Lopez-Merida v. United States
| Decision Date | 17 October 2014 |
| Docket Number | No. 13-cv-0812 JAP/SMV,No. 08-cr-1841 JAP,13-cv-0812 JAP/SMV,08-cr-1841 JAP |
| Parties | JULIO E. LOPEZ-MERIDA, Petitioner, v. UNITED STATES, Respondent. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before me on Defendant/Petitioner (hereinafter "Petitioner") Julio E. Lopez-Merida's Motion under 28 U.S.C. § 2255 . . . [CV Doc. 1]1 filed on August 26, 2013. Plaintiff/Respondent (hereinafter "the Government") filed a response [CV Doc. 8] on March 27, 2014. Plaintiff filed a reply [CV Doc. 11] on April 28, 2014, and moved to supplement his reply [CV Doc. 12] on May 5, 2014. The Honorable James A. Parker, Senior United States District Judge, referred this matter to the undersigned for proposed findings and a recommended disposition on December 12, 2013. [CV Doc. 4]. I recommend that Petitioner's motion to supplement his reply [CV Doc. 12] be GRANTED. Having reviewed the parties' submissions, the relevant law, and the records in this case and Petitioner's underlying criminal case, and being otherwise fully advised in the premises, I recommend that this motion be DENIED and that Case No. 13-cv-0812 JAP/SMV be DISMISSED with prejudice.
On August 2, 2008, Petitioner was driving a tractor-trailer containing cantaloupe on Interstate 40, west of Albuquerque, New Mexico. United States v. Lopez-Merida, 466 F. App'x 731, 733 (10th Cir. 2012), cert. denied, 133 S. Ct. 224 (2012). Gil Manfredo Ruiz accompanied Petitioner. Id. New Mexico state police officer Arcenio Chavez ("Officer Chavez") stopped the vehicle, claiming to observe a loose air-break hose between the tractor and trailer in violation of NMSA 1978, § 65-3-8(A) (2003). [CV Doc. 1] at 5; see Lopez-Merida, 466 F. App'x at 733. Officer Chavez examined Petitioner's log book and shipping papers. Lopez-Merida, 466 F. App'x at 733. He found various deficiencies and inconsistencies that Petitioner could not adequately explain. Id. New Mexico Motor Transportation Division agent Joshua Perea ("Agent Perea") arrived to assist Officer Chavez about 20 minutes after the initial stop. Id. at 734. Officer Chavez issued Petitioner a warning citation for the loose air-break hose. Id.
Agent Perea and Officer Chavez entered the trailer to conduct a safety inspection of the cargo. Id. They saw cantaloupe, as expected from the bill of lading, as well as what they believed to be marijuana. Id. Officer Chavez obtained written consent from Petitioner and Mr. Ruiz to search the trailer. Id. at 735. Entering the trailer with his drug-detection dog, Officer Chavez discovered shrink-wrapped marijuana. Id. He arrested Petitioner and Mr. Ruiz and then recovered 101 packages of marijuana from the trailer. Id.
On August 13, 2008, a federal grand jury in the District of New Mexico returned a two-count indictment against Petitioner. [CR Doc. 15]. One count charged Petitioner with possession with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C.§§ 841(a)(1) and (b)(1)(B), and aiding and abetting, in violation of 18 U.S.C. § 2. Id. The other count charged Petitioner with conspiracy to commit the same offense, in violation of 21 U.S.C. § 846. Id.
On July 1, 2009, Petitioner's trial counsel moved to suppress the evidence seized from the trailer and the statements made to the officers. [CR Doc. 64]. Judge Parker held a hearing on the matter on September 14, 2009. Transcript of [Suppression Hearing] [CR Doc. 80]. Both Petitioner and the Government filed post-hearing briefs on the motion to suppress. See [CR Docs. 82, 84, 85]. On January 7, 2010, Judge Parker denied the suppression motion. [CR Doc. 91]. He determined that Petitioner lacked standing to directly contest the search of the trailer and, further, that the search of the trailer was otherwise lawful. Id.
