Morelos v. United States

• Decision Date: 14 March 2013
• Docket Number: No. 12–1182.,12–1182.
• Parties: Thomas Michael MORELOS, Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

709 F.3d 1246

Thomas Michael MORELOS, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 12–1182.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 19, 2012.

Filed: March 14, 2013.

Donna Schauer, argued, Adel, IA, for Appellant.

Teresa Baumann, AUSA, argued, Cedar Rapids, IA, for Appellee.

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

BYE, Circuit Judge.

In 2007, Thomas Michael Morelos was convicted of conspiracy to distribute methamphetamine and marijuana. After the denial of his direct appeal, Morelos filed this motion to vacate, set aside, or correct his sentence, asserting claims of prosecutorial misconduct and ineffective assistance of both trial and appellate counsel. The district court ¹ denied the motion, addressing all of Morelos's grounds for his claims except a single allegation Morelos's trial counsel had been subject to an actual conflict of interest when his license to practice law in South Dakota had been suspended. We exercise our discretion to reach this allegation and affirm the district court on all issues.

I

In 2007, Morelos was charged in Iowa with conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine and 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 841(b)(1)(B). Morelos's girlfriend hired as his trial counsel Robert Finney, a former county attorney who had successfully prosecuted Morelos for a state crime in Nebraska approximately ten years earlier, and who had since entered private practice. Morelos knew Finney had previously prosecuted him when the two first met regarding the drug trafficking charges.

Initially, Finney had been licensed to practice law in Iowa, Nebraska, and South Dakota. However, after Morelos's trial commenced, the Nebraska Supreme Court administratively suspended Finney's Nebraska law license for failure to file certain documents in an unrelated matter. Although it was not discovered until after the trial, the suspension of Finney's Nebraska license had also caused his license to practice law in South Dakota to be reciprocally suspended.

The trial court conducted a colloquy with Morelos regarding whether the suspension of Finney's Nebraska law license or Finney's prior prosecution of him had prompted Morelos to want to proceed at trial with different counsel. Morelos told the trial court he was aware of both issues, he had no problems with proceeding with Finney as his trial counsel, and he did not want to obtain a different attorney to represent him. The trial court accepted Morelos's statements as a waiver of any potential conflicts of interest.

During its case in chief, the government presented the testimony of three of Morelos's co-conspirators, each of whom had agreed to testify in exchange for consideration on their own charges. One of the three, Rafael Murillo–Guzmán, had been granted absolute immunity regarding any testimony he provided about his methamphetamine trafficking with Morelos.

The jury ultimately convicted Morelos. He appealed, arguing, amongst other issues which are not pertinent here, Finney had provided ineffective assistance as his trial counsel. We affirmed the trial court on all issues except the claim of ineffective assistance of counsel, which we declined to address because the record regarding the claim had not been properly developed. United States v. Morelos, 544 F.3d 916 (8th Cir.2008).

Morelos then filed the instant motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, asserting claims of ineffective assistance of trial and appellate counsel and prosecutorial misconduct. After an evidentiary hearing, the district court denied the motion and granted Morelos a certificate of appealability on all issues.

II

On appeal from a denial of a 28 U.S.C. § 2255 motion, we review the district court's legal conclusions de novo and its factual findings for clear error. Loefer v. United States, 604 F.3d 1028, 1029 (8th Cir.2010) (citing United States v. Hernandez, 436 F.3d 851, 854–55 (8th Cir.2006)).

A

We first address Morelos's claim of ineffective assistance of trial counsel. To succeed on a claim of ineffective assistance of trial counsel, a defendant must prove 1) his attorney's performance was so deficient as to fall outside the range of reasonable professional assistance, and 2) he suffered such prejudice stemming from the deficient performance there is a reasonable probability the proceeding would have had a different result. United States v. Taylor, 258 F.3d 815, 818 (8th Cir.2001). Failure to establish either prong is fatal to a claim of ineffective assistance. Worthington v. Roper, 631 F.3d 487, 498 (8th Cir.) (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied,––– U.S. ––––, 132 S.Ct. 763, 181 L.Ed.2d 491 (2011).

