United States v. Soler-Norona
| Decision Date | 23 July 2014 |
| Docket Number | Criminal No. 08-20669-4,Civil No. 13-14343 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CARLOS A. SOLER-NORONA, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
On October 10, 2013, Defendant Carlos Soler-Norona filed a pro se motion to vacate sentence pursuant to 28 U.S.C. § 2255. Defendant is currently incarcerated at the Kinross Correctional Facility in Kincheloe, Michigan, serving a sentence in state custody. In the case at issue here, a jury convicted Defendant of three counts relating to a large-scale conspiracy to possess and distribute cocaine. The court sentenced Defendant to 136 months' imprisonment upon his release from state custody.
In his motion to vacate, Defendant raises seven grounds of error which fall into two general categories: ineffective assistance of counsel claims and unfair trial claims. The Government responds that Defendant failed to demonstrate ineffective assistance of counsel and procedurally defaulted his other claims. Defendant has also filed a request for appointment of counsel, an application to proceed in forma pauperis, andtwo requests for court transcripts. For the reasons set forth below, the court will deny the motion to vacate sentence, deny the request for appointment of counsel, deny the application to proceed in forma pauperis, deny the requests for trial transcripts, and deny a certificate of appealability.
On January 8, 2009, the Government indicted Defendant on three counts: conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C. §§ 846 & 841(a)(1); aiding and abetting possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1); and the unlawful use of a communication facility, 21 U.S.C. § 843(b). This indictment named Defendant and eight other men as members of a conspiracy to import, possess, and distribute narcotics. The ringleader of the conspiracy, Javier Lara-Tella, oversaw and coordinated the importation of multi-kilograms of cocaine from Mexico. Lara-Tella and his co-conspirators then distributed the cocaine to buyers throughout the metro-Detroit area. The Government described Defendant as a low-level middleman in this conspiracy, who brought together suppliers and buyers and brokered cocaine sales.
At trial, the Government offered testimony from law enforcement officers who investigated the conspiracy and who had observed Defendant using coded language to coordinate narcotics transactions. Lara-Tella and Reginald Statom, one of Defendant's customers, corroborated that Defendant arranged and brokered cocaine sales. Additionally, the Government offered wiretap recordings of telephone conversations, where Defendant scheduled and arranged drug deals. Because these conversations were in Spanish and were intentionally cryptic, the Government provided Englishtranslations of the conversations and explained the meaning of any coded language that Defendant used to conceal the true purpose of his calls. Defendant, represented by David A. Cripps, countered that Lara-Tella and Statom were unreliable witnesses because their plea deals depended on their testimony against Defendant. Additionally, Defendant claimed that the Government's wiretap evidence was misleading. He argued that some Spanish words can have multiple meanings, and that the Government selected English translations that made his conversations seem incriminating. Finally, Defendant asserted that there was no proof that he personally possessed drugs. On November 19, 2009, a jury found Defendant guilty on all counts.
After Defendant's conviction, the court granted a motion for Cripps to withdraw as counsel. William Winters represented Defendant at sentencing, where the court sentenced Defendant to 136 months' imprisonment. The next day, Defendant appealed his conviction to the Sixth Circuit Court of Appeals. With his appeal pending, Defendant sought to dismiss Winters as his counsel and the Sixth Circuit appointed Robert Jensen to replace him. However, before ruling on Defendant's appeal, the Sixth Circuit granted Defendant's request to dismiss Jensen and determined that Defendant would proceed pro se.
On August 15, 2011, the Sixth Circuit affirmed Defendant's conviction and denied his request for counsel in an unpublished opinion. See United States v. Soler-Norona, No. 10-2027, slip. op. at 6 (6th Cir. Aug. 15, 2011). Thereafter, on October 15, 2012, the Supreme Court denied Defendant's motion for writ of certiorari. Soler-Norona v. United States, 133 S. Ct. 490 (2012).
Defendant then filed the pending motions.
Under 28 U.S.C. § 2255, a prisoner sentenced by a federal court may "move the court which imposed the sentence to vacate, set aside or correct the sentence" on 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 a sentence, or that the sentence was in excess of the maximum authority by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "[§]2255 is not a substitute for a direct appeal," Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 167-68 (1982)), "a prisoner must clear a significantly higher hurdle than would exist on direct appeal" to merit collateral relief, Frady, 456 U.S. at 166. Consequently, "[t]o prevail on a § 2255 motion alleging constitutional error, the defendant must establish an error of constitutional magnitude which had a substantial and injurious effect or influence of the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). Though non-constitutional errors are generally outside the scope of § 2255 relief, see United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000), a defendant can prevail on a § 2255 motion alleging non-constitutional error "by establish[ing] a 'fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process." Watson, 165 F.3d at 488 (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation marks omitted)).
Defendant raises seven claims of error. In two of these claims, he argues that both his trial and his appellate attorney failed to provide effective assistance of counsel. In his other five claims, Defendant alleges that he did not receive a fair trial.
To support a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong, Defendant must show that his counsel's performance was deficient, which "requires a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687. The appropriate standard by which to judge an attorney's performance is "simply reasonableness under prevailing professional norms." Id. at 688. Under the second prong, a defendant must show that counsel's errors were prejudicial to the defense. A defendant may establish prejudice by showing "that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. at 687. A defendant must show more than "some conceivable effect on the outcome of the proceeding;" rather he must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94. "In deciding an ineffective assistance claim, a court need not address the two components of the claim in any order, or even address both components if an insufficient showing is made on one." United States v. Cox, 826 F.2d 1518, 1525 (6th Cir. 1987) (citation omitted).
Defendant argues that his sentence should be vacated because he received ineffective assistance of counsel from two of his attorneys. First, Defendant claims that his trial attorney, David Cripps, failed to properly investigate his case and did not act as a vigorous advocate. Second, Defendant claims that his appellate counsel, Robert Jensen, also failed to provide effective assistance of counsel because he did not meet with Defendant and allegedly did not raise meritorious issues on appeal.
Defendant's arguments that his trial attorney, David Cripps, failed to provide effective assistance of counsel fall into two categories: failure to prepare for trial and failure to act as a vigorous advocate.
Defendant argues that Cripps failed to adequately prepare for trial in several ways. First, Defendant asserts that Cripps blindly accepted the Government's translation of wiretap evidence, and was unprepared to address Defendant's translation concerns. To the contrary, the record reveals that Cripps frequently raised the problem of mistranslations in his arguments. In his opening statements, Cripps explained to the jury that words might be translated in ways that color their meaning. (Dkt. # 180, Pg. ID 1380-81.) Cripps also cross-examined Detective Miguel Chino extensively about how different Spanish words have multiple meanings. (Dkt. # 162, Pg. ID 608-22.) Cripps sufficiently addressed the issue of mistranslations at trial.
Second, Defendant contends that Cripps failed to prepare for trial because he did not give Defendant more time to review the Government's wiretap evidence, including audio recordings and transcript translations. Defendant reasons that his own analysiswas critical because he speaks Spanish and Cripps does not. The record indicates that...
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