Anchondo v. United States of America

Filing 13

ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 by Judge Robert S. Lasnik. (AD) cc: petitioner

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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_______________________________________
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RAUL ANCHONDO,
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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_______________________________________)

Case No. C15-1070RSL
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255

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This matter comes before the Court on petitioner Raul Anchondo’s “Motion to Vacate,

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Set Aside, or Correct Sentence by a Person in Federal Custody: 28 U.S.C. § 2255.” Dkt. # 1.

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Having reviewed the memoranda and record, the Court finds as follows:
BACKGROUND

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In 2011, federal agents began an investigation after being approached by Brett Karch. In

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April of 2011, Karch had told a step-uncle, Pascual Valenzuela, that he wanted to make some

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money by selling two firearms. Valenzuela, a member of an organization headed by the

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Berrelleza-Verduzco family, facilitated the transaction. While completing the sale outside of

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Seattle, Karch met several Berrelleza-Verduzco organization members and was asked to travel to

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Texas in order to purchase two additional firearms and bring them to a man named “Raul,” in

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Phoenix. Although Karch agreed and eventually delivered the firearms, he started to have

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ORDER DENYING MOTION
UNDER 28 U.S.C. § 2255

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second thoughts.
Towards the end of May 2011, Karch informed officials in Texas about what he had done

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and learned. He immediately began assisting them with a multi-phase investigation into what

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turned out to be a sizeable Berrelleza-Verduzco drug smuggling operation involved largely in

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Phoenix and Washington. As part of the operation, low-level members were required to man

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various stash houses in Phoenix, where guns, drugs, and money were stored. Those members

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would drive the contraband back and forth between Phoenix and Washington, allowing the

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organization to provide drugs to downstream buyers. Karch and two other Berrelleza-Verduzco

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members identified Raul, also known as “Pecce” (petitioner Anchondo), as someone who both

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manned a stash house and occasionally drove the organization’s shipments.
In March of 2012, prosecutors indicted petitioner and 33 other individuals involved in the

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Berrelleza-Verduzco operation. Petitioner’s repeated difficulties with his appointed counsel

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resulted in two of them filing motions to withdraw, Dkt. ## 387, 618, while petitioner’s third

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appointed attorney, David Hammerstad, lasted through trial before requesting his own

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withdrawal.1 Dkt. # 981. At trial, the jury heard the evidence described above, including

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testimony by informant Karch and co-conspirators Ernesto Soto and Alma Casillas-Garcia,

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identifying petitioner as taking part in the Berrelleza-Verduzco conspiracy. The co-conspirators,

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also low-level members of the organization, had either worked with petitioner at stash houses in

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Phoenix or driven with him between Arizona and Washington. Petitioner was ultimately found

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guilty of (1) conspiracy to distribute heroin and/or methamphetamine, (2) conspiracy to possess

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firearms in furtherance of a drug trafficking crime, and (3) possession of firearms in furtherance

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of a drug trafficking crime. After the verdict, petitioner filed a motion to enforce a pre-trial plea

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agreement and for ineffective assistance of counsel. This Court denied that motion and that

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An additional appointed attorney was allowed to withdraw for logistical reasons. Dkt. # 648.

ORDER DENYING MOTION
UNDER 28 U.S.C. § 2255

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decision was affirmed on appeal. United States v. Anchondo, 588 F. App’x 598 (9th Cir. 2014)

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(mem.). Petitioner then filed this timely § 2255 petition.

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DISCUSSION
Pursuant to 28 U.S.C. § 2255, prisoners in custody may move for review of their sentence

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on the basis that their conviction resulted from a denial or infringement of their constitutional

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rights. The Court will then review the motion and associated files and records to determine

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whether the petitioner’s claim warrants an evidentiary hearing. 28 U.S.C. § 2255(b). To be

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entitled to a hearing, petitioner must allege specific and credible facts that, if true, would entitle

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him to habeas relief. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). The Court

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may refuse to hold a hearing if a claim is “so palpably incredible or patently frivolous as to

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warrant summary dismissal.” United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).

