Collado-Rivera v. United States

• Decision Date: 21 November 2022
• Docket Number: 2:16-cr-17(3)
• Parties: Oscar M. Collado-Rivera, Movant, v. United States of America Respondent.
• Court: U.S. District Court — Southern District of Ohio

Oscar M. Collado-Rivera, Movant,
v.
United States of America Respondent.

No. 2:16-cr-17(3)

United States District Court, S.D. Ohio, Eastern Division

November 21, 2022

Judge Merz, Magistrate

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

Oscar M. Collado-Rivera (“Movant”) moves to vacate his sentence pursuant to 28 U.S.C. § 2255. Mot., ECF Nos. 488 & 494. Movant now objects to aspects of the two Reports and Recommendations (“R&Rs”) issued by the Magistrate Judge. Obj., ECF Nos. 508, 509, 512. For the following reasons, the Court OVERRULES Movant's objections and ADOPTS both R&Rs.

I. BACKGROUND

On November 16, 2016, a federal jury found Movant guilty of one count of conspiracy with intent to distribute cocaine. ECF No. 273. A few days after the jury returned the verdict, the Court denied Movant's motion for acquittal under Federal Rule of Criminal Procedure 29. ECF No. 276. Subsequently, the Court sentenced Movant to a term of 200 months' imprisonment, 5 years of supervised release, and a $100 special assessment. ECF No. 379. Movant timely appealed, ECF No. 381, and the United States Court of Appeals vacated the

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Court's denial of Movant's counsel's post-trial motion to substitute counsel, remanded for consideration of whether there was good cause to allow substitution, and affirmed in all other respects. ECF No. 445. The Court held a hearing on the motion to withdraw and determined that, at the time of the motion, there was not good cause for allowing substitution. ECF No. 455. Movant again timely appealed, ECF Nos. 456 & 458, and the Sixth Circuit affirmed. ECF No. 472. Movant now moves to vacate under 28 U.S.C. § 2255. ECF No. 488 & 494.

II. REPORT AND RECOMMENDATION

Pursuant to the Court's General Orders, Magistrate Judge Merz issued an R&R on Movant's motion. R&R, ECF No. 507. The R&R recommends denying the motion as to all claims. Id. Movant timely objected to various portions of the R&R, ECF Nos. 508 & 509, and the Court recommitted the matter to the Magistrate Judge for further consideration, ECF No. 510. The Magistrate Judge then issued a Supplemental R&R, which still recommended denying the motion to vacate in its entirety. Supp. R&R, ECF No. 511. Movant has timely objected to the Supplemental R&R. ECF No. 512.

III. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 72(b), the Court determines de novo those portions of the R&R that were properly objected to.

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IV. ANALYSIS

There are a few preliminary matters to address. First, the Court will use the naming and numbering of Movant's claims from his first motion. In Movant's original motion to vacate, Movant asserts the following claims: (A) ineffective assistance of counsel for failing to request a Franks hearing; (B) ineffective assistance of counsel for failing to investigate; (C) Brady violations; (D) the Government improperly “influenced the grand jury's decision to indict”; (E) the Government withheld “favorable evidence from the defense”; (F) a witness for the Government provided false testimony, the prosecutor knew it was false, yet failed to correct it; (G) the Government withheld “favorable evidence from the defense”; (H) ineffective assistance of counsel for failing to interview and call witnesses; (I) the prosecutor withheld “favorable evidence from the defense”; (J) ineffective assistance of counsel for failing to file additional objections to the pre-sentence investigation report; (K) ineffective assistance of appellate counsel for failing to argue the above issues on appeal; (L) a request for an evidentiary hearing. Mot., EOF No. 488.

With the Court's leave, Movant subsequently filed an amended motion to vacate. ECF No. 494. Therein, Movant asserts many of the same claims and arguments about ineffective assistance of counsel and prosecutorial misconduct as in his original motion. Id. However, as pointed out in the R&R, both the Government's response and Movant's reply use the numbering and wording of the claims as they were styled in the original motion. See Resp., ECF No. 500; Reply, ECF No. 506.

