Agudo-Monroy v. United States

• Court: District Court, S.D. California
• Decided: January 12, 2021
• Docket: 3:19-cv-00459
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BOGAR AGUDO-MONROY, Case Nos.: 19-cv-0459; 15-cr-1631

12 Petitioner, ORDER: 13 v. (1) DENYING PETITIONER’S 14 UNITED STATES OF AMERICA, MOTION TO VACATE, SET ASIDE, 15 OR CORRECT SENTENCE UNDER Respondent. 28 U.S.C. § 2255 (Doc. Nos. 2, 125) 16

17 (2) DENYING AS MOOT PETITIONER’S MOTION FOR 18 APPOINTMENT OF COUNSEL (Doc. 19 No. 140)

20 Before the Court is a motion to vacate, set aside, or correct his sentence pursuant to 21 28 U.S.C. § 2255 filed by pro se Petitioner, Bogar Agudo-Monroy. The United States filed 22 a response in opposition, to which Petitioner replied. For the following reasons, the Court 23 DENIES the petition, DENIES a certificate of appealability, and DENIES AS MOOT 24 Petitioner’s motion for appointment of counsel. 25 26 27 28 1 I. BACKGROUND 2 A. Factual Background 3 On May 27, 2015, while conducting anti-smuggling operations along the 4 Interstate-15 in the Southern District of California in a marked patrol unit, Border Patrol 5 Agents, Bela Bano and Damian Caraway, observed Petitioner driving a white Mitsubishi 6 Mirage with Baja California Mexico license plates. According to the agents, the Mitsubishi 7 was being driven at a slower speed than normal traffic, and its occupants’ body language 8 and posture appeared nervous. As the agents followed the Mitsubishi along the I-15, they 9 conducted a records check on the Mitsubishi and discovered that the vehicle was driven by 10 a different person through the port of entry 80 minutes earlier. The agents also observed 11 that Petitioner appeared to be evading the Border Patrol vehicle by decelerating the 12 Mitsubishi and changing lanes to exit the highway. They then observed Petitioner suddenly 13 cross two lanes of traffic to pull into a Mobil Gas Station, where he parked the vehicle next 14 to a fuel pump. The agents drove into the gas station and stopped their vehicle two car 15 lengths behind the Mitsubishi. Petitioner and his passenger, Segura, exited the Mitsubishi 16 and approached the agents. Petitioner engaged in a conversation with Agent Bano, asking 17 him “What’s going on?” Agent Bano informed Petitioner that he was not stopped, and the 18 two engaged in a conversation regarding where Petitioner came from and where he was 19 headed. Agent Bano then asked for Petitioner’s consent to search the Mitsubishi along with 20 his K-9 partner, and Petitioner consented. 21 The K-9 alerted to the vehicle, and Agent Bano observed a strong gasoline odor 22 emanating from the vehicle. The agents noticed that the vehicle’s gas gauge displayed a 23 reading above full and that the fuel tank bore fresh tool marks on it. The agents transported 24 Petitioner, Segura, and the Mitsubishi to the I-15 Border Patrol Checkpoint. There, agents 25 inspected the fuel tank and found 26 packages of a white substance, which field-tested 26

27 1 The factual background is gleaned from the trial transcripts in the underlying criminal case, which the 28 1 positive for methamphetamine, and after a DEA laboratory analysis, were later revealed to 2 be approximately 11.39 kilograms of methamphetamine. The agents arrested Petitioner and 3 Segura for smuggling narcotics. 4 B. Trial Court Proceedings 5 After being charged with Possession of Methamphetamine with Intent to Distribute, 6 a Schedule II Controlled Substance, in violation of 21 U.S.C. § 841(a)(1), and Aiding and 7 Abetting, in violation of 18 U.S.C. § 2, Petitioner entered a not guilty plea. The parties 8 filed, and the Court ruled on, various pre-trial motions to preserve evidence, compel 9 discovery, and to exclude certain evidence. On the first day of trial, Agents Bano and 10 Caraway testified about their encounter with the Mitsubishi and Petitioner. The next day, 11 the case agent, DEA chemist, and value expert testified for the United States. The Court 12 also allowed the testimony of HSI Special Agent Jarrod Pasciucco who arrested Petitioner 13 in 2010 for importing marijuana in a gas tank. Petitioner thereafter made an oral motion 14 for judgment of acquittal under Rule 29, which the Court denied. Then, Petitioner testified 15 and asserted his lack of knowledge that there was methamphetamine in the vehicle he was 16 driving. That same day, the jury returned a verdict of guilty. 