Cabalcante v. USA
Filing
16
MEMORANDUM OPINION AND ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255), filed by Jaime Gonzalo Cabalcante. ORDERED that the motion to vacate, set aside, or correct sentence is DENIED, and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are DENIED. Signed by District Judge Amos L. Mazzant, III on 3/31/2020. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JAIME GONZALO CASTIBLANCO
CABALCANTE
vs.
UNITED STATES OF AMERICA
§
§
§
§
§
§
CIVIL NO. 4:16CV964
CRIMINAL NO. 4:09CR194(9)
MEMORANDUM OPINION AND ORDER
The following are pending before the Court:
1.
Petitioner’s pro se motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 (Dkt. #1);
2.
Petitioner’s supplemental brief in support of his 28 U.S.C. § 2255 motion (Dkt. #6);
3.
Affidavit of Carlo D’Angelo (Dkt. #8);
4.
Government’s response to Petitioner’s motion to vacate, set aside or correct sentence
under 28 U.S.C. § 2255 (Dkt. #10); and
5.
Petitioner’s reply to the Government’s response to the Petitioner’s § 2255 motion
(Dkt. #12).
Having considered the Petitioner’s motion and the responsive briefing thereto, the Court finds that
the motion should be denied.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The United States Court of Appeals for the Fifth Circuit discussed the factual and procedural
history of the Petitioner’s case as follows:
In October 2009, a grand jury returned a two-count indictment charging
twenty-seven defendants with participation in a vast Colombian conspiracy to import
cocaine into the United States. Count One charged a conspiracy offense under 21
U.S.C. § 963, alleging: (1) the defendants conspired to knowingly and intentionally
import five or more kilograms of cocaine into the United States, in violation of 21
U.S.C. §§ 952 and 960; and (2) the defendants conspired to knowingly and
1
intentionally manufacture and distribute five or more kilograms of cocaine, intending
and knowing that it would be unlawfully imported into the United States, in violation
of 21 U.S.C. §§ 959 and 960. Count Two alleged that the defendants aided and
abetted each other while intentionally and knowingly manufacturing and distributing
five or more kilograms of cocaine, intending and knowing that it would be
unlawfully imported into the United States, in violation of 21 U.S.C. § 959 and 18
U.S.C. § 2.
Nineteen of the twenty-seven defendants pled guilty, two died before they
could be extradited to the United States, and two fled and remain fugitives. The four
remaining defendants—appellants here—went to trial: Jaime Gonzalo Castibl
Cabalcante (“Cabalcante”), Oscar Orlando Barrera Piñeda (“Piñeda”), Julio
Hernando Moya Buitrago (“Moya”), and Roberth William Villegas Rojas (“Rojas”).
The trial focused primarily on two drug transactions. The first transaction was
a thwarted attempt in December 2007 to move at least 1,000 kilograms of cocaine
from Colombia to Guatemala and, from there, to the United States–Mexico border
and then into the United States. This particular plan involved a plane with tail
number HP1607, and thus was often referred to by the parties as the HP1607 flight
or the HP1607 deal. Cabalcante brokered the HP1607 deal by introducing the
Colombian suppliers to the Mexican buyers, members of the Los Zetas drug cartel.
The Zetas paid about $7.9 million for this deal—an amount that would have
purchased several thousand kilograms of cocaine in 2007.
In Colombia, Carlos Eduardo Gaitan–Uribe (“Gaitan”), who was indicted in
this conspiracy but died before trial, coordinated logistics by recruiting pilots,
maintaining airplanes, securing clandestine airstrips, and contacting corrupt air
traffic controllers. Defendant Moya, an air traffic controller who worked as a
supervisor at the El Dorado International Airport in Bogota, agreed to help Gaitan
get HP1607 through Colombian airspace. Defendant Piñeda was the pilot who flew
HP1607 from Bogota to Panama for staging. Piñeda also coordinated the pilots who
then flew the plane from Panama back into Colombia to pick up the cocaine.
