United States v. Romo, Cause No. CR 13-113-BLG-SPW
| Decision Date | 07 August 2018 |
| Docket Number | Cause No. CV 17-085-BLG-SPW,Cause No. CR 13-113-BLG-SPW |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. FELIS LUSIANO ROMO, Defendant/Movant. |
| Court | U.S. District Court — District of Montana |
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
This case comes before the Court on Defendant/Movant Romo's motion to vacate, set aside, or correct the sentence, pursuant to 28 U.S.C. § 2255. Romo is a federal prisoner proceeding pro se.
Before the United States is required to respond, the Court must determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.
A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) ("Nicolas") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). But "it is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.
Romo initially appeared in this Court on a complaint charging that he was a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). See Compl. (Doc. 1) at 3; Minutes (Doc. 3). On December 5, 2013, he was indicted on that charge. See Indictment (Doc. 9) at 1-2. Attorney Lance Lundvall was appointed to represent him. See Order (Doc. 8).
On January 16, 2014, Romo was indicted on one count of conspiracy to possess 50 grams or more of a substance containing methamphetamine, with intent to distribute it, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); one count of the substantive offense, a violation of 21 U.S.C. § 841(a)(1) (Count 2); and one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 3). See Superseding Indictment (Doc. 14) at 2-4.
Counsel filed a motion to suppress a firearm and other evidence obtained when police entered a camper occupied by Romo. The motion was denied. See Mot. and Br. in Supp. (Docs. 20, 21); Resp. Br. (Doc. 23); Reply (Doc. 26); Order (Doc. 30).
Trial commenced on April 23, 2014. After hearing about four hours of testimony, the jury found Romo guilty on all three counts of the Superseding Indictment. See Minutes (Docs. 49, 51); Verdict (Doc. 52) at 1-3.
On October 17, 2014, Romo was sentenced to serve a total of 188 months in prison, to be followed by a five-year term of supervised release. See Minutes (Doc. 76); Judgment (Doc. 77) at 2-3. His sentence was later reduced to 162 months under Amendments 782 and 788 to the Sentencing Guidelines. See Am. Judgment (Doc. 111) at 1.
Romo appealed. He challenged the denial of his motion to suppress and his criminal history category under the advisory sentencing guidelines. The Court of Appeals affirmed his conviction and sentence on June 14, 2016. See Mem. (Doc. 100) at 4. Romo filed a petition for writ of certiorari. It was denied on October 17, 2016. See Clerk Letter (Doc. 105).
Romo's conviction became final on October 17, 2016. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on June 19, 2017. See 28 U.S.C. § 2255(f)(1).
Romo's claims are reorganized here, but all are addressed.
Romo contends that counsel had a conflict of interest because he was an"active State Judge and an active State prosecutor" and so "had a conflict of interest in making sure that any person alleged to be involved with drug use and/or distribution in the State of Montana would be prosecuted to the extent of the law." Mot. § 2255 (Doc. 113) at 7; Br. in Supp. (Doc. 114) at 4-6.
To determine the extent of counsel's obligations in these other roles, the Court ordered him to file an affidavit. He complied on January 22, 2018. Romo had an opportunity to respond to the affidavit but did not do so. See Order (Doc. 116) at 1-2; Counsel Aff. (Doc. 118) at 1-4. Romo claims that counsel's occasional service as a judge and prosecutor created a conflict of interest because it requires counsel to enforce the criminal laws of the State. But the purpose of a criminal defense attorney is to protect the rights of individual defendants, not to block enforcement of criminal laws. Mere occasional service as a judge or prosecutor, especially in a jurisdiction, like Montana, with sparsely populated areas and few lawyers, does not disqualify counsel from criminal defense cases.