17 On October 11, 2016, the Court held a hearing on Petitioner’s motion for a new trial, 18 which the Court denied. That same day, the Court sentenced Petitioner to 120 months in 19 custody. With new appellate counsel, Petitioner timely noticed his appeal the following 20 day. 21 C. Appellate Proceedings 22 On appeal, Petitioner argued that (1) the case agent’s testimony about deconflicting 23 Petitioner’s cellphone, (2) the case agent’s interpretation of his call log, and (3) the 24 introduction of his prior arrest involving packages of marijuana hidden in a gas tank, 25 deprived him of a fair trial. On December 11, 2017, a panel of the Ninth Circuit Court of 26 Appeals affirmed Petitioner’s conviction, finding that although the Court erred in allowing 27 testimony regarding the deconfliction of phone numbers in Petitioner’s cellphone and 28 testimony interpreting the cell phone log, “these errors [were] harmless, both individually 1 and cumulatively, in light of the overwhelming evidence of guilt.” (Doc. No. 127-3 at 3.) 2 The Ninth Circuit did not find that evidence of the prior arrest amounted to error. (Id.) 3 Upon Petitioner’s filing of a petition for panel rehearing and rehearing en banc, the panel 4 voted and unanimously denied the petition. Petitioner then filed a writ of certiorari to the 5 Supreme Court, which was subsequently denied on June 25, 2018. The instant motion 6 under 28 U.S.C. § 2255 follows. 7 II. LEGAL STANDARD 8 A federal prisoner in custody under a sentence of a court may move to vacate, set 9 aside, or correct the sentence “upon the ground that the sentence was imposed in violation 10 of the Constitution or laws of the United States, or that the court was without jurisdiction 11 to impose such sentence, or that the sentence was in excess of the maximum authorized by 12 law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255. If it is clear the movant 13 has failed to state a claim, or has “no more than conclusory allegations, unsupported by 14 facts and refuted by the record,” a district court may deny a § 2255 motion without an 15 evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). 16 III. DISCUSSION 17 Petitioner raises three arguments in support of his § 2255 motion. The Court 18 discusses each of the asserted grounds in turn. 19 A. Claim of “Irrelevant and Inflammatory” Testimony 20 First, Petitioner argues that prosecutorial misconduct via the solicitation of 21 “irrelevant and inflammatory testimony,” namely, the case agent’s testimony regarding 22 deconflicting the numbers in his phone and the meaning of his call and text history, 23 substantially affected his right to a fair trial. (Doc. No. 125 at 4.) The United States asserts 24 that Petitioner’s claim is procedurally barred because he already litigated these claims on 25 direct appeal and lost. The Court agrees. 26 “[A]s a general rule, federal prisoners may not use a motion under 28 U.S.C. § 2255 27 to relitigate a claim that was previously rejected on direct appeal.” Foster v. Chatman, 136 28 1 S. Ct. 1737, 1758 (2016) (Alito, J. concurring) (collecting cases). The record shows that 2 Petitioner was unsuccessful in litigating these exact claims on appeal. See supra § I.C. As 3 previously mentioned, the Ninth Circuit found that the errors concerning the case agent’s 4 deconfliction and call log testimony were “harmless, both individually and cumulatively, 5 in light of the overwhelming evidence of guilt.” (Doc. No. 127-3 at 3.) Petitioner does not 6 assert, and the Court does not find, countervailing considerations that warrant departure 7 from the general rule. Cf., e.g., Davis v. United States, 417 U.S. 333, 342 (1974) (holding 8 that a petitioner’s § 2255 claim that was previously raised on direct appeal is not precluded 9 if the claim is based on “an intervening change in law”). Accordingly, the Court denies 10 Petitioner’s motion on this basis. 11 B. Claim of Perjury, Racial Profiling, and Ineffective Assistance 12 Second, Petitioner asserts that his rights were substantially affected by prosecutorial 13 misconduct because Agents Bano and Caraway offered false statements about the events 14 leading up to his arrest, that the government lacked probable cause and racially profiled 15 Petitioner, and that his trial counsel provided ineffective assistance in failing to raise these 16 issues. (Doc. Nos. 125 at 5; 132 at 23.) The United States contends that these claims are 17 procedurally barred because Petitioner could have, but did not, raise these issues on direct 18 appeal. (Doc. No. 127 at 7.) Even assuming that these claims are not barred, however, they 19 nonetheless fail, as more fully set forth below. 