Chavez-Salgado v. USA
Filing
4
Memorandum Opinion and Order: The court ORDERS that the motion of Jesus Francisco Chavez-Salgado to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied. (Ordered by Judge John McBryde on 10/20/2011) (dnc)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT CO RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JESUS FRANCISCO CHAVEZ-SALGADO,
ocr 202011
CLERK, U.S. DISTRICT COURT
by
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Movant,
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§
VS.
NO. 4:11-CV-550-A
(NO.4: 0 9 - CR- 0 7 9 - A (} ) )
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UNITED STATES OF AMERICA,
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Respondent.
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MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of Jesus Francisco
Chavez-Salgado under 28 U.S.C.
correct sentence.
§
2255 to vacate, set aside, or
His motion alleges eight grounds for relief.
1
Having reviewed the motion, the record, and applicable legal
authorities, the court concludes that none of the grounds have
merit and that the motion should be denied.
I.
Background
On May 12, 2009, movant was indicted on a single count of
conspiracy to possess with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C.
§§
846, 841(a) (1)
1 Grounds III, IV, V, VI, VII, and VIII in this court's opinion and order are listed in the motion as
grounds IV, V, III, IV, VI, and VII, respectively. Mot. at 22-23,30,32,34,39. For ease of reference, the
court has renumbered the first ground IV in the motion as ground III, ground Vas ground IV, ground III
as ground V, the second ground IV as ground VI, ground VI as ground VII, and ground VII as ground
VIII. See infra III.B.
and 841(b) (1) (a).
After a jury trial, movant was convicted on
the charge in the indictment on August 25, 2009.
The district
court sentenced to a 121-month term of imprisonment and five
years of supervised release on December 24, 2009.
At trial, the government had called two witnesses, Officer
Eric Martinez and Officer Jesus Cisneros, who had both posed as
undercover officers during the investigation of the case.
Officer Martinez testified at length about the nature and extent
of movant's involvement in the conspiracy.
At the close of
government's case, movant moved for a judgment .of acquittal,
arguing that there was no evidence of any agreement by movant and
the other defendants, and also no evidence that the defendants
agreed to distribute more than five kilograms of cocaine.
district court denied the motion.
two character witnesses.
The
In his defense, movant called
At the close of all evidence, the
district court denied a second motion for acquittal.
The
district court also overruled movant's objection to the
submission to the jury the issue of whether the conspiracy
involved more than five kilograms of cocaine.
At sentencing, movant objected to the use of ten kilograms
of cocaine to calculate his sentence, arguing that the amount
attributed should be less than five kilograms.
The district
court overruled the objection, specifically noting that the jury
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had found the amount of cocaine attributable to the conspiracy
was more than five kilograms.
Movant timely appealed his sentence.
The united states
Court of Appeals for the Fifth Circuit affirmed his conviction
and sentence on October 6, 2010.
united states v. Chavez-
Salgado, 397 Fed. App'x. 80, 87 (5th Cir. 2010).
filed a motion seeking relief under 28 U.S.C.
§
Movant timely
2255, to which
the court now turns its attention.
II.
Treatment of Section 2255
After conviction and exhaustion of any right to appeal,
courts are entitled to presume that a defendant stands fairly and
finally convicted.
united States v. Frady, 456 U.S. 152, 164
(1982) i United States v. Shaid,
1991).
937 F.2d 228, 231-32 (5th Cir.
A defendant can challenge his conviction or sentence
after it is presumed final only on issues of constitutional or
jurisdictional magnitude and may not raise an issue for the first
time on collateral review without showing both "cause" for his
procedural default and "actual prejudice" resulting from the
errors.
Shaid, 937 F.2d at 232.
section 2255 does not offer
recourse to all who suffer trial errors, but is reserved for
transgressions of constitutional rights and other narrow injuries
that could not have been raised on direct appeal but, if
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condoned, would result in a complete miscarriage of justice.
united states v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
III.
Grounds of Motion
Movant has presented eight grounds for relief in his motion.
The court first addresses counsel's duty to investigate and
present evidence and testimony at trial (ground I).
The court
then turns to the issues already addressed on direct appeal,
concerning the sufficiency of the evidence to show that movant
was involved in a conspiracy to distribute more than five
kilograms of cocaine (grounds II, V), the district court's
attribution of ten kilograms to movant for purposes of sentencing
(grounds III, VI), and the district court's refusal to give
movant's requested jury instruction as to mens rea (ground IV).
Finally, the court turns to the issues barred by procedural
default, regarding alleged violations of movant's Fifth and sixth
Amendment rights (ground VII) and the district court's imposition
of a sentence above the recommended sentencing guidelines (ground
VIII) .
A.
Counsel's Duty to Investigate and Present Evidence
In ground I of his motion, movant asserts that his
"[c]ounsel failed to conduct rudimentary investigation, or
present evidence during trial that was readily available for
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[his] defense."
Mot. at 12.
To prevail on a claim of
ineffective assistance of counsel, movant must show that (1)
counsel's performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.
466 U.S. 668, 688, 694
(1984).
strickland v. Washington,
Both prongs of the Strickland
test must be met to demonstrate ineffective assistance; however,
both prongs need not be considered if movant makes an
insufficient showing as to one.
Id. at 687, 697.
Conclusory
allegations are insufficient to prove a claim of ineffective
assistance of counsel.
Cir. 2000).
