Zepeda v. United States

• Decision Date: 01 November 2021
• Docket Number: CV-17-1229-PHX-ROS (JFM),CR-08-1329-PHX-ROS
• Court: U.S. District Court — District of Arizona
• Parties: Damien Miguel Zepeda, Movant/Defendant v. United States of America, Respondent/Plaintiff.

Damien Miguel Zepeda, Movant/Defendant
v.
United States of America, Respondent/Plaintiff.

Nos. CV-17-1229-PHX-ROS (JFM), CR-08-1329-PHX-ROS

United States District Court, D. Arizona

November 1, 2021

REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

James F. Metcalf United States Magistrate Judge

I. MATTER UNDER CONSIDERATION

Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

Movant and co-defendants were indicted in the District of Arizona on November 12, 2008 for events occurring within the confines of the Ak-Chin Indian Reservation on oar about October 25, 2008. The Indictment alleged that Movant was upset with a former girlfriend [SA] and her male roommate [DP]. Movant announced his intent to “kick some ass” with regard to DP and set out with co-defendants who were armed and went to the home of SA and DP. Previously, and in the car, Movant and co-defendants were drinking alcohol and/or smoking marijuana. While co-defendants waited with a shotgun, Movant

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argued with SA and hit her in the head with a handgun. When SA began returning to the home, Movant began firing a handgun at JD. DP tried to protect JD and was shot several times. (CR Doc. 3, Indictment.) (Filings in the underlying criminal case, CR-08-1329-PHX-ROS, are referenced herein as “CR Doc. .”)

B. PROCEEDINGS AT TRIAL

Movant was charged with:

Count 1 - conspiracy to commit assault with bodily injury and assault with a dangerous weapon

Count 2 - assault of DP

Count 3 - possession/use of a firearm in commission of crime of violence, i.e. Count 2

Count 4 - assault of DP with a dangerous weapon;

Count 5 - possession/use of a firearm in commission of crime of violence, i.e. Count 4;

Count 6 - assault of SA with a dangerous weapon;

Count 7 - possession/use of a firearm in commission of crime of violence, i.e. Count 6;

Count 8 - assault of JD with a dangerous weapon;

Count 9 - possession/use of a firearm in commission of crime of violence, i.e. Count 8.

(CR Doc. 3, Indictment.)

Movant was appointed CJA counsel Mitchell. After failed plea negotiations (CR Doc. 68, M.E. 6/30/09), Movant proceeded to trial on October 20, 2009. (CR Doc. 95, M.E. 10/20/09.)

After six days of trial, Movant was found guilty as charged. (CR Doc. 108, ME. 10/29/09.)

On March 24, 2010, Movant was sentenced to a combined term of 1, 083 months

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(90.25 years), consisting of 60 months on Count 1, 63 months each on Counts 2, 4, 6, and 8, 120 months on Count 3, and 300 months each on Counts 5, 7, and 9. Counts 1, 2, 4, 6, and 8 were concurrent, Count 3, 5, 7 and 9 were consecutive. (CR Doc. 165, Sentence.)

C. PROCEEDINGS ON DIRECT APPEAL

Movant filed a direct appeal (CR Doc. 167). On January 18, 2013, the Ninth Circuit issued an opinion on certain claims, United States v. Zepeda, 705 F.3d 1052 (9th Cir. 2013) and an unpublished decision was issued on a variety of other claims. United States v. Zepeda, 506 Fed.Appx. 536 (9th Cir. 2013).

The opinion was subsequently withdrawn, 733 F.3d 816 (9th Cir. 2013), and on January 18, 2013, a panel of the Ninth Circuit issued a superseding Opinion rejecting various claims, but reversing and remanding on the basis of a lack of evidence of Movant's tribal bloodline. United States v. Zepeda, 738 F.3d 201 (9th Cir. 2013).

Rehearing en banc was granted solely on the sufficiency of the evidence of tribal bloodline and reasonableness of the sentence, and in an en banc Opinion issued July 7, 2015, the Ninth Circuit Court of Appeals affirmed Movant's convictions and sentences, finding the evidence of bloodline sufficient, and his sentence reasonable (“the only sentence the district court could impose”). United States v. Zepeda, 792 F.3d 1103, 1116 (9th Cir. 2015). (CR Doc. 222, Opinion.) That decision adopted panel's decision on Movant's other claims, citing both the published superseding panel opinion and the unpublished panel decision. Id. at 1109.

As a result, the various claims in Movant's direct appeal were finally decided in one of the following: the unpublished decision, 506 Fed.Appx. 536; the superseding panel opinion, 738 F.3d 201; and the limited opinion on rehearing en banc, 792 F.3d 1103.

