United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
MARK W. BENNETT, District Judge.
This case is before me on petitioner Sandra Garcia De Alvarez's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (§ 2255 Motion) (Civ. docket no. 1), filed on March 4, 2013. Garcia De Alvarez claims that her trial attorney provided her with ineffective assistance of counsel in several respects. The respondent denies that Garcia De Alvarez is entitled to any relief on her claims.
A. Factual Background
The trial transcript reflects that, in October of 2010, law enforcement officers conducted a controlled buy, involving the purchase of three ounces of methamphetamine for $6, 000 by a confidential informant, from Garcia De Alvarez's husband, Lorenzo Alvarez. Law enforcement officers used the same confidential informant to set up a second meeting with Lorenzo, on November 16, 2010, purportedly to purchase another ten ounces of methamphetamine. When Lorenzo arrived at the place agreed upon to complete the transaction, law enforcement officers arrested him and seized additional methamphetamine.
That same evening, law enforcement officers obtained and executed a search warrant for Lorenzo's residence in Denison, Iowa, which he shared with Garcia De Alvarez and their five children. Garcia De Alvarez was asleep at the time that the law enforcement officers arrived at the residence to execute the warrant. During the search, law enforcement officers seized items, including the following: a total of $4, 790 in cash found in a sewing container located in the closet next to the master bedroom where Garcia De Alvarez had been sleeping; approximately six ounces of methamphetamine found in a plastic container in the master bathroom; packaging materials found in the master bathroom; and two gram scales found in the master bedroom/bathroom areas. Garcia De Alvarez denied any knowledge of or involvement in her husband's drug activities. Nevertheless, law enforcement officers arrested her after concluding their search of the residence.
B. Criminal Proceedings
In an Indictment (Crim. docket no. 1), handed down March 24, 2011, a Grand Jury charged Lorenzo with possessing with intent to distribute 50 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In a Superseding Indictment (Crim. docket no. 17), handed down May 19, 2011, the Grand Jury reiterated the "possession with intent" charge against Lorenzo in Count 1, and added Count 2 charging Garcia De Alvarez (but not Lorenzo) with conspiracy to distribute 500 grams or more of a methamphetamine mixture containing 50 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. § 846. At her arraignment on June 24, 2011, Garcia De Alvarez pleaded not guilty and was released on bond. Minutes Of Initial Appearance And Arraignment (Crim. docket no. 29); Order (Crim. docket no. 30). The parties also stipulated to the standard "open file" discovery order. Id. By Order (Crim. docket no. 31), the court set a jury trial on the "conspiracy" charge against Garcia De Alvarez for the two-week period beginning August 1, 2011, the same date for which Lorenzo's trial on the "possession with intent" charge against him was already set. See Order (Crim. docket no. 27). By separate Order (Crim. docket no. 33), the court appointed counsel to represent Garcia De Alvarez.
By Order (Crim. docket no. 35), dated June 28, 2011, the court set a guilty plea hearing for Lorenzo for July 12, 2011, and struck the trial as to him. On July 12, 2011, Lorenzo pleaded guilty to the "possession with intent" charge against him pursuant to a written plea agreement. See Minutes (Crim. docket no. 42); Report And Recommendation Concerning Plea Of Guilty (Crim. docket no. 43). I accepted his guilty plea the same day. See Order (Crim. docket no. 46). At various times, Lorenzo gave conflicting statements about whether or not Garcia De Alvarez was involved in his drug business.
Garcia De Alvarez elected to go to trial on the "conspiracy" charge against her. Jury selection for her trial was on March 29, 2012, and the parties presented evidence on March 30, 2012. See Minutes (Crim. docket nos. 112 and 114). The evidence at trial included the testimony of three cooperating witnesses to the effect that Lorenzo was their methamphetamine dealer, but that, on several occasions, when he was out of town or unavailable, Garcia De Alvarez would handle the exchange of methamphetamine and cash. The only defense witness was Garcia De Alvarez herself. She testified that she did not know anything about money or drugs or anything like that and that she had never delivered drugs to any of the cooperating witnesses or anyone else. See, e.g., Transcript, Vol. II, 206:12-207:13. She also testified that she did not try to get a plea agreement from the prosecution, like other people, "[b]ecause [she was] not going to say something that [she] did not do." Id. at 210:6-14.
