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United States v. Fuentes

United States District Court, E.D. Washington

June 6, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
OMAR ALARCON FUENTES, Defendant-Petitioner.

          ORDER DENYING § 2255 MOTION

          THOMAS O. RICE Chief United States District Judge

         BEFORE THE COURT are Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 236) and Motion To Compel Government to Provide Copy of Affidavit (ECF No. 244). The motions were submitted for consideration without oral argument. The Court-having reviewed the motions, the record, and files therein-is fully informed.

         BACKGROUND

         A jury convicted Petitioner of knowingly distributing over 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii). Petitioner was sentenced and he appealed his conviction. The Ninth Circuit issued a memorandum disposition affirming Petitioner's conviction. See ECF No. 248. The Ninth Circuit declined to consider Petitioner's ineffective assistance of counsel argument on direct review, id. at 4, explaining that neither extraordinary exception to the general rule applied, leaving the issue for collateral review. A petition for rehearing or rehearing en banc is pending, but it is not likely to affect the necessity of reaching the issues raised in the current motion.

         The issues raised do not require an evidentiary hearing. See Rule 8, Rules- Section 2255 Proceedings. The transcripts and records and materials filed in this proceeding adequately document the issues for resolution.

         I. Ineffective Assistance of Counsel

         The Sixth Amendment to the Constitution provides that criminal defendants “shall enjoy the right to have the assistance of counsel for his defense.” U.S. Const. amend. VI. Effective assistance of counsel is analyzed pursuant to the doctrine set forth in Strickland v. Washington, 466 U.S. 668 (1984). According to Strickland, Petitioner bears the burden of establishing two components to an ineffectiveness inquiry. First, the representation must fall “below an objective standard of reasonableness.” 466 U.S. at 687-88. Courts scrutinizing the reasonableness of an attorney's conduct must examine counsel's “overall performance, ” both before and at trial, and must be highly deferential to the attorney's judgments. United States v. Quintero-Barraza, 78 F.3d 1344, 1347-48 (9th Cir. 1995) (quoting Strickland, 466 U.S. at 688-89). In fact, there exists a “strong presumption that counsel ‘rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Id. (citation omitted).

         If the petitioner satisfies the first prong, he must then establish that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Quintero-Barraza, 78 F.3d at 1347 (quoting Strickland, 466 U.S. at 694).

         Petitioner identifies four instances where he contends counsel was ineffective in violation of his Sixth Amendment right. Each will be addressed in the order raised.

         A. Whether counsel was ineffective for not moving to dismiss the Indictment for allegedly perjurious testimony before the grand jury.

         Petitioner contends DEA Special Agent Savage testified falsely before the grand jury in order to establish probable cause for the Indictment. Petitioner contends that Officer Savage's testimony that Petitioner “alluded to the fact that he had traveled [to Spokane] for the sale of methamphetamine” was a false statement. Petitioner denies making any admissions and observes that Agent Savage was not present when Deputy Hause interrogated Petitioner. Specifically, Petitioner “contends that at no time he answered questions to Detective Hause on July 25, 2013, about drugs.” ECF No. 236 at page 8b; see also ECF No. 247-2 at 2.

         Agent Savage did not testify that he questioned or witnessed the interrogation of Petitioner. Agent Savage testified at the grand jury proceeding as a summary witness, he explained his answers by using the collective pronoun “we” while referencing law enforcement without identifying specifically who asked Petitioner the questions or who heard the answers. Despite Petitioner's complaint that hearsay was offered, hearsay statements are admissible at the grand jury stage of the proceeding. Fed.R.Evid. 1101(d)(2). In his traverse brief, Petitioner also complains that his Sixth Amendment confrontation right were violated, ECF No. 247 at 3, but the confrontation clause of the Sixth Amendment only applies to the speedy and public trial right, not to the Fifth Amendment's grand jury requirement. Petitioner has not shown any aspect of Agent Savage's testimony to be false.

         Accordingly, the failure of counsel to seek dismissal of the Indictment was not objectively unreasonable nor did it prejudice Petitioner.

         B. Whether counsel was ineffective for failing to move to dismiss for a fatal variance between ...


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