Aguirre v. United States

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
PartiesJOEL AGUIRRE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberNo. C 10-4128-MWB,No. CR 07-4073-MWB,C 10-4128-MWB,CR 07-4073-MWB
Decision Date27 November 2012
MEMORANDUM OPINION AND

ORDER RE PETITIONER'S

SECTION 2255 MOTION

TABLE OF CONTENTS

I. INTRODUCTION.........................................2
B. The § 2255 Motion ...................................6
II. LEGAL ANALYSIS.......................................7
A. Standards For § 2255 Relief ............................. 7
B. Procedural Matters .................................. 10
1. Need for an evidentiary hearing.................... 10
2. Procedural default ............................ 11
C. Ineffective Assistance Of Counsel......................... 12
1. Applicable standards ........................... 12
2. Failure to conduct reasonable investigation ............ 15
4. Inadequate cross examination at sentencing hearing...... 23
5. Inadequate request for second psychological evaluation .... 25
6. Failure to fully present mental health issues............ 28
7. Issues waived................................ 29
8. Failure of probation officer ...................... 30
9. Demeanor.................................. 31
D. Certificate Of Appealability ............................. 32
III. CONCLUSION ........................................ 33
I. INTRODUCTION

This case is before me on petitioner Joel Aguirre's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), filed on December 20, 2010, as amended (Civ. docket no 26), on August 2, 2011. Aguirre claims that the first attorney who represented him at the trial level provided ineffective assistance of counsel by violating the attorney/client privilege and that his second trial counsel provided him with ineffective assistance of counsel in several ways. The respondent denies that Aguirre is entitled to any relief on his claims.

A. The Criminal Proceedings

On October 26, 2007, Aguirre was charged by a one-count Indictment (Crim. docket no. 1). The Indictment charged Aguirre with conspiracy to distribute, and possession with intent to distribute, 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), all in violation of 21 U.S.C. § 846. See Crim. docket no. 1. On October 30, 2007, Aguirre appeared in front of then Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to the Indictment. See Crim. docket no. 10.

On March 18, 2008, Aguirre appeared before Judge Zoss to change his plea to guilty to the Indictment. See Crim. docket no. 42. Judge Zoss filed a Report And Recommendation Concerning Plea Of Guilty (Crim. docket no. 45), on March 18, 2008,recommending that Aguirre's plea of guilty be accepted. I entered an Order Concerning Magistrate's Report And Recommendation Regarding Defendant's Guilty Plea (Crim. docket no. 46) on April 2, 2008, thereby accepting Aguirre's guilty plea to the Indictment.

Aguirre's trial counsel filed a Motion To Withdraw (Crim. docket no. 52), on May 20, 2008. Aguirre filed a Pro Se Motion for New Attorney (Crim. docket no. 56), on May 21, 2008. On June 4, 2008, Aguirre appeared before Judge Zoss for a hearing on both pending motions. See Crim. docket nos. 57 & 62. After a hearing on the matter, Judge Zoss denied the motions and did not appoint a new attorney to represent Aguirre. See Crim. docket no. 62.

On June 9, 2008, Aguirre, by counsel, filed a Motion For Downward Departure And Variance (Crim. docket no. 65), accompanied by a supporting brief. Aguirre argued that he should benefit from a downward departure or variance because he had an extremely turbulent and violent childhood and because he had a significant history of psychological problems, beginning at age eight and continuing through to the date of sentencing. See Crim. docket no. 65-2, at 2-4. Relying on Section 5K2.13 of the United States Sentencing Guidelines, Aguirre specifically argued that a downward departure was appropriate for diminished capacity. See Crim. docket no. 65-2, at 5.

On June 10, 2008, by counsel, Aguirre filed a Sentencing Memorandum (Crim. docket no. 68), arguing against a two-point enhancement for the possession of a firearm. Aguirre argued that there was no evidence establishing a nexus between a witness's statement that she had seen Aguirre with a gun and any drug crimes committed by Aguirre. See Crim. docket no. 68, at 1-3. Aguirre also argued that the witness's statement was uncorroborated and unreliable. See Crim. docket no. 68, at 1-3.

On June 10, 2008, the government filed a Motion for Upward Departure (Crim. docket no. 69), with an attached brief in support. The Government also filed a Sentencing Memorandum (Crim. docket no. 71), on June 10, 2008.

