Cantu-Ramirez v. USA
Filing
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REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Oscar Cantu-Ramirez. It is accordingly recommended that Movant's motion for relief under 28 U.S.C. § 2255 be denied and the case dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 2/22/2016. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
OSCAR CANTU-RAMIREZ, #15325-078
VS.
UNITED STATES OF AMERICA
§
§
§
§
§
CIVIL ACTION NO. 4:13CV11
CRIMINAL ACTION NO. 4:08CR107 (1)
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant Oscar Cantu-Ramirez filed a pro se motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255, alleging constitutional violations concerning his Eastern District of
Texas, Sherman Division conviction. The motion was referred to the undersigned United States
Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition
of the case pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for
the Assignment of Duties to the United States Magistrate Judge.
I. FACTUAL BACKGROUND
The United States Court of Appeals for the Fifth Circuit provided a broad factual
background:
This case arises from the successful investigation and prosecution of an international
criminal organization that trafficked in significant amounts of marijuana and cocaine.
The conspirators brought drugs from Mexico to the United States in a conspiracy so
large that law enforcement investigated it on two fronts simultaneously. The first
front was based in Texas, the second in Mississippi. The conspirators regularly
shipped thousands of pounds of marijuana and hundreds of kilograms of cocaine at
a time across the Mexican border and to various destinations in the United States
ranging from Laredo to New York.
Nazario Cavazos ran the drug trafficking organization, and Cantu-Ramirez and
Grimaldo were major figures in his organization. Cantu-Ramirez’s co-conspirators
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testified that he was one of Cavazos’s most trusted confidantes. Cantu-Ramirez
negotiated the sale of marijuana and cocaine with an undercover agent; was
responsible for the delivery of four marijuana samples to the agent; discussed
customers who did not pay for drugs with co-conspirators; took orders for cocaine
and marijuana from customers and co-conspirators; transported and collected
payment for drugs on behalf of Cavazos; and was present when a vast quantity of
marijuana was delivered to a business called Landmark Tile that testimony showed
acted as a regular stopping point on the drugs’ journey from Mexico to their ultimate
destinations in the United States.
The more specific factual background as it concerns Movant’s trial is taken from the
Government’s Response, which, in turn, was gathered from the presentence report (citations
omitted):
Investigation in this case began when law enforcement officers received a tip relating
to Cantu-Ramirez’s marijuana trafficking activities. During the investigation CantuRamirez was identified as lieutenant in a well-organized and influential drug
organization.
During trial, numerous government witnesses testified that Cantu-Ramirez was
intimately involved with the shipment and sale of marijuana, cocaine, and MDMA.
Wiretaps revealing the sale of 251 pounds of marijuana were introduced at trial. The
wiretaps also revealed that Cantu-Ramirez used his minor son to negotiate drug
deals.
According to the testimony of numerous government witnesses, Cantu-Ramirez was
responsible for a total of 14,101.33 pounds or 6,396.36 kilograms of marijuana,
3,000 tablets of MDMA, and 406.12 kilograms of cocaine. For example, Fabian Lara
testified that he delivered 6,500 pounds of marijuana to Landmark Tile Supply
Company and observed Cantu-Ramirez supervising the unloading of the marijuana.
Landmark Tile Supply was located directly across the street from a Dallas ISD
elementary school. In addition, Victor Rodriguez, an undercover law enforcement
officer, witnessed Cantu-Ramirez negotiate the sale of cocaine and a total of 4,865
pounds of marijuana. Finally, Victor Thomas testified that Cantu-Ramirez picked
up $879,000 from Thomas as payment for previous sales of cocaine and marijuana.