Counsel's service might, however, affect the way Romo's claims are evaluated. Ordinarily, a claim of ineffective assistance of counsel is adjudicated under the standards of Strickland v. Washington, 466 U.S. 668 (1984). A § 2255 movant must allege facts sufficient to support an inference (1) that counsel's performance fell below an objective standard of reasonableness, id. at 687-88, and (2) that there is "a reasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different," id. at 694. An allegation that counsel had a conflict of interest is decided under a different standard. A movant must show only that counsel had "a division of loyalties that affected counsel's performance." Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002). The standards of Strickland are lowered, and the following test applies:
[I]n order to be entitled to a hearing on a conflict of interest Sixth Amendment claim, a habeas petitioner has the burden of alleging specific facts which, if true, would indicate that: (1) an attorney's relationship to a third party influenced the attorney not to pursue a particular litigation strategy, and (2) the foregone litigation strategy would have been a viable alternative.
United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003). In sum, the Strickland test asks whether counsel's performance or strategy was unreasonable, regardless of whether other reasonable strategies were also available. The MickenslRodrigues test asks whether other reasonable strategies were available and, if so, whether counsel's conflict of interest influenced his choice of one strategy over another.
Romo alleges that counsel did not pursue the arguments addressed in the following three claims for relief. In an abundance of caution, the Court will take the conflict of interest claim into account by considering both whether counsel's performance was reasonable and whether Romo has identified a viable alternative approach that counsel could have taken but did not.
Romo contends that counsel should have argued (whether at trial or in the motion to suppress) that "the target of the search warrant," Kyle Lester, had already been arrested before police entered the camper where Romo was found. See Mot. § 2255 (Doc. 113) at 4; Br. in Supp. (Doc. 114) at 1.
In fact, counsel did make that argument. See, e.g., Br. on Mot. to Suppress (Doc. 21) at 2, 5; Reply Br. (Doc. 26) at 2-4; Suppression Hr'g Tr. (Doc. 90) at 18:4-20, 24:15-21. Counsel also solicited evidence tending to undermine the credibility of the officers who participated in the arrests and searches at the Lester property. See, e.g., Suppression Hr'g Tr. at 19:11-22:14, 23:9-20, 24:9-13, 26:5-19 (); id. at 76:19-77:12 (questioning significance of "Feo" tattoo). He showed Romo was not specifically threatening. See, e.g., id. at 27:25-29:12, 53:16-54:14. He also attempted to challenge the warrant application's specificity. See id. at 72:12-75:11. Counsel's performance was not unreasonable, and there is no indication his performance was affected by a conflict of interest.
Nor has Romo identified a viable alternative approach counsel could have taken. Officers arrived at the Lester property not with search warrants but with arrest warrants for four people: Kyle Lester, Keith Lester, Robert Ferrell, and Jennie Britt. Two teams of officers entered the Lester property. One team approached a blue and white trailer and located several people whom they began toidentify and question. One of those people was Kyle Lester. Another team approached a red trailer but did not find anyone there. Then an officer saw movement in a camper. The officers believed the person inside could have been Keith Lester or Ferrell or Britt and/or could have posed a danger to the officers. See, e.g., Suppression Hr'g Tr. at 46:13-23, 48:6-49:13 (Kirkland); id. at 64:1-19, 66:2-8 (Nedens). Although either Kirkland or Nedens may have been the case agent who accompanied the prosecutor throughout the hearing, at least one of them did not hear Grayson's testimony. See Suppression Hr'g Tr. at 5:9-17.
Romo claims the facts were found because counsel failed to object to "leading" questions by the Court at the suppression hearing. See Mot. § 2255 (Doc. 113) at 4 (citing Suppression Hr'g Tr. (Doc. 90) at 9:8-18:20, 31:2-24, 38:13-20, 38:7-42:4). There was no basis for an objection. "The court may examine a witness regardless of who calls the witness." Fed. R. Evid. 614(b). And the questions did not prejudice Romo. On the contrary, they were intended to clarify whether Romo's position had any possible merit. See, e.g., Suppression Hr'g Tr. at 41:15-17 (); id. at 41:23-42:1 ().
Counsel lost the ...
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