Osorio-Martinez v. United States of America

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 1:11cr444, 45 Report and Recommendations. The court dismisses Osorio-Martinez's 2255 Motion, and denies petitioner a certificate of appealability. The Clerk shall close the case after entering the accompanying judgment.(Signed by Judge Hilda G Tagle) Parties notified.(dnoriega, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
REYNA OSORIO-MARTINEZ

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Petitioner
VS.
UNITED STATES OF AMERICA

July 18, 2017
David J. Bradley, Clerk

CIVIL NO. 1:14-CV-089

ORDER
Pending before the Court is Petitioner Reyna Osorio-Martinez’s (“OsorioMartinez”) Motion to Vacate, Set Aside, or Correct Sentence (Dkt. No. 1) and the
United States’ Response and Motion to Dismiss (“Government’s Motion”) (Dkt. No.
14). On March 26, 2016, United States Magistrate Judge Ignacio Torteya, III, the
Magistrate Judge to whom this case was referred pursuant to 28 U.S.C. § 636(b),
issued his Report and Recommendation (“R&R”) recommending that the Court
dismiss Osorio-Martinez’s motion with prejudice and that a Certificate of
Appealability be denied. See Dkt. No. 45.
This recommendation is based on a finding that Osorio-Martinez’s petition
should be denied because she has not met her burden to show that her trial counsel,
Oscar de la Fuente, Jr., (“De la Fuente”) or counsel at sentencing, Nathaniel C.
Perez (“Perez”) provided her with ineffective assistance.1 On November 18, 2015,
the Magistrate Judge held an evidentiary hearing regarding Osorio-Martinez’s
habeas petition grounds, in which Osorio-Martinez and De la Fuente, among other
witnesses, appeared. The R&R describes the hearing in detail. See generally Dkt.
No. 45.
Osorio-Martinez filed her objections through her attorney on June 9, 2016.
See Dkt. No. 46. She objects on two grounds. First, Osorio-Martinez objects to the
Magistrate Judge’s conclusion that she did not meet her burden to show that De la
At an evidentiary hearing before the Magistrate Judge on November 22, 2015, Osorio-Martinez
withdrew her claim that Perez provided her with ineffective assistance. See R&R, Dkt. No. 45 at 5
(citing Dkt. No. 38 at 5, 164–5).
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Fuente’s decision not to interview her adult children and their families constituted
ineffective assistance of counsel. Dkt No. 46 at 1. Osorio-Martinez argues that
testimony of such individuals would “negat[e] any affirmative links between [her]
and the contraband discovered in the Blue Camry.” Dkt No. 46 at 1. She points to
the Fifth Circuit’s ruling on her direct appeal, see 1:11-CR-444, Dkt. No. 129 at 2–3,
which stated that trial testimony representing that Osorio-Martinez did not visit
with her family members on the crossings helped establish the sufficiency of the
evidence to support her conviction. Id.
The Magistrate Judge addressed these arguments in the R&R. The R&R
provides:
As the movant, Osorio-Martinez bears the burden to
demonstrate that De la Fuente provided ineffective assistance for
failing to interview her children, or call them as witnesses. A movant
cannot demonstrate ineffectiveness on the part of her counsel for
failing to call a witness unless she can: (1) name the witness; (2) show
that the witness was available to testify during the relevant time; (3)
show that the witness would have testified; (4) identify the content of
the witness’s proposed testimony; and, (5) demonstrate that the
testimony would have been favorable to the movant. Day v.
Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citations omitted).
“[C]omplaints of uncalled witnesses are not favored in federal habeas
corpus review because the presentation of testimonial evidence is a
matter of trial strategy and because allegations of what a witness
would have stated are largely speculative.” Id. Therefore, a movant’s
failure “to present some evidence from the uncalled witness regarding
that witness’s potential testimony and willingness to testify is usually
fatal to an ineffective assistance of counsel claim.” United States v.
Zuniga, No. CA C-10-00324, 2012 WL 642061, at *15 (S.D. Tex. Feb.
24, 2012) (citing Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir.
1997) and Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
Here, Osorio-Martinez’s attempts to meet her burden fall short
in several respects. First, although she claims that De la Fuente
should have interviewed her son, Pedro Vasquez, and called him as a
witness, she has failed to show that Vasquez was available to speak
with De la Fuente, or testify. Vasquez did not appear or testify at
Osorio-Martinez’s evidentiary hearing before this Court. OsorioMartinez has submitted no affidavit from him indicating that he was
available to speak with De la Fuente, or testify. At the evidentiary
hearing, Osorio-Martinez also testified that De la Fuente was not able