HP1607's return trip to Colombia on December 20, 2007, did not go as
planned. The Colombian Air Force detected the plane heading back to Colombia and
sent a plane to follow HP1607 until it landed at a clandestine air strip. Because the
Air Force failed to make contact with HP1607 before it landed, the Air Force
dispatched a combat aircraft to the landing strip. After firing warning shots with no
response, the Air Force fired at HP1607 and destroyed it. In a wiretapped call after
the thwarted HP1607 flight, Piñeda commented that they “were left without
Christmas” and could instead “get together and cry together” about the failed flight.
The Zetas held Cabalcante responsible for the failed transaction, holding him hostage
for three months.
2
Although he was not involved in the HP1607 transaction, Defendant Rojas
was involved in other cocaine transactions. Rojas was connected to the conspiracy
through a drug trafficker named German Giraldo Garcia (alias “El Tio”), who was
indicted in this case but remains a fugitive. El Tio worked with David Quinones
(“Quinones”), Gaitan's logistics partner, to build an organization to import drugs into
the United States. The main transaction concerning El Tio that the parties focused
on at trial involved a deal he made in 2008 with a cocaine supplier named Jamed
Colmenares (alias “El Turco”). Rojas was El Turco's right-hand man. The buyer for
this $1.1 million deal was a Mexican man called “Chepa.” This transaction also
failed when, on October 22, 2008, the Colombian National Police intercepted a truck
carrying about 1,000 kilograms of cocaine.
After Chepa held El Tio hostage for failing to deliver the cocaine, Chepa and
El Tio agreed that El Tio would have to make up for the lost truck load. On
November 26, 2008, El Tio had a meeting with Quinones, El Turco, and Rojas to
plan their second attempt. Five days after the meeting, Rojas said over the phone that
he had half the “luggage” at his house and was waiting for El Tio to tell him when
to transport the load to an airplane so that it could be flown to Central America.
The Colombian National Police again thwarted this plan the very next day
when the police seized 286 kilograms of cocaine found in a parked truck. Rojas
paced the street in front of the parking lot while the police searched the truck. On a
wiretapped call, Rojas told his boss, El Turco, that the cocaine had been seized again.
United States v. Rojas, 812 F.3d 382, 388–90 (5th Cir. 2016).
At the conclusion of “a three-week trial, a jury found four defendants,” one being the
Petitioner herein, “guilty of conspiring to knowingly or intentionally import five or more kilograms
of cocaine into the United States in violation of 21 U.S.C. §§ 959 and 960, and all in violation of 21
U.S.C. § 963.” Id. at 388. “The jury also found three of the four defendants” (one being the
Petitioner herein) “guilty of aiding and abetting each other while distributing five or more kilograms
of cocaine, intending and knowing that it would be unlawfully imported into the United States, in
violation of 21 U.S.C. § 959 and 18 U.S.C. § 2.” Id.1
1
The Honorable Marcia Crone presided over the trial of this case. On January 13, 2015, Judge
Crone signed an order transferring this case to the undersigned, the Honorable Amos L. Mazzant, III. The
order was entered on January 14, 2015. United States v. Cabalcante, 4:09-cr-194 (Dkt. #1272).
3
The Petitioner filed a direct appeal to the United States Court of Appeals for the Fifth Circuit.
On appeal, the Petitioner raised the following issues:
1.
The validity and extraterritoriality of 21 U.S.C. §§ 959 and 963;
2.
Venue was not proper in the Eastern District of Texas;
3.
The district court erred by failing to give two proposed jury instructions on venue;
4.
The district court erred because it denied the Petitioner’s motion to suppress wiretap
conversations that were recorded in Columbia;
5.
The district court erred because it denied the Petitioner’s motion for new trial based
on prosecutorial misconduct;
6.
The district court erred because it declined to give the Petitioner’s requested jury
instruction on specific intent;
7.
The evidence was insufficient to support the Petitioner’s conviction;
8.
The district court erred by admitting into evidence cocaine that was seized from the
boat Avante;
9.