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Although the Court considers both motions in their entirety, the Court will generally refer to the claims as they were titled in the original motion.

Next, Movant requests an evidentiary hearing. “If a factual dispute arises in a § 2255 proceeding, the district court must hold an evidentiary hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Griffin v. United States of America, No. 20-4070, 2022 WL 16556632, at *2 (6th Cir. Oct. 27, 2022) (cleaned up). Here, there is no need for an evidentiary hearing because the motion and record conclusively establish that Movant is not entitled to relief.

Finally, Movant makes a few objections to the Supplemental R&R's characterization of Movant's prior objections. See Obj. 2-8, ECF No. 512. Essentially, these objections argue that the Supplemental R&R is wrong about Movant's prior objections because his underlying claims are meritorious. Id. Because these objections overlap with the objections on the merits, the Court does not address them separately.

Turning now to the merits of Movant's claims, the claims can be grouped into two categories: ineffective assistance of counsel and prosecutorial misconduct. The Court first considers the ineffective assistance of counsel claims.

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A. Ineffective Assistance of Counsel Claims

The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984), and requires proof of deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (citation omitted); see also Griffin, 2022 WL 16556632, at *2 (using the Strickland framework when evaluating a § 2255 motion).

With respect to the first prong of the Strickland test, a movant must show that “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. For courts examining this prong, the Supreme Court of the United States has instructed as follows:

Judicial scrutiny of counsel's performance must be highly deferential... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Id. at 689 (internal quotation marks and citations omitted).

The prejudice prong of Strickland requires proof that, but for counsel's deficient performance, there is a reasonable probability that “the result of the proceeding would have been different.” Id. at 694.

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1. Failure to Request a Franks Hearing

In Claim One, Movant asserts that his trial counsel was ineffective for failing to request a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

A counsel's failure to request a Franks hearing may be the basis for an ineffective assistance of counsel claim, but only if the movant would have been entitled to a Franks hearing. Robinson v. United States, No. 3:06-CR-094-RLJ-CCS, 2014 WL 4802903, at *7 (E.D. Tenn. Sept. 26, 2014) (citing cases). A defendant is entitled to a Franks hearing if he (1) ''makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” and (2) “the allegedly false statement is necessary to the finding of probable cause.” United States v. Green, 572 Fed.Appx. 438, 441 (6th Cir. 2014) (explaining the standard on a direct appeal); see also Robinson, 2014 WL 4802903 at *2-5 (applying the same framework to a § 2255 motion). Further, to be entitled to a Franks hearing, a defendant must “point to specific false statements and then accompany his allegations with an offer of proof.” Green, 572 Fed.Appx. at 441 (emphasis in original) (internal quotation marks and citations omitted).

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Here, Movant argues that an officer who worked on his case,^[1] Mr. Downard, and another officer who did not work on his case, Mr. Mauger, were later convicted of federal crimes based on their conduct of, inter alia, knowingly submitting warrants with false information to judges in support of warrants. Mot. 6-7, ECF No. 488-1.

Although it is true that these two officers were arrested because of their unlawful conduct during the performance of their official duties on other cases, see Case Nos. 2:16-mj-97; 2:16-cr-91, Movant offers no argument (let alone proof) that the officers committed any misconduct in this case. That is, Movant merely argues that because Mr. Mauger and Mr. Downard allegedly lied on other affidavits, they must have lied on this affidavit. This argument falls far short of the requirement to point to specific false statements and, as a result, Movant has not shown he would have been entitled to a Franks hearing.

Because Movant has not shown he would have been entitled to a Franks hearing, he likewise does not show that his counsel was ineffective for not requesting such a hearing. Accordingly, Movant's objections related to this claim are OVERRULED.

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2. Failure to investigate

Movant argues that his counsel failed to properly investigate his case and that a proper investigation would have revealed Mr. Downard's role in Movant's case. Although Movant does not expressly se-say, presumably his argument is that if his counsel had discovered Mr. Downard's role in the investigation, counsel would have moved for a Franks...