US v. Olmo
| Decision Date | 06 July 1987 |
| Docket Number | C-85-2322 SAW.,No. CR-75-0326 SAW,CR-75-0326 SAW |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Michael OLMO and Phillip Martinez, Defendants. Michael OLMO, Plaintiff, v. UNITED STATES of America, Defendant. |
Michael Olmo, in pro. per.
Sanford Svetcov, Sandra Teters, U.S. Atty.'s Office, San Francisco, Cal., for the U.S.
ORDER DENYING MOTION TO VACATE SENTENCE
Michael Olmo was convicted in this Court of first-degree murder in 1975. The Court sentenced him and his co-defendant, Phillip Martinez, to life in prison. In 1982, Olmo moved this Court to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The Court dismissed the motion. The Ninth Circuit affirmed. In March, 1985, Olmo brought this motion, once again invoking section 2255. On April 22, 1985, the Court dismissed the motion on the grounds that the claims therein were either successive or lacked merit. On appeal, the Ninth Circuit affirmed with respect to all but three of Olmo's claims. The Ninth Circuit reversed and remanded to this Court for consideration of three claims by Olmo that he received ineffective assistance of counsel, 798 F.2d 473 (9th Cir.1986). Specifically, Olmo claims that (1) his counsel failed to interview a potential witness, Lydia Quintana; (2) the advice of counsel caused Olmo to perjure himself; and (3) counsel failed to inform Olmo of information in the presentence report.
Section 2255 provides in pertinent part:
A prisoner in custody under the sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution ..., may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The Court must make the threshold determination of whether an evidentiary hearing is required to adjudicate Olmo's claims. 28 U.S.C. § 2255; § 2255 Rule 4(b). "A hearing must be ordered unless, viewing the petition against the record, its allegations do not state a claim for relief or are so palpably incredible or so patently frivolous or false as to warrant summary dismissal." Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982); accord, Abatino v. United States, 750 F.2d 1442, 1444 (9th Cir.1985). To state a claim for relief under section 2255 based upon trial errors to which no contemporaneous objection was made, Olmo must (1) offer an excuse for failing to challenge the alleged errors during the trial or on direct appeal, and (2) allege actual prejudice resulting from the errors of which he complains. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Olmo has made no attempt to meet the first criterion. The Court will therefore turn to the second criterion. For the reasons which follow, all three of Olmo's claims either fail to state a claim for relief or are plainly contradicted by the trial record, or both, and may be dismissed without an evidentiary hearing.
Olmo contends he received ineffective assistance of counsel because his lawyer, Charles Harrod, did not interview a potential witness, Lydia Quintana. Frank Ubhaus, counsel for Olmo's co-defendant Phillip Martinez, has submitted a declaration stating that he interviewed Quintana. Decl. of Frank Ubhaus, at 2. The record does not indicate whether Harrod personally interviewed Quintana, and the parties have apparently been unable to locate Harrod during the present proceedings. However, the record indicates that Harrod and Ubhaus collaborated closely, effectively serving as co-counsel for both defendants. Olmo himself states that he was represented by both Harrod and Ubhaus. Olmo Aff. at 2. If so, then Olmo had the full benefit of Ubhaus' interview of Quintana.
Even assuming arguendo that Olmo's counsel neither interviewed Quintana nor had knowledge of the contents of such an interview, it is clear from the record that no prejudice resulted. To begin with, Olmo has provided little indication of how Quintana's testimony would have helped him. He has submitted a declaration in which Quintana states she could contradict the trial testimony of her ex-husband, Alex Quintana. Alex testified that co-defendant Martinez had called him from jail and told him that it was Olmo who killed Romero, the murder victim. Lydia's declaration states in a conclusory fashion that she would refute this testimony, but does not elaborate on how she would do so.
Moreover, even without Alex's testimony, the evidence against both defendants was overwhelming. Olmo, Martinez and others testified that Olmo and Martinez picked up the victim Romero in Olmo's car on the evening of the murder in furtherance of a transaction in which Romero was to make restitution to Olmo and Martinez for having "burned" them on a prior drug deal. Olmo and Martinez admitted they planned to get revenge against Romero by robbing him of his cache of cocaine after they picked him up. Romero identified Olmo and Martinez as his assailants before he died. The murder weapon was found in Olmo's car less than 15 minutes after the shooting. In short, Olmo's unsupported allegation that Lydia Quintana could impeach Alex Quintana's testimony does not undermine the guilty verdict. Olmo's first claim therefore fails for lack of prejudice. Olmo has neither alleged nor could he prove that "the allegedly deficient performance of his counsel created a reasonable probability that the result of the proceeding would have been different." See United States v. Petersen, 777 F.2d 482, 484 (9th Cir.1985); United States v. Berry, 814 F.2d 1406, 1409-10 (9th Cir.1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Olmo claims that counsel advised both him and Martinez to perjure themselves by denying any involvement in the crime. This claim is contradicted by both the trial record and the declaration of defense counsel Frank Ubhaus.
Ubhaus denies advising Olmo or Martinez to disclaim any involvement in the crime. Decl. of Frank Ubhaus, at 2. Rather, counsel suggested that because the United States' case was so strong, and a conviction of first degree murder very likely, Olmo and Martinez should plead guilty to second degree...
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Rauter v. U.S.
...8(c) ... does require the Court to appoint counsel for a movant if an evidentiary hearing is necessary....")- * United States v. Olmo, 663 F.Supp. 102, 105 (N.D.Cal.1987) (noting that if a Sec. 2255 evidentiary hearing were merited, the court would be obliged to appoint counsel). This inter......