U.S. v. Luna

Citation455 F.Supp.2d 885
Decision Date03 October 2006
Docket NumberNo. CR 00-4022-MWB.,CR 00-4022-MWB.
PartiesUNITED STATES of America, Plaintiff, v. Alfredo LUNA, Defendant.
CourtU.S. District Court — Northern District of Iowa

Jamie D. Bowers, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

ORDER REGARDING DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

BENNETT, Chief Judge.

TABLE OF CONTENTS
                I. INTRODUCTION AND BACKGROUND .................................... 889
                II. LEGAL ANALYSIS ................................................. 890
                    A. Standards For Relief Pursuant To § 2255 ................ 890
                    B. Retroactivity Of Booker Decision ............................ 891
                    C. Ineffective Assistance Of Counsel ........................... 892
                       1. Applicable standards ..................................... 893
                       2. Claims of ineffective assistance at issue here ........... 894
                          a. Failure to fully impeach witnesses .................... 894
                              i. Scott Windles ..................................... 894
                             ii. John DeHaan ....................................... 896
                            iii. Matt Miller ....................................... 896
                          b. Use of 2000 edition of federal guidelines ............. 897
                          c. Calculation of criminal history ....................... 898
                          d. Weapons enhancement ................................... 898
                    D.  Certificate Of Appealability ............................... 899
                  III. CONCLUSION .................................................. 899
                
I. INTRODUCTION AND BACKGROUND

In a two-count indictment returned on February 4, 2000, defendant Alfredo Luna was charged with conspiracy to distribute methamphetamine and cocaine (Count 1), in violation of 21 U.S.C. § 846, and with using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). At trial, among other evidence, the government presented the testimony of several co-conspirators, who testified pursuant to plea agreements. Specifically, Matt Miller testified that he had received twenty pounds of methamphetamine and three or four pounds of cocaine from Luna. Miller also testified that Luna had an AR 15 rifle, which he threatened to use if Miller ever informed on Luna. Miller further related that during several drug transactions Luna had pointed a 9mm pistol with a laser sight at him. Scott Windles testified that Luna had supplied him with five to eight pounds of methamphetamine. Moreover, Windles testified that he saw an AR 15 rifle at Luna's home and that Luna had pointed a 9mm pistol at him during drug transactions. Luna presented several witnesses and testified in his defense. Following a three-day trial, the jury convicted Luna of the conspiracy charge, but acquitted him of the weapons charge. At Luna's sentencing, the court found that, based on the trial testimony, Luna was responsible for more than 10,000 but less than 30,000 kilograms of marijuana equivalent, resulting in a base offense level of 36. The court also imposed a two-level enhancement for possessing a dangerous weapon under U.S.S.G. § 2D1.1(b). Based on a total offense level of 38 and criminal history category of II, the court found that Luna's sentencing range was 262 to 327 months. The court sentenced Luna to 262 months imprisonment.

Defendant Luna appealed his conviction, raising the following issues in his appeal that the court abused its discretion in denying his Rule 33 motion for a new trial, asserting that the government's witnesses lacked credibility; that the court erred in finding that he was accountable for more than 10,000 kilograms of marijuana equivalent, and that the court erred in imposing a two-level weapons `enhancement pursuant to U.S.S.G. § 2D 1.1(b). The Eighth Circuit Court of Appeals denied defendant Luna's appeal. See United States v. Luna, 265 F.3d 649 (8th Cir.2001). Defendant Luna subsequently filed his current § 2255 motion.

In his § 2255 motion, defendant Luna challenges the validity of his conviction and sentence on the ground of ineffective assistance of trial and appellate counsel for the following reasons: (1) that his trial counsel was ineffective because he failed to fully impeach government witnesses; (2) that his trial counsel was ineffective in failing to object to the edition of the federal guidelines used at the time of sentencing; (3) that his trial counsel was ineffective in failing to object to the criminal history for Luna that was set out in his presentence investigation report; (4) that his trial counsel was ineffective in failing to object to the standard utilized by the court in determining the applicability of a two-level weapons enhancement pursuant to U.S.S.G. § 2D1.1(b); (5) that his appellate counsel was ineffective in failing to raise the issue of trial counsel's ineffectiveness in failing to fully impeach government witnesses; (6) that appellate counsel was ineffective in failing to raise the issue of the edition of the federal guidelines used at the time of sentencing; and, (7) that his appellate counsel was ineffective in failing to raise on appeal, the issue of the court's calculation of defendant Luna's criminal history. Defendant Luna subsequently amended his § 2255 motion in order to challenge his sentence in light of the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), arguing that the Booker decision must be given retroactive effect.

II. LEGAL ANALYSIS
A. Standards For Relief Pursuant To § 2255

The court must first consider the standards applicable to a motion for relief from sentence pursuant to 28 U.S.C. § 2255. Section 2255 of Title 28 of the United States Code provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255; Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir.2003) ("To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States."). Thus, a motion pursuant to § 2255 "is `intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir.1993) (quoting Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir.1995) (quoting Wilson). On the other hand,

Section 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of cause and prejudice, United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice. See United States v. Smith, 843 F.2d 1148, 1149 (8th Cir.1988) (per curiam).

Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.1993) (per curiam); accord Johnson v. United States, 278 F.3d 839, 844 (8th Cir.2002) ("In order to obtain collateral review of a procedurally defaulted issue, [a § 2255 movant] must show `either cause and actual prejudice, or that he is actually innocent.'") (quoting Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), with citations omitted).

The "cause and prejudice" that must be shown to resuscitate a procedurally defaulted claim may include "ineffective assistance of counsel." See Becht v. United States, 403 F.3d 541, 545 (8th Cir.2005). Otherwise, "[t]he Supreme Court recognized in Bousley that `a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir.2001) (quoting Bousley, 523 U.S. at 622, 118 S.Ct. 1604, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). "Actual prejudice" requires a showing that the alleged error "`worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.' " Johnson, 278 F.3d at 844 (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1981), and explaining, further, that the movant must show that there is a substantial likelihood that, absent the error, a jury would have acquitted him of the charged offense). To establish "actual innocence," as an alternative way to resuscitate a procedurally defaulted claim, "`petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'" Id. (quoting Bousley, 523 U.S. at 623, 118 S.Ct. 1604). "`This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the charged offense]: " Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir.2001)).

The Eighth Circuit Court of Appeals will review the district court's decision on a § 2255 motion de novo, regardless of whether the district court's decision grants or denies the requested relief. Compare United States v. Hilliard, 392 F.3d 981, 986 (8th Cir.2004) ("We review the district court's decision to grant or deny relief on a petitioner's ineffective assistance of counsel claim de novo.") (citing United States v. White, 341 F.3d 673, 677 (8th Cir.2003)); with United States v. Hernandez, 436 F.3d 851, 854 (8th Cir.2006) (" We...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT