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Lopez v. United States

United States District Court, D. New Mexico

May 19, 2017

ALEJANDRO LOPEZ, Defendant-Movant,
v.
UNITED STATES OF AMERICA, Plaintiff-Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HON. GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE

         THIS 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. 99.[1] 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.

         I. PROCEDURAL HISTORY

         On 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.

         Defendant 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.

         Defendant 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 See United States v. Lopez, 630 F. App'x 802 (10th Cir. 2015) (unpublished).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, 102.

         II. FACTUAL BACKGROUND

         The 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.

         On the 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.

         Eddy 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.

         The 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.

         The 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.

         The 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.

         Following 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. See id.

         III. CLAIMS PRESENTED

         Through his Motion and Memoranda, Defendant advances five grounds for relief. These collateral attacks can be summarized as follows:

(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 Constitution.

         Defendant seeks an evidentiary hearing, and ultimately, the vacatur of his conviction and sentence. See Def.'s Mot. 21-22, ECF No. 99.[2]

         IV. APPLICABLE LAW

         To 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 (1963).

         V. ANALYSIS

         The 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.[3] The deficiencies of his five claims are discussed below.

         A. Defendant's Four Claims of Ineffective Assistance of Counsel Lack Merit

         Defendant's 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.

         1. Legal standard

         To 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. ‚ÄúStrategic or tactical decisions on the part of counsel are presumed correct, unless they were completely ...


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