Sayasane v. United States

• Decision Date: 04 September 2015
• Docket Number: 2:12-CV-171
• Parties: VONGSAVAT SAYASANE v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Northern District of Texas

VONGSAVAT SAYASANE v. UNITED STATES OF AMERICA

2:12-CV-171

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

September 4, 2015

REPORT AND RECOMMENDATION TO DENY MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Defendant VONGSAVAT SAYASANE has filed with this Court a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the reasons set out below, the undersigned United States Magistrate Judge is of the opinion defendant is not entitled to relief and recommends the motion to vacate, set aside, or correct sentence be DENIED.

I.BACKGROUND

On October 20, 2009, defendant was charged by indictment with conspiracy to commit a drug offense and for possession with intent to distribute methamphetamine. United States v. Sayasane, No. 2:09-CR-72(08). A jury found defendant guilty of both counts, and he was subsequently sentenced to 262 months imprisonment on each conviction, such sentences to run concurrently. Defendant's convictions were affirmed on appeal. United States v. Sayasane, No. 10-10397, 2011 WL 989846 (5th Cir. Apr. 13, 2011). The United States Supreme Court denied defendant's petition for a writ of certiorari. Sayasane v. United States, 132 S.Ct. 214, 181 L.Ed.2d 116 (2011). The instant 28 U.S.C. § 2255 motion followed.

II.DEFENDANT'S ALLEGATIONS

In support of his contention that his conviction and sentence were imposed in violation of the Constitution or laws of the United States, defendant presents the following grounds for relief:

1. Defendant received ineffective assistance of counsel because his trial attorney

a. interfered with defendant's right to testify;

b. failed to call a favorable witness for the defense;

c. failed to renew his objection to the sufficiency of the evidence at the end of the trial;

d. failed to object to the conscious avoidance instruction in the jury charge; and

e. failed to file a motion to suppress.

2. Defendant's conviction was obtained, and his sentence was imposed, in violation of his rights under the Due Process Clause.

III.MERITS

A. Ineffective Assistance of Counsel Claims

Defendant first claims his right to effective assistance of counsel was violated by trial counsel's performance. In Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test for analyzing ineffective assistance of counsel claims. The Strickland test requires a prisoner to demonstrate defense counsel's performance was both deficient and prejudicial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

An attorney's performance is considered deficient if the attorney made errors so serious he or she was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Strickland, 466 U.S. at 689, 104 S.Ct. at 2064. That is, counsel'sperformance must have fallen below the standards of reasonably competent representation as determined by the norms of the profession. A reviewing court's scrutiny of trial counsel's performance is highly deferential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id. at 689, 104 S. Ct. at 2065.

In the context of deficient attorney performance during the course of a jury trial, a defendant establishes prejudice by showing "(1) there is a reasonable probability that, but for counsel's unprofessional errors, the ultimate result of the proceeding would have been different . . . and (2) counsel's deficient performance rendered the trial fundamentally unfair." Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); see Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

1. Interference with Defendant's Right to Testify

Defendant's first claim of ineffective assistance of counsel is that his attorney interfered with his right to testify at trial. In an affidavit submitted with his 28 U.S.C. § 2255 motion, defendant avers,

During trial preparation, and trial I clearly told my lawyer, Maxwell Peck, that I wanted to testify on my own behalf, and tell the jury that I was not involved in any drug conspiracy. To prepare for testimony, Peck had me meet with translators John Johnson and Paul Litana. I expected to testify at trial but Peck did not allow me the opportunity.

It is well established that a criminal defendant has a constitutional right to take the stand and testify in his defense. See Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001). The defendant alone, and not his attorney, may waive this right, and the defendant's waiver of this right must be knowing and voluntary. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.1997).