Morelos first asserts he was prejudiced by Finney's failure to adequately impeach the government's witnesses at trial through proper cross-examination or the raising of adequate objections. “[W]e generally entrust ... matters of trial strategy[ ] to the professional discretion of counsel.” United States v. Orr, 636 F.3d 944, 952 (8th Cir.) (internal citation and quotation marks omitted), cert. denied,––– U.S. ––––, 132 S.Ct. 758, 181 L.Ed.2d 490 (2011).

Morelos, however, fails to prove he was prejudiced by either Finney's efforts at cross-examination or failure to raise additional objections. Morelos's theory of cross-examination prejudice is merely speculative, generally averring if Finney had pursued additional lines of questioning with each of the government's witnesses, it was possible those witnesses would have responded in such a way as to lessen their credibility. Even Morelos's most persuasive claim in this area, that the jury would have discredited the testimony of Murillo–Guzmán had it learned he had been granted absolute immunity instead of a less advantageous plea deal, is mere speculation ignoring the evidence which corroborated the testimony of the government's witnesses.²See Morelos, 544 F.3d at 919 (discussing the evidence corroborating the testimony of each witness). In addition, Morelos fails to support his argument regarding Finney's failure to raise additional objections with any demonstration of prejudice resulting from the admission of the testimony to which he asserts Finney should have objected.

Morelos next contends Finney provided ineffective assistance during closing arguments by failing to explain to the jury the government's burden to prove each witness credible beyond a reasonable doubt. However, Morelos mischaracterizes the government's burden at trial. The government bears the burden of proving each element of a crime beyond a reasonable doubt. See, e.g., Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Although the determination whether an element is established often rests on a fact finder's assessment of the credibility of a witness, a jury is free to find only a portion of a witness's testimony credible while rejecting the rest. See United States v. Close, 518 F.3d 617, 620 (8th Cir.2008) (citing United States v. Montano, 506 F.3d 1128, 1133 (8th Cir.2007)). Accordingly, the government need not prove the whole of each witness's testimony credible beyond a reasonable doubt. Morelos cannot have been prejudiced by Finney's failure to offer an explanation of the government's burden which, if offered, would have inaccurately characterized the burden.

Morelos next contends he was prejudiced when Finney failed to request an additional jury instruction regarding the trustworthiness of co-conspirator testimony. Morelos, however, does not offer the text of the instruction he would have had Finney request and, thus, has not provided this court with a basis to determine whether there is a reasonable possibility the failure affected the result of the trial.

Morelos next contends he was prejudiced by Finney's failure to raise the issue of whether the government had proven the type of methamphetamine for which it had charged him. “The government, for sentencing purposes, bears the burden to prove drug type by a preponderance of the evidence.” United States v. Lugo, 702 F.3d 1086, 1089 (8th Cir.2013) (citing United States v. Thompson, 335 F.3d 782, 784 (8th Cir.2003)). Under the sentencing guidelines in effect at the time Morelos was convicted,³ a sentencing court was to calculate a defendant's base offense level with regard to crimes involving methamphetamine on the basis of either the weight of the mixture containing methamphetamine or the weight of the pure methamphetamine in the mixture. U.S. Sentencing Guidelines Manual § 2D1.1 Notes to Drug Quantity Table (A)-(B) (2007). At trial, the government provided testimony regarding the weight of both the pure methamphetamine and the weight of the mixture containing methamphetamine. Accordingly, any argument the government had failed to provide such evidence would have been frivolous.

Morelos next contends he was prejudiced by Finney's failure to withdraw as his counsel when actual conflicts of interest arose from 1) Finney's history of having previously prosecuted Morelos, 2) the suspension of Finney's license to practice law in Nebraska, and 3) the suspension of Finney's license to practice law in South Dakota.⁴ A defendant pleading an ineffective assistance of counsel claim typically establishes prejudice under the Strickland standard. See, e.g., Taylor, 258 F.3d at 818. Morelos, however, urges us to review his claims of actual conflicts of interest under the standard of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Under Cuyler, we will presume the prejudice prong is established when a defendant is able to prove his counsel's performance was adversely affected by an actual conflict of interest which arose from jointly representing multiple defendants. Id. at 349–50, 100...