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In his petition, Mr. Anchondo raises two categories of issues. The first is that prosecutors

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engaged in misconduct both by failing to accept his guilty plea and by engaging in inappropriate

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courtroom tactics. The second is that he received ineffective assistance by his trial counsel,

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David Hammerstad, both during plea negotiations and in Mr. Hammerstad’s investigation and

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litigation of petitioner’s case.

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I.

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Prosecutorial Misconduct
Although petitioner raised prosecutorial misconduct as a ground for relief in his initial

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§ 2255 petition, he neither raised this issue on direct appeal, see Anchondo, 588 F. App’x 598,

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nor responded to the government’s assertion that his omission on appeal constituted a waiver.

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Dkt. # 6 at 9-10. In the context of a § 2255 petition, the general rule is that “[p]etitioners waive

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the right to object in collateral proceedings unless they make a proper objection before the

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district court or in a direct appeal from the sentencing decision.” United States v. McMullen, 98

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F.3d 1155, 1157 (9th Cir. 1996). Petitioner has not shown the required cause or prejudice to

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justify his bringing a prosecutorial misconduct claim in this petition for the first time. See

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Massaro v. United States, 538 U.S. 500, 504 (2003). Petitioner’s silence on this issue both on

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direct appeal and in his reply brief is treated as a forfeiture of the claim.

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II.

Ineffective Assistance of Counsel

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Petitioner further claims that his Sixth Amendment rights were violated by ineffective

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representation provided by his attorney both prior to trial – i.e. during plea negotiations – and

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during trial. The question at this stage is whether petitioner’s claims may be dismissed without a

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hearing, which “is required only where counsel’s competence or loyalty is placed in question by

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substantial allegations of fact.” Diamond v. United States, 432 F.2d 35, 38 (9th Cir. 1970).

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A.

Assistance During Plea Negotiations

Petitioner asserts his attorney both failed to adequately inform him of the contents of plea

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offers and was negligent in waiting to notify the government that petitioner had accepted those

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offers. Dkt. # 12 at 6-7. Petitioner already raised this issue before this Court and subsequently

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appealed this Court’s ruling. The appeals court held that petitioner had “failed to show deficient

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performance and/or prejudice in his ineffective assistance of counsel claims.” Anchondo, 588 F.

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App’x at 599. Petitioner presents no reason to reconsider that determination, and the same claim

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cannot be raised again. Paige v. United States, 456 F.2d 1278 (9th Cir. 1972). Petitioner’s

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petition on this issue is denied.

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B.

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Mr. Anchondo’s petition claiming ineffective assistance of counsel was supported with

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predominately conclusory statements that were supplemented and expanded in his reply brief.

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Ninth Circuit precedent, however, requires parties to argue all matters in their opening brief or

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petition unless an exception applies. Koerner v. Grigas, 328 F.3d 1039, 1049 (9th Cir. 2003).

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Those exceptions include if there was good cause for why the argument was not raised, if the

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argument was raised by an opposing party, or if failure to raise the issue did not prejudice the

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opposing party. See id. (applying good cause exception to pro se plaintiff’s new argument).

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Assistance Before and During Trial

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Because none of the exceptions apply to this case, Mr. Anchondo’s failure to include in his

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petition facts supporting his claim of ineffective assistance would alone provide a basis to deny a

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hearing. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not

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consider arguments raised for the first time in a reply brief.”). Even considering the totality of

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allegations made in Mr. Anchondo’s petition and reply, including allegations the government

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had no opportunity to respond to, there is insufficient basis to grant a hearing.

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As a threshold matter, although petitioner did not present these claims on direct appeal,

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the Supreme Court has recognized an exception to the appeal requirement for ineffective

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assistance claims. Massaro, 538 U.S. at 504. When reviewing an ineffectiveness claim,

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“[j]udicial scrutiny of counsel’s performance must be highly deferential,” and there is a “strong

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presumption that counsel’s conduct falls within the wide range of reasonable professional

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assistance.” Id. at 689. To show ineffective assistance, petitioner must demonstrate (1) that his

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trial counsel made objectively unreasonable errors and (2) that there is a reasonable probability

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that those errors prejudiced the proceedings. Strickland v. Washington, 466 U.S. 668, 687

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(1984). “A reasonable probability is a probability sufficient to undermine confidence in the

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outcome.” Id. at 669. Under the second Strickland prong, “[a]n error by counsel, even if

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professionally unreasonable, does not warrant setting aside the judgment of a criminal

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proceeding if the error had no effect on the judgment.” Id. at 691.

