United States v. Martinez
| Docket Number | 2:08-cr-0562 WBS AC P |
| Decision Date | 26 October 2023 |
| Parties | UNITED STATES OF AMERICA, Respondent, v. VICTOR MANUEL MARTINEZ, Movant. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS
Movant a federal prisoner proceeding pro se, brings a challenge to his conviction and sentence under 28 U.S.C. § 2255. ECF No. 427. The United States opposes the motion, ECF No. 461 and movant has replied, ECF No. 466.
Movant and three of his eleven codefendants (Jose Gonzalez Arias, Jesus Barraza Barraza and Jose Antonio Cabada) went to trial in late 2010 on multiple drug conspiracy charges. All defendants were convicted of all counts against them. Mr. Martinez was found guilty of conspiracy to distribute or possess with intent to distribute methamphetamine, heroin, cocaine, and cocaine base (Count One); possession with intent to distribute cocaine (Count Two); and unlawful use of a communication facility (Count Eight), in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 843(b). ECF Nos. 239, 248. On June 10, 2011, he was sentenced to terms of imprisonment of 120 months on Count One, 120 months on Count Two, and 48 months on Count Eight, all to be served concurrently. ECF Nos. 332, 337.
The government presented evidence that all four defendants were members of the Barraza DTO, which was led by Hector and Manuel Barraza. Movant was a mechanic for the DTO, which used hidden compartments in vehicles to conceal and transport drugs, money, and guns. The DEA's investigation into the DTO included the use of an embedded informant and the authorized wiretaps of several telephones.
The informant testified that he had met movant fifteen to twenty times in the course of his association with the DTO. On one occasion movant had told him about driving to Kansas City to deliver drugs. Movant said he had been paid $5000, which was not worth the risk. Movant said had been pulled over by the police and was afraid they would find the drugs in his possession.
In a recorded phone call on November 6, 2008, movant and DTO leader Manuel Barraza discussed the modification of a blue Ford Expedition that was later used to transport seven kilograms of cocaine. Specifically, the two discussed the removal of a radiator from a green Expedition and its installation in a blue one, and an oil change and filer replacement in the blue vehicle. The case agent, Agent Klingman, testified based on his training, experience, and knowledge of the investigation, that the conversation was really about modifications related to the imminent transportation of narcotics. A green Ford pickup linked to the DTO had been stopped by CHP on September 29, 2008, and its radiator was found to contain a hidden compartment controlled by an electrical latch. At the time of the November 6 conversation, both a blue and a green Explorer were observed by law enforcement at movant's home (where he customarily worked on vehicles), with the blue vehicle's hood open. Later that day movant was observed driving that vehicle to Manuel Barraza's residence, and that night the vehicle was stopped by the CHP. Its radiator contained a secret compartment controlled by an electrical latch, which contained seven kilo-sized bricks of cocaine.
On direct appeal, movant challenged the sufficiency of the evidence to support his convictions. The Court of Appeals affirmed the judgment, explaining:
As to Martinez, we conclude that a rational jury could infer based on circumstantial evidence of his work as a mechanic that he knew about the conspiracy and knowingly helped further it. See United States v. Duenas, 691 F.3d 1070, 1085 (9th Cir. 2012). We also conclude that the intercepted phone calls and evidence seized on November 6, 2008 support Martinez's conviction for possession with intent to distribute based on either (1) a co-conspirator liability or (2) aiding and abetting. See United States v. Tran, 568 F.3d 1156, 1167 (9th Cir. 2009); United States v. Moreland, 622 F.3d 1147, 1169 (9th Cir. 2010); United States v. Klimavicius-Viloria, 144 F.3d 1249, 1263 (9th Cir. 1998). Lastly, we conclude that the November 6, 2008 telephone conversation was sufficient evidence upon which a rational jury could find that Martinez knowingly or intentionally used a communication facility to aid the commission of a narcotics offense. See United States v. Mincoff 574 F.3d 1186, 1195 (9th Cir. 2009).
The § 2255 motion presents two claims for relief, both alleging ineffective assistance of counsel in violation of plaintiff's Sixth Amendment rights. In Claim One, ECF No. 427 at 4-10, movant contends that trial counsel unreasonably and prejudicially failed to challenge expert testimony by Agent Klingman under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 578 (1993), and Federal Rule of Evidence 702. Movant argues that the expert testimony should have been excluded as unreliable, and that the testimony violated movant's rights under the Confrontation Clause by introducing impermissible hearsay. The motion specifies testimony by Agent Klingman going to the quantities of drugs and movant's involvement in the offenses, particularly testimony regarding the meaning of words and phrases used in recorded phone calls. Id. at 6-8. He alleges further that Agent Klingman's dual role as a fact witness and an expert witness created an impermissible risk that “the jury convicted [movant] because Agent Klingman believes he is guilty.” Id. at 5. On this basis movant alleges that trial counsel rendered ineffective assistance by failing to exclude or limit Agent Klingman's testimony, and that appellate counsel was ineffective in failing to raise the issue on appeal.
Claim Two alleges that appellate counsel unreasonably and prejudicially failed to file a supplemental brief based on Alleyne v. United States, 570 U.S. 99 (2013), which was decided during the pendency of movant's appeal. ECF No. 427 at 11-14. Movant argues that he was entitled to a lesser sentence under Alleyne.
A federal prisoner making a collateral attack on the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed in the court which imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under section 2255, the district court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). Both the grounds for relief and the scope of the remedy in a section 2255 proceeding are identical to those available to state prisoners under 28 U.S.C. § 2254, the federal habeas corpus statute. Davis v. United States, 417 U.S. 333, 343-44 (1974). To warrant relief, a movant must demonstrate the existence of an error which had a substantial and injurious effect or influence on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (Brecht standard applies to habeas cases brought under section 2255 just as it does to those under section 2254), cert. denied, 541 U.S. 1011 (2004).
The Sixth Amendment guarantees “the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). To establish a constitutional violation based on ineffective assistance of counsel, a movant must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). In assessing counsel's performance, the court must apply a strong presumption that counsel's representation fell within the wide range of reasonable professional assistance. Id. at 689. Courts must “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690. Prejudice means that the error actually had an adverse effect on the defense. Id. at 693. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The court need not address both prongs of the Strickland test if the movant's showing is insufficient as to one prong. Id. at 697.
A criminal defendant is also entitled to the effective assistance of counsel on his or her first appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985). Claims of ineffective assistance on appeal are governed by Strickland, supra. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish prejudice, movant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, [he] would have prevailed on appeal.” Miller v. Keeney, 882 F.2d 1428, 14314 (9th Cir. 1989); see also Smith, 528 U.S. at 285-86.
If the court finds that petitioner's allegations are sufficient to support both prongs of the Strickland test “a district court must grant a hearing to determine the validity of a petition brought under section 2255, ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). In other words, an evidentiary hearing is required if (1) a petitioner alleges specific...
To continue reading
Request your trial