U.S. v. Gomez
| Decision Date | 06 May 2011 |
| Docket Number | C.A. No. C-09-318,CR. No. C-07-251-2 |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JOSE MANUEL GOMEZ, Defendant/Movant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is Defendant Jose Manuel Gomez' (Gomez) motion pursuant to 28 U.S.C. § 2255 (D.E. 124). The United States filed its response to the motion; Gomez filed a reply. (D.E. 126, 133). For the reasons set forth herein, Gomez' section 2255 motion is DENIED, and the Court also DENIES him a Certificate of Appealability.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
In 2006, Border Patrol Agents seized a large quantity of methamphetamine that was being transported from the Texas Rio Grande Valley north to Dallas, Texas. During their ensuing investigation of that crime, Drug Enforcement Agents (DEA) learned the identity of the supplier and learned that there was a pending investigation in Dallas of the same supplier. Dallas agents were monitoring the supplier's telephone and discoveredconversations between Jose Manuel Gomez and the supplier. The Dallas investigation had been going on since 2005. (D.E. 109, Testimony Agent Bingham). Beginning in September 2006, local DEA agents began investigating a telephone from the Rio Grande Valley. In the fall of 2006, the agents determined the address and identity of Jose Manuel Gomez. By February 2006, they obtained a wiretap on a cell phone registered to Joes Gomez, whom they believed to be Jose Manuel Gomez. (D.E. 109-3 at 148, Testimony Sean Argyros). After intercepting calls made on that phone, the agents learned that two persons used that phone, Manuel and Mayra. Manuel and Mayra were conspiring with others to transport methamphetamine from the Valley to Dallas. Id. at 152. They were using the tapped cell phone to communicate with others known as Sergio, Flaco (in Dallas), and Pedro (Dallas). Through the investigation, agents learned that Sergio and his wife Caroline, who lived in Michoacan, Mexico, were the source of supply for the methamphetamine.
In mid-February 2007, Mayra was to pick up some drugs from another person near the Mexico border. A week later Mayra was determined to be in Dallas, probably visiting Flaco. No arrests were made although the agents confirmed the connection between Mayra and Flaco.
In late March 2007, Mayra was stopped by some unknown individual and may have been robbed. After that incident, there was a flurry of telephone calls between Manuel and Sergio. (D.E. 109, Testimony Argyros). On March 24, 2007, the agents, based upon the information from the intercepted phone calls, watched Mayra go to the local bus station and board a bus with three young women. The girls had pillows and handbags with them. Id. at164. Mayra had the monitored cell phone with her on the trip. The bus traveled to Harlingen where Mayra and the three girls changed buses to get on the bus going to Dallas. Id. at 166.
Before the Dallas-bound bus reached the Sarita checkpoint, the agents advised the Border Patrol of the situation. The Border Patrol boarded the bus with a drug dog who alerted to the pillows. Further searching revealed methamphetamine in the pillows carried by the three young girls. Id. at 168. The three girls were detained. When asked whether she was traveling with the three girls, Mayra denied that she knew them. Id. at 193. Mayra was not arrested and was allowed to stay on the bus. Seven kilograms of methamphetamine were recovered from the three girls, six from the three pillows and one kilogram in a purse.
After the girls were detained, Mayra placed a call to several others, including Manuel, to tell them that although some of the drugs had been confiscated, more was still on the bus. Id. at 173. Based upon this information, when the bus stopped for fuel in Robstown, agents boarded the bus and confiscated luggage carried by the girls which contained another 13 kilograms of methamphetamine. Id. at 175. Mayra was not arrested at that time, and continued on her trip. After the Robstown interdiction, Mayra continued to make calls, including calls to Manuel.
Mayra got off the bus before it got to Dallas and one of her children drove from the Valley to pick her up. Manuel and Mayra made a number of calls that day to Sergio and Caroline regarding legal representation of the three girls to make sure the source of supply was obscured. Id. at 178. During the investigation, there were calls between Manuel and Flaco. Id at 179. The wiretaps ended on May 10, 2007 when Jose Manuel Gomez and MayraGonzalez-Reyes were arrested. Flaco was arrested separately.