Counsel made their closing arguments on April 2, 2012. See Minutes (Crim. docket no. 116). Later that same day, the jury found Garcia De Alvarez guilty of the "conspiracy" offense. See Verdict Form (Crim. docket no. 117). The jury found Garcia De Alvarez responsible for 50 grams or more but less than 500 grams of methamphetamine mixture, not for more than 500 grams of methamphetamine mixture, as charged in the Superseding Indictment. Id. Prior to trial, the prosecution had abandoned any request that the jurors determine any quantity of actual (pure) methamphetamine for which Garcia De Alvarez could be held responsible. On July 31, 2012, I sentenced Garcia De Alvarez to 60 months, the mandatory minimum sentence based on her conviction, after granting her Motion For Downward Variance (Crim. docket no. 143) from a guidelines range of 78 to 97 months, with four years of supervised release. Minutes (Crim. docket no. 146); Judgment (Crim. docket no. 147).
Garcia De Alvarez filed a Notice Of Appeal (Crim. docket no. 149) on August 7, 2012. She was represented on appeal by her appointed trial counsel. Her counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), "challenging the sufficiency of the evidence to support the jury's verdict, " because "the testimony of cooperating witnesses was unreliable and not credible." United States v. Garcia De Alvarez, No. 12-2858, Opinion (per curiam) (Crim. docket no. 163), 2. On February 6, 2013, the Eighth Circuit Court of Appeals affirmed Garcia De Alvarez's conviction and sentence, finding "no nonfrivolous issues for appeal." Id. A Mandate (Crim. docket no. 165) issued on March 8, 2013.
C. Section 2255 Proceedings
On March 4, 2013, Garcia De Alvarez filed her Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody (§ 2255 Motion) (Civ. docket no. 1), pro se, which is now before me. She sought relief on four "ineffective assistance of counsel" claims, based on the following allegations: (1) her trial counsel failed to establish her "position" in the alleged conspiracy by requesting a bill of particulars; (2) her trial counsel failed to challenge the amount and purity of the methamphetamine that was charged against her; (3) her trial counsel failed to call witnesses who would have testified to her innocence and her trial counsel's "unavailability" when she tried to contact him; and (4) her trial counsel failed to explain in "laymen's" terms the process of a plea agreement, a guilty plea, or the process of a jury trial. The respondent filed an Answer (Civ. docket no. 3) on March 6, 2013. By Order (Civ. docket no. 4), filed March 7, 2013, I directed that counsel be appointed to represent Garcia De Alvarez in this matter and set a briefing schedule on her § 2255 Motion.
On June 18, 2013, counsel filed Petitioner's Brief (Civ. docket no. 13). Counsel clarified Garcia De Alvarez's "ineffective assistance of counsel" claims, as follows: (1) her trial counsel failed to investigate and interview witnesses, which resulted in a failure to call witnesses on her behalf at trial; (2) her trial counsel failed to explain in "laymen's" terms the processes of a plea agreement, a guilty plea, and a jury trial; (3) her trial counsel failed to request a bill of particulars; and (4) her trial counsel failed to challenge the amount and purity of the stated drug that was charged against her. Garcia De Alvarez attached the affidavits of eight potential witnesses that she claims she told her trial counsel to interview. In their affidavits, these people summarize the testimony that they would have given, had they been called as witnesses on Garcia De Alvarez's behalf at trial, and aver that they were not contacted by Garcia De Alvarez's trial counsel prior to her trial. On September 18, 2013, the respondent filed its Response (Civ. docket no. 18), to which it attached an affidavit from Garcia De Alvarez's trial counsel, disputing Garcia De Alvarez's claims. Garcia De Alvarez's counsel filed a Reply Brief (Civ. docket no. 24) on October 18, 2013. Regrettably, there the matter has languished until now, owing to the press of other work and clerical oversight.