II. PROCEDURAL BACKGROUND
Movant was charged with conspiracy to manufacture, distribute, or possess with intent to
manufacture or distribute a controlled substance, in violation of 18 U.S.C. § 846. On August 26,
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2009, Movant proceeded to a jury trial. The court gave the jury several instructions regarding the
testimony of witnesses and the finding of guilty on a conspiracy charge. The jury found Movant
guilty, holding him responsible for five kilograms of cocaine, 1,000 kilograms of marijuana, and
some amount of 3,4 methylenedioxymethamphetamine. On March 19, 2010, the court sentenced
Movant to 360 months’ imprisonment. On February 6, 2012, the United States Court of Appeal for
the Fifth Circuit affirmed Movant’s conviction and sentence. United States v. Cantu-Ramirez, 669
F.3d 619, 622 (5th Cir. 2012).
Movant filed the present motion pursuant to § 2255, asserting that he is entitled to relief
based on ineffective assistance of counsel and trial court error. The Government filed a Response,
asserting that Movant’s claims are without merit. Movant did not file a Reply.
III. § 2255 PROCEEDINGS
As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
§ 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction.
The range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be
drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the
other.” United States v. Pierce, 959 F.2d 1297, 1300-01 (5th Cir. 1992). A collateral attack is
limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991).
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IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Movant claims, in several grounds for relief, that his trial counsel was ineffective.
Legal Standard
A movant who seeks to overturn his conviction on the grounds of ineffective assistance of
counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56
F.3d 662, 667 (5th Cir. 1995). In order to succeed on a claim of ineffective assistance of counsel,
a movant must show that “counsel’s representation fell below an objective standard of
reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel
rendered assistance. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L.
Ed.2d 864 (1984). The standard requires the reviewing court to give great deference to counsel’s
performance, strongly presuming counsel exercised reasonable professional judgment. 466 U.S. at
690, 104 S. Ct. at 2066. The right to counsel does not require errorless counsel; instead, a criminal
defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir.
1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d
279 (5th Cir. 1984).
Secondly, the movant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068. Movant must “affirmatively prove,” not just allege, prejudice. Id., 466
U.S. at 693, 104 S. Ct. at 2067. If he fails to prove the prejudice component, the court need not
address the question of counsel's performance. Id., 466 U.S. at 697, 104 S. Ct. 2052.
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Failure to Object
In several issues, Movant asserts that trial counsel was ineffective for failing to object. A
trial counsel’s failure to object does not constitute deficient representation unless a sound basis exists
for objection. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (a futile or meritless
objection cannot be grounds for a finding of deficient performance). Even with such a basis,
however, an attorney may render effective assistance despite a failure to object when the failure is
a matter of trial strategy. See Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) (noting that a
failure to object may be a matter of trial strategy as to which courts will not second guess counsel).
To succeed on such a claim, a petitioner must show that the trial court would have sustained the
objection and that it would have actually changed the result of his trial. Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. Failure to make frivolous objections does not cause counsel’s performance to
fall below an objective level of reasonableness. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir.
1998). On habeas review, federal courts do not second-guess an attorney’s decision through the
distorting lens of hindsight, but rather, the courts presume that counsel’s conduct falls within the
wide range of reasonable professional assistance and, under the circumstances, that the challenged
action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Failure to Object to Testimony Concerning Wiretap
Movant claims that counsel’s failure to object to “irrelevant” testimony regarding the
procedures required to obtain a Title III wiretap caused prejudice to his case. He claims that the
evidence regarding the procedure used to obtain wiretaps was not needed for the jury to evaluate the
conversations recorded by the wiretap or his guilt or innocence. Specifically, Movant complains that
the testimony of Agents Mark Styron and John Gottlob was overly prejudicial. He argues the
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following statements were overly prejudicial:
Agent Mark Styron: It’s actually pretty rigorous. You have to go through all those
things that we talked about before and put that information together. You work with
a prosecutor, an Assistant U.S. Attorney, and put together an affidavit. They’re
usually fairly lengthy. They can be 50, 60, 70 pages in length.
Agent John Gottlob (in response to whether wiretaps can be instituted for as long as
one year): Wiretaps are expensive. I don’t see that happening.
Questioning between the Government and Agent John Gottlob (procedure for
procuring a wiretap):
Q:
And, in fact, is there a finding by the United States District Judge in this
order under “A” here.