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i.

Defense Counsel’s Investigation and Trial Presentation

Petitioner’s first contention is that two individuals – Pascual Valenzuela and Victor

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Berelleza-Verduzco – should have testified at his trial and that a bill of sale for a car registered

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to petitioner should have been introduced into evidence. Petitioner claims that his attorney’s

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failure to use this exculpatory testimony and evidence was the result of an insufficient

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investigation into petitioner’s innocence.

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When evaluating petitioner’s claims, “a particular decision not to investigate must be
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directly assessed for reasonableness in all the circumstances, applying a heavy measure of

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deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Relevant to this reasonableness

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determination is the information provided by the defendant, id., as well as the nature and

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strength of the government’s case. Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir. 1997). If

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the ineffectiveness involved a failure to call a witness, the burden is on petitioner to show by a

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preponderance of the evidence that the witness would have actually testified, that the testimony

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would have been as petitioner suggests, and that there is a reasonable probability that the

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testimony would have led to a more favorable result. Alcala v. Woodford, 334 F.3d 862, 872-73

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(9th Cir. 2003) (citing Strickland, 466 U.S. at 694).

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Even assuming the proposed witnesses were likely to testify as petitioner suggests, it is

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unlikely that the absence of their testimony affected the proceeding’s outcome. Petitioner’s guilt

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was primarily established through the testimony of a government informant and two members of

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the Berelleza-Verduzco organization. Mr. Valenzuela was relevant to the government’s case in

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that he provided his step-nephew Bret Karch, the soon-to-be government informant, with a

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phone number for “Raul.” United States v. Anchondo, 12-cr-00062-RSL, Dkt. # 1248 at 114.

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When Karch called this number, he talked to someone that identified himself as “Raul.” Id. at

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115. Karch later saw “Raul” at a Berelleza-Verduzco stash house and identified him at trial as

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petitioner Anchondo. Mr. Valenzuela’s proposed testimony – that he “really did not know the

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defendant,” Dkt. # 12 at 10 – does not establish petitioner’s innocence or further any defense.

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Whether Mr. Valenzuela personally knew petitioner well is irrelevant to testimony by Karch and

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other government witnesses who talked to, saw, and worked with petitioner in connection with

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illegal activities.

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Even less likely to have altered the outcome of the trial is petitioner’s proposed testimony

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by Victor Berelleza-Verduzco. Although Berelleza-Verduzco played an important role in the

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Berelleza-Verduzco organization, he came up only tangentially during testimony at trial. His

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proposed testimony that “Anchondo did not have any knowledge of the alleged conspiracy” and

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was “just an acquaintance and not a co-conspirator,” Dkt. # 12-1 at 54, is made up of conclusory

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statements that lack exculpatory value. See also Steele v. United States, 362 F.2d 536, 537 (10th

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Cir. 1966) (“It was not incumbent upon the [trial] court to conduct an evidentiary hearing on the

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mere chance that, if called, the witness would testify to any facts which would substantially

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affect the regularity or integrity of the jury trial pursuant to which petitioner was sentenced.”).

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Trial counsel’s omission of these two witnesses does not place the trial’s outcome in any serious

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doubt. Petitioner’s links to the organization were independent of any relationship he may or may

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not have had with the would-be witnesses, and their proposed testimony would have done little

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to rebut the substantive factual allegations made at trial.
Petitioner also argues that testimony elicited by the government, connecting petitioner to

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the conspiracy through a yellow H3 Hummer registered in petitioner’s name, could have been

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discredited. Petitioner asserts that he had sold the vehicle to “co-defendant Berelleza [sic],” that

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he told his attorney about the sale, and that a bill of sale should have been introduced at trial.

