Cook v. United States

• Docket Number: 1:20-CV-00369-WJ-LF,1:15-CR-03224-WJ-LF-1
• Decision Date: 22 August 2023
• Parties: SANDRA COOK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of New Mexico

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SANDRA COOK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 1:20-CV-00369-WJ-LF, 1:15-CR-03224-WJ-LF-1

United States District Court, D. New Mexico

August 22, 2023

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

Laura Fashing United States Magistrate Judge

THIS MATTER comes before the Court on Sandra Cook's pro se Motion to Vacate under 28 U.S.C. § 2255, filed on April 22, 2020. Doc. 1. On April 24, 2020, Ms. Cook filed an Amended Motion to Vacate under 28 U.S.C. § 2255. Doc. 3. The United States filed its response on October 5, 2022, and Ms. Cook filed her reply on February 6, 2023. Docs. 50, 55. The Honorable Chief District Judge William Johnson referred this case to me to pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (b)(3) to conduct hearings, if warranted and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. Doc. 32. Having reviewed the submissions of the parties and the relevant law, I recommend that the Court deny Ms. Cook's motion.

I. Background Facts^[1] and Procedural Posture

On June 30, 2015, Bernalillo County Sheriff's Department (BCSD) deputies executed a search warrant on a house on Alcazar Street in Albuquerque (the “Alcazar house”) seeking a woman named Marti Solano, who was suspected of dealing large amounts of methamphetamine. United States v. Cook, 761 Fed.Appx. 840, 841 (10th Cir. 2019). As BCSD deputies approached the house, they encountered Jeffrey Burlingame, Sandra Cook's fiance. Id. Burlingame said he did not have a key to the house, so one of the deputies rang the doorbell. Id. at 842-43. Ms. Cook answered the door, and told the deputies that Solano was in the basement. Id. at 842. One of the deputies, Detective Jerry Koppman, went downstairs and encouraged Solano to cooperate with BCSD's investigation. Id. After initially hesitating, Solano identified Ms. Cook as her methamphetamine supplier. Id.

Detective Koppman went back upstairs and confronted Ms. Cook. Id. Ms. Cook feigned ignorance of Solano's claim. Id. But when deputies searched a red purse Ms. Cook was carrying, they found a usable amount of methamphetamine and several bundles of cash. Id. Upon searching the southeast upstairs bedroom, adjacent to the bedroom where Ms. Cook resided, detectives found, inter alia, over six pounds of methamphetamine, more than $20,000 dollars in cash, and Ms. Cook's driver's license and Social Security card. Id. This bedroom did not have a bed in it; it appeared to be a home office and storage area. Id. The deputies believed this room belonged to Ms. Cook because of its proximity to Ms. Cook's bedroom, it was neat and tidy like her bedroom and unlike Solano's basement bedroom, and it also contained several handbags similar to the one Ms. Cook was carrying. Id. In addition, a few days after the search, Ms. Cook asked the landlord to remove Solano's things from the basement bedroom because Ms. Cook did not have access to that locked room. Id. at 842 n.3. This further suggested that Ms. Cook controlled the two upstairs bedrooms and Solano controlled only the basement bedroom. Id.

Shortly after her arrest and booking, Ms. Cook asked to talk with Detective Koppman and, according to his testimony, Ms. Cook admitted that she worked as a distributor for the Sinaloa Cartel in Mexico. Id. at 843. Although Ms. Cook did not testify at trial, she denied making this statement on appeal. Id. Sergeant Brad Cooksey was in the room when the conversation between Detective Koppman and Ms. Cook took place. Id. He testified that he was not paying close attention, but he heard Ms. Cook telling Detective Koppman about a source of supply in Phoenix, and that she would be willing to help BCSD get that target. Id.

Ms. Cook was released on bond and worked for a while as an informant before she “flak[ed] out” and stopped responding to Detective Koppman's calls. Id. At this point, BCSD turned the case over to federal agents at Homeland Security Investigations (HSI) and the United States Attorney's Office, who obtained an indictment and arrest warrant for Ms. Cook based on the evidence found at her home on June 30, 2015. Id.; see also Cr. Docs. 1-3.^[2]