A:
Yes, Ma’am, there is.
Q:
And is that finding that there’s probable cause to believe that Oscar Ramirez
. . . and other persons yet unknown are committing, will commit, violations
of Title 21, United States Code, Section 841, which is possession with intent
to distribute and distribution of controlled substances, namely cocaine, and
Title 21 United States Code 843, use of a communications facility to conduct
a drug trafficking offense?
And then, focusing on page 2 again, the Judge made a probable cause finding
that Title 21 United States Code, conspiracy to distribute and possess with the
intent to distribute controlled substances, namely cocaine, and then the other
offenses that were being committed, there was a probable cause finding,
conspiracy to import a controlled substance, namely cocaine, interstate and
foreign transportation in aid of racketeering activity, money laundering, and
bulk cash smuggling. Did the United States District Judge make a finding or
probable cause to believe that these events were occurring?
A:
Yes, Ma’am.
In support of his claim, Movant relies on a case from the Seventh Circuit, United States v.
Cunningham, 462 F.3d 708 (7th Cir. 2006). There, the Seventh Circuit held that the extensive
opinions of senior government officials, who believed there was probable cause for a wiretap,
amounted to improper vouching regarding the strength of the evidence. Id. at 712. However,
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subsequent to that decision, the Seventh Circuit held that any error in admitting the testimony of
government agents about the procedures used to obtain a wiretap did not affect the substantial rights
of the defendant because the inference that the defendant was engaged in illegal activity before the
wiretap was harmless given the overwhelming evidence of the defendant’s guilt. United States v.
Bustemante, 493 F.3d 879, 888 (7th Cir. 2007). Moreover, the Fifth Circuit has held that the
Government meets its burden of authenticating tapes and transcripts of tapes used at trial where the
government establishes how a wiretap is initiated, how the equipment was operated, the operator’s
competency, the recording equipment’s fidelity, the accuracy of composite tapes, and the separate
identification of each speaker. United States v. Brown, 693 F.2d 345, 350 (5th Cir. 1982).
First, Movant relies on an opinion from the Seventh Circuit. Even if Movant had directed
the court to a similar Fifth Circuit case, the decision in Brown shows that the Government is required
to show how the process for obtaining a wiretap was initiated. The Government met its burden
through the testimony about which Movant complains. Id. Assuming arguendo, however, that
counsel should have objected to the comments concerning probable cause, the record shows
overwhelming evidence of Movant’s guilt outside of that testimony. Movant fails to show that, had
counsel objected and had the trial court sustained the objection, it would have actually changed the
result of his trial given the substantial amount of other evidence of guilt. Strickland, 466 U.S. at 694,
104 S. Ct. at 2068.
Failure to Object to Dual Role Testimony
Movant next claims that the purported dual roles of Styron, Rodriguez, and Gottlob as both
fact and expert witnesses confused the jury, and the court’s instructions to the jury failed to cure the
error. According to Movant, he was not given the proper protections to which he is entitled.
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In support of his claim, Movant cites again to a Seventh Circuit case, United States v.
Farmer, 543 F.3d 363 (7th Cir. 2008). There, the Seventh Circuit found that (1) an appropriate
cautionary instruction by the court, (2) the examination of witnesses to establish when the witness
is testifying as an expert or fact witness, and (3) the cross-examination by defense alleviated any
prejudice or confusion when law enforcement officers testified as both a fact and expert witness.
Id. at 370-71. In Farmer, the district court instructed the jury that it could judge the testimony of
expert witnesses in the same way as lay witnesses, and give the testimony whatever weight it
believed was proper. Id. at 371.
In the instant case, a review of the record shows that the court gave an instruction that tracked
the Fifth Circuit Pattern Jury Instruction 1.17 and also covered the points set out in Farmer.
Movant’s counsel cross-examined Styron. Both parties and the court conducted an extensive voir
dire of Rodriguez, and Movant objected to Rodriguez’s testimony based on hearsay and requested
a limiting instruction. Movant’s counsel extensively cross-examined Gottlob. Additionally, the
Government laid a foundation for all three witnesses to be considered experts.
The record shows that Movant was afforded all protections to which he was entitled,
including those enunciated in the Seventh Circuit case upon which Movant relies – Farmer. Movant
fails to point to any evidence from the record, or otherwise, to show he was prejudiced by the dual
role testimony of these witnesses. Failure to make frivolous objections does not cause counsel’s
performance to fall below an objective level of reasonableness. Green, 160 F.3d at 1037. Trial
counsel’s failure to object does not constitute deficient representation unless a sound basis exists for
objection. Emery, 139 F.3d at 198. Movant fails to show that the trial court would have sustained
the objection and that it would have actually changed the result of his trial. Strickland, 466 U.S. at
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694, 104 S. Ct. at 2068.
Failure to Object to Prosecutor’s Alleged Improper Vouching
Movant also complains that counsel was ineffective for failing to object to the Government’s
implication that cooperating witnesses – Lonnie Johnson, Walter Velasquez, Fabian Lara, Federico
Garcia, and Jorge Gaytan – must be telling the truth when the Government questioned them about
their plea agreements and if they were testifying in front of the same judge that would eventually
sentence them. Specifically, Movant asserts that this line of questioning resulted in an improper
implication that the witnesses must be telling the truth since the judge in this case will be the same
judge sentencing them eventually.
Where improper prosecutorial argument is asserted as a basis for habeas relief, “it is not
enough that the prosecutor’s remarks were undesirable or even universally condemned.” Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2462, 91 L. Ed.2d 144 (1986). Rather, the relevant
question is whether the prosecutor’s comments “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Id. The appropriate standard of review on habeas
corpus “is the narrow one of due process, and not the broad exercise of supervisory power.” Id. To
constitute a denial of due process, the acts complained of must be of such character as to necessarily
prevent a fair trial. Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir. 1995). Moreover, the burden is
on the habeas petitioner to show a reasonable probability that, but for the remarks, the result would
have been different.1 Id.
When evaluating whether a prosecutor’s remark affected the substantial rights of a defendant,
1
Counsel’s failure to object to an argument at trial is an indication that it was not perceived
as having a substantial adverse effect. Id.
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three factors are considered: (1) the magnitude of the prejudicial remarks; (2) the efficacy of any
cautionary instruction by the judge; and (3) the strength of the evidence supporting the convictions.
United States v. Williams, 343 F.3d 423, 437-38 (5th Cir. 2003).
The comments that Movant points out were part of the Government’s foundation to admit
the plea agreements of the witnesses into evidence. The question elicited facts but did not bolster
the witnesses’ testimony. Moreover, the defense cross-examined the witnesses and the court gave
an instruction to the jury concerning cooperating witnesses.
Movant fails to show that the remarks were overly prejudicial, that the instruction by the
judge was not effective, or that the strength of the evidence in support of his conviction was weak.
Williams, 343 F.3d at 437-38. Trial counsel’s failure to object does not constitute deficient
representation unless a sound basis exists for objection. Emery, 139 F.3d at 198. He fails to show
that the trial court would have sustained the objection and that it would have actually changed the
result of his trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Movant also fails to show that the
alleged error prevented a fair trial. Nichols, 69 F.3d at 1278.
Failure to Object to Prosecutor’s Implication that Greninger was Truthful
Movant also claims counsel was ineffective for failing to object to the prosecutor’s
implication in closing arguments that Agent Sean Greninger must be telling the truth because “he
has nothing to do with the case,” and he “doesn’t look like someone who would do that.”
A prosecutor is confined in closing argument to discussing properly admitted evidence and
any reasonable inferences or conclusions that can be drawn from that evidence. United States v.
