 (8th Cir. 2015). James Eirinberg
represented Chavez-Cruz during the appeal to the Eighth Circuit.
On November 7, 2016, Chavez-Cruz filed a pro se motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. Docket 1. First, Chavez-Cruz
argued that his trial counsel was ineffective in failing to object to Michael
Roemeling’s testimony about “Spanish” people and failing to immediately move for
a mistrial. Second, Chavez-Cruz argued that his appellate counsel was ineffective
in failing to appeal an overruled hearsay objection. Third, Chavez Cruz argues that
trial counsel was ineffective in failing to object at his sentencing hearing when the
district court committed “procedural error” by failing to consider certain 18 U.S.C.
§ 3553(a) factors and appellate counsel was ineffective for failing to appeal the
same. Fourth, Chavez-Cruz argues that appellate counsel was constitutionally
ineffective for failing to raise on appeal the issue of whether the district court erred
in denying trial counsel’s motion for judgment of acquittal.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure.
The court reviews de novo any objections to the magistrate judge’s
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recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de novo
review, this court may then “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
DISCUSSION
Chavez-Cruz’s four claims involve his Sixth Amendment right to effective
assistance of counsel. Docket 1. In order to establish ineffective assistance of
counsel, a petitioner must meet the two-pronged standard articulated by the
United States Supreme Court in Strickland v. Washington. See 466 U.S. 668, 687
(1984). “First, the [petitioner] must show that counsel's performance was
deficient.” Id. This “performance prong” requires a petitioner to show that
counsel's representation was deficient and “fell below an objective standard of
reasonableness.” Id. at 687-88. To show deficiency, a petitioner must show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Ragland v. United States, 756
F.3d 597, 599-600 (8th Cir. 2014) (quoting Strickland, 466 U.S. at 687). This court
must assess “whether counsel’s assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688.
There is a “strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Id. at 689 (quoting Michel v. Louisiana, 350 U.S.
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91, 101 (1955)). “Thus, a court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel's challenged conduct on the facts of the particular
case, viewed as of the time of counsel's conduct.” Id. at 690. Ordinarily, the Eighth
Circuit Court of Appeals “consider[s] strategic decisions to be virtually
unchallengeable unless they are based on deficient investigation.” Worthington v.
Roper, 631 F.3d 487, 500 (8th Cir. 2011) (quoting Link v. Luebbers, 469 F.3d
1197, 1204 (8th Cir. 2006)). The court “generally entrust[s] cross-examination
techniques, like other matters of trial strategy, to the professional discretion of
counsel.” United States v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (quoting United
States v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001)).
“Second, the [petitioner] must show that the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. This “prejudice prong”
requires the petitioner to “show 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. In other words, “[i]t is not enough for
the defendant to show that the errors had some conceivable effect on the outcome
of the proceeding.” Id. at 693. Thus, “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691.
Chavez-Cruz raises four objections to Magistrate Judge Duffy’s conclusion
that Chavez-Cruz failed to establish a claim for ineffective assistance of trial

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counsel or appellate counsel. Docket 43. The court addresses individually each
objection raised.
I.

Failure to Object to Roemeling’s Testimony
Chavez-Cruz contends the report erroneously concluded that his claim

involving trial counsel’s failure to object to Roemeling’s comment is barred. Id. at 1.
The report found the issue of trial counsel’s failure preserved, not barred, because
it was not raised on appeal. Docket 41 at 19. The barred issue is whether
Roemeling’s comment, not trial counsel’s failure to object to the comment, was a
fundamental defect which inherently resulted in a complete miscarriage of justice.
This related issue is barred, because the Eighth Circuit already decided this issue
against Chavez-Cruz on appeal and he is not allowed to relitigate it here. Id.
Chavez-Cruz then contends Magistrate Judge Duffy misapplied Strickland
standard to the facts of this case. Docket 43 at 2. He argues that the court’s jury
instruction not to consider defendant’s race or national origin did not “eliminate all
prejudice” and that counsel should have objected to Roemeling’s statement. Docket
43 at 2-3. Chavez-Cruz further objects to the report’s reliance on trial counsel’s
submitted sworn statement asserting that his decision not to object was sound
trial strategy. Docket 43 at 3.
Chavez-Cruz carries the burden of overcoming the strong presumption that
trial counsel’s decision was sound trial strategy. Strickland, 466 U.S. at 688. Trial
counsel’s failure to object to Roemeling’s testimony could easily be considered
sound trial strategy not to draw further attention to the testimony. See United
States v. Allison, 59 F.3d 625, 629 (7th Cir. 1995) (“Counsel's failure to object to a
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single improper statement does not establish objective deficiency, particularly
where it may have been sound trial strategy to let the comment pass rather than
draw additional attention to it and defendant's obvious credibility problems.”). The
jury instruction allowed counsel to reduce any effect such testimony may have had
on the jury without drawing further unwanted attention to it. This is a reasonable
choice consistent with sound trial strategy and the court finds trial counsel was
not deficient in failing to object to Roemeling’s statement.
Even if Chavez-Cruz could show the failure to object rendered counsel’s
performance deficient, Chavez-Cruz cannot demonstrate prejudice. The
government’s evidence was overwhelming. Thus, Chavez-Cruz’s objection is
overruled.
II.