HSI agents obtained information that Burlingame and Ms. Cook entered the United States from Mexico, and that Ms. Cook used a birth certificate with the name Lara Baca to do so. See Cook, 761 Fed.Appx. at 843. Ms. Cook's entry was captured on videotape at a pedestrian crossing in Nogales, Arizona. Id. HSI also learned that Ms. Cook was staying at a house on Habanero Way (the “Habanero house”) in Albuquerque, and they obtained and executed a search warrant there. Id. At that house, federal agents found Ms. Cook and Burlingame inside near a table with methamphetamine residue and drug paraphernalia spread out on it. Id. They also found a bag that contained “about a pound of methamphetamine, a birth certificate and two photo identification cards for Lara Baca, and Ms. Cook's New Mexico driver's license.” Id. at 843-44. Ms. Cook was standing two to three feet from this bag. Id. at 844. In Burlingame's backpack, the agents found a loaded pistol and ammunition. Id. at 844. Ms. Cook was arrested and charged with a second count of possession with intent to distribute 50 grams and more of methamphetamine based on the drugs found at the Habanero house. See Cr. Docs. 75, 76. Ms. Cook went to trial,^[3]and on May 10, 2017, a jury found her guilty on both counts of possession with intent to distribute methamphetamine. Cr. Doc. 122.

At sentencing, the district judge applied several sentencing enhancements, including one for Ms. Cook's role as a manager or supervisor of a criminal activity and another for possession of a firearm as part of that activity. Cr. Doc. 157 at 8-12, 15-24. The Court also granted a downward variance of two levels. Id. at 41. On September 11, 2017, the district judge sentenced Ms. Cook to 324 months in prison on each count, to run concurrently, followed by five years of supervised release. Cr. Doc. 140. The Court entered the judgment reflecting this sentence on September 21, 2017. See id.

On September 22, 2017, Ms. Cook filed a direct appeal to the Tenth Circuit. Cr. Doc. 141. Ms. Cook challenged the district court's exclusion of certain evidence at trial. Cook, 761 Fed.Appx. at 846; see also Doc. 3 at 12. On January 25, 2019, the Tenth Circuit affirmed the district court's evidentiary rulings and affirmed the judgment. Id. at 851. Ms. Cook did not file a petition for writ of certiorari in the Supreme Court so her judgment became final 90 days later, on April 25, 2019. See United States v. Harrison, 680 Fed.Appx. 678, 679-80 (10th Cir. 2017) (unpublished) (explaining the calculation of the date a judgment becomes final). Ms. Cook timely filed her Motion to Vacate on April 22, 2020, and her amended motion on April 24, 2020. See Docs. 1, 3.

II. Ms. Cook's Claims

Although Ms. Cook raises three “claims” in her petition, these claims contain multiple and sometimes interrelated arguments. Because Ms. Cook is proceeding pro se, the Court construes her pleadings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). I understand Ms. Cook to argue ineffective assistance of counsel under the following theories:^[4]

1. Trial counsel did not point out to the jury alleged evidentiary inconsistencies regarding the discovery of Ms. Cook's driver's license and Social Security card in the same bedroom where large quantities of methamphetamine were found and did not move for suppression of evidence and testimony based on these inconsistencies. Doc. 3 ¶¶ 25-38, 49.

2. Appellate counsel should have argued that Detective Koppman's testimony was insufficient to support a three-level enhancement for Ms. Cook's role in the offense. Id. ¶¶ 41, 43-45, 47.

3. Appellate counsel should have argued that the two-level firearm enhancement was based on an improper application of the presumption that the firearm was reasonably foreseeable. Id. ¶¶ 42-44, 46-47.

4. Trial counsel should have independently tested the methamphetamine admitted into evidence, and also challenged the validity of the government's tests by crossexamination on the protocol, calibration, and results of the tests. Id. ¶¶ 51, 55. 5. Trial counsel should have argued that Ms. Cook's sentence was improperly computed because the counts of her conviction were grouped together from the beginning, rather than separately determining the offense level for each count. Id. ¶ 52.

6. Trial counsel should have argued that the sentencing court should vary downward from the sentencing guideline range because the disparity in the guideline range for mixtures of methamphetamine as opposed to pure methamphetamine is not supported by empirical data. Id. ¶ 53.

7. Trial counsel should have timely objected to the prosecutor's statement to the jury that “additional evidence which had not been presented, was available for use against Ms. Cook.” Id. ¶ 54.

8. Trial counsel should have objected to Detective Koppman's testimony at sentencing that Ms. Cook was “very connected” to the Sinaloa Cartel. Id. ¶ 60.

For the reasons explained below, none of these claims have merit. I therefore recommend that the Court deny Ms. Cook's motion.

III. Standard of Review

Section 2255 entitles a prisoner to relief “[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). The standard applied to § 2255 motions is stringent: only violations of federal law that “constitute[] a fundamental defect which inherently...