Mendoza, 522 F.3d 482, 490 (5th Cir. 2008). “The sole purpose of closing argument is to assist the
jury in analyzing, evaluating and applying the evidence.” United States v. Dorr, 636 F.2d 117, 120
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(5th Cir. Unit A Feb. 1981). A prosecutor may argue fair inferences from the evidence that a witness
has no reason to lie, but cannot express a personal opinion on the credibility of a witness. United
States v. Gracia, Jr., 522 F.3d 597, 600-01 (5th Cir. 2008). If it is determined that the prosecutor’s
remarks were in error, the question then is whether the prosecutor’s remarks cast serious doubt on
the correctness of the jury’s verdict. United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir.
2001).
Movant concedes in his § 2255 motion that the prosecutor only implied that Greninger had
no reason to lie. In the statements about which Movant complains, the prosecutor was noting that
Greninger’s involvement in the case was limited to the arrest of Lauro Grimaldo. Even if the
prosecutor’s comments were in error, Movant fails to show that the remarks cast serious doubt on
the correctness of the jury’s verdict. Id. Movant fails to show that the trial court would have
sustained the objection and that it would have actually changed the result of his trial. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
Failure to Object to Prosecutor’s Personal Opinion in Closing Argument
Movant claims counsel was ineffective because he failed to object when the prosecutor
purportedly injected a personal opinion in the closing argument. Follow are the statements about
which Movant complains:
You heard testimony from DEA Agent Mark Styron, who was the very first witness
in the case. He’s an expert in drug distribution, drug transportation.
[Movant] uses his son - as you heard in a couple of those very sad and unfortunate
calls, he’s using his son, Oscar Ramirez, Jr., to interpret.
Judge Schell will send the superseding indictment back to the jury room with you.
If you look at the superseding indictment, you’ll see the defendant Oscar Ramirez is
charged in the superseding indictment along with Kevin Smith and along with Raul
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Ramirez and [Lauro Grimaldo). He’s admitting that he conspired with Kevin Smith
to distribute marijuana. Raul Ramirez and Kevin Smith are charged in the
superseding indictment along with the (petitioner) Cowboy, and Judge Schell is
instructing you if the defendant is involved on one occasion with another person, then
they qualify as charged in the superseding indictment, then they’re guilty.
The prosecutor’s statements are referring to evidence directly from the trial, which is not
improper. The statement concerning Styron was establishing the foundation for him to testify as an
expert witness. Evidence was presented at trial showing that Movant used his minor son as an
interpreter in his drug transactions. Finally, the prosecutor’s statements concerning the indictment
were reminders to the jury of the court’s instruction on the law. These statements are not improper,
and when compared to the overwhelming evidence against Movant, they also cannot be considered
prejudicial. Failure to make frivolous objections does not cause counsel’s performance to fall below
an objective level of reasonableness. Green, 160 F.3d at 1037. Trial counsel’s failure to object does
not constitute deficient representation unless a sound basis exists for objection. Emery, 139 F.3d
at 198. Movant fails to show that the trial court would have sustained the objection and that it
would have actually changed the result of his trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
This issue is meritless.
V. TRIAL COURT ERROR
Movant claims that the trial court erred because Movant was not able to cross-examine every
out-of-court declarant involved in obtaining the wiretap order. The United States Supreme Court
has held that the harmless error analysis that should be used on federal habeas review is the test
under Kotteakos – “whether the error ‘had substantial and injurious effect or influence in determining
the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 1722, 123 L.
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Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90
L. Ed. 1557 (1946)). Under this standard, “habeas petitioners may obtain plenary review of their
constitutional claims, but they are not entitled to habeas relief based on trial error unless they can
establish that it resulted in ‘actual prejudice.’” Brecht, 507 U.S. at 637, 113 S. Ct. at 1722 (quoting
United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88 L. Ed.2d 814 (1986)). Here,
Movant must show actual prejudice. Id.
Specifically, Movant first complains that he was not able to cross-examine Special Agent
Bret Spears. In Brown, the Fifth Circuit held that the trial court’s error was harmless when it
admitted the wiretap authorization order into evidence during the Government’s testimony to
establish the validity of the wiretap. Brown, 693 F.2d at 350. It found the error harmless because
the defendant was able to cross-examine the out-of-court declarants. Id.