20 1. Perjury 21 Upon careful review of Petitioner’s claim, the Court does not find that either Agent 22 Bano or Agent Caraway provided false testimony about the circumstances leading up to 23 his arrest. In support of his perjury claim, Petitioner rehashes the agents’ testimony and 24 explains what he perceives to be inconsistencies. (Doc. No. 132 at 8–15.) For instance, 25 Petitioner expresses disbelief over how the agents could observe that his body language 26 and posture appeared nervous while driving on a highway and from a distance. (Id. at 9.) 27 Petitioner also claims that Agent Bano’s testimony that Petitioner consented to the K-9 28 search is inconsistent with his personal recollection that the agents conducted the search 1 “without asking.” (Id. at 12.) Petitioner further asserts that Agent Bano perjured himself by 2 testifying that what was photographed in Exhibit 6 was what he saw through a small hole 3 underneath the Mitsubishi’s back seat. (Id. at 14.) The record, however, does not support 4 this or any of his other claims of perjured testimony. Simply put, Petitioner’s claims are 5 founded solely on his subjective belief regarding the believability or plausibility of the 6 agents’ testimony. And as the Ninth Circuit has held, Petitioner must show evidence of 7 perjury “more serious than some minor inconsistencies and inaccuracies which must have 8 been self-evident to the jury.” Black v. United States, 269 F.2d 38, 43 (9th Cir. 1959). The 9 Court therefore declines to find that the agents perjured themselves. Accordingly, 10 Petitioner’s claim that his rights were substantially affected by perjured testimony is 11 without merit. 12 2. Racial Profiling 13 Petitioner’s claim of an unlawful stop and search of his vehicle is also unavailing. 14 As the record demonstrates, the agents did not stop Petitioner’s vehicle. Indeed, at the time 15 Petitioner exited the highway on his own accord, the agents were driving ahead of him. 16 The agents exited the highway and pulling into the Mobil gas station only after Petitioner 17 did. And they did so without flashing the Border Patrol vehicle’s lights or soundings its 18 siren. Consequently, because “there was no intentional government action directed at 19 [Petitioner] to bring about the stop of his vehicle, there could be no Fourth Amendment 20 ‘seizure.’” United States v. Al Nasser, 555 F.3d 722, 731 (9th Cir. 2009). As further 21 evidence of the consensual encounter with the agents, it was Petitioner who decided to 22 approach the agents, and he was informed he that he was not being detained. In fact, Agent 23 Caraway testified that he observed that “Agent Bano had spoke[n] with the defendant and 24 basically advised him that we didn’t stop him and asked if he could ask him a series of 25 questions, to which the defendant was calm at that point and said, ‘Yes.’” (Doc. No. 127-1 26 at 259.) Petitioner therefore could not have reasonably believed that he was not free to 27 leave. Cf. I.N.S. v. Delgado, 466 U.S. 210, 215 (1984) (noting that an initial consensual 28 encounter can evolve into a seizure “if, in view of all the circumstances surrounding the 1 incident, a reasonable person would have believed that he was not free to leave.”) (citation 2 omitted). 3 Even if the Mitsubishi was “stopped,” the agents had the requisite reasonable 4 suspicion of criminal activity to justify the stop. A reasonable suspicion determination 5 entails consideration of “the ‘totality of the circumstances’ of each case to see whether the 6 detaining officer has a ‘particularized and objective basis’ for suspecting legal 7 wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citation omitted). Such 8 consideration “allows officers to draw on their own experience and specialized training to 9 make inferences from and deductions about the cumulative information available to them 10 that ‘might well elude an untrained person.’” Id. 11 In the context of Border Patrol searches, the factors to be considered in 12 determining whether “reasonable suspicion” exists to justify stopping a vehicle include, but are not limited to: 1) characteristics of the area; 2) 13 proximity to the border; 3) usual patterns of traffic and time of day; 4) 14 previous alien or drug smuggling in the area; 5) behavior of the driver, including “obvious attempts to evade officers”; 6) appearance or behavior of 15 passengers; 7) model and appearance of the vehicle; and, 8) officer 16 experience. 