The district court erred because it declined to instruct the jury on withdrawing from
a conspiracy;
10.
A material variance existed between the conspiracy charged and the evidence offered
at trial, thus warranting a reversal of the Petitioner’s conviction; and
11.
The district court erred by permitting the Government to refer to the American dollar
in its rebuttal argument.
The Fifth Circuit affirmed the Petitioner’s conviction and sentence on January 28, 2016. The
Supreme Court of the United States denied the Petitioner’s petition for a writ of certiorari on June
6, 2016. On December 16, 2016, the Petitioner filed this motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence, alleging the following grounds for relief:
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1.
The Petitioner received the ineffective assistance of trial counsel2 because counsel
failed to move the trial court to reconsider his motion for new trial; and
2.
The Petitioner received the ineffective assistance of appellate counsel because:
A.
Counsel failed to argue on appeal that “the district court committed structural
error when the judge answered ‘no’ to a jury’s query”;
B.
Counsel failed to argue on appeal that “the method by which the jury reached
the ultimate conclusion of guilty on Count One offends elementary principles
of logic and [the] Due Process Clause of [the] Fifth Amendment”;
C.
Counsel failed to argue on appeal “on Count Two, [that] the government
failed to prove the manufacture or distribution element and failed also in
establishing a guilty principal”; and
D.
Counsel failed to argue on appeal that “the trial Court erred in admitting the
Petitioner’s prior money laundering convictions.”3
DISCUSSION AND ANALYSIS
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, 1300-1301 (5th Cir. 1992) (citations omitted). 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). Conclusory allegations, which are unsupported
and unsupportable by anything else contained in the record, do not raise a constitutional issue in a
2
Mr. Carlo D’Angelo represented the Petitioner at trial and on appeal.
3
The Petitioner also asserts that he is actually innocent of the crimes charged. However, since the
Petitioner presented no argument in support of his actual innocence claim, the court need not address it.
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habeas proceeding. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
PROCEDURAL BAR
It is well-settled that, absent countervailing equitable considerations, a § 2255 movant cannot
relitigate issues raised and decided on direct appeal. United States v. Rocha, 109 F.3d 225, 299 (5th
Cir. 1997); Withrow v. Williams, 507 U.S. 680 (1993). “[I]ssues raised and disposed of in a previous
appeal from an original judgment of conviction are [generally] not considered in § 2255 motions.”
United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (citing United States v. Jones, 614 F.2d
80, 82 (5th Cir. 1980)). It is also well settled that a collateral challenge may not take the place of
a direct appeal. Shaid, 937 F.2d at 231. Accordingly, if the Petitioner raised, or could have raised,
constitutional or jurisdictional issues on direct appeal, he may not raise them on collateral review
unless he shows either cause for his procedural default and actual prejudice resulting from the error,
or demonstrates that the alleged constitutional violation probably resulted in the conviction of one
who is actually innocent. Id. at 232.
LAW APPLICABLE TO THE PETITIONER’S CLAIMS
The Petitioner couches all of his claims in terms of receiving the ineffective assistance of
counsel. A convicted defendant’s claim that counsel’s assistance was so defective as to require
reversal of a conviction requires the defendant to show the performance was deficient and the
deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland
v. Washington, 466 U.S. 668, 687 (1984). “Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700. 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.
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1995). The standard requires the reviewing court to give great deference to counsel’s performance,
strongly presuming counsel exercised reasonably professional judgment. Strickland, 466 U.S. at 690.
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).
A 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. Movant must “affirmatively prove,” not just allege, prejudice. Id. at 693. If he fails to prove
the prejudice component, a court need not address the question of counsel's performance. Id. at 697.
1.