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to interview her son because he was in Mexico. Dkt. No. 38 at 157.
Although it is true that De la Fuente could have attempted to
subpoena Vasquez, Osorio-Martinez has not demonstrated that this
would have been successful, nor has she demonstrated that his
testimony would have been favorable.
Second, De la Fuente credibly testified that he did not interview
Vasquez because Osorio-Martinez “was not very forthcoming with
information concerning her family.” Dkt. No. 38 at 18. In fact, De la
Fuente credibly testified that he questioned Osorio-Martinez about the
facts surrounding her case and her family, but that she was mostly
nonresponsive, prompting him to move for a determination concerning
competency. Id. at 13, 18, 33-34. De la Fuente’s testimony here is
consistent with the record evidence, as he did move to have OsorioMartinez’s competency evaluated, and a mental competency hearing
was held. See CR Dkt. No. 30 (Motion); CR Minute Entry, dated June
26, 2011 (Competency Hearing). De la Fuente’s testimony is also
supported by the fact that the United States Probation Office could not
corroborate Osorio-Martinez’s “personal and family data” due to her
failure to recall the phone numbers of her children living in the United
States. CR Dkt. No. 95, at ¶ 44.
Third, the testimony Osorio-Martinez provided was not credible.
In addition to the fact that Osorio-Martinez’s responses and
inconsistency indicated a willingness to lie; her testimony conflicted
with the record evidence. For example, at the evidentiary hearing
Osorio-Martinez testified that, when she was apprehended at the
United States port of entry, she never stated that Adolfo Aguirre was
her son-in-law because he is not her son-in-law. Dkt. No. 38 at 59.
However, during Osorio-Martinez’s trial, United States Customs and
Border Protection Agent Brenda Garza testified, under oath, that
Osorio-Martinez told her that the blue Camry belonged to her son-inlaw, Adolfo Aguirre. CR Dkt. No. 114-1 at 13-14. Similarly, Special
Agent Paul Altenburg from Immigration and Customs Enforcement
testified, under oath, that Osorio-Martinez told him that Adolfo
Aguirre was her son-in-law. CR Dkt. No. 114-2 at 5.
More tellingly, Osorio-Martinez has filed an affidavit in this case
wherein she indicates that she did refer to Adolfo Aguirre as her sonin-law. Dkt. No. 15-1 at (“Isabel insisted I claim the car belonged to my
son-in-law. I didn’t want to, but she said that if I said he was a friend
they’d never believe it.”).
At the evidentiary hearing, Osorio-Martinez also testified that
she told De la Fuente to speak with her children . . . but he refused.
Dkt. No. 38 at 158. This testimony conflicts with the testimony that
two of Osorio-Martinez’s children provided at the hearing. Id. at 83144. Modesta Vasquez stated that De la Fuente spoke with her several

