United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Magistrate Judge Stephan M.
Vidmar's Proposed Findings and Recommended Disposition to
Deny Petitioner's Motion Under § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
(Doc. 11) (“PFRD”) and Petitioner Moises
Eufelio Martinez, Jr.'s objections to the PFRD (Doc. 12).
The United States has not yet responded, and its response is
not needed to consider the objections. Having reviewed the
record in this case, the Court overrules Petitioner's
objections and adopts the magistrate judge's
recommendation to deny his Motion to Vacate.
January 5, 2017, Petitioner was arrested for possession with
an intent to distribute 50 grams or more of a substance
containing a detectable amount of methamphetamine and aiding
and abetting, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) and 18 U.S.C. § 2. [Doc. 7] at 1. He pleaded
guilty to both charges. (CR Doc. 27). The Court sentenced him
to 108 months' incarceration and a supervised release
period of four years. (CR Docs. 35, 36). The Court based this
sentence in part on (1) a two-level enhancement of his base
offense level for maintaining a place (his recreational
vehicle (“RV”)) for the purpose of distributing a
controlled substance, and (2) a base offense level calculated
using methamphetamine found in a hotel room. See
(Doc. 7) at 5.
Motion to Vacate, Petitioner, proceeding pro se, argues that
his counsel's failure to object to the enhancement based
on the RV methamphetamine and the base offense level
calculated using the hotel methamphetamine amounted to
ineffective assistance of counsel. (Doc. 1) at 16- 19. He
argues that his RV was not a place maintained to distribute
controlled substances because it was his home. Id.
at 16. He also contends that the hotel methamphetamine did
not belong to him and claims that his counsel should have
requested an evidentiary hearing to determine who owned it.
Id. at 16-19. In his PFRD, Judge Vidmar recommended
rejecting each of these arguments. He found that Petitioner
failed to meet his burden to show a reasonable probability
existed that the result of the proceeding would have been
different if counsel had made these objections. (Doc. 11) at
6-10. Because Judge Vidmar found that no relevant factual
disputes existed, and that the existing record conclusively
showed that Petitioner was not entitled to relief, he also
recommended finding that Petitioner was not entitled to an
evidentiary hearing. Id. at 11.
Standard of Review
party files timely written objections to the magistrate
judge's recommendation, the district court will conduct a
de novo review and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b)(3). “A judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. §
Court must liberally construe a pro se party's
objections. Robinson v. Los Alamos Nat'l Sec.,
LLC, No. 15-cv-0839 KG/LF, 2016 WL 10720429, at *1
(D.N.M. Jan. 12, 2016). Nonetheless, to preserve an issue for
de novo review, “a party's objections to the
magistrate judge's report and recommendation must be both
timely and specific.” United States v. One Parcel
of Real Prop., With Buildings, Appurtenances, Improvements,
& Contents, Known as: 2121 E. 30th St., Tulsa,
Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996).
“[O]nly an objection that is sufficiently specific to
focus the district court's attention on the factual and
legal issues that are truly in dispute will advance the
policies behind the Magistrate's Act . . . .”
Petitioner's objections to the PFRD are timely,
see (Doc. 12), they contain no specific factual or
legal points of contention with the PFRD. Rather, Petitioner
broadly states that he “objects to Part IV.
Analysis” of the PFRD, then restates the standard for
determining prejudice under Strickland. Id.
at 2. He fails to explain how Judge Vidmar erred in
concluding that he suffered no prejudice due to his
counsel's allegedly deficient performance.
Petitioner's objections lack the specificity necessary to
narrow this Court's attention to any disputed factual and
legal issues, and the Court overrules them for this reason.
extent the Court can discern any arguments suggesting that
Judge Vidmar erred, the Court rejects them. For example,
Petitioner takes umbrage with the speed with which Judge
Vidmar filed his PFRD. (Doc. 12) at 1-2. He suggests that
because Judge Vidmar filed his PFRD one day after Petitioner
filed his Reply, “the record was not complete before
the magistrate judge made his decision.” Id.
at 2. To the contrary, Judge Vidmar began his PFRD by noting,
“Petitioner replied on September 10, 2019.” (Doc.
11) at 1. He states that he “[has] considered the
briefing [and] the relevant portions of the record.”
Id. The Court is satisfied Judge Vidmar considered
the record and entire briefing, including Petitioner's
Reply in his analysis. Moreover, the Court has reviewed
Petitioner's Reply and finds that it does not affect the
outcome of this case.
also seems to assert that Judge Vidmar erred by concluding
that the result of the proceeding would not have been
different if his counsel had raised the objections at issue.
Without citing any authority, Petitioner states that the
“prejudice calcculus [sic] does not involve an inquiry
into the strength of the evidence against the
defendant.” (Doc. 12) at 2. The Court does not agree.
See Wiggins v. Smith, 539 U.S. 510, 534 (2003)
(“In assessing prejudice, we reweigh the evidence . . .
against the totality of available . . . evidence.”);
Carter v. Bigelow, 787 F.3d 1269, 1285 (10th Cir.
2015) (“Strickland requires us to examine
‘the totality of the evidence' in assessing whether
counsel's errors were prejudicial.” (quoting
Strickland v. Washington, 466 U.S. 668, 695
(1984))). A court reviewing an
ineffective-assistance-of-counsel claim may properly
determine that no prejudice resulted because, had the
attorney raised the argument in dispute, the argument would
not have succeeded. If the argument would not have succeeded,
then “a reasonable probability that . . . the result of
the proceeding would have been different” does not
exist. Strickland, 466 U.S. at 694. Judge Vidmar
recommended finding that, if Petitioner's counsel had
objected to the sentencing enhancement based on the RV
methamphetamine, the sentencing judge would have overruled
that objection. See (Doc. 11) at 6-10. He then
recommended finding that, if counsel had objected to a
calculation of the base offense level using the hotel
methamphetamine, the sentencing judge would have overruled
that objection as well. Such an analysis is a proper method
of determining that Petitioner suffered no
Petitioner appears to object to Judge Vidmar's
recommendation that the Court deny his request for an
evidentiary hearing. He argues, “[I]f the Court cannot
decide the issue of Defendant's case clearly and without
doubt, then the Court should grant an evidentiary hearing . .
. .” (Doc. 12) at 4. Petitioner fails to explain why
the Court cannot decide the case based upon the existing
record. For the reasons explained in Judge Vidmar's PFRD,
the Court finds that the existing record permits it to
determine that Petitioner suffered no prejudice from his
attorney's allegedly deficient performance. See
(Doc. 11) at 11-12. IV. Conclusion For the foregoing reasons,
Petitioner's objections (Doc. 12) are overruled.
THEREFORE ORDERED that the Magistrate Judge's Proposed
Findings and Recommended Disposition to Deny Petitioner's
Motion Under § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Doc. 12) is ADOPTED
by the Court.
FURTHER ORDERED that Petitioner's Motion to Under §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (Doc. 11) is DENIED ...