The case proceeded to trial. A jury found Petitioner guilty of both possession with intent to distribute 100 kilograms or more of marijuana and conspiracy to commit that offense. [CR Doc. 160].
Petitioner's counsel filed a Motion for Judgment of Acquittal and in the Alternative for a New Trial [CR Doc. 125] on March 18, 2010. Judge Parker denied both the motion for acquittal and the motion for a new trial as untimely. [CR Doc. 128].
Judge Parker held a sentencing hearing on November 4, 2010. Transcript of Sentencing Hearing . . . [CR Doc. 156]. There, Drug Enforcement Administration ("DEA") task force officer and deputy sheriff for the County of Bernalillo, Danny Joseph ("Officer Joseph"), testified as to the bulk and net weights of marijuana in Petitioner's vehicle. Id. at 6-13. Judge Parker found by a preponderance of the evidence that Petitioner was responsible for 1,013.32 kilograms of marijuana. Id. at 20. Judge Parker considered various sentencing factors,id. at 28-29, and ultimately sentenced Petitioner to the mandatory minimum sentence of 120 months' imprisonment. [CV Doc. 8] at 2.
Judge Parker entered judgment against Petitioner on November 8, 2010. [CR Doc. 144]; see [CR Doc. 160] ( judgment). Petitioner appealed to the Tenth Circuit, claiming that the district court erred in (1) denying his motion to suppress, and (2) calculating the amount of marijuana attributable to him at sentencing. Lopez-Merida, 466 F. App'x at 735-37. The Tenth Circuit affirmed the judgment on both issues. Id. at 737.
Petitioner now brings the present motion pursuant to 28 U.S.C. § 2255. See [CV Doc. 1].
Petitioner raises five grounds in support of his motion. See [CV Doc. 1] at 1. Three claims—Grounds Two, Four, and Five—are based on ineffective assistance of counsel. In Ground Two, Petitioner claims that his counsel was ineffective "during the suppression hearing for failing to challenge an invalid stop and the court's mis-reading of New Mexico Code Section § 65-3-8 (A)." Id. In Ground Four, he argues ineffective assistance for his counsel's "fail[ure] to present available 'standing' evidence" in connection with the request to suppress evidence. Id. He claims in Ground Five that his counsel was ineffective during sentencing for failing to present adequate evidence concerning the amount of marijuana received into evidence. Petitioner further claims "[a]ctual [i]nnocence of the underlying conviction" in Ground One.2 Id. Finally, Petitioner argues in Ground Three that the district court imposed the mandatory minimum 10-year sentence in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013). Id.
The Government argues against Petitioner's claims on various procedural grounds—primarily, procedural default. Procedural default, however, is not jurisdictional. Trest v. Cain, 522 U.S. 87, 89 (1997). Accordingly, a court need not address procedural default defenses where a habeas petitioner otherwise loses on the merits. Revilla v. Gibson, 283 F.3d 1203, 1211 (10th Cir. 2002). I decline to address the procedural default arguments here and instead will make recommendations based on the merits of Petitioner's claims.
The test for making a claim of constitutionally ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must satisfy a two-part test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair [proceeding].
466 U.S. at 687. Both showings must be made to satisfy the Strickland standard. Id. The Court need not address both prongs of the standard if the defendant makes an insufficient showing on one of the prongs. Id. at 697. In applying the two-part Strickland test, a court may address the performance and prejudice components in any order. Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005).
Under the first prong, a defendant must demonstrate that his counsel's performance was deficient. The appropriate standard for attorney performance is that of reasonably effectiveassistance; the defendant must demonstrate that counsel's representation, considering all the circumstances, fell below an objective standard of reasonableness based on prevailing professional norms. See Strickland 466 U.S. at 687-88. For counsel's performance to be constitutionally ineffective, it must have been "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995)). In evaluating an attorney's performance, the Court 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 the 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.
Strickland, 466 U.S. at 689 (internal quotation marks omitted).
In applying this test, the Court must give considerable deference to an attorney's strategic decisions and "recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. "Neither hindsight nor success is the measure" of whether counsel was effective, and "effective" is not synonymous with victorious or flawless....
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