II. LEGAL ANALYSIS
I will consider each of Garcia De Alvarez's claims separately. However, I will first summarize the standards applicable to a claim for § 2255 relief.
A. Standards For § 2255 Relief
1. Grounds for relief
"Section 2255 [of Title 28 of the United States Code] was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'" Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)). Nevertheless, "[l]ike habeas corpus, this remedy does not encompass all claimed errors in conviction and sentencing.'" Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979). Specifically, § 2255 provides as follows:
A prisoner in custody under 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 or laws of the United States, or  that the court was without jurisdiction to impose such sentence, or  that the sentence was in excess of the maximum authorized by law, or  is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). Thus, § 2255 "provides a remedy for jurisdictional and constitutional errors, " but "[b]eyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; an error of law does not provide a basis for collateral attack unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice."'" Sun Bear, 688 F.3d at 704 (quoting Addonizio, 442 U.S. at 185, in turn quoting Hill v. United States, 368 U.S. 424, 428 (1962); accord Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) ("Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.'" (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).
In addition, a petitioner who fails to raise a claim on direct appeal generally may not raise that claim in a § 2255 motion. Walking Eagle, 742 F.3d at 1082. A petitioner may overcome this "procedural default, " however, if the petitioner establishes both "cause for the procedural default and actual prejudice resulting from the error.'" Id. (quoting Apfel, 97 F.3d at 1076, in turn citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). "Absent unusual circumstances, a showing of ineffective assistance of counsel satisfies both cause and prejudice.'" Id. (quoting Apfel, 97 F.3d at 1076)). Indeed, "ineffective assistance of counsel" claims are not procedurally defaulted when brought for the first time pursuant to § 2255. Massaro v. United States, 538 U.S. 500, 508 (2003). The Eighth Circuit Court of Appeals has also expressly recognized that a claim of "ineffective assistance of counsel" should be raised in a § 2255 proceeding, rather than on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) ("When claims of ineffective assistance of trial counsel are asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings."). Therefore, when I can construe a petitioner's claim as a claim of ineffective assistance of counsel, I will consider that claim on the merits.
Not only does ineffective assistance of counsel establish "cause and prejudice" to overcome procedural default, in my experience, such claims are far and away the most common claims for § 2255 relief. The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. Thus, a criminal defendant is constitutionally entitled to the effective assistance of counsel not only at trial, but at sentencing, on direct appeal, and during other "critical" phases of the criminal proceedings. Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (negotiation of a plea bargain); Burger v. Kemp, 483 U.S. 776, 803-04 (1987) (pretrial plea negotiations).; Evitts v. Lucey, 469 U.S. 387, 396 (1985) (direct appeal); Gardner v. Florida, 430 U.S. 349, 358 (1977) (sentencing). The Eighth Circuit Court of Appeals has recognized that, if a defendant was denied the effective assistance of counsel guaranteed by the Sixth Amendment, "then his sentence was imposed in violation of the Constitution, '... and he is entitled to relief" pursuant to § 2255(a). King v. United States, 595 F.3d 844, 852 (8th Cir. 2010).
As the Eighth Circuit Court of Appeals has explained,
"Normally, in order to succeed on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient' and that the deficient performance prejudiced the defense.'" Walking Eagle v. United States, 742 F.3d 1079, 1082 (8th Cir.2014) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Sweeney v. United States, 766 F.3d 857, 859-60 (8th Cir. 2014). These two prongs require some further explication.
"Deficient" performance is performance that falls "below an objective standard of reasonableness, '" Lafler v. Cooper, ___ U.S. ___, ___, 132 U.S. 1376, 1384 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)), that is, conduct that failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney. Strickland v. Washington, 466 U.S. 668, 687 (1984); Donnell v. United States, 765 F.3d 817, 821 (8th Cir. 2014). Thus, "[t]he challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the "counsel" ...