Valenia v. USA

Filing 2

ORDER AND MEMORANDUM DECISION denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255) - CASE CLOSED. Signed by Judge Tena Campbell on 11/15/11 (alt)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

EDUARDO JIMENEZ-VALENIA,
Petitioner,

ORDER AND
MEMORANDUM DECISION

vs.

UNITED STATES OF AMERICA,

Case No. 2:11-CV-691-TC

Defendant.

Eduardo Jimenez-Valenia has filed a timely motion under 28 U.S.C. § 2255 to set aside
his conviction.1 Mr. Jimenez-Valenia, proceeding pro se, claims that he received ineffective
assistance of counsel, citing two alleged deficiencies in his trial attorney’s representation. He
first contends that his trial attorney was ineffective in “not understanding the difference between
Rule 608(b) and the applicable Rule 613(b), and not requesting a ruling upon the Government’s
objection.” (Mot. Vacate [Dkt. No. 1] at 11.) His second argument is that his trial attorney was
ineffective when he “failed, at the minimum, to move for a mistrial in light of an obviously
tainted jury due to the remarks made by [the] Court.” (Id. at 12.)
The court recognizes that pro se litigants’ pleadings should be construed more liberally

1

Because the Tenth Circuit Court of Appeals, in affirming Mr. Jimenez-Valenia’s
conviction, described the factual and procedural background of this case, United States v.
Jimenez-Valenia, 419 Fed. App’x 816, 817-20 (10th Cir. 2011), this court will give only those
facts necessary to explain this decision.

than if outside counsel had drafted them. Haines v. Kerner, 404 U.S. 519, 520 (1972); Whitney
v. N.M., 113 F.3d 1170, 1173–74 (10th Cir. 1997). But even under this more lenient standard,
Mr. Jimenez-Valenia’s claims for relief are meritless. For the reasons set forth below, Mr.
Jimenez-Valenia’s Motion to Vacate (Dkt. No. 1) is DENIED.
ANALYSIS
Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, “a petitioner must establish both that his
attorney’s representation was deficient and that he was prejudiced by that deficiency.” James v.
Gibson, 211 F.3d 543, 555 (10th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). The standard applies to sentencing proceedings and plea hearings as well as at trial.
United States v. Glover, 97 F.3d 1345, 1349 (10th Cir. 1996). To succeed on the deficiency
prong, a petitioner “must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” James, 211 F.3d at 555 (citing
Strickland, 466 U.S. at 689). “Judicial scrutiny of counsel’s performance is highly deferential.”
Id. To succeed on the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. There is a strong presumption that counsel
provided effective assistance, and a § 2255 petitioner has the burden of proof to overcome that
presumption. James, 211 F.3d at 555.
Counsel’s Misunderstanding of Rule 608(b) and Failure to Request a Ruling From the
Court
During trial, Nathan Frisbie, Mr. Jimenez-Valenia’s cellmate, testified on the
-2-

Government’s behalf. He testified that Mr. Jimenez-Valenia had confessed to him that he had
known about the secret compartment under the transmission and was getting paid to transport the
drugs. Mr. Jimenez-Valenia’s attorney then moved to admit a signed statement by Mr. Frisbee
describing Mr. Frisbie’s theft of drugs from the jail’s evidence locker. The Government objected
that this evidence was inadmissible under Rule 608(b). The court sustained the objection. Mr.
Jimenez-Valenia’s attorney stated that he was not offering the evidence under 608(b), but as
impeachment evidence of a prior inconsistent statement. The court excluded the statement, and
Mr. Jimenez-Valenia’s attorney made no further objection. Mr. Jimenez-Valenia argues that his
trial attorney’s “failure to request the 608(b) ruling prohibited him from interrogating the
contradictions between prior statements and present testimony as governed, not by Rule 608(b),
but by the rules governing impeachment generally.”2 (Mot. Vacate at 8.)
Mr. Jimenez-Valenia raised this issue on direct appeal, though with a slightly different
twist. On appeal, Mr. Jimenez-Valenia claimed that the court erred by excluding impeachment
evidence against Mr. Frisbie. Now Mr. Jimenez-Valenia contends that his attorney was
ineffective by failing to obtain a further ruling on this issue. The Tenth Circuit found that Mr.
Frisbie’s statement, which the court excluded, was “simply unhelpful to the defense”—“it [did]
not contain a smoking gun and [was] generally consistent with the testimony Frisbie gave.”

2

Mr. Jimenez-Valenia’s exact argument is somewhat unclear. He states that the court, in
response to the Government’s Rule 608(b) objection, “excluded evidence of Frisbie’s prior
statement without offering reasons.” (Mot. Vacate at 8.) But he then argues that his attorney was
ineffective in failing to obtain a ruling. The court interprets Mr. Jimenez-Valenia’s argument to
be that his attorney was ineffective in failing to request clarification of the court’s ruling under
Rule 608(b) and to obtain a ruling under Rule 613. Regardless of the precise formulation, Mr.
Jimenez-Valenia’s argument fails.
-3-

Jimenez-Valenia, 419 Fed. App’x at 822. Because the statement would have had little probative
value as impeachment evidence and any error did not have a “substantial influence on the
outcome,” the court did not overturn Mr. Jimenez-Valenia’s conviction. Id. Mr. JimenezValenia is precluded from now raising the issue in a petition for collateral review. United States
v. Cook, 997 F.2d 1312, 1318 n.6 (10th Cir. 1993).
Counsel’s Failure to Move for a Mistrial
Mr. Jimenez-Valenia argues that his trial attorney should have made a formal motion for
a mistrial after voir dire because the jury was “obviously tainted due to the remarks made by [the]
Court.” (Mot. Vacate at 12.) Mr. Jimenez-Valenia contends that as a result of this failure, the
court “did not have benefit of a formal motion for a mistrial upon which to rule.” (Id.)
Again, Mr. Jimenez-Valenia raised a version of this issue on direct appeal. On appeal,
Mr. Jimenez-Valenia claimed that the court should have declared a mistrial when it became
apparent that several of the potential jurors had interpreted statements by the court as implying
that he was in the United States illegally. The Tenth Circuit found that none of the empaneled
jurors’ responses indicated any inference that Mr. Jimenez-Valenia was in the country illegally.
Because it was not “clear or obvious” that the empaneled jury was biased, the Tenth Circuit did
not overturn Mr. Jimenez-Valenia’s conviction. Jimenez-Valenia, 419 Fed. App’x at 821.
Again, Mr. Jimenez-Valenia is precluded from now raising the issue in a petition for collateral
review. Cook, 997 F.2d at 1318 n.6.
CONCLUSION
For the foregoing reasons, Mr. Jimenez-Valenia’s Motion to Vacate (Dkt. No. 1) is

-4-

DENIED.
DATED this 15th day of November, 2011.

BY THE COURT:

______________________________
TENA CAMPBELL
United States District Judge

-5-