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Dkt. # 12 at 10. Evidence of this transaction, however, does little to distance petitioner from the

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Berelleza-Verduzco conspiracy. At trial, the government introduced several witnesses that

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connected petitioner to the H3 and the H3 to the drug smuggling, including one who stated that

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members would “just put[] a car under [their] name” so that it could be properly registered and

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then used by the organization. Anchondo, 12-cr-00062-RSL, Dkt. # 1249 at 85. Mr.

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Hammerstad’s choice not to bring up the bill of sale at trial does not put the trial’s outcome in

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doubt, and may have been a strategic choice not to introduce evidence that could be seen to

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further connect petitioner with the conspiracy.

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Petitioner’s complaints about his attorney’s trial strategy do not suggest that Mr.

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Hammerstad made any unreasonable errors, much less that those errors resulted in a

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questionable jury verdict. The petition on this issue is denied.

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ii.

Defense Counsel’s Courtroom Representation

Petitioner’s second claim, broadly stated, is that his attorney “failed to exploit”

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weaknesses in the government’s case by objecting to the government’s questioning and

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statements. In one instance, petitioner alleges that his attorney failed to “object to the

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government’s misconduct” when a government witness had trouble pointing out petitioner in the

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courtroom. Dkt. # 12 at 13. In another, a witness identified petitioner’s voice in a recording

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despite petitioner’s characterization that “voices in the recording were unidentifiable.” Id. at 14.

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Petitioner claims the only way the witness could have identified petitioner’s voice was for the

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government to have informed the witness beforehand, and that his attorney was ineffective for

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failing to object to improper witness “coaching.” Id. In a third instance, petitioner would have

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had Mr. Hammerstad object to the prosecution’s “twist[ing of] the record” during closing

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arguments, when the prosecutor made statements petitioner suggests were inconsistent. Id. at 15.

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Petitioner’s claim of ineffective assistance in these situations results from a

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misunderstanding of trial procedure. In the first two situations, rather than make evidentiary

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objections, petitioner’s attorney used questions during cross examination to highlight the same

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issues petitioner brings up now. See Anchondo, 12-cr-00062-RSL, Dkt. # 1248 at 204-06

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(questioning witness about difficulty identifying defendant); id., Dkt. # 1249 at 79-81

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(questioning witness about recording quality). With respect to the third issue, factual

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inconsistencies in the prosecution’s case are appropriate for the jury to consider and weigh and

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for the defense to bring out on cross examination. A review of the trial transcript shows that Mr.

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Hammerstad brought the potential for inconsistencies and inaccurate testimony to the jury’s

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attention, allowing them to accept or reject the prosecution’s factual account. See, e.g., id., Dkt.

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# 1253 at 36-40 (highlighting prosecution witnesses’ motive to support prosecution’s narrative).

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Petitioner’s complaints about his representation at trial do not suggest that his counsel

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made serious errors and do not place the trial’s outcome in doubt; his petition on this issue is

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denied.
iii.

Defense Counsel’s Relationship with Petitioner

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Petitioner alleges that during the course of his relationship with defense counsel, their

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attorney-client relationship deteriorated into “irreconcilable conflict.” Dkt. # 12 at 16. This

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conflict allegedly resulted in the two men fighting and counsel using profane language, the

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withholding of evidence from petitioner, and a lack of communication leading up to trial.

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The Ninth Circuit has recognized that a defendant’s Sixth Amendment right to counsel

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“means more than just the opportunity to be physically accompanied by a person privileged to

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practice law.” Frazier v. United States, 18 F.3 778, 782 (1994) (citing Strickland, 466 U.S. at

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685). In extreme situations, the risk that “[defense] counsel entirely fails to subject the

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prosecution’s case to meaningful adversarial testing” has the effect of “mak[ing] the adversary

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process itself presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 659 (1984). In

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those cases, exceptionally unreasonable attorney conduct results in a presumption of prejudice

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under the second Strickland prong. Id. Examples include racial slurs in Frazier, 18 F.3 at 780

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(“Mr. Frazer claimed in his motion that his appointed trial attorney had called him a ‘stupid

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nigger son of a bitch and said he hopes I get life.’”); a spineless closing argument in United

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States v. Swanson, 943 F.2d 1070, 1071 (9th Cir. 1991) (“I am not trying to raise reasonable

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doubt now, because again I don’t want to insult your intelligence.”); and an attorney’s courtroom

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dozing in United States v. Moore, 87 F. App’x 668, 670 (9th Cir. 2004) (“[Petitioner] can prevail

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by showing that his attorney slept during substantial portions of the trial . . . .”).

