Lobo-Lopez v. United States

• Decision Date: 23 October 2014
• Docket Number: Criminal No. 1:08cr194.,Civil Action No. 1:13cv1221.
• Citation: 56 F.Supp.3d 802
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Oscar Omar LOBO–LOPEZ, Petitioner/Defendant, v. UNITED STATES of America, Respondent.

56 F.Supp.3d 802

Oscar Omar LOBO–LOPEZ, Petitioner/Defendant

v.UNITED STATES of America, Respondent.

Civil Action No. 1:13cv1221.

Criminal No. 1:08cr194.

United States District Court, E.D. Virginia, Alexandria Division.

Signed Oct. 23, 2014.

Oscar Omar Lobo–Lopez, pro se.

MEMORANDUM OPINION

T.S. ELLIS, III, Senior District Judge.

Oscar Omar Lobo–Lopez, a federal inmate convicted of (i) conspiracy to commit murder in aid of racketeering, (ii) murder in aid of racketeering, and (iii) use of a firearm during a crime of violence, has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Petr.'s Motion”). (Doc. 494).¹ Petitioner's motion is based chiefly on claims of ineffective assistance of counsel. He has also filed other motions for miscellaneous relief, including a motion to obtain affidavits from his defense counsel, a motion for a thirty-day extension of time to file his reply to the government's opposition, and a motion “for an in camera inspection of the grand jury minutes” to determine whether the grand jury was presented evidence to support a determination of probable cause on the issue of whether there was a “federal jurisdictional nexus.” (Docs. 500 and 501). As both parties have fully briefed the issues, and neither oral argument nor an evidentiary hearing would aid the decisional process,² the petition is ripe for disposition.

I.

A brief recitation of the facts and procedural history to date is necessary to place petitioner's claims in context. The record reflects that, in 2007, petitioner was a leader of the Hollywood Locos Salvatrucha (HLS) clique³ of MS–13, a nationwide, indeed, international crime gang with a significant presence in Northern Virginia. MS–13 is comprised of many cliques throughout the United States and El Salvador. Cliques typically hold regular membership meetings and send representatives to “general meetings” of area or regional clique leaders. At trial, witnesses for the government testified that MS–13 is united by a set of rules which dictate that members must represent the gang, never cooperate with police, and seek out rival gang members, called “chavalas,” in order to attack and, if possible, kill them. See, e.g. Trial Tr. Apr. 16, 2009 at 160 (Doc. 421).

Trial testimony reflects that prior to May 5, 2007, petitioner and fellow MS–13 gang member, Sergio Gerardo Amador–Amador, had several confrontations with Melvin Reyes, a member of a rival gang who was attempting to recruit new members for his gang in an area MS–13 members considered their territory. Trial Tr. Apr. 16, 2009 at 828 (Doc. 421). From mid–2006 onward, petitioner and Amador began patrolling for Reyes in order to find and kill him. Id. at 101. On May 5, 2007, petitioner and Amador found Reyes on Commerce Street in Springfield, Virginia and confronted him. Id. at 120. When Reyes fled, petitioner and Amador pursued him while firing their handguns at him. Several shots found their mark, striking Reyes in the leg and wounding him. Petitioner then directed Amador to “finish him.” Amador then killed Reyes by shooting him several times in the head at close range. Id. at 124.

A federal grand jury returned a three-count superseding indictment charging petitioner with (i) conspiracy to commit murder in aid of racketeering activity, (ii) murder in aid of racketeering activity, and (iii) use of a firearm during a crime of violence. After a five-day trial, a jury found petitioner guilty on all three counts. On September 18, 2009, petitioner was sentenced to life imprisonment for murder in aid of racketeering and ten years imprisonment for the conspiracy charge, to run concurrently, and ten years imprisonment for use of a firearm during a crime of violence, to run consecutive to the sentence as to Counts One and Two. He was also ordered to pay $4,300 in restitution to the victim's family. United States v. Lobo–Lopez, 1:08cr194 (E.D.Va. Sept. 18, 2009) (Judgment in a Criminal Case) (Doc. 387).⁴

At trial and on appeal, petitioner was represented by two very experienced defense attorneys: John C. Kiyonaga, Esq. and Lana Marie Manitta, Esq. Following the verdict, Mr. Kiyonaga and Ms. Manitta filed a timely appeal to the Court of Appeals for the Fourth Circuit, which affirmed petitioner's convictions on March 1, 2012. United States v. Lobo–Lopez, 468 Fed.Appx. 186, 191 (4th Cir.2012). Mr. Kiyonaga and Ms. Manitta then filed a petition for certiorari to the United States Supreme Court on petitioner's behalf, which the Supreme Court denied on October 1, 2012. United States v. Lobo–Lopez, 468 Fed.Appx. 186, cert. denied ––– U.S. ––––, 133 S.Ct. 258, 184 L.Ed.2d 139 (2012) (No. 11–11060).

