United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on the “Motion Under 28
U.S.C. § 2255 to Vacate Sentence”
(“Motion”) filed by Defendant-Movant Alejandro
Lopez (“Defendant”) on July 5, 2016. ECF No.
On July 13, 2016, U.S. District Judge Robert C. Brack
referred the instant matter to the undersigned for findings
of fact and recommended disposition. ECF No. 104. Having
reviewed the record, the briefs, and relevant case law, the
undersigned RECOMMENDS that Defendant's Motion be DENIED
for the reasons contained herein.
November 9, 2012, Defendant was charged by criminal complaint
with possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1) (2012). ECF No. 1.
Thereafter, Defendant retained Steven Almanza, who entered
his appearance on November 14, 2012. ECF No. 4. On June 19,
2013, a federal grand jury sitting in Las Cruces, New Mexico,
returned an indictment against Defendant charging him with
possession with intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). ECF No. 34.
proceeded to trial on his single-count indictment on
September 16, 2013, with the trial culminating in a guilty
verdict on September 18, 2013. ECF No. 71. Following the
trial, Defendant retained Richard Esper, who along with
Steven Almanza, represented Defendant at his sentencing
hearing on October 15, 2014. ECF No. 86. Defendant was
sentenced to sixty months incarceration, four years
unsupervised release, and a $100 special penalty assessment.
ECF Nos. 86, 87.
filed a Notice of Appeal on October 27, 2014. ECF No. 88. On
October 27, 2015, the U.S. Court of Appeals for the Tenth
Circuit affirmed Defendant's conviction. See United
States v. Lopez, 630 F. App'x 802 (10th Cir. 2015)
(unpublished). Mandate issued on November 18, 2015. ECF No.
96. On July 5, 2016, Defendant timely filed the instant
Motion along with two supporting Memoranda. ECF Nos. 99, 101,
Tenth Circuit summarized the facts of Defendant's case as
follows: A confidential informant advised agents from the Las
Cruces Metro Narcotics Task Force (“Metro
Narcotics”) and the Federal Bureau of Investigation
(“FBI”) that Defendant's brother, Eddy Lopez
(“Eddy”), was willing to sell a kilogram of
cocaine for $27, 000. The confidential informant negotiated
the price down to $22, 000 and arranged a controlled buy,
with Metro Narcotics Agent Ernesto DiMatteo posing as the
buyer. Based on previous experience, the agents believed Eddy
would be assisted by Defendant and another individual named
Angel Torres. The agents also believed that Torres was the
source of the cocaine.
day of the buy, Eddy agreed to meet the confidential
informant at a park near Eddy's house in Anthony, New
Mexico. The agents conducting surveillance saw Torres drive
to Eddy's house. The two men spoke briefly, but the
agents did not see any delivery take place. Torres then left
Eddy's house and drove slowly around the area, apparently
checking for surveillance. A short time later, the agents saw
Eddy walk from his house almost to the park. He did not
appear to be carrying any packages, and his clothing would
not have allowed him to conceal a package large enough to
contain the quantity of cocaine that had been negotiated.
returned to his house and waited outside until Defendant
picked him up in a silver Dodge truck. The brothers drove to
the park and met the confidential informant. Eddy removed a
package from the truck and put it in a gym bag on the back
seat of the confidential informant's car. Defendant then
dropped Eddy off at Eddy's house and followed the
confidential informant to Las Cruces, New Mexico, where the
buyer was supposedly waiting with payment.
police stopped and arrested Eddy, who had left his house and
was driving with his wife, and found several pounds of
marijuana in the trunk of Eddy's car during a consensual
search. The police also stopped and arrested Defendant. No
drugs or cash were found in his truck or on him. Meanwhile,
Agent DiMatteo met the confidential informant and obtained
the package that Eddy had placed on the back seat. The
package, which had a hole in the top through which white
powder was escaping, field-tested positive for cocaine and
weighed 794 grams without packaging.