17 United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (citing United States 18 v. Brignoni-Ponce, 422 U.S. 873, 885 (1975)). 19 Here, Agents Bano and Caraway’s respective testimony as to their particularized and 20 objective observations of the Mitsubishi and its driver established reasonable suspicion. As 21 previously mentioned, Petitioner’s vehicle was driving noticeably slower than the average 22 traffic, the vehicle bore Baja California plates, and its occupants’ demeanor signaled 23 nervousness and concealment to the trained agents. Additionally, Agent Bano’s record 24 check of the Mitsubishi revealed that a different driver with no passenger drove the vehicle 25 into the port of entry approximately 80 minutes prior. Agent Caraway testified that, based 26 on his years of experience with Border Patrol, this observation is consistent “a driver 27 swap-out,” a technique used by smugglers. (Doc. No. 127-1 at 252.) The agents further 28 1 observed that Petitioner appeared to be evading them by suddenly exiting the highway and 2 quickly crossing several lanes of traffic. 3 Considering the totality of circumstances, the Court finds that Petitioner’s claim of 4 racial profiling is without merit. The agents’ observations were particularized and 5 objective. Consequently, assuming that Petitioner was “stopped,” the Court finds that the 6 agents had reasonable suspicion of criminal activity to justify the stop. See Arvizu, 534 7 U.S. at 273; Garcia-Barron, 116 F.3d at 1307. Lastly, the record also shows that the search 8 of Petitioner’s vehicle was consensual. Both Agent Bano and Petitioner testified that 9 Petitioner consented to the hand and K-9 search of the vehicle. (Doc. Nos. 127-1 at 209– 10 210; 127-2 at 121.) Thus, there was no unlawful search in violation of the Fourth 11 Amendment. Based on the foregoing, Petitioner’s claim of racial profiling in the events 12 leading up to his arrest fails. 13 3. Ineffective Assistance of Counsel 14 Petitioner further claims that his trial counsel provided ineffective assistance in 15 failing to raise the aforementioned issues of perjured testimony and racial profiling. The 16 Court disagrees. To prevail on an ineffective assistance of counsel claim, Petitioner must 17 show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ 18 guaranteed the defendant by the Sixth Amendment,” and that “the deficient performance 19 prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the 20 first prong of the Strickland test, the Court considers whether counsel’s performance was 21 within the range of competence demanded of attorneys in criminal cases. Turner v. 22 Calderon, 281 F.3d 851, 881 (9th Cir.2002). “Judicial scrutiny of counsel’s performance 23 must be highly deferential.” Strickland, 466 U.S. at 689. There is a “strong presumption 24 that counsel’s conduct falls within the wide range of professional assistance.” Id. at 689; 25 United States v. Molina, 934 F.2d 1440, 1447 (9th Cir.1991). Under the prejudice prong, 26 Petitioner must “show that there is a reasonable probability that, but for counsel’s 27 unprofessional errors, the result of the proceeding would have been different. A reasonable 28 1 probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 2 466 U.S. at 694. 3 In this case, Petitioner’s trial counsel did not provide deficient performance in failing 4 to raise issues of perjured testimony and racial profiling on a motion to suppress because, 5 as made clear in the preceding sections, the evidence does not support such claims. Trial 6 counsel received and reviewed the hundreds of pages of discovery and DVDs pertaining to 7 Petitioner’s criminal case. As the record before the trial counsel did not provide an apparent 8 basis to challenge the lawfulness of Petitioner’s arrest or the agents’ testimony, the Court 9 declines to find that his performance was unconstitutionally deficient. Again, the record 10 reflected that Petitioner consented to the stop and search, and there was no basis to assert 11 a claim of perjury. See supra § III.B.1, 2. Otherwise stated, the Court does not find that “no 12 competent attorney would think a motion to suppress would have failed, which is the 13 relevant question under Strickland.” Premo v. Moore, 562 U.S. 115, 124 (2011). Petitioner 14 therefore presents insufficient evidence to rebut the strong presumption that the trial 15 counsel’s performance “falls within the wide range of professional assistance.” Strickland, 16 466 U.S. at 689; Molina, 934 F.2d at 1447. 17 Consequently, as Petitioner has not met his burden to establish deficient 18 performance, his ineffective assistance of counsel claim on this basis necessary fails. See 19 Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir.2011) (citing Strickland, 466 U.S. at 697) 20 (“Because failure to meet either prong is fatal to [Petitioner’s] claim, there is no 21 requirement that [the Court] ‘address both components of the inquiry if the defendant 22 makes an insufficient showing on one.’”). 23 C. Claim of Actual Innocence and Ineffective Assistance 24 Third, Petitioner claims “actual innocence” and that his trial counsel rendered 25 ineffective assistance by failing to present that Petitioner was unaware that the vehicle 26 contained a commercial quantity of concealed drug, and that there was a legitimate reason 27 for him to have been driving the vehicle. (Doc. No. 125 at 6–7.) At the outset, the Court 28 finds that the trial counsel did, in fact, present to the jury that Petitioner lacked the 1 knowledge required for conviction in this case. Petitioner’s ineffective assistance of 2 counsel claim on this basis is therefore without merit. 3 Turning to Petitioner’s remaining claim, ‘“[a]ctual innocence’ means factual 4 innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 5 (1998). To succeed on a claim of actual innocence, Petitioner “must demonstrate that, in 6 light of all the evidence, it is more likely than not that no reasonable juror would have 7 convicted him.” Id. (internal quotations omitted) (citing Schlup v. Delo, 513 U.S. 298, 327– 8 29 (1995)). Petitioner has not met his burden. Rather, Petitioner repeats the same defenses 9 he testified to at trial—that he had no knowledge that the Mitsubishi he was driving “was 10 being used for nefarious purposes” and that he was simply “driving the vehicle to exchange 11 it for [a] pickup truck so that he could use the truck for his painting business.” (Doc. No. 12 132 at 24.) The jurors considered Petitioner’s defense against the government’s evidence 13 and found him guilty. 14 Petitioner presents no new evidence or argument to show that no reasonable juror 15 would have convicted him. To the extent that Petitioner argues that the Ninth Circuit’s 16 finding that presentation of the testimony about deconflicting his cell phone and 17 interpreting his call log amounts to new evidence that shows his actual innocence, the Court 18 disagrees. As the Ninth Circuit found, those errors were harmless due to other evidence of 19 guilt. (Doc. No. 127-3 at 3.) Thus, considering what the Ninth Circuit found to be 20 “overwhelming evidence of guilt” id., the aforementioned errors are not, by themselves, 21 enough to demonstrate that no reasonable juror would have found Petitioner guilty. 22 Accordingly, the Court finds that Petitioner has not established “actual innocence.” See 23 generally Schlup, 513 U.S. at 324 (noting that because reliable evidence supporting a 24 constitutional error “is obviously unavailable in the vast majority of cases, claims of actual 25 innocence are rarely successful.”). 26 // 27 // 28 // 1 IV. CONCLUSION 2 For the foregoing reasons, the Court finds that Petitioner’s motion, the briefs filed 3 ||in support thereof and opposition thereto, and the record in this case, conclusively establish 4 || that Petitioner is not entitled to relief. As such, an evidentiary hearing is not warranted in 5 || this case. See 28 U.S.C. § 2255(b); Quan, 789 F.2d at 715. Accordingly, the Court DENIES 6 || Petitioner’s motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. 7 ||{(Doc. Nos. 2, 125.) The Court also DENIES a certificate of appealability because 8 || Petitioner has not “made a substantial showing of the denial of a constitutional right.” See 9 U.S.C. § 2253(c)(2). The Court further DENIES AS MOOT Petitioner’s motion for 10 || appointment of counsel.” (Doc. No. 140.) The Clerk of the Court is instructed to close the 11 ||case and enter judgment accordingly. 12 Dated: January 12, 2021 , 13 Hon, Anthony J Heatia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24

26 ||? Although styled as a “Motion for Newly Discovered Evidence,” Petitioner’s supplemental filing (Doc. No. 140) presents no such newly discovered evidence. Instead, Petitioner requests the Court “[t]o please 27 appoint [] new counsel on the grounds of conflict of interest.” The Court is unable to discern the conflict 8 of interest alleged. In any event, however, because the Court denies his § 2255 petition, the Court denies as moot his attendant request for appointment of counsel. 11