Macedo-Flores v. USA

Filing 6

Opinion and Order denying the 1 Section 2255 Motion and denying Certificate of Appealability. (Ordered by Judge Reed C. O'Connor on 9/5/2017) (rekc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ASTREBERTA MACEDO-FLORES
(BOP Register No. 46670-177),
Movant,
V.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:16-cv-1473-O
(No. 3:13-cr-281-O (04))

OPINION AND ORDER
Movant Austreberta Macedo-Flores, a federal prisoner, has filed a pro se motion
to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. See Dkt. No. 1. The
government has filed a court-ordered response. See Dkt. No. 4. Macedo has failed to file
a reply brief, and the time by which to do so has expired. The Court now concludes that
her claims for relief should be denied.
Applicable Background
Following a trial by jury, Macedo was found guilty of conspiracy to possess with
intent to distribute a controlled substance, in violation of 21 U.S.C. § 846, and two
counts of possession of a controlled substance with intent to distribute, in violation of
21 U.S.C. § 841(a)(1). She moved the Court to set aside the jury verdict and grant her
a new trial. That motion was denied. And she received a below-guidelines sentence of
144 months of imprisonment.
She appealed. The United States Court of Appeals for the Fifth Circuit affirmed

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this Court’s judgment. See United States v. Macedo-Flores, 599 F. App’x 215 (5th Cir.
2015) (per curiam). Macedo did not petition the Supreme Court of the United States
for certiorari review. But the Section 2255 motion she has filed in this Court is timely.
Through that motion, Macedo asserts that the Court should have applied a
downward adjustment based on her role in the offense and claims that she received
constitutionally-ineffective assistance at trial and at sentencing.
Legal Standards and Analysis
Downward-Adjustment Claim
Macedo’s downward-adjustment claim, based on her allegedly “very minimal role
in the overall conspiracy,” Dkt. No. 1 at 7, was raised and rejected on direct appeal:
Macedo next argues that the district court clearly erred in denying a
four-level reduction for her minimal role in the offense, [s]he asserts that
her son directed her to deliver the package to the undercover agent; she
was unaware that it contained drugs; she was linked to only one sale; and
she was not recorded on any wiretaps. Under U.S.S.G. § 3B1.2, a district
court may decrease a defendant’s offense level by four levels if the
defendant was a minimal participant in the criminal activity. Whether
the defendant is a minimal participant is a factual determination that is
reviewed for clear error.
The record reflects that Macedo participated in numerous sales of
methamphetamine, she accepted at least four to five deliveries of
methamphetamine, and a shed behind her home was used to conduct the
drug conspiracy. Thus, the district court’s finding that she was not a
minimal participant is plausible in light of the record as a whole.
Macedo-Flores, 599 F. App’x at 216-17 (citing United States v. Villanueva, 408 F.3d
193, 203 & n.9 (5th Cir. 2005)).
This claim, although repackaged as one under Section 2255, is nevertheless
“foreclosed” by the Fifth Circuit’s prior decision. United States v. Fields, 761 F.3d 443,
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463 n.12 (5th Cir. 2014) (“Challenges to issues decided on direct appeal are foreclosed
from consideration in a § 2255 motion.” (citation omitted)); see United States v. Kalish,
780 F.2d 506, 508 (5th Cir. 1986) (“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.” (citing United States v. Jones, 614 F.2d 80, 82 (5th Cir.
1980))).
The downward-variance claim is therefore denied.
Ineffective-Assistance-of-Counsel Claims
The Court reviews ineffective-assistance-of-counsel (“IAC”) claims under the
two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984), under
which a movant must demonstrate that the performance of his attorney fell below an
objective standard of reasonableness, see id. at 687-88. To be cognizable under
Strickland, counsel’s error must be “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. The movant
also must prove that he was prejudiced by his attorney’s substandard performance. See
id. at 687, 692. “This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
[B]ecause of the risk that hindsight bias will cloud a court’s review of
counsel’s trial strategy, “a court must indulge 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.”
Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012) (quoting Strickland, 466 U.S. at
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689).
“A conscious and informed decision on trial tactics and strategy cannot be the
basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that
it permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746,
752-53 (5th Cir. 2003). Moreover,“[j]ust as there is no expectation that competent
counsel will be a flawless strategist or tactician, an attorney may not be faulted for a
reasonable miscalculation or lack of foresight or for failing to prepare for what appear
to be remote possibilities.” Harrington v. Richter, 562 U.S. 86, 110 (2011).
To demonstrate prejudice, Macedo “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. Thus, “the question
is not whether a court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been established if
counsel acted differently.” Harrington, 562 U.S. at 111. “Instead, Strickland asks
whether it is ‘reasonably likely’ the result would have been different,” which “does not
require a showing that counsel’s actions ‘more likely than not altered the outcome,’ but
the difference between Strickland’s prejudice standard and a more-probable-than-not
standard is slight and matters ‘only in the rarest case.’” Id. at 111-12 (quoting
Strickland, 466 U.S. at 693, 696, 697). “The likelihood of a different result must be
substantial, not just conceivable.” Harrington, 562 U.S. at 112.