The record before the Court on this issue contains only the short statement of defendant in his affidavit, as quoted above. No affidavit from defendant's trial counsel offering the attorney'sversion of what defendant's wishes were at the time of trial has been submitted. Accepting defendant's affidavit as true, it appears defendant informed his attorney of his desire to testify, that the attorney prepared the defendant to testify, but that the attorney waived that right. Even though this may have been sound trial strategy considering defendant's prior conviction for aggravated sexual assault of a child younger than age fourteen, which would have been available for use against defendant had defendant taken the stand, see Fed. R. Crim. P. 609, the rule of this circuit is that "The decision of whether to testify belongs to the defendant and hiss lawyer cannot waive it over his objection." United States v. Mullins, 315 F.3d 449, 454 (5th Cir. 2002); see Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001) (holding it is counsel's duty to weigh the benefits of a defendant's proposed testimony against the risks of the defendant testifying and to advise his client accordingly).

An evidentiary hearing to obtain the testimony of defendant's trial attorney regarding why defendant did not take the stand is not necessary because, even taking defendant's affidavit as true, defendant fails to establish prejudice. Defendant avers he wanted to testify and to tell the jury he did not participate in any drug conspiracy. Defendant was convicted of two different crimes, conspiracy to commit a drug offense and possession with intent to distribute. He received 262 months incarceration on each conviction, such sentences to run concurrently. In his affidavit, defendant does not indicate how or if he would have refuted the possession charges. He only addresses the conspiracy charge. Because he would have received 262 months incarceration on the possession charge, even if the jury would have believed his plea of innocence as to the conspiracy charge, petitioner has failed to demonstrate prejudice. See United States v. Bass, 310F.3d321, 330 (5th Cir. 2002) (holding "As for Strickland's second prong, [the defendant] was prejudiced by this deficient performance, albeit minimally. As [defendant] is serving all of his sentences concurrently, thesentencer did not impose a harsher prison term as a result of the [contested] conviction."); see also Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) ("[T]o prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense.").

Moreover, defendant has failed to show there is a reasonable probability that, had he testified, the jury would have had a reasonable doubt concerning his guilt on either count and that any errors were so serious they deprived the defendant of a fair trial. See Mullins, 315 F.3d at 456. The government presented testimony from a Drug Enforcement Agency (DEA) agent about the movements of the semi-truck driven by defendant, and registered in defendant's name, which were monitored via a GPS tracker placed on the truck by law enforcement. (Transcript, Doc 256 [hereinafter Tr.] 26). Another DEA agent testified that on August 26, 2009, he observed defendant in his semi-truck parked in a Flying J convenience store parking lot in Amarillo, Texas. (Tr. 77). At the Flying J, a person driving a passenger vehicle met with defendant in the cab of his semi-truck for approximately twenty minutes before the stranger in the passenger car left empty-handed. (Tr. 77). Defendant, a resident of Amarillo, spent the night in the truck on the convenience store parking lot. The next morning, he detached the trailer from the truck tractor, and drove the tractor to a rural residence. At the residence, defendant met with a Raymundo Haro. (Tr. 84). Mr. Haro got into the semi-truck tractor with defendant and stayed for several minutes. (Tr. 50, 84-85). Mr. Haro exited the truck with a large white bag. (Tr. 85). Police officers who were surveilling defendant observed the bag, which was moved around, and eventually pulled over the person driving the vehicle wherethe bag had finally been placed. (Tr. 61, 88-89). Inside the bag was 4.628 kilograms of methamphetamine. (Tr. 61, 126). One week after this event, defendant was stopped in central Texas for speeding. A search of defendant's truck revealed a large, recently added secret compartment above the driver's seat. (Tr. 161, 167). The compartment was empty, but a canine sniffing the truck alerted to the top of the cab of the truck, indicating drugs had been recently located in that area. (Tr. 208).

The Government also presented the testimony of one of defendant's co-conspirators, Robert Martinez. Mr. Martinez testified his role in the conspiracy was to store and cut methamphetamine, making it distributable at a greater profit. (Tr. 136-137). According to Mr. Martinez, on the night of August 26, 2009, when DEA agents observed defendant parked at the Flying J convenience store,...