MOTION FOR RECONSIDERATION
In his first argument, the Petitioner contends that his trial counsel was ineffective for failing
to move the district court to reconsider its denial of his motion for new trial. Although the Petitioner
raised more than one issue in his motion for new trial, the Petitioner, at this juncture, focuses his
attention on his counsel’s alleged failure to move the district court to reconsider its denial of his
motion for new trial regarding the court’s response to a jury note during deliberations. The district
court thoroughly addressed the issue of the jury note in its order denying the Petitioner’s motion for
new trial. See United States v. Cabalcante, 4:09-cr-194 (Dkt. #978). The district court analyzed the
issue as follows:
1. Response to Jury Question
“Supplemental instructions must be ‘reasonably responsive’ and ‘allow[] the
jury to understand the issue presented to it.’” United States v. Hale, 685 F.3d 522,
544 (5th Cir.), cert. denied, 133 S. Ct. 559 (2012) (quoting United States v. Cantu,
185 F.3d 298, 305 (5th Cir. 1999)). “When a deliberating jury expresses confusion
and difficulty over an issue submitted to it, the trial court’s task is to clear that
confusion away with ‘concrete accuracy.’” United States v. Stevens, 38 F.3d 167,
7
169-70 (5th Cir. 1994) (quoting United States v. Carter, 491 F.2d 625, 634 (5th Cir.
1974)). “If, in response to a jury question, the trial court directs the jury’s attention
to the original instructions, the response will be deemed sufficient if the original
charge is an accurate statement of the law.” United States v. Marshall, 283 F. App’x
268, 279 (5th Cir.), cert. denied, 555 U.S. 1005 (2008) (citing United States v.
Arnold, 416 F.3d 349, 359 n.13 (5th Cir.), cert. denied, 546 U.S. 970 (2005)).
Furthermore, “[t]here is nothing wrong in responding in a narrow fashion allowing
the jury to decide if the answer is responsive.” United States v. Stowell, 947 F.2d
1251, 1257 (5th Cir. 1991), cert. denied, 503 U.S. 908 (1992).
In this case, the jury sent the following note to the court after starting its
deliberations:
We the jury, request the following: Re: Count One
If we agree there was a conspiracy, must we believe that each
defendant knew or intended importation to the U.S.? Or if we believe
there was a conspiracy and only one or two defendants had
knowledge of importation to the U.S., can we find all four guilty of
Count One?
After reading the note to the parties, the court discussed with counsel in open court
the manner in which to respond. The court immediately recognized that the note
revealed the jury’s misunderstanding concerning which defendants were charged in
Count One. As noted previously, Barrera was not prosecuted as to Count One,
meaning that only three defendants, not four, were charged with that count. All
parties agreed that the misunderstanding should be addressed in the court’s response.
After further consulting with the parties, the court answered the jury’s note as
follows:
No, please note that only 3 of the defendants are charged in Count
One of the Indictment. Please read carefully the instructions
regarding Count One found on pages 13-15 of the Court’s
instructions to the Jury as well as the remainder of the instructions.
In his motion, Moya4 contends that the court should have bifurcated its
response to the note by answering “yes” to the first question and “no” to the second
one. The court, however, finds the response to be adequate.
First, the record demonstrates that counsel for Moya agreed with the court
that the answer to the jury’s note should have been “no.” Moya’s counsel stated:
4
The district court noted that the Petitioner’s “arguments concerning the court’s response to the
jury note are substantively similar to those made by [co-defendant] Moya and likewise fail to demonstrate
that a new trial should be granted.” United States v. Cabalcante, 4:09-cr-194 (Dkt. #978) at p. 13.
8
“Your Honor, I agree with the Court that you should answer no.” Later, he reiterated
his position by saying: “That’s why I’m requesting that the answer should be no.”
At no time did he ask the court to treat the note as two distinct questions or argue that
the correct answer was “yes.” Counsel objected to the court’s response, but only
because it did not specifically direct the jury’s attention to the part of the jury
instructions discussing multiple defendants and multiple counts. While not
dispositive, counsel’s remarks reflect the parties’ agreement that the answer to the
note should have been “no.”