Miller v. Johnson, 200 F.3d 274, 282
(5th
Here, movant is entitled to no relief based on the
alleged ineffective assistance of counsel because he has failed
to meet the standard set forth by strickland.
The thrust of movant's Strickland claim is that counsel
failed to conduct an adequate investigation or to review and use
available testimony and documentary evidence during trial.
Movant was required, but failed, to "allege with specificity what
the investigation would have revealed and how it would have
altered the outcome of the trial."
F.2d 999, 1003
(5th Cir. 1989).
United states v. Green, 882
In his motion, he does not
allege any information counsel could have uncovered in an
5
investigation or in any interviews or how such unspecified
information would have changed the outcome of the proceeding.
Nor does movant identify with any specificity the documentary
evidence he contended counsel should have considered or how it
would have changed the outcome of the case.
Although he mentions
the ufederal agent's reports from Chavez-Salgado ['s] attempts to
communicate with the officer," Mot. at 15, he does not identify
which federal agent, the substance of any communications, or the
dates of such reports.
His allusion of ucritical sources of
exculpatory evidence," id. at 17, is even more vague, as it fails
to reference any examples to follow.
As to his complaint that counsel failed to ureview and
utilize" testimony from uncalled witnesses on his behalf, id. at
15, "complaints of uncalled witnesses are not favored in federal
habeas corpus review because allegations of what the witness
would have testified are largely speculative."
Cockrell, 285 F.3d 370, 377 (5th Cir. 2002).
Evans v.
Here, movant has
failed to identify even one witness he claims defense counsel
could have called.
Nor does he attempt to explain what testimony
any uncalled witness would have provided or show that any such
witness would have even agreed to testify on his behalf.
Movant's failure to meet all of these requirements is fatal to
his Strickland claim of ineffective assistance of counsel.
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B.
Issues Decided Adversely on Direct Appeal
The issues in grounds II through VI of the motion have
already been raised on direct appeal and decided adversely to
movant by the Fifth Circuit.
Those issues, which the court has
renumbered for ease of reference, are described as follows:
Ground II of the motion asserts three points of error.
The first
two points argue that the district court erred when it denied
movant's motion for jUdgment of acquittal at the close of the
government's case and when it denied movant's renewed motion at
the close of all of the evidence.
Mot. at 18.
The third point
contends that the district court erred when it overruled his
objection to the submission to the jury the allegation that the
conspiracy involved more than five kilograms of cocaine.
Id.
In ground III,2 movant argues that the district court erred
when it found him accountable for ten kilograms of cocaine at
sentencing.
Id. at 22.
In ground IV,3 movant contends that the
district court erred when it denied his request for a jury
instruction stating that the government must prove mens rea for
the drug quantity.
Id. at 23.
In ground V,4 movant contends
that the government failed to establish that the coconspirators
2
The court has renumbered the first ground IV on page 22 of the motion as ground III.
3
The court has renumbered ground Von page 23 of the motion as ground IV.
4
The court has renumbered ground III on page 30 of the motion as ground V.
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themselves reached an agreement to purchase more than five
kilograms of cocaine.
Id. at 30.
In ground VI,s movant further
contends that the error in the amount of drugs he was convicted
of possessing affected his sentence.
Id. at 24.
Each of these grounds were raised on direct appeal and
decided adversely to movant.
84-87.
See Chavez-Salgado, 397 F. App'x at
Issues raised and disposed of in an appeal from a
jUdgment of conviction may not be considered in a motion pursuant
to
§
2255.
1986).
united States v. Kalish, 780 F.2d 506, 508 (5th Cir.
Thus, movant is not entitled to relief on any of these
grounds.
C.
Allegations of Fifth and sixth Amendment Violations and
Unreasonable Sentence of Imprisonment
Grounds VI and VII asserted by movant in his motion were not
raised previously on direct appeal.
Thus, on collateral review
he must show "cause" and "prejudice" for his procedural default
on both issues.
See Shaid, 937 F.2d at 232 (stating that a
defendant cannot raise an issue for the first time on collateral
review without showing both "cause" and "prejudice").
In ground
VI,6 movant complains that under the Fifth and sixth Amendments,
he has a right to have the jury "determine" and "find him guilty
5
The court has renumbered the second ground N on page 32 of the motion as ground VI.
6
The court has renumbered ground VI on page 34 of the motion as ground VII.
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or innocent on each allegation of criminal facts."
Mot. at 35.
His argument is not clear, but he seems to allege that the presentence report in his case was used "as a tool to deprive him of
his constitutional rights."
Id. at 35.
Other than that, he does
not elaborate further on the cause of the alleged violations of
his Fifth and sixth Amendment rights.
In ground VIII,? he
complains that the court impermissibly sentenced him to a term of
imprisonment above the range recommended by the U.s. Sentencing
Guidelines.
Id.
The court concludes that movant has shown neither cause for
his procedural default nor prejudice resulting from either
alleged error, and moreover, he does not allege that he is
actually innocent.
Consequently, he is barred from raising both
of the issues on habeas review.
?
See Shaid, 937 F.2d at 232.
The court has renumbered ground VII on page 39 of the motion as ground VIII.
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IV.
Order
Therefore,
The court ORDERS that the motion of Jesus Francisco ChavezSalgado to vacate, set aside, or correct sentence pursuant to 28
u.S.C.
§
2255 be, and is hereby, denied.
SIGNED October
~
2011.
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