Lobo-Lopez v. United States

56 F. Supp. 3d 802, 2014 U.S. Dist. LEXIS 152497, 2014 WL 5430626
CourtDistrict Court, E.D. Virginia
DecidedOctober 23, 2014
DocketCivil Action No. 1:13cv1221; Criminal No. 1:08cr194
StatusPublished

This text of 56 F. Supp. 3d 802 (Lobo-Lopez v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lobo-Lopez v. United States, 56 F. Supp. 3d 802, 2014 U.S. Dist. LEXIS 152497, 2014 WL 5430626 (E.D. Va. 2014).

Opinion

MEMORANDUM OPINION

T.S. ELLIS, III, Senior District Judge.

Oscar Omar Lobo-Lopez, a federal inmate convicted of (i) conspiracy to commit murder in aid of racketeering, (ii) murder [804]*804in aid of racketeering, and (iii) use of a firearm during a crime of violence, has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Petr.’s Motion”). (Doc. 494).1 Petitioner’s motion is based chiefly on claims of ineffective assistance of counsel. He has also filed other motions for miscellaneous relief, including a motion to obtain affidavits from his defense counsel, a motion for a thirty-day extension of time to file his reply to the government’s opposition, and a motion “for an in camera inspection of the grand jury minutes” to determine whether the grand jury was presented evidence to support a determination of probable cause on the issue of whether there was a “federal jurisdictional nexus.” (Docs. 500 and 501). As 'both parties have fully briefed the issues, and neither oral argument nor an evidentiary hearing would aid the decisional process,2 the petition is ripe for disposition.

I.

A brief recitation of the facts and procedural history to date is necessary to place petitioner’s claims in context. The record reflects that, in 2007, petitioner was a leader of the Hollywood Locos Salvatrucha (HLS) clique3 of MS-13, a nationwide, indeed, international crime gang with a significant presence in Northern Virginia. MS-13 is comprised of many cliques throughout the United States and El Salvador. Cliques typically hold regular membership meetings and send representatives to “general meetings” of area or regional clique leaders. At trial, witnesses for the government testified that MS-13 is united by a set of rules which dictate that members must represent the gang, never cooperate with police, and seek out rival gang members, called “chavalas,” in order to attack and, if possible, kill them. See, e.g. Trial Tr. Apr. 16, 2009 at 160 (Doc. 421).

Trial testimony- reflects that prior to May 5, 2007, petitioner and fellow MS-13 gang member, Sergio Gerardo Amador-Amador, had several confrontations with Melvin Reyes, a member of a rival gang who was attempting to recruit new members for his gang in an area MS-13 members considered their territory. Trial Tr. Apr. 16, 2009 at 828 (Doc. 421). From mid-2006 onward, petitioner and Amador began patrolling for Reyes in order to find and kill him. Id. at 101. On May 5, 2007, petitioner and Amador found Reyes on Commerce Street in Springfield, Virginia and confronted him. Id. at 120. When Reyes fled, petitioner and Amador pursued him while firing their handguns at him. Several shots found their mark, striking Reyes in the leg and wounding him. Petitioner then directed Amador to “finish him.” Amador then killed Reyes by shooting him several times in the-head at close range. Id. at 124.

[805]*805A federal grand jury returned a three-count superseding indictment charging petitioner with (i) conspiracy to commit murder in aid of racketeering activity, (ii) murder in aid of racketeering activity, and (iii) use of a firearm during a crime of violence. After a five-day trial, a jury found petitioner guilty on all three counts. On September 18, 2009, petitioner was sentenced to life. imprisonment for murder in aid of racketeering and ten years imprisonment for the conspiracy charge, to run concurrently, and ten years imprisonment for use of a firearm during a crime of violence, to run consecutive to the sentence as to Counts One and Two. He was also ordered to pay $4,300 in restitution to the victim’s family. United States v. Lobo-Lopez, 1:08cr194 (E.D.Va. Sept. 18, 2009) (Judgment in a Criminal Case) (Doc. 387).4

At trial and on appeal, petitioner was represented by two very experienced defense attorneys: John C. Kiyonaga, Esq. and Lana Marie Manitta, Esq. Following the verdict, Mr. Kiyonaga and Ms. Manitta filed a timely appeal to the Court of Appeals for the Fourth Circuit, which affirmed petitioner’s convictions on March 1, 2012. United States v. Lobo-Lopez, 468 Fed.Appx. 186, 191 (4th Cir.2012). Mr. Kiyonaga and Ms. Manitta then filed a petition for certiorari to the United States Supreme Court on petitioner’s behalf, which the Supreme Court denied on October 1, 2012. United States v. Lobo-Lopez, 468 Fed.Appx. 186, cert. denied—U.S.-,133 S.Ct. 258, 184 L.Ed.2d 139 (2012) (No. 11-11060).

A year later, on October 1, 2013, petitioner filed the instant motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255, alleging that he was denied his Sixth Amendment right to the effective assistance of counsel. Petitioner’s motion raises seven grounds in support of his ineffective assistance of counsel claim:

(1) Counsel’s failure, at trial and on appeal, to challenge whether the government proved that petitioner’s criminal enterprise affected interstate or foreign commerce;
(2) Counsel’s failure, at trial and on appeal, to object to the government “vouching” that it had proved jurisdiction, which petitioner alleges vio- ' lates the “advocate/witness rule”;
(3) Counsel’s failure, at trial and on appeal, to object to jury instructions on the effect on interstate commerce issue;
(4) Counsel’s failure, at trial and on appeal, to object to a defect in the indictment, which petitioner contends failed to allege malice aforethought with respect to the murder charge;
(5) Counsel’s failure, at trial and on appeal, to object to hearsay testimony admitted in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004);
(6) Counsel’s failure, at trial and on appeal, to object to the government’s failure to prove that the alleged enterprise had an “economy agenda”; and
(7) Counsel’s failure, at trial and on appeal, to object to the Court’s order that petitioner pay restitution on the [806]*806ground that restitution was not raised in the superseding indictment or before the jury.

In the alternative, petitioner also appears to argue that since his trial, the Supreme Court has issued decisions reflecting new rules of law as to his claims in grounds (5), (6), and (7). Petr.’s Motion at 15 (Doc. 494) (stating that the basis for these three grounds to vacate petitioner’s sentence were not raised at trial or on appeal “because ... the recent U.S. Supreme Court decisions did not exist”).

As already noted, oral argument is dispensed with as the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process. See supra note 2.

H.

A two-prong analysis applies to claims of ineffective .assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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Bluebook (online)
56 F. Supp. 3d 802, 2014 U.S. Dist. LEXIS 152497, 2014 WL 5430626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lobo-lopez-v-united-states-vaed-2014.