Murillo v. United States, CASE NO. C20-0484JLR

• Decision Date: 25 September 2020
• Docket Number: CR16-0113JLR,CASE NO. C20-0484JLR
• Court: U.S. District Court — Western District of Washington
• Parties: PETER SANTOS MURILLO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

PETER SANTOS MURILLO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. C20-0484JLR

CR16-0113JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

September 25, 2020

ORDER DENYING PETITION FOR HABEAS RELIEF AND MISCELLANEOUS MOTIONS

I. INTRODUCTION

Before the court are three motions filed by pro se Petitioner Peter Santos Murillo: (1) a 28 U.S.C. § 2255 petition for habeas corpus or motion to vacate, set aside, or correct Mr. Murillo's sentence (see Am. Pet. (Dkt. # 26)); (2) a motion to strike a response brief filed by Respondent United States of America ("the Government") (Mot. to Strike (Dkt. # 28)); and (3) a motion for a stay of this case (see Mot. for Stay (Dkt. # 36)¹). TheGovernment filed a response to Mr. Murillo's § 2255 petition (Gov't Resp. (Dkt. # 29)), Mr. Murillo filed a reply (Pet'r Reply (Dkt. # 32)), and the Government filed a surreply (Gov't Surreply (Dkt. # 35)). The Government opposes Mr. Murillo's motion for a stay (Mot. for Stay Resp. (Dkt. # 37)), but did not file a response to the motion to strike (see generally Dkt.). The court has considered the motions, all submissions filed in support of and in opposition to the motions, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES each of Mr. Murillo's motions.

II. BACKGROUND

On February 20, 2016, police officers in Auburn, Washington responded to a traffic accident in which Mr. Murillo was the driver and lone occupant of one of the vehicles involved. (See Presentence Rpt. ("PSR") (CR16-0113JLR Dkt. # 112) ¶ 7.) Mr. Murillo provided officers with a false name and was then arrested for making a false statement. (PSR ¶ 7.) City of Auburn police officer Jeffrey Nelson was dispatched to the scene with a fingerprint scanner to help identify Mr. Murillo. (See 9/28/16 Hr. Tr. (CR16-0113JLR Dkt. # 107) at 11-12, 75.) Prior to joining law enforcement, Officer Nelson served twelve years in the United States Army as a weapons instructor for U.S., allied, and foreign forces. (Id. at 9.) His duties in that role included training soldiers on the functionality and recognition of weapons. (Id.) Officer Nelson used the scanner to check Mr. Murillo's fingerprints and confirm his identity. (Id. at 18.) The check alsoshowed an outstanding U.S. Marshals felony warrant for probation violations for Mr. Murillo. (Id. at 18-19, 39-40.)

Officer Nelson testified at a suppression hearing that he approached the vehicle Murillo had been driving to close the driver's side door and turn off the engine. (Id. at 13-14). When he did so, he saw a pistol grip, frame, and rear portion of a pistol he recognized as a MAC-10 submachine gun sticking out from beneath a rubber floormat under the driver's seat. (Id. at 12-13). Officer Nelson lifted the floormat to confirm what he had seen was actually a firearm, then left the firearm where he found it and informed the lead officer, who immediately sealed the vehicle and had it impounded so that it could be searched. (Id. at 13-14, 29-31.)

The subsequent search uncovered, among other things, an additional firearm, false identification documents, and dealer-quantity amounts of heroin and methamphetamine. (PSR ¶ 11.) Mr. Murillo moved to suppress that evidence, claiming the initial search in which Officer Nelson saw the firearm was unlawful. (Mot. to Suppress (CR16-0113JLR Dkt. # 27.) The court denied Mr. Murillo's motion. (See 9/28/16 Min. Entry (CR16-0113JLR Dkt. # 54).)

At trial, a jury convicted Mr. Murillo of one count of Possession of Methamphetamine with Intent to Distribute under 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); one count of Possession of Heroin with Intent to Distribute under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and one count of Possession of a Firearm in Furtherance of Drug Trafficking under 18 U.S.C. § 924(c)(1)(A). (Jury Verdict (CR16-0113JLR Dkt. # 88).) After the jury returned its verdict, Mr. Murillo proceeded to a bifurcated stipulated-factsbench trial in which he was convicted of one count of being a Felon in Possession of a Firearm under 18 U.S.C. § 922(g)(1). (See 10/18/16 Min. Entry (CR16-0113JLR Dkt. # 86); see also Gov't Resp., Ex. 2 (stipulated facts).) Because this was Mr. Murillo's second conviction for possession of a firearm in furtherance of drug trafficking, a twenty-five-year mandatory-minimum sentence applied and had to be served consecutively to the ten-year mandatory-minimum term that applied to his conviction under § 841(b)(1)(A). (See PSR ¶ 81); 18 U.S.C. §§ 924(c)(1)(C)(i), (D)(ii). In light of these applicable mandatory minimums, the Court imposed a sentence of thirty-five years. (See Judgment (CR16-0113JLR Dkt. # 116).)