Failure to Appeal Overruling of Hearsay Objection
Chavez-Cruz next objects to Magistrate Judge Duffy’s recommendation that

Chavez-Cruz is not entitled to relief for appellate counsel’s failure to appeal the
overruled hearsay objection to witness Scott Blewett Jr.’s testimony. Chavez-Cruz
contends Blewett’s father was not a member of the conspiracy and his testimony
was therefore hearsay. Chavez-Cruz argues counsel should have appealed the
overruled objection.
Chavez-Cruz’s objection is contracted by the record and otherwise
unsupported. Blewett testified that he and his father were in the business of
selling meth together and one or both of them received the meth from ChavezCruz. CR Docket 67, Trial Transcript, Volume I, at 151. Chavez-Cruz, Blewett, and
Blewett’s dad were co-conspirators in the same drug conspiracy. As such, the out6

of-court statement by co-conspirators is not hearsay under the Federal Rules of
Evidence. See Fed. R. Evid. 801(d)(2)(E).
Chavez-Cruz argues that appellate counsel had a duty to raise this issue on
appeal “as the issue was one upon which success would have been had[.]” Docket
43 at 4. “The Sixth Amendment does not require that counsel raise every colorable
or non-frivolous claim on appeal.” New v. United States, 652 F.3d 949, 953 (8th
Cir. 2011) (citing Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998)). Chavez-Cruz has
offered nothing to show that this issue was stronger than the issues counsel
raised. This is not a winning issue and it would have failed on appeal. Accordingly,
he cannot overcome the presumption that appellate counsel's failure to raise a
certain claim was a sound strategy. Chavez-Cruz has failed to demonstrate that he
received ineffective assistance of counsel on appeal.
Even if Chavez-Cruz could show the failure to raise the issue on appeal
rendered counsel’s performance deficient, Chavez-Cruz cannot demonstrate
prejudice. This is not a winning issue. Thus, Chavez-Cruz’s objection is overruled.
III.

Failure to Object at Sentencing and Appeal Issue
Chavez-Cruz objects to the report’s conclusion that trial counsel was not

constitutionally ineffective when he did not object to the district court’s discussion
of the 18 U.S.C. § 3553(a) factors. Docket 43 at 5. Chavez-Cruz argues the district
court made a “procedural error” when it failed to consider his age and nonfinancial responsibilities to family as mitigating factors. Id. Finally, Chavez-Cruz
argues appellate counsel was ineffective in failing to properly raise this issue on
appeal. Id.
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Chavez-Cruz states Magistrate Judge Duffy “fail[ed] to point to any portion of
the record in which such factors were raised by counsel or considered by the
district court in fashioning a sentence.” Docket 43 at 5. Such is not the case. The
report and recommendation detailed the discussions during sentencing and these
discussions included both Chavez-Cruz’s age and family responsibilities. See
Docket 41 at 27-32. Even if not specifically mentioned by the court, the court is
not required “to make specific findings on the record about each § 3553(a) factors.”
United States v. Deegan, 605 F.3d 625, 629-30 (8th Cir. 2010) (citations omitted).
Chavez-Cruz cannot show that his attorney was constitutionally deficient in not
objecting to the district court not specifically address certain § 3553(a) factors.
Because the court did consider these factors, Chavez-Cruz cannot show that he
was prejudiced by the attorney’s failure to object.
Chavez-Cruz claims that appellate counsel was constitutionally ineffective in
failing to properly raise this issue on appeal. On direct appeal, the Eighth Circuit
did not review this issue because trial counsel did not object at sentencing to the
court’s explanation and appellate counsel did not claim a procedural error. See
United States v. Chavez-Cruz, 612 F. App’x 871, 873 (8th Cir. 2015). Chavez-Cruz
cannot show that he was prejudiced by appellate counsel’s failure to properly raise
this issue on appeal, because he cannot show that the court failed to consider
certain factors or committed a procedural error. See Strickland, 466 U.S. at 696. If
appellate counsel would have properly raised the issue, the Eighth Circuit would
have had no grounds to reverse on this issue. This ground for relief is denied.

