Submitted March 25, 2014
Appeal from United States District Court for the District of Nebraska - Omaha.
For United States of America, Plaintiff - Appellee: Susan T. Lehr, Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE; Robert C. Sigler, Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE.
For Antonio Frausto, also known as: Juan Antonio Frausto-Diaz, also known as: Antonio F. Ocampo, Defendant - Appellant: Curtis Lee Blood, Collinsville, IL.
Antonio Frausto, Defendant - Appellant, Pro se, Milan, MI.
Before RILEY, Chief Judge, GRUENDER and SHEPHERD, Circuit Judges.
GRUENDER, Circuit Judge
Antonio Frausto pled guilty to conspiring to distribute and possess with the intent to distribute methamphetamine, in violation of 21 U.S.C. § § 841(a)(1), (b)(1) and 846. The district court sentenced him to 240 months' imprisonment. His sentence was affirmed on direct appeal. Frausto petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, arguing that he was denied his Sixth Amendment right to effective assistance of counsel. The district court denied Frausto's petition without an evidentiary hearing. We granted a certificate of appealability, and Frausto appealed.
The facts underlying Frausto's conviction are set forth in our prior opinion, United States v. Frausto, 636 F.3d 992, 994-96 (8th Cir. 2011). We repeat those facts here only as necessary to the instant appeal.
During a series of meetings and secretly-taped telephone conversations between a confidential source employed by the Drug Enforcement Administration (" DEA" ) and Frausto and his co-conspirators, Frausto arranged for the sale of one pound of high-quality methamphetamine to the confidential source. This purchase took place on January 8, 2009, in Omaha, Nebraska. Frausto also arranged for two co-conspirators, one of whom was Frausto's nephew, Jose Rigoberto Frausto-Diaz (" Rigoberto" ), to travel to Council Bluffs, Iowa to sell four additional pounds of methamphetamine to the confidential source's fictitious partner. On January 18, Frausto and his co-conspirators met with the confidential source at a restaurant in Omaha. Frausto and his co-conspirators arrived at the restaurant in a Ford Focus, which contained a hidden compartment to store illegal narcotics. Frausto and the confidential source remained at the restaurant while Frausto's co-conspirators drove the Ford Focus to an apartment complex in Council Bluffs. Frausto's co-conspirators were arrested at the apartment complex, and DEA agents seized the four pounds of methamphetamine from the Ford Focus. Frausto was arrested soon thereafter in Omaha. DEA agents also obtained a search warrant to search a home in Omaha associated with the conspiracy
and recovered a loaded handgun and approximately $60,000 in cash, including $23,500 of prerecorded DEA funds used ...