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times, questioned her regarding the alleged facts of Osorio- Martinez’s
case, and asked her if she would be willing to testify at OsorioMartinez’s trial. Id. at 88-90. Servando Vasquez also testified that he
spoke with De la Fuente about Osorio-Martinez’s case, and that De la
Fuente asked him if he would be willing to testify at her trial. Id. at
108. . . .
Finally, Osorio-Martinez’s attempts to meet her burden fall
short because the testimony her children provided at the evidentiary
hearing did little to support her claims. Although her children did
allege that Osorio-Martinez had visited them on certain occasions,
their testimony was too vague to allow the Court to conclude that
Osorio-Martinez had visited her children during the dates she was
suspected of visiting the United States for the purpose of trafficking
drugs. See generally Dkt. No. 38 at 83-134. As such, it appears unlikely
that the testimony of Osorio-Martinez’s children would have
undermined the Government’s attempt to prove its case against her at
trial. Osorio-Martinez’s own testimony at the evidentiary hearing also
tended to support the Government’s case, as she testified that she did
not always tell her children when she was coming into the United
States because she would come here to shop and then go directly back
to Mexico. Id. at 145 (“I didn’t tell them because I had my thing going
on about me coming here to buy $500 worth of things to sell and then
going back.”).
Thus, even in hindsight, De la Fuente’s decision to avoid calling
Osorio-Martinez’s children as witnesses appears reasonable and
informed. “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.” Garland v. Maggio, 717 F.2d 199, 206 (5th
Cir. 1983). Osorio-Martinez has not shown that De la Fuente’s decision
permeated her trial with obvious unfairness.
R&R, Dkt. No. 45, at 10–15.
In light of the testimony elicited from Osorio-Martinez’s children, OsorioMartinez, and De la Fuente at the evidentiary hearing, the Court agrees with the
R&R that Osorio-Martinez has not met her burden to show that De la Fuente’s
performance was constitutionally deficient for failing to interview her children, or
call them as witnesses. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(“First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
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Second, the defendant must show that the deficient performance prejudiced the
defense. 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.”).
Second, Osorio-Martinez objects to the R&R’s finding that De la Fuente
offered credible and truthful testimony. Id. at 10. The R&R discusses De la Fuente’s
credibility in the context of Osorio-Martinez’s three ineffective assistance of counsel
claims. As already excerpted above, the R&R discusses De la Fuente’s credibility in
the context of Osorio-Martinez’s claim regarding his failure to interview her
children. See R&R, Dkt. No. 45, at 12. Additionally, the R&R states in a section
discussing Osorio-Martinez’s claim that De la Fuente provided ineffective assistance
by wrongfully preventing her from testifying at her trial that De la Fuente
testified that he never told Osorio-Martinez that she could not testify.
Dkt. No. 38 at 36-37. In fact, he told her that she “was free to testify if
she wanted to[,]” but that it was his advice that she avoid doing so
because the statements she provided at her suppression hearing were
inconsistent with the statements she provided when she was
apprehended. De la Fuente stated that Osorio-Martinez appeared to
agree with his advice, and did not protest when he advised her not to
take the stand.
R&R, Dkt. No. 45, at 16 (internal citations omitted).
The Magistrate Judge found that, despite De la Fuente’s testimony
concerning his suspension for paying “for access to the District Attorney’s office in
exchange for favorable dispositions on [the] people [he] was representing,” id.
(quoting Dkt. No. 38 at 10–11), De la Fuente’s “testimony at the hearing before [the
Magistrate Judge] was both credible, and consistent with record evidence.” Id. The
Magistrate Judge explained that Osorio-Martinez’s testimony, on the other hand,
evinced a “tendency to overreach” such as by stating that others involved in her case
were lying about “everything.” See id. at 16–17.
The R&R also discusses De la Fuente’s credibility in the context of OsorioMartinez’s argument that De la Fuente wrongfully induced her to go to trial by
failing to correctly advise her regarding her potential sentence. See R&R, Dkt. No.
45, at 18–21. As the R&R summarizes:

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Osorio-Martinez contends that De la Fuente told her that, if she
accepted the Government’s plea agreement offer, she would get ten
years, but that if she went to trial, she would get less than ten years.
Dkt. No. 1 at 7; Dkt. No. 15 at 6-7; Dkt. No. 15-1 at 8-9; Dkt. No. 40 at
5-6, 32-35. She claims that she declined the Government’s offer, due to
De la Fuente’s incorrect and ineffective advice. Id. She states that De
la Fuente never told her “that she was facing a minimum of 235
months in prison and a maximum of 292 months, under the
Guidelines.” Dkt. No. 40 at 5. Instead, she claims that he only told her
that if they went to trial they would win, and if they did not win she
would get only a small amount of time. Dkt. No. 38 at 159. She
indicates that she was would have entered a guilty plea pursuant to
the Government’s offer, had De la Fuente ever informed her of her true
exposure if she went to trial. Dkt. No. 15-1 at 8 (“He told me that if I
took [the plea deal], I’d get more time than I’d get at trial. That is why
I did not take that. He never told me what kind of sentence I could get
if I went to trial.”).
R&R, Dkt. No. 45, at 18.
The R&R states that during the evidentiary hearing, De la Fuente testified
that he did not tell Osorio-Martinez that she would get less time if she went to trial.
See id. at 19 (citing Dkt. No. 38 at 38). “In fact, he stated that he told her she would
get ‘substantially more time’ if she went to trial.” Id. (citing Dkt. No. 38 at 40–41).
De la Fuente additionally testified that he informed Osorio-Martinez that, if she
accepted the plea agreement offer, cooperated with the Government, and told them
what she knew, she might qualify for various different reductions in her sentence.
Id.
Osorio-Martinez argues that the Magistrate Judge’s credibility findings and
conclusions of law are not supported by the record because, inter alia, this Court
had previously “found [De la Fuente’s] dishonesty so severe that he was summarily
precluded from further representation on this case.” Dkt. No. 46 at 11 (referring to
the underlying criminal case 1:11-CR-444). The Court’s records show that on
December 14, 2011, this Court granted De la Fuente’s unopposed motion to
withdraw as attorney for Osorio-Martinez in the underlying criminal case due to a
potential conflict. See 1:11-CR-444, Dkt. Nos. 94, 92. In that Order granting De La

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Fuente’s withdrawal, this Court did not make any findings that De la Fuente was
dishonest. See 1:11-CR-444, Dkt. No. 94.
Additionally, Osorio-Martinez argues that corroboration of De la Fuente’s
testimony could have been made by the production of a “file he made available to
Petitioner’s present Mr. De La Fuente.” [sic]2 Dkt. No. 46 at 11. Osorio-Martinez
argues that the Magistrate Judge did not request production of De la Fuente’s file to
corroborate testimony and, therefore, “[t]he only ‘proof’ Mr. De La Fuente relied on
to corroborate this testimony does not exist in the record of this case.” Id. at 11.
Opinion testimony by a lay witness constitutes admissible evidence. See Fed.
R. Evid. 701; see also Fed. R. Evid. 702 advisory committee’s note to 1972 Proposed
Rules (“The rule assumes that the natural characteristics of the adversary system
will generally lead to an acceptable result, since the detailed account carries more
conviction than the broad assertion . . . . [C]ross-examination and argument will
point up the weakness.”). De la Fuente’s testimony constituted admissible evidence
upon which the Magistrate Judge could make findings of fact regarding OsorioMartinez’s allegations in her three ineffective assistance of counsel claims.
The Court further finds that the Magistrate Judge to whom this case was
referred pursuant to 28 U.S.C. § 636 is in the best position to make credibility
determinations from evidentiary hearings. See United States v. Scribner, 832 F.3d
252, 257 (5th Cir. 2016) (“We defer to the district court’s acceptance of the
magistrate judge’s credibility recommendations, based on his having heard live
testimony. . . . However, where the district judge makes material credibility choices
at variance with those of the magistrate, the judge must, at least in certain cases,
have a hearing at which he or she personally hears the testimony.”) (internal
quotations and alterations omitted) (emphasis in original) (quoting Garcia v.
Boldin, 691 F.2d 1172, 1179 n.13 (5th Cir. 1982)).

The Court believes that Osorio-Martinez meant to state: “The corroboration of Mr. De La Fuente’s
testimony was supposed to lie in the file he made available to Petitioner’s present attorney.” See Dkt.
No. 46 at 11. Either way, the Court finds that this argument is not dispositive of the issue of De la
Fuente’s credibility for the reasons discussed in the paragraphs below.
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After independently reviewing the record, the law, and Osorio-Martinez’s
objections, the Court adopts the Magistrate Judge’s proposed findings and
recommendations. The Court DISMISSES Osorio-Martinez’s § 2255 Motion, Dkt.
No. 1, and DENIES Osorio-Martinez a certificate of appealability. The Clerk shall
close the case after entering the accompanying judgment.
It is so ORDERED.

SIGNED this 18th day of July, 2017.
___________________________________
Hilda Tagle
Senior United States District Judge

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