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IV.

Failure to Appeal Denied Motion for Acquittal
Chavez-Cruz objects to the report’s conclusion that appellate counsel was

not constitutionally ineffective for not appealing the district court’s denial of trial
counsel’s motion for judgment of acquittal. Docket 43 at 6. Chavez-Cruz argues
the motion should have been granted because the facts only show “a buyer/seller
relationship between the Petitioner and various individuals involved in this
matter[.]” Id.
Chavez-Cruz fails to overcome the heavy presumption that appellate
counsel’s failure to raise a claim was strategy. See New, 652 F.3d at 953. The
report details the high standard of review the appellate court uses in reviewing
denials of motions for acquittal and the ample evidence of Chavez-Cruz’s guilt. See
Docket 41 at 32-33. Chavez-Cruz focuses his objection on the adequacy of this
evidence. See Docket 43 at 6.
Chavez-Cruz correctly argues that the relationship between buyer and seller
alone does not establish a conspiracy, citing United States v. Spencer, 592 F.3d
866 (8th Cir. 2010), United States v. Rodriguez, 414 F.3d 837, 845 (8th Cir. 2005),
and United States v. Prieskorn, 658 F.2d 631, 633 (8th Cir. 1981). Docket 43 at 6.
Chavez-Cruz argues that the facts presented in the report and recommendation
only demonstrate a buyer/seller relationship between the Petitioner and various
individuals. Id.
Here, there was ample evidence in the record to establish more than a mere
buyer/seller relationship. This conspiracy involved massive amounts of
methamphetamine and that Chavez-Cruz used Roemeling, Blewett, and Blewett’s
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dad to distribute his methamphetamine. In this regard, the Eighth Circuit in
Prieskorn stated, “The large quantity of cocaine involved here supports an inference
or presumption that appellant knew that he was ‘a part of a venture which
extend(ed) beyond his individual participation . . . . By virtue of this quantity the
vertical nature of the conspiracy was known to the suppliers and customers.’ ” 658
F.2d at 634-35 (quoting United States v. Magnano, 543 F.2d 431, 434 (2d Cir.
1976)) (citations omitted).
There simply was no ground for the district court to grant the motion for
acquittal or for appellate counsel to challenge that denial. As such, Chavez-Cruz
cannot show that appellate counsel was constitutionally ineffective by not raising
the issue on appeal or that he was prejudiced by the issue not being presented on
appeal. Thus, Chavez-Cruz’s objection is overruled.
V.

Evidentiary Hearing
Chavez-Cruz asks this court to grant him an evidentiary hearing without

explanation. Docket 43 at 6. “A district court may deny an evidentiary hearing
where (1) accepting the petitioner's allegations as true, the petitioner is not entitled
to relief, or (2) ‘the allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.’ ” Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir.
2017) (quoting United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir. 2014)). “ ‘No
hearing is required, however, where the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.’ ” Franco

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v. United States, 762 F.3d 761, 763 (8th Cir. 2014) (quoting Anjulo–Lopez v. United
States, 541 F.3d 814, 817 (8th Cir. 2008)).
Here, an evidentiary hearing is not required. Chavez-Cruz’s arguments fail as
a matter of law. Chavez-Cruz fails to overcome the presumption that trial counsel
and appellate counsel’s decisions were sound strategy. Even if trial counsel and
appellate counsel were deficient, Chavez-Cruz failed to demonstrate that the
alleged deficiencies prejudiced him. Finally, the transcript of Chavez-Cruz’s trial
and sentencing contradict Chavez-Cruz’s claims. There is no issue of fact or
credibility to be determined in an evidentiary hearing. Therefore, Chavez-Cruz’s
request for an evidentiary hearing is denied.
III.

Certificate of Appealability
Before denial of a § 2255 motion may be appealed, a petitioner must first

obtain a certificate of appealability from the district court. Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). A certificate may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(2). A “substantial showing” is one that demonstrates “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). The court finds that ChavezCruz has not made a substantial showing that the district court’s assessments of
his claims are debatable or wrong. Consequently, a certificate of appealability is
not issued.
Thus, it is ORDERED

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1. Chavez-Cruz’s objections to the report and recommendation (Docket 43)
are overruled.
2. The report and recommendation (Docket 41) is adopted in full as
supplemented herein.
3. Respondent’s motion to dismiss (Docket 36) is granted.
4. Chavez-Cruz’s motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255 (Docket 1) is dismissed without an evidentiary hearing.
5. A certificate of appealability is denied.
DATED May 25, 2018.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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