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Macedo levels a litany of claims at her trial counsel, Ricardo De Los Santos, and
the attorney who represented her at sentencing, John S. Wilson, most of which are
merely conclusory and fail to explain how the outcome of Macedo’s trial and sentencing
would have been different had counsel acted differently.
As the Fifth Circuit has held in the context of IAC claims asserted by a pro se
litigant, “‘mere conclusory allegations on a critical issue are insufficient to raise a
constitutional issue.’” Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting
United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)); see also Birby v.
Stephens, 595 F. App’x 350, 354 (5th Cir. 2014) (per curiam) (“‘This Court has made
clear that conclusory allegations of ineffective assistance of counsel do not raise a
constitutional issue in a federal habeas proceeding.’” (quoting Miller v. Johnson, 200
F.3d 274, 282 (5th Cir. 2000) (in turn citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th
Cir. 1983)))); United States v. Henges, 591 F. App’x 287, 287 (5th Cir. 2015) (per
curiam) (“[C]onclusional assertions are ‘insufficient to overcome the strong
presumption of competency and the high burden of actual prejudice required to prove
ineffective assistance of counsel.’” (quoting Carter v. Johnson, 131 F.3d 452, 464 (5th
Cir. 1997))).
The Court further notes that many of Maceo’s conclusional assertions of IAC are
belied by the record. For example, she claims that counsel “[f]ailed to obtain an
interpreter to ensure that [Macedo] understood the proceedings.” Dkt. No. 1 at 7. But
she fails to identify a particular proceeding at which she was not afforded an

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interpreter, and the Court’s record documents that she used an interpreter at all
critical stages of the proceedings. See United States v. Macedo-Flores, No. 3:13-cr-281-O
(04) (N.D. Tex.), Dkt. No. 18 (initial appearance); entry dated July 22, 2013 (detention
hearing); Dkt. No. 60 and entry dated Aug. 27, 2013 (arraignment); Dkt. No. 124
(pretrial proceeding); Dkt. Nos. 130, 131, and 133 (trial); Dkt. No. 450 (sentencing).
In addition, the Fifth Circuit has addressed, in a related context, those claims
that Macedo now makes in the IAC context that include factual support – those
involving conversations recorded by the FBI:
At trial, an FBI linguist testified that she listened to recorded
conversations made while Macedo was incarcerated, between Macedo and
family members. The recorded conversations were not played for the jury
or introduced into evidence. Macedo contends that the recorded
conversations were not properly authenticated and that they were not
produced to the defense prior to trial, which violated the rules of
discovery; she raised these arguments for the first time in her motion for
a new trial.
Because Macedo first raised the authentication and discovery violation
arguments in her motion for a new trial, plain error review applies.
Macedo thus must show a clear or obvious forfeited error affecting her
substantial rights. If she makes this showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.
Authentication is a condition precedent to the admission of evidence and
is satisfied when a party presents “evidence sufficient to support a finding
that the item is what the proponent claims it is.” Here, it is undisputed
that the recorded conversations were not admitted into evidence at trial.
Because Macedo offers no authority that the recordings required
authentication, she cannot establish plain error.
Next, Macedo argues that the Government violated the rules of discovery
by not providing copies of the recorded conversations prior to trial. We
will not order a new trial based on alleged discovery violations unless the
defendant shows that a denial of access to evidence was prejudicial to her
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substantial rights. This requires a showing of “a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Such a probability is shown
“where the nondisclosure could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the jury verdict.”
The trial evidence shows that on April 24, 2013, Macedo sold
methamphetamine to an undercover officer in a shed behind her home
and that at least twice, she accepted the delivery of methamphetamine
for sale. Based on the foregoing, any nondisclosure of the recorded
conversations could not reasonably be shown to undermine confidence in
the jury’s verdict on Macedo’s convictions for one count of conspiracy to
possess with intent to distribute a controlled substance and two counts
of possession with intent to distribute a controlled substance.
Macedo-Flores, 599 F. App’x at 216 (citations omitted).
For similar reasons, Macedo has not shown that trial counsel was
constitutionally ineffective – by, for example, carrying her burden under Strickland’s
prejudice prong – as to her current claims based on the recorded conversations.
The Court therefore denies the IAC claims.
Evidentiary Hearing
An evidentiary hearing appears unnecessary. No evidentiary hearing is required
if “the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.” 28 U.S.C. § 2255(b). In this instance, the matters reviewed by
the Court conclusively show that Macedo is entitled to no relief.
Certificate of Appealability
Considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and
28 U.S.C. § 2253(c), the Court denies a certificate of appealability. Macedo has failed

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to show (1) that reasonable jurists would find this Court’s “assessment of the
constitutional claims debatable or wrong,” or (2) that reasonable jurists would find “it
debatable whether the petition states a valid claim of the denial of a constitutional
right” and “debatable whether [this Court] was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 48 (2000).
In the event Macedo elects to file a notice of appeal, the Court notes that she will
need to pay the appellate filing fee or submit a motion to proceed in forma pauperis.
Conclusion
The Court denies the Section 2255 motion.
SO ORDERED.
DATED: September 5, 2017.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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