Rodroguez-Lopez v. USA

Filing 19

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations. It is accordingly ORDERED that the motion to vacate, set aside, or correct sentence is DENIED and Movant's case is DISMISSED with prejudice. A certificate of appealability is DENIED. Finally, it is ORDERED all motions by either party not previously ruled on are hereby DENIED. Signed by District Judge Richard A. Schell on 3/26/2018. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

CRISTIAN A. RODRIGUEZ-LOPEZ
#18492-078
VS.
UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:14cv740
CRIMINAL ACTION NO. 4:11cr3(12)

ORDER OF DISMISSAL
This case was referred to United States Magistrate Judge Kimberly C. Priest Johnson, who
issued a Report and Recommendation concluding that the motion to vacate, set aside, or correct
sentence should be denied and dismissed with prejudice. The Report of the Magistrate Judge, which
contains proposed findings of fact and recommendations for the disposition of the case, has been
presented for consideration. Movant filed objections, complaining that the Report failed to address
whether trial counsel was ineffective during closing arguments. Movant concedes that he failed to
properly raise the issue by listing it on his Section 2255 form, but asks the court to consider it as he
discussed it in his supporting memorandum.
In the interest of justice, the court has reviewed Movant’s ineffective assistance of counsel
claim and finds it is without merit. Movant asserts counsel was ineffective during closing
arguments by conceding his guilt without his permission. During closing arguments, Movant’s
counsel argued that Movant was not a major participant in the conspiracy, but rather, he married into
the family and made small profits from his wife’s family business by selling marijuana and issuing
depreciating-value loans. Based on the evidence introduced at trial, which included Movant’s
handwritten notes showing Movant’s involvement, counsel conceded Movant’s guilt, but urged the
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jury to consider Movant’s minor role and the relatively small quantity of marijuana attributable to
his involvement.
Counsel has wide latitude in deciding how best to represent a client, and deference to tactical
decisions in closing arguments is particularly important. Yarborough v. Gentry, 540 U.S. 1, 5-6
(2003). Counsel’s recognition of evidence against his client, as a rational trial strategy, is not
ineffective assistance, even if the client is not consulted. Id. Movant fails to overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland v. Washington, 466 U.S. 668, 689 (1984). He also fails to show there is a
reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different.

Id. at 694. After conducting a de novo review of the

objections, the court concludes the findings and conclusions of the Magistrate Judge are correct and
adopts the same as the findings and conclusions of the court.
It is accordingly ORDERED that the motion to vacate, set aside, or correct sentence is
DENIED and Movant’s case is DISMISSED with prejudice. A certificate of appealability is
DENIED. Finally, it is ORDERED all motions by either party not previously ruled on are hereby
DENIED.
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SIGNED this the 26th day of March, 2018.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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