Moreover, the court’s response was proper because it specifically directed the
jury to the instructions concerning Count One of the Indictment. In the instructions,
the three elements of the offense are described in precise detail. The first element
requires the government to prove that a defendant reached an agreement to either
distribute, manufacture, or import cocaine “intending or knowing that such substance
would be unlawfully imported into the United States” in order to obtain a guilty
verdict. This language, which Defendants did not challenge and do not now claim to
be incorrect, accurately states the law and provides the answer to the jury’s question.
Thus, in answering the jury note, the court consulted with the parties,
accurately answered the note, and directed the jury to consider the court’s
instructions, particularly the section outlining the requirements for a guilty finding
under Count One. Accordingly, the record reveals no error requiring a new trial on
this basis. Therefore, Moya’s motion for new trial on the ground that the court erred
in responding to the jury note is denied.
United States v. Cabalcante, 4:09-cr-194 (Dkt. #978) at pp. 4-6 (internal footnote omitted).
While a motion for reconsideration is a “legitimate procedural device” in a criminal
proceeding, United States v. Cook, 670 F.2d 46, 48 (5th Cir. 1982), it has its limitations. Where,
as here, the district court fully analyzed the issue of the jury note, there was no reason for trial
counsel to return to the district court seeking a reconsideration. Mere disagreement with a court’s
order does not require counsel to move for reconsideration of the same. As such, the Petitioner’s
ineffective assistance of counsel claim fails.
2.
STRUCTURAL ERROR
In his second argument, the Petitioner argues that his counsel was ineffective for failing to
9
argue on appeal that “the district court committed structural error when the judge answered ‘no’ to
a jury’s query.” The basis for the Petitioner’s argument stems from the above-referenced analysis.
According to the Petitioner, the district court’s “no” response to the jury’s question during
deliberations relieved the jury from considering the knowledge element in counts one and two of
the indictment. The Petitioner thus contends that his counsel was ineffective for failing to argue on
appeal that the district court incorrectly responded to the jury’s question, thereby committing
structural error.
“The purpose of the structural error doctrine is to ensure insistence
on certain basic, constitutional guarantees that should define the
framework of any criminal trial.” Weaver v. Massachusetts, 582 U.S.
––––, ––––, 137 S.Ct. 1899, 1907, 198 L.Ed.2d 420 (2017). “Thus,
the defining feature of a structural error is that it ‘affect[s] the
framework within which the trial proceeds,’ rather than being ‘simply
an error in the trial process itself.’ ” Id. (quoting Arizona v.
Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302
(1991) ). In Weaver, the Supreme Court laid out three broad
categories of structural error: first, “if the right at issue is not
designed to protect the defendant from erroneous conviction but
instead protects some other interest,” id. at 1908 (citing McKaskle v.
Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)
(deprivation of the right to self-representation at trial) ); second, “if
the effects of the error are simply too hard to measure,” id. (citing
Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598
(1986) (unlawful exclusion of grand jurors of defendant’s race) ); and
third, “if the error always results in fundamental unfairness,” id.
(citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963) (total deprivation of counsel), and Sullivan v. Louisiana,
508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous
reasonable doubt instruction) ). However, “[a]n error can count as
structural even if the error does not lead to fundamental unfairness in
every case.” Id.
United States v. Nepal, 894 F.3d 204, 212 (5th Cir. 2018), cert. denied, 139 S. Ct. 831, 202 L. Ed.
2d 580 (2019).
Responding to a jury’s interrogatory, “though, does not fall into any of these categories, nor
10
is the error in [the Petitioner’s] case on the same level as the errors targeted in the Court’s structural
error jurisprudence.” Id. at 212. “Indeed, [a district court’s response to a jury’s inquiry during
deliberations] is a far cry from deprivation of counsel, deprivation of the right to self-representation,
or unlawful exclusion of grand jurors of the defendant’s race.” Id. at 212-13.
Furthermore, and perhaps more importantly, none of the Supreme Court’s structural
error cases are direct appeals from judgments of conviction within the federal system
. . .; they are either appeals from state courts which had considered the error under
their own rules or federal habeas challenges to state convictions. See Johnson v.