In this case, Agent Spears prepared an initial affidavit, but then Agent Gottlob replaced
Spears for the majority of the process by preparing subsequent affidavits for the request to obtain the
wiretap order. Movant extensively cross-examined Agent Gottlob. Movant received the protections
of the hearsay rule by cross-examining Agent Gottlob. Moreover, a district court’s admission of
expert testimony is analyzed under harmless error analysis. United States v. Mendoza-Medina, 346
F.3d 121, 127 (5th Cir. 2003). Harmless error is any error that does not affect the substantial rights
of a defendant or when a mistake does not cause prejudice to the defendant. United States v. Munoz,
150 F.3d 401, 412-13 (5th Cir. 1998). When the error affects the outcome of the proceedings,
prejudice occurs. Id. Movant fails to show that he suffered prejudice. His claim is conclusory.
Federal courts do not “consider a habeas petitioner’s bald assertions on a critical issue in his pro se
petition . . . mere conclusory allegations do not raise a constitutional issue in a habeas proceeding.”
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Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) (quoting Ross v. Estelle, 694 F.2d 1008,
1011-12 (5th Cir. 1983)). Conclusory claims are insufficient to entitle a habeas corpus petitioner to
relief. United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard, 691 F.2d 796,
799 (5th Cir. 1982).
Movant also complains about testimony from Styron, Rodriguez and Gottlob. It is wellsettled that experienced narcotics officers may testify concerning the significance of certain conduct
or methods of operation unique to drug distribution because such testimony has been found to be
helpful in assisting the jury to understand the evidence. United States v. Washington, 44 F.3d 1271,
1282-83 (5th Cir. 1995). When a witness is clearly qualified, there is no abuse of discretion when
the court does not formally qualify the witness as an expert. United States v. Griffith, 118 F.3d 318,
323 (5th Cir. 1997). Any error in the admission of opinions by government agents and confidential
informants can be considered harmless when compared to overwhelming evidence of the defendant’s
guilt. Washington, 44 F.3d at 1282-83.
The record shows that Styron was an experienced narcotics officer who testified about the
procedures used by drug traffickers. Rodriguez testified about his personal experience with Movant
while acting as an undercover officer. Gottlob testified about his personal experience concerning
the establishment of the Title III wiretaps. Movant has not shown the district court erred. Moreover,
Movant fails to show that he suffered prejudice or that the district court’s alleged error was not
harmless. Brecht, 507 U.S. at 637, 113 S. Ct. at 1722. He fails to show the alleged error “had
substantial and injurious effect or influence in determining the jury’s verdict.” Id., 507 U.S. at 63738, 113 S. Ct. at 1722.
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VI. CONCLUSION
In his numerous ineffective assistance of counsel claims, Movant fails to show that there is
a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different. Id. He also fails to show that the district court’s alleged
error was not harmless or that he suffered prejudice. Brecht, 507 U.S. at 637, 113 S. Ct. at 1722. For
these reasons, Movant’s motion should be denied.
VII. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
that the court, nonetheless, address whether Movant would be entitled to a certificate of
appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua
sponte rule on a certificate of appealability because “the district court that denies a petitioner relief
is in the best position to determine whether the petitioner has made a substantial showing of a denial
of a constitutional right on the issues before the court. Further briefing and argument on the very
issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
15
claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,
123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
Accordingly, it is respectfully recommended that the court find that Movant is not entitled to a
certificate of appealability.
VIII. RECOMMENDATION
It is accordingly recommended that Movant’s motion for relief under 28 U.S.C. § 2255 be
denied and the case dismissed with prejudice. It is further recommended that a certificate of
appealability be denied.
Within fourteen (14) days after service of the magistrate judge’s report, any party must serve
and file specific written objections to the findings and recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and specify the place
in the magistrate judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the magistrate judge
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is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to
factual findings and legal conclusions of the magistrate judge that are accepted by the district court,
.
except upon grounds of plain error, provided that the party has been served with notice that such
consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen days).
SIGNED this 22nd day of February, 2016.
.
____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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