Perez v. USA
Filing
4
MEMORANDUM DECISION AND ORDER denying 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255). The Clerk of Court is directed to close this case forthwith. Signed by Judge Ted Stewart on 9/7/2016. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL
CUSTODY
NESTOR OBREGON-PEREZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Civil Case No. 2:16-CV-429 TS
Criminal Case No. 2:13-CR-532 TS
Respondent.
District Judge Ted Stewart
This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below,
the Court will deny the Motion and dismiss this case.
I. BACKGROUND
On July 25, 2013, Petitioner was charged in a Felony Information with manufacturing a
controlled substance by cultivation. Petitioner proceeded to trial on March 10, 2014. Petitioner
was found guilty. On a special verdict form, the jury concluded that Petitioner possessed more
than 1,000 marijuana plants. This finding triggered a 120 month mandatory minimum sentence,
which was imposed on June 3, 2014.
Petitioner appealed his conviction. On appeal, Petitioner argued that the government had
violated a prior stipulation regarding the number of plants (the “Plant Stipulation”) by
introducing the testimony of Trooper Bairett. The Tenth Circuit rejected this argument and
affirmed Petitioner’s conviction. Petitioner timely filed the instant Motion on May 20, 2016.
1
II. DISCUSSION
Petitioner raises four arguments in his Motion: (1) there was insufficient evidence to
support the minimum mandatory sentence; (2) prosecutorial misconduct regarding testimony in
contradiction to a stipulation; (3) prosecutors prejudiced his appeal by moving oral argument to
Provo, Utah; and (4) ineffective assistance of counsel.
The government argues that Petitioner’s first two claims are procedurally barred because
they were raised on direct appeal. Under § 2255, Petitioner may not raise issues that have been
previously considered and disposed of on direct appeal. 1 “Absent an intervening change in the
law of a circuit, issues disposed of on direct appeal generally will not be considered on a
collateral attack by a motion pursuant to § 2255.” 2
As set forth above, Petitioner’s appeal concerned the admission of testimony of Trooper
Bairett in alleged contravention of the Plant Stipulation. In the Plant Stipulation, the parties
agreed as to how the officers had counted the plants at the grow site where Petitioner was
apprehended. The parties further agreed that the officers “recognized a small percentage of the
plants as visually-identifiable marijuana plants. Most of the plants, however, were too immature
to readily identify as marijuana plants by visual inspection. All the immature plants, however,
were consistent with each other in appearance.” 3
At trial, Trooper Bairett testified that he had gone back through the pictures and believed
that 40% to 50% of the plants seized were identifiable as marijuana. Trooper Bairett was
confident that there were at least 1,000 marijuana plants at the grow site.
1
United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).
2
United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989).
3
Docket No. 57 in Case No. 2:13-CR-532 TS.
2
Petitioner’s first claim—insufficient evidence that he cultivated more than 1,000
marijuana plants—was not directly raised by Petitioner on appeal, but it is nonetheless resolved
by the Tenth Circuit’s decision. The Tenth Circuit specifically found that the “government
offered strong evidence that Obregon-Perez was cultivating more than 1,000 marijuana plants.” 4
The Tenth Circuit detailed that the officers found 2,825 plants at the grow site, that the plants
looked consistent, and that scientific tests on some plants showed they were marijuana. “It is not
a huge inferential leap to say that at least 1,000, just over a third, of those plants were marijuana.
Additionally, common sense dictates that it is extremely unlikely that fewer than 1,000, about
35%, of those plants were marijuana.” 5 Thus, the Court rejects Petitioner’s contention that there
was insufficient evidence that he had cultivated over 1,000 marijuana plants.
The Court agrees that Petitioner’s second claim—prosecutorial misconduct—was directly
raised on appeal. Petitioner specifically raised a claim of prosecutorial misconduct on appeal
based on the prosecutor eliciting testimony in alleged contravention of the Plant Stipulation.
That same argument makes up the substance of Petitioner’s second claim. The Tenth Circuit
addressed this claim and concluded that Petitioner “failed to show a colorable claim of
prosecutorial misconduct.” 6 As this claim was raised and disposed of on appeal, it is
procedurally barred, absent an intervening change in the law. Petitioner has pointed to no such
change.
Petitioner next argues that his appeal rights were negatively affected because the
prosecutor requested the location of oral argument be moved from Denver, Colorado to Provo,
4
United States v. Obregon-Perez, 635 F. App’x 532, 535 (10th Cir. 2015).
5
Id.
6
Id.
3
Utah. Petitioner’s argument rests on a false premise. There is no evidence that the government
requested oral argument be moved. Indeed, the government did not request oral argument at all.
The decision of when and where the argument was held was made by the Tenth Circuit Court of
Appeals, not the prosecution. Moreover, there is nothing in the record to suggest that the
location of oral argument altered Petitioner’s appeal rights. Petitioner’s appeal was heard by a
panel of impartial judges. The location of the argument was irrelevant to their decision.
Petitioner finally argues that his counsel was ineffective because he was convicted based
on little evidence and because counsel was not able to assist Petitioner in getting a lesser
sentence. The Supreme Court has set forth a two-pronged test to guide the Court in making a
determination of ineffective assistance of counsel. “To determine ineffectiveness of counsel,
[Petitioner] must generally show that counsel’s performance fell below an objective standard of
reasonableness, and that counsel’s deficient performance was prejudicial.” 7 A court is to review
Petitioner’s ineffective-assistance-of-counsel claim from the perspective of his counsel at the
time he or she rendered the legal services, not in hindsight. 8 In addition, in evaluating counsel’s
performance, the focus is not on what is prudent or appropriate, but only what is constitutionally
compelled. 9 Finally, there is “a strong presumption that counsel provided effective assistance,
and a section 2255 defendant has the burden of proof to overcome that presumption.” 10
7
United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 690 (1984)).
8
Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).
9
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).
10
United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2002).
4
Even if Petitioner could show that counsel’s performance was deficient, Petitioner has
failed to demonstrate prejudice. To establish prejudice, 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.” 11 Petitioner argues that he was convicted based on little evidence,
but the record demonstrates that there was ample evidence to support Petitioner’s conviction.
Further, as set forth above, there was compelling evidence to support the conclusion that
Petitioner possessed more than 1,000 marijuana plants.
To the extent that Petitioner’s claim is based on counsel’s failure to object to the
testimony of Trooper Barrett, it fails. Even without that testimony, there is “no reasonable
probability that the result would have changed. The government offered strong evidence that
Obregon-Perez was cultivating more than 1,000 marijuana plants.” 12 Based upon this,
Petitioner’s ineffective assistance of counsel claim must fail.
III. CONCLUSION
It is therefore
ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Docket No. 1 in Case No. 2:16-CV-429 TS) is
DENIED. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
11
Strickland, 466 U.S. at 694.
12
Obregon-Perez, 635 F. App’x at 535.
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ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
The Clerk of Court is directed to close Case No. 2:16-CV-429 TS forthwith.
DATED this 7th day of September, 2016.
BY THE COURT:
Ted Stewart
United States District Judge
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