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Not all attorney-client conflicts, however, are significant enough to support an ineffective

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assistance claim. The Supreme Court has noted that there exists no Sixth Amendment right to a

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“meaningful attorney-client relationship.” Morris v. Slappy, 461 U.S. 1, 3-4 (1983). In the

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related context of an appointed attorney’s motion to withdraw, substitution of new counsel must

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be justified by more than a conflict “based solely on disputes regarding trial tactics.” United

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States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009) (quotation marks and citation omitted).

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Courts have found withdrawal justified where there has been “a serious breach of trust and a

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significant breakdown in communication.” United States v. Adelzo-Gonzalez, 268 F.3d 772,

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779 (9th Cir. 2001) (finding substitution warranted after defendant relayed threats made by his

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attorney and attorney twice accused defendant of lying).

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In this case, not only are petitioner’s allegations either unsupported or contradicted by the

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record, but Mr. Hammerstad’s representation did not approach the gross deviations from

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standard practice outlined above. As previously noted, Mr. Hammerstad’s courtroom advocacy

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was competent enough for petitioner to parrot his former attorney’s arguments in his brief

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supporting this petition. See, e.g., Dkt. # 12 at 13 (citing defense counsel’s cross examination

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favorably); id. at 14 (same). In addition, Mr. Hammerstad appears to have made considerable

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attempts to ensure petitioner had an opportunity to discuss and accept an eleventh-hour plea

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deal, which petitioner previously attempted to have reinstated in this Court. See Dkt. # 12-1 at

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49 (noting that Mr. Hammerstad met with petitioner on April 16th, 23rd, 24th, and 25th, leading

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up to an April 25th plea deadline). Petitioner does not deny that these meetings took place, but

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nonetheless asserts that his attorney cut off communication “for weeks, at times months.” Dkt.

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# 12 at 16. Petitioner does not suggest when this occurred, and the only substantive support for

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this assertion is a piece of mail he sent on April 23rd that was returned as refused on April 25th.

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Dkt. # 12-1 at 53. Regardless of whether Mr. Hammerstad refused this mail out of spite for his

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client, as petitioner suggests, the two of them met in person at least three times over that period.

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Mr. Hammerstad’s communication during this critical time was hardly deficient. Finally,

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although petitioner claims that Mr. Hammerstad shouted at him, called him offensive names, and

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on one occasion did not provide him with enough time to review discovery documents, he

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mentions nothing about when these events occurred or what was said. Dkt. # 12 at 16. Without

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more, these bald statements do not amount to the “substantial allegations of fact” required to

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hold an evidentiary hearing. See Diamond, 432 F.2d at 38. Because petitioner’s claims lack the

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support necessary to demonstrate that Mr. Hammerstad acted unreasonably, his petition on this

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issue is denied.

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III.

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Certificate of Appealability
A petitioner may appeal the district court’s decision dismissing his § 2255 motion only

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after obtaining a certificate of appealability. The Court is required to issue or deny a certificate

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of appealability when it enters a final order denying petitioner’s motion. Rules Governing

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Section 2255 Proceedings for the U.S. Dist. Cts., R. 11. If petitioner makes “a substantial

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showing of the denial of a constitutional right,” the Court may issue the certificate. 28 U.S.C.

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§ 2253(c)(2). The record must demonstrate “that jurists of reason could disagree with the district

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court’s resolution of [petitioner’s] case or that the issues presented were adequate to deserve

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encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As set

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forth above, there is substantial evidence of petitioner’s guilt. Because there can be no

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reasonable disagreement with this conclusion, petitioner is not entitled to a certificate of

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appealability.

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For the foregoing reasons, petitioner’s motion under 28 U.S.C. § 2255 is DENIED. Petitioner
is DENIED a certificate of appealability under 28 U.S.C. § 2253.

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DATED this 19th day of May, 2016.

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A
Robert S. Lasnik

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United States District Judge

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