Aguirre, by counsel, filed a Motion For Psychological Evaluation (Crim. docket no. 75), on June 11, 2008. I entered an Order (Crim. docket no. 78), on June 17, 2008, granting Aguirre's Motion For Psychological Evaluation.

Aguirre filed a Pro Se Motion To Withdraw (Crim. docket no. 101), seeking the removal of his attorney and seeking new counsel, on October 6, 2008. On October 7, 2008, Aguirre's counsel filed a Motion To Withdraw (Crim. docket no. 102). After a hearing on October 23, 2008, Judge Zoss granted both motions and ordered that new counsel be appointed for Aguirre. See Crim. docket no. 107.

Aguirre, by new counsel, filed a Motion For Second Psychiatric Evaluation (Crim. docket no. 122), on December 31, 2008. I entered an Order (Crim. docket no. 123), on December 31, 2008, denying Aguirre's Motion For Second Psychiatric Evaluation.

On February 24, 2009, Aguirre, by counsel, filed a Sentencing Memorandum (Crim. docket no. 129), arguing that the drug quantity involved would establish a base level of 32 and arguing that there should be no upward enhancement for a weapon. See Crim. docket no. 129 at 6-7. Aguirre also argued that he should qualify for an additional two-level reduction "for a mitigating role downward departure under U.S.S.G. §3B1.2(b)." See Crim. docket no. 129 at 8. Further, Aguirre, pursuant to 18 U.S.C. §3553(a), argued for a "20% downward variance because of the almost impossible conditions he grew up under." See Crim. docket no. 129 at 10-11.

Aguirre appeared before me on March 5, 2008, for a sentencing hearing. See Crim. docket no. 139. Both parties stipulated to a base offense level of 32 based on drug quantity. Sent. Trans. at 2. Aguirre's objection to a 2-level increase for possession of adangerous weapon under United States Sentencing Guideline 2D1.1(b)(1), his motion for downward departure based on diminished capacity under United States Sentencing Guideline 5K2.14, his motion for a downward variance, his motion for downward departure based on his role in the offense, and the government's motion for upward departure for substantial underrepresentation of criminal history, all remained contested at the time of sentencing. Sent. Trans. at 2-3.

Although Aguirre had not specifically objected to his role on the merits, as scored in the PSIR, but only raised his objection in his brief, I did not deem that his objection was waived, and without objection of the government, allowed Aguirre to present evidence with regard to his role in the offense. Sent. Trans. at 7-8. After considering the evidence, I determined that Aguirre was not just a minor courier because he had engaged in drug negotiations about quantity and price and the number of times the exchanges took place and had a scale and actually weighed out the drugs for delivery. Sent. Trans. at 41-42.

I then determined that I would treat Aguirre's motion, based on his mental capacity and unfortunate childhood, as both a motion for a downward departure and a motion for a variance, even though it wasn't clear from the documents filed in his case whether he intended his request to be for a variance or a departure. Sent. Trans. at 45-46. As such, I first took under consideration what I construed as a motion for downward departure. Sent. Trans. at 47-48. After reviewing evidence and hearing testimony and arguments by the parties, I denied Aguirre's motion for downward departure based on diminished capacity because Aguirre had not proved that there was a connection between any of his psychological infirmities and his criminal activities. Sent. Trans. at 47-48.

I granted the government's motion for upward departure based on a substantial underrepresentation of Aguirre's criminal history, finding that Aguirre had a propensity for violence and assaultive behavior coupled with a history of recidivism. Sent. Trans. at51. As a result, I departed upward to a criminal history category of 6. Sent. Trans. at 52. I also held, in the alternative, that in the event my decision to depart upward was reversed on appeal, I would vary upward based on 18 U.S.C. § 3553(a) factors, to whatever sentence I ultimately imposed. Sent. Trans. at 52. I found that Aguirre's offense level was 31, with a criminal history of 6. Sent. Trans. at 52. This established Aguirre's guideline range as 188 to 235 months. Sent. Trans. at 52.

Because I had determined to construe Aguirre's motion for a downward departure as both a motion for a downward departure and a motion for a variance, I then considered the motion for a variance. Sent. Trans. at 52-53. I found that a variance was not appropriate in this case, because, while there were some substantial mitigating factors present, they were clearly outweighed by Aguirre's history of assaultive behavior. Sent. Trans. at 55-56. I determined that the appropriate sentence, in Aguirre's case, after consideration of the 18 U.S.C. § 3553(a) factors, was at the high end of the guideline range. Sent. Trans. at 58 I sentenced Aguirre to 235 months. Sent....

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