Murillo raised seven issues on direct appeal. (See Am. 9th Cir. Op. (CR16-0113JLR Dkt. # 129) at 2-7.) The Ninth Circuit Court of Appeals rejected those arguments and affirmed his convictions. (See id.) Murillo filed a petition for certiorari with the Supreme Court, which was denied on March 25, 2019. (See Gov't Resp., Ex. 3.)

On March 19, 2020, Murillo mailed a motion pursuant to 28 U.S.C. § 2255 to the court, in which he stated ten grounds for relief. (See Pet. (Dkt. # 1).) The motion was filed on March 27, 2020. (Id.) On April 13, 2020, the court entered an order directing the United States to file an answer to Murillo's habeas motion. (4/13/20 Order (Dkt. # 7).) On May 27, 2020, the government filed its initial response to Mr. Murillo's petition. (See 1st Gov't Resp. (Dkt. # 13).) On July 22, 2020, the court granted Mr. Murillo's motion to amend his initial motion, directed the Clerk to file Mr. Murillo's proposed amended § 2255 motion, and ordered the government to file an answer to the

//amended motion. (See 7/22/20 Order (Dkt. # 25) at 4-5.) The amended motion states eleven grounds for relief:

Ground One: Constitutional violations based on the Government's failure to disclose impeachment information about Officer Nelson. (See Am. Pet. at 5-6.)

Ground Two: Request for a new trial based on the newly discovered impeachment evidence described in Ground One to the extent it post-dates Mr. Murillo's trial. (See id. at 15.)

Ground Three: Ineffective assistance of counsel at trial for failing to discover the evidence described in Ground One. (See id. at 17.)

Ground Four: Ineffective assistance of counsel for failing to hire a gun expert who could have testified at the suppression hearing about whether an expert could have reasonably determined that the exposed item in Mr. Murillo's vehicle was actually a firearm. (See id. at 18.)

Ground Five: Due Process violation based on ineffective assistance of counsel for failing to investigate Mr. Murillo's competency and request a competency hearing. (See id. at 22-23.)

Ground Six: Ineffective assistance of counsel for failing to subpoena Angelica Briggs to testify to the possibility that she might have placed firearms belonging to her dead brother in the vehicle Mr. Murillo was driving. (See id. at 24.)

Ground Seven: Ineffective assistance of counsel for failing to request a jury trial on Count One despite knowing of biased comments the court made during a different proceeding. (See id. at 25-26.)

Ground Eight: Ineffective assistance of counsel during 2005 criminal proceedings brought against Mr. Murillo, which resulted in a plea agreement and convictions that served as predicates in this case.² (See Pet'r Reply at 4.)

Ground Nine: Ineffective assistance of counsel for failing to communicate with Mr. Murillo's immigration attorney regarding the immigration consequences of going to trial versus pleading guilty. (See Am. Pet. at 28.)

Ground Ten: Ineffective assistance of counsel for failing to object to an overly broad jury instruction defining the elements of 18 U.S.C. § 924(c). (See Am. Pet. at 29.)

Ground Eleven: Due Process violation on grounds the Government failed to prove Mr. Murillo knew his status as a person barred from possessing a firearm. (See id. at 30.)

III. ANALYSIS

The court begins by briefly addressing Mr. Murillo's motion to strike and motion to stay before turning to the merits of the 11 grounds for relief stated in Mr. Murillo's § 2255 petition.

A. Motion to Strike

The court DENIES as moot Mr. Murillo's motion to strike. (See Mot. to Strike.) Mr. Murillo moves to strike as untimely the Government's response to Mr. Murillo's motion to amend his § 2255 petition. (See id. at 1-3.) Before Mr. Murillo filed his motion to strike, the court granted the Government's motion for an extension of time to file its response to Mr. Murillo's motion to amend. (See Order on Mot. for Extension (Dkt. # 24).) Additionally, the court ultimately rejected the arguments raised in the Government's allegedly untimely opposition and granted Mr. Murillo's underlying

//motion to amend. (See 7/22/20 Order at 4-5.) Thus, Mr. Murillo's motion to strike the Government's opposition is moot.

B. Motion to Stay

Mr. Murillo argues that the court should stay its consideration of his § 2255 petition pending the completion of state court murder charges filed against Officer Nelson. (See id. at 1-2.) Mr. Murillo's § 2255 petition offers three arguments related to Officer Nelson: (1) the Government erred by failing to disclose Officer Nelson's impeachment evidence (Ground One) (see Am. Pet. at 5-6); (2) that Mr. Murillo's counsel provided ineffective assistance by failing to discover that impeachment evidence before trial (Ground Three) (see id. at 17); and (3) that a new trial is warranted due to acts of misconduct committed by Officer Nelson that post-date Mr. Murillo's trial (Ground Two) (see id. at 15).

The murder charges against Officer Nelson have no impact on Mr. Murillo's arguments on Ground One and Ground Three. The charges against Officer Nelson arise out of a 2019 officer-involved shooting. (See Gov't Resp. to Mot. to Stay at 1.) Mr. Murillo's trial occurred in October 2016. (See, e.g., 10/19/16 Min. Entry.) Neither the Government nor Mr. Murillo's defense counsel could have erred by...