When Mayra Gonzalez-Reyes and Jose Manuel Gomez were arrested at their home in Mission, Texas, the tapped cell phone was recovered. Id. at 180. The phone was actually found on Jose Manuel Gomez, Jr. Id. at 185.
A jury convicted Gomez of conspiracy to possess with intent to deliver more than 500 grams of methamphetamine pursuant to 28 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). (D.E. 94). He was charged with two co-defendants, Mayra Gonzalez-Reyes and Priscilla Lee Lopez, 1 in a single count indictment after DEA agents intercepted the drugs during their transport to Dallas on March 25, 2007. (See D.E. 81 (). Thereafter, DEA agents obtained a search warrant to search Gomez' home and later arrested him and his two co-defendants pursuant to arrest warrants. (D.E. 1, 6, 8, 10). Gomez pleaded not guilty and invoked his right to a jury trial.
During trial, Mayra Gonzalez-Reyes testified, as did Flaco, also known as Martin Cruz Alvarado. Both testified that the Manuel on the tape was the defendant Jose Manuel Gomez. Flaco had never met Gomez, but recognized the voice on the tape as belonging to the man he knew as Manuel who organized the transport of drugs. Alvarado had been in Dallas for approximately two years. Before he moved to Dallas, Alvarado visited his familyin Michoacan, Mexico. A friend of Alvarado's in Mexico introduced him to Manuel over the phone. The Manuel he met over the phone and Manuel's wife Mayra arranged to move drugs from the Valley to Dallas where Alvarado would pick up the drugs. Id. at 209. Although he never met Manuel in person, Alvarado met Mayra because she came to Dallas with the drugs. Id. at 210. Alvarado was under indictment at the time of trial for his participation in the conspiracy and had several previous drug trafficking convictions from California.
Alvarado identified the voice that belonged to Manuel on Government Exhibit 1 in a telephone conversation in September 2006, in which they were discussing a shipment of methamphetamine. Other audio was played for the jury in which Manuel's voice was identified by Mayra Gonzalez-Reyes as the voice of her co-defendant Jose Manuel Gomez.
After the jury convicted Gomez, this Court sentenced Gomez within the Sentencing Guideline to life imprisonment. (D.E. 89). Gomez appealed to the Fifth Circuit Court of Appeals which affirmed his conviction and sentence in an unpublished per curiam opinion. (D.E. 88, 121).
Gomez timely filed his motion pursuant to section 2255. 28 U.S.C. § 2255.
Gomez claims that his trial and appellate counsel were ineffective because they failed to 1) interview defense and prosecution witnesses that would have provided Gomez with an alibi and failed to develop character evidence and defendant's employment history for use at trial, 2) request a jury instruction on good character and moral background which he claims would have created a presumption that he would not have committed the crimes, 3)ensure that Gomez could understand the proceedings using the court-appointed Spanish interpreter, 4) seek a plea agreement, 5) to exclude evidence of Gomez' 20 year cohabitation with co-defendant Mayra Gonzalez-Reyes, 6) file a motion to suppress the government's evidence obtained from a wire-tap, 7) interview Mayra Gonzalez-Reyes before trial, 8) seek a downward departure or safety-valve reduction in the applicable Sentencing Guidelines, 9) object to the presentence report, 10) object that the time between the presentence report and the sentencing hearing was too short, 11) use a voice analysis expert to testify regarding identification of the voices on the wiretaps, 12) challenge the prosecution's evidence relating to the cell phone that was tapped and its link to Gomez, 13) object to the prosecutor's closing arguments when the prosecutor allegedly vouched for the veracity of the government witnesses, 14) object to the tape recordings going to the jury room, and 15) "adequately research the law or review the transcripts and trial record." Additionally, Gomez claims that he is actually innocent and his conviction violates his due process and equal protection rights.
There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) constitutional issues, (2) challenges to the district court's jurisdiction to impose the sentence, (3) challenges to the length of a sentence in excess of the statutory maximum, and (4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow rangeof injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
Gomez claims multiple bases for his claim that trial counsel was ineffective. An ineffective...
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