police took the brothers separately to the FBI's office
for processing and interrogation. According to the agents,
Defendant waived his Miranda rights and agreed to be
interviewed. FBI Agent Bryan Acee conducted the interview,
with some questioning by Agent DiMatteo. Agent Acee has been
in law enforcement for fourteen years, has extensive training
in investigating drug trafficking, and has participated in
thousands of drug investigations. For his part, Agent
DiMatteo is a twenty-year veteran who has conducted several
hundred investigations in narcotics cases.
interview was not recorded, but both agents testified about
its substance and referred to their written reports as
needed. At first, Defendant denied any knowledge of illegal
activity, but he eventually admitted to delivering the
package to Eddy. Defendant also admitted that (1) he picked
up the drugs from a house that was identified as Torres's
house; (2) he originally thought the package contained
marijuana but knew it contained cocaine when he saw white
powder spilling out of the hole in the packaging; (3) he knew
he was supposed to pick up $22, 000 in Las Cruces; and (4)
Eddy was going to pay him $100 for his efforts.
Lopez, 630 F. App'x at 803-04.
his jury conviction and sentencing, Defendant appealed his
conviction, arguing that “the evidence was insufficient
to support the conviction because the government did not
present evidence on where Eddy obtained the package or
evidence that [Defendant] directly or constructively
possessed the cocaine.” Lopez, 630 F.
App'x at 804. The Tenth Circuit disagreed, holding that
“a rational trier of fact could conclude that Mr. Lopez
possessed the cocaine during the controlled buy, knew it was
cocaine, and intended to distribute it.” Id.
at 805. Accordingly, the court affirmed his conviction.
his Motion and Memoranda, Defendant advances five grounds for
relief. These collateral attacks can be summarized as
(1) Defendant's attorneys, both at the trial and
appellate levels, were ineffective because they were unable
to prove that there was insufficient evidence to find him
guilty, and they failed to prove that the basis of the
jury's verdict was perjured testimony and false evidence.
(2) Defendant's trial attorney was ineffective for
failing to argue that the indictment returned against him was
not returned in open court.
(3) Defendant's attorneys were ineffective throughout the
trial, sentencing phase, and appeal by failing to object to
unlawful jury instructions.
(4) Defendant's attorneys were ineffective due to the
cumulative impact of multiple deficiencies during the
pretrial phase, trial, and appeal.
(5) Defendant's conviction and sentence violate the
First, Fourth, Fifth, Sixth and Eighth Amendments to the
seeks an evidentiary hearing, and ultimately, the vacatur of
his conviction and sentence. See Def.'s Mot.
21-22, ECF No. 99.
prevail on a motion for relief under 28 U.S.C. § 2255, a
petitioner must demonstrate that “the judgment was
rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack . . . .” 28
U.S.C. § 2255 (2012). In reviewing a petition under 28
U.S.C. § 2255, a court presumes that the prior
proceedings were lawful. See Klein v. United States,
880 F.2d 250, 253 (10th Cir. 1989). A movant cannot succeed
in a § 2255 action unless he proves that some error in
the proceedings led to a “complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346 (1974) (citation omitted). No evidentiary hearing is
required where “the motion and the files and records of
the case conclusively show that the prisoner is entitled to
no relief.” 28 U.S.C. § 2255; see also United
States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir.
1995). “[V]ague, conclusory, or palpably
incredible” allegations do not warrant a hearing.
Machibroda v. United States, 368 U.S. 487, 495
undersigned has reviewed Defendant's Motion and its two
accompanying Memoranda, along with the Government's
Response thereto. Having examined the pleadings in light of
relevant law, it is apparent that Defendant has marshaled
neither sufficient facts from his case nor sufficient support
in extant law to merit the vacatur of his conviction or the
modification of his sentence. The deficiencies of his five
claims are discussed below.
Defendant's Four Claims of Ineffective Assistance of
Counsel Lack Merit
first four claims each sound in ineffective assistance of
counsel. Yet, none of the four establishes an actual error by
counsel, much less any resulting prejudice. Consequently, and
for the further reasons detailed below, the undersigned
recommends that Defendant's four claims of ineffective
assistance of counsel be denied.
succeed on an ineffective assistance of counsel claim, a
prisoner must establish both “that counsel made errors
so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment” and that “the deficient performance
prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish
prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
“Strategic or tactical decisions on the part of counsel
are presumed correct, unless they were completely