United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (rejecting
federal defendant’s argument that the error in her trial was structural: “the
seriousness of the error claimed does not remove consideration of it from the ambit
of” Rule 52(b), “which by its terms governs direct appeals from judgments of
conviction in the federal system”; creating an exception to Rule 52(b) to
accommodate the error of which defendant complained would be “[e]ven less
appropriate than an unwarranted expansion of the Rule”).
Id. at 212–13.
Since the Petitioner’s claim does not rise to the level of structural error, the Petitioner’s
argument that counsel was ineffective for failing to raise the same on appeal lacks merit. The
Petitioner’s claim, therefore, fails.
3.
DUE PROCESS
In his third argument, the Petitioner argues that his counsel was ineffective for failing to
argue on appeal that “the method by which the jury reached the ultimate conclusion of guilty on
Count One offends elementary principles of logic and [the] Due Process Clause of [the] Fifth
Amendment.” More specifically, the Petitioner contends that “[t]he ultimate conclusion for the jury
to draw, that is, that the cocaine will be imported into the United States, is based not upon a fact but
upon a circumstance in proof, that is, that the cocaine would reach Guatemala. It offends a due
process principle that ‘charges of conspiracy are not to be made by piling inference upon
11
inference.’” (Dkt. #1, p. 6).
The Petitioner’s argument ignores the fact that his counsel did, in fact, raise on appeal the
sufficiency of the evidence regarding the Petitioner’s intent to import cocaine into the United States.
In evaluating the sufficiency of the evidence, the Fifth Circuit found as follows:
Three of the defendants—Cabalcante, Piñeda, and Rojas—challenge the
sufficiency of trial evidence proving that they committed the Count One conspiracy
offense and the Count Two distribution offense with the necessary intent or
knowledge that the cocaine would be unlawfully imported into the United States. To
establish the mens rea element of either offense, the government needed to prove that
the defendants either intended or knew that the drugs would be unlawfully imported
into the United States. See 21 U.S.C. § 959(a); Conroy, 589 F.2d at 1270. The
government could prove the defendants' intent or knowledge by “circumstantial
evidence alone.” Medina, 161 F.3d at 872; see United States v. Conlan, 786 F.3d
380, 385 (5th Cir.2015).
Cabalcante and Piñeda argue that the government's evidence showed “no
intent to import or distribute cocaine outside of Latin America,” and Rojas suggests
that the end point for the cocaine could have been Guatemala or Mexico. They point
out on appeal, as they argued strenuously to the jury, that the cocaine in this case was
destroyed or confiscated while still in South America and thus never actually reached
the United States.
________________________
The government also introduced circumstantial evidence of intent or
knowledge specific to each defendant. Cabalcante confessed to participating in the
conspiracy. After his arrest, he told the DEA that he had referred his Colombian
counterparts to the Zetas for the HP1607 deal. He informed the DEA that the deal
was worth $7.9 million. Cabalcante also admitted that when the deal fell through, the
Zetas held him responsible. To smooth over the failed deal, he went to Matamoros,
Mexico—on the Mexican side of the United States—Mexico border near
Brownsville, Texas—to meet with the Zetas. This evidence showed that Cabalcante
was aware that the cocaine was headed to the Zetas at the United States—Mexico
border and that the multi-million dollar deal was paid for in American dollars.
Combined with the evidence that his co-conspirators knew that drugs heading to
Mexico almost always ended up in the United States, the evidence from Cabalcante's
own confession supports the jury's verdict.
Rojas, 812 F.3d at 400-401 (footnote omitted).
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The issue concerning the sufficiency of the evidence with respect to the Petitioner’s intent
to import cocaine into the United States was raised on direct appeal and rejected by the United States
Court of Appeals for the Fifth Circuit. “It is settled in this Circuit that issues raised and disposed
of in a previous appeal from an original judgment of conviction are not considered in § 2255
Motions.” United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986)(internal citations omitted).
