United States v. Mena-Valdez
| Docket Number | 8:19CR65 |
| Decision Date | 24 August 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOSE MENA-VALDEZ, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter comes before the Court on Defendant's, Jose Mena-Valdez's, motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Filing No. 105. For the reasons set forth herein, the Court concludes the motion must be dismissed on initial review.
On October 30, 2018, Omaha police officers stopped a vehicle that did not have visible license plates and failed to properly signal its turn. Filing No. 93 at 29. Mena-Valdez was driving the vehicle, and there were two passengers. Id. at 30. Officers smelled alcohol coming from Mena-Valdez and observed a red Solo cup with alcohol in the center console. Id. at 32. Officers then searched the vehicle and located a bag containing methamphetamine on the passenger floorboard, a gun between the passenger seat and center console, and approximately $650 in Mena-Valdez's pocket. Id. at 34, 55-56.
Mena-Valdez was charged with possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1) and possession of a firearm in connection with a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Filing No. 1. A jury found Mena-Valdez guilty, and the Court sentenced him to the statutory minimum of sixty months on each count to run consecutively. Filing No. 74; Filing No. 95 at 10.
Mena-Valdez appealed, arguing the district court had erred by not suppressing the evidence (methamphetamine and firearm) located as a result of the search of his vehicle. Filing No 98 at 2. He argued there was no probable cause or reasonable suspicion to stop his vehicle and there was no probable cause to search his car. Id. at 2. The Eighth Circuit Court of Appeals affirmed the denial of his motion to suppress. Id. at 3. It noted there was probable cause[1] to stop the vehicle because its temporary-tag license plates were expired and not visible through the tinted windows and Mena-Valdez failed to properly signal a turn. Id. at 2. The Eighth Circuit also affirmed the district court's determination that officers properly conducted a warrantless search of the vehicle pursuant to the automobile exception because upon stopping the vehicle, they smelled alcohol, found a cup with alcohol in it, and then searched for further evidence of this opencontainer violation. Id. at 3.
Mena-Valdez now files a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence based on the alleged ineffective assistance of his trial and appellate counsel.
“A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence . . . or 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(a). Section 2255 is intended to provide federal prisoners a remedy for jurisdictional or constitutional errors. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011).
Under the Rules Governing Section 2255 Proceedings for the United States District Courts, the court must perform an initial review of the defendant's § 2255 motion. See 28 U.S.C. § 2255, Rule 4(b). Id.
Mena-Valdez alleges six grounds of ineffective assistance of counsel. See generally Filing No. 109. Claims of ineffective assistance of counsel require a showing “(1) that [the] attorney's performance was deficient, falling below professional standards of competence; and (2) that the deficient performance prejudiced [the] defense.” Blankenship v. United States, 159 F.3d 336, 338 (8th Cir. 1998) (citing Strickland v.Washington, 466 U.S. 668, 687 (1984)). “In assessing counsel's performance, courts defer to reasonable trial strategies and ‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Id. (quoting Strickland, 466 U.S. at 689). A showing of prejudice requires a determination by the court that “there is a reasonable probability [sufficient to undermine confidence in the outcome] that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694). The burden of proving ineffective assistance of counsel rests with the defendant. United States v. White, 341 F.3d 673, 678 (8th Cir. 2003) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)).
As a preliminary matter, Mena-Valdez's sixth ground for relief is his counsel's failure to raise the other alleged instances of ineffective assistance of counsel on direct appeal. Because Mena-Valdez had the same appointed attorney for both his trial and appeal, the present habeas motion is the earliest time at which Mena-Valdez, now pro se, could reasonably raise these issues. Thus, to the extent any of Mena-Valdez's ineffective-assistance arguments are meritorious, the Court agrees he has not waived them by failing to raise them on direct appeal. The remaining five claims of ineffective of assistance of counsel are: (1) failing to move for a judgment of acquittal based on the constructive amendment of the indictment; (2) failing to move for a judgment of acquittal based on lack of evidence of an intent to distribute; (3) failing to move for a judgment of acquittal based on the lack of evidence of possessing or carrying a firearm in furtherance of a drug-trafficking crime; (4) failing to properly litigate the Fourth Amendment suppression issue; and (5) failing to move for dismissal based on a statutory speedy trial violation. The Court conducts its initial review of these claims in turn.
Mena-Valdez first argues his counsel was ineffective for failing to move for a judgment of acquittal under Fed. R. Crim. P. 29 based on the United States charging Mena-Valdez with possessing a “mixture of methamphetamine” but presenting evidence of “actual methamphetamine” (i.e., higher purity methamphetamine) at trial. Filing No. 109 at 5. Mena-Valdez argues this constituted a constructive amendment of the indictment and had his counsel moved for an acquittal, it would have been granted.
As an initial matter, Mena-Valdez takes issue with his counsel failing to move for a judgment of acquittal under Fed. R. Crim. P. 29. But the evidence shows that his attorney did make a motion under Rule 29. Rule 29 provides, in relevant part:
After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so.
At the close of the Government's case, Mena-Valdez's attorney stated, “I have a motion to dismiss.” Filing No. 94 at 86. His attorney then went on to argue the evidence was insufficient to support a conviction for possession with intent to distribute because there was no proof Mena-Valdez was intending to sell the drugs as opposed to keeping them for his personal use. Id. at 87. He also argued there was no evidence Mena-Valdez “was using this gun to further distribute methamphetamine.” Id. at 86.
Although counsel used the term “dismiss” instead of “judgment of acquittal,” it is apparent that he was making a motion under Rule 29 by arguing the evidence presented was “insufficient to sustain a conviction” for either the drug or firearm count.[2] Fed. R. Crim. P. 29(a) (). Therefore, Mena-Valdez is incorrect that his attorney was ineffective for failing to make a Fed. R. Crim. P. 29 motion. However, because his attorney did not base the motion on the supposed constructive amendment of the indictment as Mena-Valdez now argues, the Court will address that argument further.
21 U.S.C. § 841(b)(1)(B)(viii).
In contrast, subsection (b)(1)(A)(viii) pertains to possessing with intent to distribute “50 grams or more of methamphetamine . . . or 500 grams or more of a mixture or...
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