The mandate issued on July 30, 2015. (Id., Mandate.) Movant filed a petition for writ of certiorari, which was denied on April 25, 2016. Zepeda v. United States, 136 S.Ct. 1712 (2016).

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D. PRESENT HABEAS PROCEEDINGS

Motion - Movant, incarcerated at the time in the United States Penitentiary in Tucson, Arizona, commenced the current case by filing pro se his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 April 25, 2017 (Doc. 1). Movant's Motion asserts the following 11 major grounds for relief:

In Ground One, he asserts that his attorney failed to request a jury instruction based on “substantial evidence of [Movant's] intoxication” and failed to raise “voluntary intoxication” as an affirmative defense. He contends that the jury could not possibly have properly evaluated Movant's mental state and, therefore, the convictions were based on insufficient evidence. In Ground Two, he asserts that his attorney failed to object to and/or failed to request curative instructions; failed to challenge “where different guns formed [the] basis of 924(c) counts”; failed to raise “defense of another” as an affirmative defense; stipulated to and failed to challenge an outdated Tribal Enrollment Certificate that established jurisdiction; failed to object to a sleeping juror; and failed to argue that predicate convictions were not “crimes of violence.” In Ground Three, Movant claims a violation of the Confrontation Clause, asserting that trial counsel “wrongly stipulated” to the admission of a ballistics report and an outdated Tribal Enrollment Certificate, which were “improperly admitted through second party affiants and without sufficient authentication.”

In Grounds Four through Six, Movant alleges violations of his right to a fair trial. In Ground Four, he contends that given the substantial evidence of intoxication, the lack of a voluntary intoxication jury instruction may have allowed the jury to reach guilty verdicts without properly evaluating Movant's mental state and may have prevented the jury “from making a valid finding on the ubiquitously required element [of] specific intent.” In Ground Five, he claims “[p]rosecutorial vouching, perjury allegations, substantial government interference with key witnesses' testimony, and an unchallenged sleeping juror[, ] warranted [a] mistrial, and the collective error . . . remained uncured by sufficient jury instruction.” In Ground Six, he asserts that “[f]lagrant, repetitious misrepresentation of crucial evidence . . . remained uncured by sufficient jury instruction and unfairly encouraged the jury's retributive ‘blanket verdict.'”

In Ground Seven, Movant contends that there was insufficient evidence to support the convictions, arguing that there was insufficient evidence of Movant's and his codefendant's mental states and ability to form the specific intent required for the charges; insufficient evidence that Movant was an “Indian”; and insufficient evidence of assault with a dangerous weapon and assault resulting in serious bodily injury. In Ground Eight, Movant alleges that the cumulative trial errors, which remained uncured by sufficient jury instructions, violated Movant's right to a fair trial.

In Ground Nine, Movant asserts that the imposition of an excessive, 1083-month sentence was “procedurally and substantively unsound” because the “parties misapprehended that the judge lacked

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any discretion to alter imposition of mandatory, consecutive sentences or alter overall sentencing structure to comport with 3553 sentencing factors:” He also contends that Dean v. United States, __ U.S., 137 S.Ct. 1170 (Apr. 3, 2017), is “intervening and [s]uperseding law” that “should be considered substantive and retroactive.” In Ground Ten, Movant contends that his convictions and sentences under 18 U.S.C. § 924(c) are “illegal under either § 924(c)(3)(A) or (B)” in light of Johnson v. United States, U.S., 135 S.Ct. 2551 (2015), and Dimaya v. Lynch, 803 F.3d 1110, 1115 (9th Cir. 2015). In Ground Eleven, he claims the Court “erred by imposing consecutive terms for two Section 924(c)(1) violations based on the same underlying offenses.”

(Order 4/28/17, Doc. 5 at 2-3.) The undersigned addresses the major claims and subclaims as follows:^[1]

Ground 1 - ineffective assistance regarding voluntary intoxication

Ground 2 - ineffective assistance regarding:

(1) failure to object or seek curative instructions regarding:

(a) prosecutor vouching

(b) prosecutor's closing argument

(c) jury instructions re Indian status

(d) form of the verdicts

(2) different guns

(3) defense of another

(4) Tribal Enrollment Certificate

(5) sleeping juror

(6) crimes of violence

Ground 3 - confrontation clause violation from:

(a) ballistics report

(b) Tribal Enrollment Certificate

Ground 4 - voluntary intoxication instruction

Ground 5 - denial of fair trial from

(a) prosecutorial vouching

(b) perjury allegations

(c) government interference with testimony

(d)

...