A year later, on October 1, 2013, petitioner filed the instant motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255, alleging that he was denied his Sixth Amendment right to the effective assistance of counsel. Petitioner's motion raises seven grounds in support of his ineffective assistance of counsel claim:

(1) Counsel's failure, at trial and on appeal, to challenge whether the government proved that petitioner's criminal enterprise affected interstate or foreign commerce;

(2) Counsel's failure, at trial and on appeal, to object to the government “vouching” that it had proved jurisdiction, which petitioner alleges violates the “advocate/witness rule”;

(3) Counsel's failure, at trial and on appeal, to object to jury instructions on the effect on interstate commerce issue;

(4) Counsel's failure, at trial and on appeal, to object to a defect in the indictment, which petitioner contends failed to allege malice aforethought with respect to the murder charge;

(5) Counsel's failure, at trial and on appeal, to object to hearsay testimony admitted in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ;

(6) Counsel's failure, at trial and on appeal, to object to the government's failure to prove that the alleged enterprise had an “economy agenda”; and

(7) Counsel's failure, at trial and on appeal, to object to the Court's order that petitioner pay restitution on the ground that restitution was not raised in the superseding indictment or before the jury.

In the alternative, petitioner also appears to argue that since his trial, the Supreme Court has issued decisions reflecting new rules of law as to his claims in grounds (5), (6), and (7). Petr.'s Motion at 15 (Doc. 494) (stating that the basis for these three grounds to vacate petitioner's sentence were not raised at trial or on appeal “because ... the recent U.S. Supreme Court decisions did not exist”).

As already noted, oral argument is dispensed with as the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process. See supra note 2.

II.

A two-prong analysis applies to claims of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688–89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, to prevail on such a claim, a petitioner must show, first, that his counsel's performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Judicial review of counsel's performance in this context is “highly deferential.” Id. at 689, 104 S.Ct. 2052. Indeed, to establish that counsel's performance was objectively unreasonable, a petitioner must overcome the strong presumption that counsel rendered “adequate assistance and made all significant decisions in the exercise of reasonable judgment.” Id. at 690, 104 S.Ct. 2052.

If a petitioner demonstrates that counsel's performance was objectively unreasonable, Strickland next requires the petitioner to establish that “the deficient performance prejudiced the defense.” Id. at 694, 104 S.Ct. 2052. A proper prejudice analysis also requires consideration of whether “the result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Thus, counsel may be deemed constitutionally ineffective only if his or her “conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

It is through the lens of these guiding principles that petitioner's claims of ineffective assistance of counsel must be analyzed.

III.

In grounds (1), (2), (3), and (6) of his motion, petitioner claims that his defense counsel were ineffective for failing to contest whether the government had adequately proved the federal jurisdictional nexus required by 18 U.S.C. § 1959, which criminalizes murder and other crimes of violence committed “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” The statute defines “enterprise” as “any partnership, corporation, [or] association, ... which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C. § 1959. Specifically, petitioner argues that rather than contesting whether the alleged enterprise must have a “substantial” rather than “minimal” effect on interstate or foreign commerce, which petitioner characterizes as “frivolous” in the face of Fourth Circuit precedent,⁵ defense counsel, in petitioner's view, should have focused on whether the government offered any adequate proof of the enterprise's effect on interstate commerce. See Petr.'s Motion, Grounds and Supportive Facts (Doc. 494) (“[B]oth attorneys's [sic] completely ignored ... the Govt. completely lacking its Hobbs Act Componant [sic] Element of proof under any satisfactory form....”).

The record clearly establishes that defense counsel, in addition to arguing that the government should have to prove that the enterprise had a “substantial” effect on interstate or foreign commerce, also argued vigorously that the government did not show a qualified enterprise under 18 U.S.C. § 1959. In...