Sanchez v. United States, Case No. SACV 10-1823 DOC
| Decision Date | 30 August 2012 |
| Docket Number | SACR 02-319 DOC,Case No. SACV 10-1823 DOC |
| Court | U.S. District Court — Central District of California |
| Parties | GABRIEL BERNARDO SANCHEZ v. UNITED STATES OF AMERICA |
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
N/A
Before the Court is pro se Petitioner Gabriel Bernardo Sanchez's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 ("Motion"). Mot. (Dkt. 1). After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby DENIES the Motion.1
On March 9, 2004, Petitioner Gabriel Bernardo Sanchez ("Petitioner") was convicted by a jury of thirty-three counts of mail fraud, in violation of 18 U.S.C. § 1341, and eleven counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Mot. (Dkt. 1) at 2. The Court sentenced Petitioner to 180 months imprisonment.
Petitioner appealed his sentence to the Ninth Circuit in 2006, which affirmed on all grounds but remanded for the limited purpose of determining whether the court would have imposed the same sentence had it considered the sentencing guidelines to be advisory rather than mandatory, pursuant to United States v. Ameline, 409 F.3d 1073,1078-79 (9th Cir. 2005) (en banc) (); United States v. Lyons, 453 F.3d 1222 (9th Cir. 2006). Petitioner then petitioned for certiorari, which was denied. Sanchez v. United States, 550 U.S. 937, 127 S.Ct. 2285 (2007). On remand, this Court concluded that it could not take Petitioner's post-rehabilitative efforts into account to answer the sole question placed before it on remand. This Court also determined that it would have imposed the same sentence had it considered the guidelines to be advisory rather than mandatory. Petitioner again appealed and in 2009 the Ninth Circuit affirmed. United States v. Sanchez, 569 F.3d 995 (9th Cir. 2009). The Petitioner petitioned for certiorari, which was again denied on November 30, 2009. Sanchez v. United States, 130 S. Ct. 761, 175 L.Ed.2d 531 (2009).
On November 8, 2010 Petitioner lodged the present Motion and the Motion was filed on December 1, 2010. Mot. (Dkt. 1).2
A motion to vacate, set aside, or correct sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds that ... there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S .C. § 2255(b). If the motion combined with the files and records of the case conclusively show that the prisoner is not entitled to relief, no evidentiary hearing on the issues is warranted. See id .
The standard of review of § 2255 petitions is "stringent" and the court "presumes earlier proceedings were correct." United States v. Nelson, 177 F.Supp.2d 1181, 1187 (D.Kan.2001) (citation omitted). In a successful § 2255 motion, the "defendant mustshow a defect in the proceedings which resulted in a 'complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
In his motion, Petitioner seeks to invalidate his sentence on the following grounds: (1) the government failed to disclose to the defense information regarding a witness; (2) the court failed to disclose the existence of the information regarding the witness upon learning that the defense was unaware of its existence; (3) the court failed to give proper jury instructions regarding the witness; (4) Petitioner was convicted on an unlawful theory of fraud; (5) Petitioner's counsel rendered ineffective assistance by failing to advise Petitioner that the percentage of funds paid to fundraisers would be admissible evidence; (6) Petitioner's counsel rendered ineffective assistance by failing to arrange for testimony of any defense witnesses, failing to assist in preparing defense exhibits, and failing to prepare defense witnesses; (7) Petitioner's counsel rendered ineffective assistance by failing to prepare jury instructions; (8) Petitioner's counsel rendered ineffective assistance by failing to object to the ex post facto application of Madigan3 ; and (9) that the Supreme Court's decision in Pepper4 should apply retroactively on collateral review. Mot. (Dkt. 1); Reply (Dkt. 23).
A number of Petitioner's claims are procedurally-barred, while the remainder fail on the merits. Petitioner has already raised the third and fourth claims on direct appeal to the Ninth Circuit and therefore these issues may not be re-litigated in a § 2255 motion. Furthermore, Petitioner has not sufficiently demonstrated constitutionally-deficient performance or resulting prejudice from the errors complained of in claims one, two, five, six, seven, eight or nine. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). For this reason, the Court DENIES Petitioner's Motion.
Petitioner's first and second claims are procedurally defaulted, meaning that Petitioner is procedurally barred from raising these claims in his motion because they were never addressed by this Court or the Ninth Circuit. Courts have consistently held that "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. at 165, 102 S.Ct. at 1593; see also United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979) (); United States v. Corsentino, 685 F.2d 48, 50 (2d Cir.1982) (). The Supreme Court has reasoned that for the purposes of preserving judicial resources and the integrity of final judgments, the scope of collateral attacks must be narrowly limited. Addonizio, 442 U.S. at 184, 99 S.Ct. at 2239.
Where claims are procedurally defaulted, collateral relief may only be obtained if a convicted defendant can show both "cause and actual prejudice." See, e.g., Frady, 456 U.S. at 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816; Davis v. United States, 411 U.S. 233, 245, 93 S.Ct. 1577, 1584, 36 L.Ed.2d 216 (1973); Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). "[A] convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 168, 102 S.Ct. at 1594. This standard is necessary not only to discourage intentional defaults, but also to avoid the costs of federal habeas review, which include "a reduction in the finality of litigation." See Murray v. Carrier, 477 U.S. 487, 487, 106 S.Ct. 2639, 2644-45 (1986).
It is unnecessary to determine whether Petitioner can show "cause" excusing his procedural default because he has not established "prejudice" sufficient to excuse his failure to raise these issues when given an opportunity to do so. To establish prejudice for his two claims, the petitioner must establish that the error worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. Frady, 456 U.S. at 170, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816. To ascertain the level to which such errors taint the constitutional sufficiency of the trial, they must be evaluatedin the total context of the events at trial. Id. at 169. Petitioner has failed to meet this high standard for prejudice.
Petitioner raises two new issues in his motion that could have been, but were not brought on direct appeal. He argues that: (1) the government failed to disclose exculpatory/impeachment information, namely, an agreement between witness Tamara Bell and the FTC; and (2) the trial court failed to disclose the existence of the exculpatory/impeachment information. Regardless of whether Petitioner could show "cause" for failing to raise these issues previously, he is unable to show "prejudice." The weight of the evidence demonstrates that the defense counsel knew of the evidence and even questioned the witness regarding the evidence. The defense counsel states that the evidence involving Tamara Bell "was known to the defense before the trial, or at least by the time trial commenced." Opp'n Ex. D (Kennon Decl.) (Dkt. 342) at ¶ 4. In addition, Ms. Bell's testimony at trial indicates that defense counsel had a copy of the evidence.5 Opp'n Ex. B (10/23/03 Reporter's Transcript) (Dkt. 342). Therefore, even if the government failed to disclose the agreement between Tamara Bell and the FTC, Petitioner suffered no prejudice because his attorney was aware of the evidence. The trial court's failure to disclose the evidence did not prejudice Petitioner for the same reason. The Court DENIES Petitioner's motion to the extent that it is premised on these two arguments.
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