See also United States v. Johnson, 615 F.2d 1125, 1128 (5th Cir. 1980) (“[w]hen an issue has
already been determined on direct appeal, a Court need not reconsider it on a Section 2255
motion.”); Ugarte-Veizaga v. United States, 452 F.2d 1194, 1195 (5th Cir. 1972) (“[a] Section 2255
motion cannot be used in lieu of an appeal on the merits nor will issues disposed of on a previous
appeal be reviewed again on such a motion.”). Since the Petitioner’s counsel clearly raised the
sufficiency of the evidence regarding the Petitioner’s intent to import cocaine into the United States
on direct appeal, and the Fifth Circuit rejected the same, this Court will not revisit the same issue
even though it is couched in terms of counsel providing ineffective assistance. Since counsel raised
the issue on direct appeal, it cannot be said that counsel was ineffective on this basis. The
Petitioner’s claim therefore fails.
4.
MANUFACTURE OR DISTRIBUTION ELEMENT
In his fourth argument, the Petitioner argues that his counsel was ineffective for failing to
argue on appeal that “on Count Two, [that] the government failed to prove the manufacture or
distribution element and failed also in establishing a guilty principal.” However, counsel for the
Petitioner did, in fact, argue on appeal the sufficiency of the Government’s evidence with respect
to Count Two. Since counsel raised the sufficiency of the evidence with respect to Count Two on
direct appeal and the Fifth Circuit rejected the same, this Court will not revisit this issue at this time
13
even though it is couched in terms of counsel providing ineffective assistance. Since counsel raised
the issue on direct appeal, it cannot be said that counsel was ineffective on this basis. The
Petitioner’s claim therefore fails.
5.
PRIOR CONVICTIONS
In his fifth and final argument, the Petitioner argues that his counsel was ineffective for
failing to argue on appeal that “the trial Court erred in admitting the Petitioner’s prior money
laundering convictions.”
At trial, the district court admitted into evidence pursuant to Rule
404(b) of the Federal Rules of Evidence, evidence concerning (1) the Petitioner’s 1997 conviction
for conspiracy to violate currency transaction requirements and to conduct financial transactions
involving proceeds from narcotics activity, and (2) his 2003 conviction for money laundering. The
district court issued a detailed order explaining the admissibility of the prior convictions. United
States v. Cabalcante, 4:09-cr-194 (Dkt. #827). Additionally, the district court stated that although
the prior convictions were admissible, a limiting instruction at the time of trial would be required.
Id. at p. 4. Indeed, the jury was instructed not to “consider any of this evidence in deciding if the
defendant committed the acts charged in the Indictment.” United States v. Cabalcante, 4:09-cr-194
(Dkt. #896, p. 9). Given that the Fifth Circuit found that the evidence at trial was sufficient to
support the Petitioner’s convictions, and since the jury was instructed not to consider the Petitioner’s
prior convictions in reaching its guilty verdict, the Court is not convinced that the Petitioner could
have been harmed because his counsel did not raise this issue on appeal. The Petitioner’s claim
fails.
CONCLUSION
Based on the foregoing, the motion for relief pursuant to 28 U.S.C. § 2255 is denied and the
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case is dismissed with prejudice.
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 the Petitioner has not yet filed a notice of appeal, the Court, nonetheless,
addresses whether the Petitioner 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 [movant] relief is in the best position to
determine whether the [movant] 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 (2000). In cases where a district court rejected constitutional claims
on the merits, the movant must demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429,
431 (5th Cir. 2003). When a district court denies a motion on procedural grounds without reaching
the underlying constitutional claim, a [certificate of appealability] should issue when the movant
shows, at least, that jurists of reason would find it debatable whether the motion 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.
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In this case, reasonable jurists could not debate the denial of the Petitioner’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 (2003) (citing Slack,
529 U.S. at 484). Accordingly, the Petitioner is not entitled to a certificate of appealability.
.
It is therefore ORDERED that the motion to vacate, set aside, or correct sentence is
DENIED, and the case is DISMISSED with prejudice. A certificate of appealability is DENIED.
All motions not previously ruled on are DENIED.
IT IS SO ORDERED.
SIGNED this 31st day of March, 2020.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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