U.S. v. Vargas
| Decision Date | 17 January 2007 |
| Docket Number | No. 1:03-cr-046.,No. 1:06-cv-063.,1:03-cr-046.,1:06-cv-063. |
| Citation | 469 F.Supp.2d 752 |
| Parties | UNITED STATES of America, Plaintiff, v. Rosalio Guitron VARGAS, Defendant. Rosalio Guitron Vargas, Petitioner, v. United States of America, Respondent. |
| Court | U.S. District Court — District of North Dakota |
Rick L. Volk, U.S. Attorney's Office, Bismarck, ND, for Plaintiff.
Rosalio Guitron Vargas, Terre Haute, IN, pro se.
ORDER DENYING DEFENDANT'S PETITION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255
Before the Court is the Defendant's pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence, filed on August 7, 2006. On August 9, 2006, the Court reviewed the motion and ordered the Government to file a response. On October 6, 2006, the Government filed a response requesting that the Court deny the Defendant's motion for post-conviction relief. The Defendant filed a reply brief on November 2, 2006. For the reasons, set forth below, the motion is denied.
On July 9, 2003, the defendant, Rosalio Guitron Vargas ("Vargas"), was charged in a nine-count indictment with various drug and firearm offenses. Count One charged Vargas and four other individuals with conspiracy to distribute and possess with intent to distribute methamphetamine. Count Seven charged Vargas with distribution of methamphetamine. Count Eight charged Vargas with distribution of marijuana. Count Nine charged Vargas with possession of a firearm by an illegal alien. See Docket No. 11. On December 18, 2003, a jury found Vargas guilty on all counts. See Docket No. 131. As to Count One, the jury found that the conspiracy involved over 50 grams of methamphetamine or over 500 grams of a mixture or substance containing a detectable amount of methamphetamine. The jury also found that as to Count Seven, Vargas distributed 50 grams or more of a mixture of substance containing a detectable amount of methamphetamine.
Vargas was sentenced on February 26, 2004. The Presentence Investigation Report ("PSR") calculated a total offense level of 42 and criminal history category V, yielding an advisory Sentencing Guideline range of 360 months to life. See PSR, pp. 14-17. The total offense level of 42 was arrived at by starting with a base offense level of 34 because Vargas' offenses involved 2,496.12 grams of methamphetamine (equivalent to 4,9992 kilograms of marijuana) and over 0.45 kilograms of marijuana. Eight levels were added to Vargas' offense level for the following: (1) two levels under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon during his drug crimes; (2) four levels under U.S.S.G. § 3B1.1(a) for being a leader and organizer of criminal activity involving five or more participants; and (3) two levels under U.S.S.G. § 3C1.1 for obstruction of justice. As to the firearms conviction on Count Nine, it was calculated as an offense level of 24. See PSR, ¶ 14-17. Vargas objected to the calculations. The Court rejected Vargas' objections and found that the sentencing enhancements were supported by the trial testimony. See Sentencing Tr. 5-9. The Court accepted the guideline calculations in the PSR and sentenced Vargas to a 360-month term of imprisonment. See Docket No. 149.
On March 3, 2004, Vargas filed a notice of appeal. See Docket No. 151. Vargas appealed his conviction and sentence. On appeal, Vargas argued (1) that he was prejudiced because the evidence established two conspiracies rather than one; (2) that his Sixth Amendment right to be present at trial was violated when he was not present at a pretrial conference; (3) that the Court erred when it occasionally failed to admonish the jury not to discuss the case amongst themselves; and (4) that his sentence violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which was handed down while Vargas' appeal was pending. See United States v. Barth, 424 F.3d 752 (8th Cir.2005). The Eighth Circuit Court of Appeals rejected Vargas' claims and affirmed his conviction and sentence. Id.
On August 7, 2006; Vargas filed a motion under 28 U.S.C. § 2255. Vargas asserts that both his trial and appellate counsel were ineffective. As to his trial counsel, Vargas asserts eight alleged deficiencies: (1) he was denied counsel of his choice; (2) his counsel had an actual conflict of interest; (3) counsel failed to object to inadmissible hearsay; (4) counsel failed to move for a severance; (5) counsel failed to move to suppress Vargas' statement to police; (6) counsel failed to move to suppress testimony of Government witnesses based on unduly suggestive identification process; (7) counsel failed to adequately cross-examine and impeach Government witnesses; and (8) counsel failed to review the Presentence Investigation Report with Vargas. As to his appellate counsel, Vargas asserts counsel failed to raise two issues on appeal: (1) the lack of findings to support a four-level enhancement under Section 3B1.1(a) and (2) the lack of findings to support a two-level enhancement under Section 2D1.1(b)(1).
A. INEFFECTIVE ASSISTANCE OF COUNSEL
The burden of demonstrating ineffective assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To be eligible for habeas relief based on ineffective assistance of counsel a defendant must meet the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must first establish that counsel's representation was constitutionally deficient, which requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052; see Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This requires showing that counsel made errors so serious that defense counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In considering whether this showing has been accomplished, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. If the underlying claim (i.e., the alleged deficient performance) would have been rejected, counsel's performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to "eliminate the distorting effects of hindsight" by examining counsel's performance from counsel's perspective at the time of the alleged error. Id.
A defendant must then show that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This requires proving that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been more favorable to the defendant. Id. at 690-91, 104 S.Ct. 2052. A reasonable probability is one "sufficient to undermine confidence in the outcome." Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Merely showing a conceivable effect is not enough. When evaluating the probability the result would have been different, a court views the alleged error in light of the totality of all the evidence before the jury to gauge the effect of the error. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Williams v. United States, 452 F.3d 1009, 1013 (8th Cir.2006).
Where a defendant raises multiple claims of ineffective assistance, each claim of ineffective assistance must be examined independently rather than collectively. Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir.2002); Griffin v. Delo, 33 F.3d 895, 903-04 (8th Cir.1994).
Vargas contends that he was denied counsel of his choice and asserts that a criminal defendant has a Sixth Amendment right to counsel of his or her choice. The Government responds by noting that an indigent defendant has no constitutional right to have a particular attorney appointed to represent him and that Vargas did not state that he wanted to retain another attorney. Vargas replies that any failure on his part to specifically inform the Court that he wanted to retain an attorney was due to his inability to fully and proficiently understand and communicate in English.
On November 7, 2003, Vargas submitted a letter to the Court requesting that his court-appointed counsel be dismissed from the case. See Docket No. 87. Vargas asserted that his attorney had a "conflict of interest in the way he [was] handling [his] case." See Docket No. 87. Vargas asked for another attorney "to be appointed to [his] case." See Docket No. 87. The Court treated the letter as a Motion for Attorney Substitution. See Docket No. 87.
On November 13, 2003, the Court held a hearing regarding Vargas' motion. A Spanish/English interpreter was present throughout the hearing. See Transcript of Hearing on November 13, 2003.1 On November 14, 2004, the Court issued an order denying Vargas' request for substitute counsel. See Docket No. 90. Vargas now, contends that he intended to retain his own attorney and that his failure to clearly articulate this information was based on his limited ability to understand English.
The record reflects that at all times during the hearing and during discussions with his attorney, Vargas had access to an interpreter. Vargas submitted an affidavit from Wahnita Hernandez who states that she was willing to hire an attorney for Vargas in October of 2003. See Docket No. 209. However, Vargas failed to provide such information to the Court at the time he requested substitute counsel.
It is well-established that an indigent criminal defendant has no constitutional right to have a...
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