Grimaldo v. United States

• Decision Date: 18 April 2016
• Docket Number: CIVIL ACTION NO.4:13CV347,CRIMINAL ACTION NO. 4:08CR104(13)
• Parties: LAURO ABEL GRIMALDO, #82728-179 v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Eastern District of Texas

LAURO ABEL GRIMALDO, #82728-179 v. UNITED STATES OF AMERICA

CIVIL ACTION NO.4:13CV347

CRIMINAL ACTION NO. 4:08CR104(13)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

April 18, 2016

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Movant Lauro Abel Grimaldo, a federal prisoner, proceeding pro se, filed the above-styled and numbered motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The motion was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge.

BACKGROUND

On August 26, 2009, a jury found Movant guilty of conspiracy to manufacture, distribute, or possess with intent to manufacture or distribute a controlled substance, in violation of 21 U.S.C. § 846. The court sentenced Movant to 360 months of imprisonment on May 13, 2010. On February 6, 2012, the United States Court of Appeals for the Fifth Circuit affirmed Movant's conviction and sentence. In its opinion, the Fifth Circuit specifically found that:

1. Movant waived his severance argument;

2. The court did not err by denying Movant's motion to suppress evidence;

3. The court's finding of the amount of drugs attributable to Movant was not clearly erroneous;

4. The court did not clearly err in finding that Movant had a leadership role in the conspiracy; and

5. The court's failure to adequately explain the reasons for sentencing did not affect Movant's substantial rights.

On June 18, 2012, the Supreme Court for the United States denied Movant's petition for writ of certiorari. The instant motion was filed on June 20, 2013. In it, Movant claims that he is entitled to relief based on ineffective assistance of counsel. Specifically, he claims that counsel:

1. Failed to prepare for trial;

2. Failed to conduct plea negotiations;

3. Failed to object to alleged false testimony of government agents and informants;

4. Failed to raise alleged Brady violations;

5. Failed to impeach government witnesses; and

6. Failed to move for severance.

The Government filed a response, asserting that Movant's claims are without merit and are not supported by the record. It also filed an affidavit from Movant's trial counsel, Garland Cardwell:

I obtained, reviewed, and analyzed substantial discovery in his case, provided [Mr. Grimaldo] with copies of all of the discovery in the case for his review and consideration, and had numerous personal and phone conferences with both Mr. Grimaldo and his wife concerning the evidence and discovery in his case. I also secured from the Assistant United States Attorney handling the case a proposed Plea Agreement and Factual Statement in the case, analyzed that proposed Plea Agreement under the appropriate provisions of the United States Sentencing Guidelines, and met with Mr. Grimaldo, either personally or on the phone a number of times to discuss the proposed Plea Agreement, and the benefits and advantages to him of accepting the proposed Plea Agreement as opposed to going to a jury trial in his case. Based upon the substantial drug quantities involved in the case, as well as my evaluation of the evidence and testimony which would be given against Mr.Grimaldo in the case, it was my advice to him that he should accept the proposed plea offer in the case and agree to cooperate with the Government against other co-defendants so that he would not be exposed to a sentence in excess of the ten (10) year minimum in the case.

Against my advice, Mr. Grimaldo elected to proceed to a jury trial in his case along with two (2) other co-defendants, which jury trial lasted a little more than one (1) week. After which trial the jury returned a verdict finding Mr. Grimaldo guilty of the conspiracy charged as alleged in the Indictment. At that point, Mr. Grimaldo was ordered into custody by the District Judge handling the case, and the case continued to proceed toward an ultimate sentencing hearing in the case. Prior to trial, I did file a Motion to Suppress a statement that had been given by Mr. Grimaldo subsequent to his arrest, which contained a number of incriminating statements, but the trial court ruled that the Motion to Suppress should be denied, and ultimately that ruling was upheld by the Fifth Circuit Court of Appeals. A pretrial issue was also raised in the case by Mr. Grimaldo and other co-defendants concerning whether or not the cases against the defendant should be severed, but those motions were also denied by the trial court, and the trial court's ruling was upheld on appeal by the Fifth Circuit.

Subsequent to the jury verdict, I continued to represent Mr. Grimaldo toward his sentencing, and personally met with Mr. Grimaldo and an officer of the United States Probation Office to proceed toward preparing an appropriate Presentence Investigation Report in his case. Upon receipt of the Presentence Investigation Report, I provided a copy of that Report to Mr. Grimaldo, and met with him personally on at least one (1) occasion to discuss the contents of the Presentence Report and any objections which should be filed to the Report. Pursuant to those meetings, I did prepare and file a number of objections to the Presentence Report, as well as a lengthy (20) page Sentencing Memorandum on behalf of Mr. Grimaldo prior to his sentencing. At sentencing, the objections that were filed on Mr. Grimaldo's behalf were overruled by the trial court, and Mr. Grimaldo was sentenced to (360) months confinement and committed to the custody of the United States Bureau of Prisons.

. . .

My overall representation of Mr. Grimaldo in the trial court and on appeal spanned a period of approximately some three (3) years, and consisted of a total of (235.4) hours representing Mr. Grimaldo in the trial and sentencing phases of his case, as well as an additional (32) hours representing Mr. Grimaldo as the Appellant on his direct appeal to the Fifth Circuit Court of Appeals. I diligently and effectively represented Mr. Grimaldo during all aspects of his case, and I appropriately evaluated his case and advised him concerning all aspects of his case, and I appropriately evaluated his case and advised him concerning all of the options available to himduring the course of my representation of Mr. Grimaldo in this case. Contrary to Mr. Grimaldo's allegations in his motion, I was fully prepared for the trial of his case, and I had numerous meetings and phone calls with him concerning the case. It was often difficult to have face to face meetings with Mr. Grimaldo because he had been released on pretrial conditions of release in the case, and was living and working in the Houston, Texas, area and because of these situations, it was difficult for him to schedule appointments to come and meet with me personally in Sherman, Texas. Mr. Grimaldo alleges in his motion that I was retained by him with his own funds, and I would state emphatically that the records show I was in fact court-appointed to represent Mr. Grimaldo in the case and on appeal, and that I never received any personal funds from him towards such representation. Mr. Grimaldo never provided me, although requested to do so, with any names or addresses of any potential witnesses who might be able to assist in the defense of his case, and based upon my review of the facts surrounding his case, I could not believe that there would be any benefit of having an investigator appointed to further investigate the matter on Mr. Grimaldo's behalf.

Finally, in relation to Mr. Grimaldo's allegations that I did not adequately explore appropriate plea bargain dispositions in this case, such an allegation is completely untrue. I diligently explored with the attorney for the Government the most favorable plea bargain I could on Mr. Grimaldo's behalf which would have included possible assistance by Mr. Grimaldo and a possible Motion for Downward Departure on his behalf, which I believe could have resulted in a possible sentence of no more than ten (10) and possibly less than the ten (10) year minimum sentence in his case. These proposed plea bargains were discussed in detail with Mr. Grimaldo in conjunction with the provisions of the United States Sentencing Guidelines, and the options available to Mr. Grimaldo were discussed in detail concerning the advantages and disadvantages of accepting such plea bargain dispositions as opposed to taking his case to a jury trial. After all of these discussions, Mr. Grimaldo elected to proceed with a jury trial in his case. During the course of the jury trial, an undercover recording which was made by one of the co-defendants who ultimately testified against Mr. Grimaldo surfaced in the case, and although the Government agreed not to use this recording against Mr. Grimaldo, she felt it was appropriate to once again extend that same proposed plea offer to Mr. Grimaldo since knowledge of this recording might have affected his decision as to whether or not to proceed with a jury trial in his case. After reviewing the very incriminating evidence with Mr. Grimaldo and his wife, he still insisted on continuing with a jury trial in his case rather than accepting the more reasonable plea offer being made by the Government's attorney. When this incriminating evidence came to light, it became obvious that Mr. Grimaldo had not been truthful with me about the level of his involvement in this case, and although I strongly encouraged him to accept the proposed Plea Agreement as to opposed to proceeding with a jury trial, he still elected not to follow my advice and to proceed with the jury trial in his case.

Movant did not file a Reply.

FEDERAL HABEAS CORPUS RELIEF

As a preliminary matter, it should be noted that a § 2255 motion is "fundamentally different from a direct appeal." United States v. Drobny, 955 F.2d 990, 994 (5th...