1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESUS ALFREDO RAMIREZ Case No.: 18-CR-4217-JO
12 Petitioner,
13 v. ORDER DENYING PETITIONER’S MOTION TO REDUCE SENTENCE 14 UNITED STATES OF AMERICA, PURSUANT TO 28 U.S.C. § 2255 15 Respondent. 16 17 18 19 20 21
22 Petitioner filed this 28 U.S.C. § 2255 motion on January 9, 2023, asking the Court 23 to vacate or reduce his sentence because he received ineffective assistance of counsel. Dkt. 24 339 (“§ 2255 Mot.”). Specifically, Petitioner contends that his counsel acted unreasonably 25 in the following ways: (1) declining to conduct an extensive investigation into Petitioner’s 26 confession; (2) declining to cross examine a witness regarding this confession; (3) opting 27 not to object to a firearm enhancement at sentencing; (4) failing to adequately consult with 28 Petitioner during the attorney-client relationship; (5) declining to pursue a particular jury 1 instruction at trial; and (6) failing to convey a formal plea offer and advise Petitioner of the 2 option to enter an open plea. Id. Petitioner also filed a motion for discovery, an evidentiary 3 hearing, and to appoint counsel. Id. at 15–17. 4 First, Petitioner has not established that counsel’s failure to investigate the 5 circumstances around his confession warrants relief under 28 U.S.C. § 2255. Petitioner 6 claims that if his lawyer had conducted an adequate investigation, he would have learned 7 that Petitioner’s confession was inadmissible because he was not read his Miranda rights. 8 Id. at 6. In fact, Petitioner was read his rights prior to his confession and signed a waiver 9 of these rights in his native language. See Dkt. 158, Trial Ex. List, Exs. 25, 27. He does 10 not identify any other specific prejudice resulting from counsel’s alleged failure to 11 investigate, such another ground to challenge the admissibility or the weight of the 12 confession evidence. Thus, even assuming counsel failed to investigate the context of 13 Petitioner’s confession, Petitioner has not established that this decision was prejudicial. 14 See Strickland v. Washington, 466 U.S. 668, 690 (1984) (holding that because unreasonable 15 conduct and prejudice are both required elements, “[a] court need not first determine 16 whether counsel’s performance was deficient before examining the prejudice suffered by 17 the defendant”); Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). 18 Second, Petitioner has not established that counsel’s decision to not cross examine 19 Agent Martin regarding his confession was objectively unreasonable under Strickland. See 20 § 2255 Mot. at 6; Strickland, 466 U.S at 690. Petitioner made a videotaped confession 21 after he was read his rights and waived them in a signed document written in his native 22 language. See Trial Ex. List, Exs. 25, 27. The record reflects that counsel made the 23 decision not to cross examine the agent who obtained the confession after determining that 24 the confession was admissible. See generally Dkt. 259, Trial Tr., Day Two Afternoon. It 25 appears that, given the conclusive nature of this evidence, Petitioner’s counsel made a 26 strategic decision not to further highlight the confession by cross examining Agent Martin 27 on the topic. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough 28 investigation of law and facts relevant to plausible options are virtually unchallengeable.”); 1 Chilinski v. Montana, No. CV 18-41-H-BMM-JTJ, 2019 WL 5865300, at *6 (D. Mont. 2 Aug. 6, 2019). In this context, counsel’s use of his discretion not to cross examine cannot 3 be said to be objectively unreasonable. See Strickland, 466 U.S. at 690. Thus, his request 4 for § 2255 relief on this ground also fails. 5 Third, Petitioner has not established that his counsel was objectively unreasonable 6 in declining to challenge a specific offense enhancement at sentencing for the possession 7 of a gun. The record demonstrates that the Court had strong evidence that Petitioner 8 warranted this enhancement for owning a firearm. See Dkt. 226, Pre-Sentence Report at 9 9, 15 (“The investigation netted several seizures of drugs, as well as a firearm from 10 Ramirez’s residence.”); Trial Ex. List, Ex. 28; Trial Tr., Day Two Afternoon at 350–51; 11 see also U.S.S.G. § 2D1.1(b)(1) (stating that a two-point upward adjustment is appropriate 12 if the defendant possessed a dangerous weapon, such as a firearm, in furtherance of a drug 13 crime). Given the strong evidence illustrating that Petitioner possessed a gun in furtherance 14 of his drug dealing, counsel was not objectively unreasonable in declining to challenge this 15 enhancement. See Strickland, 466 U.S. at 687–88 (stating that counsel has no obligation 16 to raise meritless or frivolous arguments). Therefore, his request for relief under § 2255 17 on this ground also fails. 18 Fourth, Petitioner has not established that counsel’s actions were objectively 19 unreasonable or prejudiced him by not spending enough time with him in preparation for 20 trial. “Adequate consultation between attorney and client is an essential element of 21 competent representation of a criminal defendant.” United States v. Tucker, 716 F.2d 576, 22 581 (9th Cir. 1983). “While the amount of consultation required will depend on the facts 23 of each case, the consultation should be sufficient to determine all legally relevant 24 information known to the defendant.” Id. at 581–82 (stating that the amount of client 25 communication required depends on factors such as the amount and complexity of the 26 evidence to be presented at trial). Petitioner argues that he only met with counsel for a 27 cumulative total of one hour and that this fact by itself amounts to ineffective assistance of 28 counsel. § 2255 Mot. at 9. The Court finds that this, by itself, is insufficient to show that 1 counsel did not adequately consult with his client. The record demonstrates that Mr. 2 Pippins was well-versed in the facts and law of the case prior to as well as during trial. See 3 generally Dkt. 71, Def.’s Mot. to Suppress; Dkt. 354, Gov’t Opp’n, Ex. D; Trial Tr., Days 4 1 and 2. Moreover, aside from general assertions that Petitioner was not informed of the 5 costs and benefits of various litigation options and therefore could not help mitigate the 6 risks of his case, see § 2255 Mot. at 10, Petitioner has not identified any specific prejudice 7 to the litigation resulting from counsel’s alleged lack of communication. See Strickland, 8 466 U.S. at 688. Because Petitioner cannot establish that counsel was unreasonable or that 9 he was prejudiced by counsel’s failure to adequately consult with him, the Court denies 10 § 2255 relief on this ground. 11 Fifth, Petitioner’s argument that his counsel was deficient in declining to ask the 12 Court for a specific jury instruction at trial also fails. Specifically, Petitioner argues that 13 because he was only charged with one count of conspiracy but trial evidence included two 14 separate conspiracies, the jury should have been instructed that it had to unanimously agree 15 on which particular conspiracy he was guilty of. Because this issue was raised by Petitioner 16 (and denied by the Ninth Circuit) on direct appeal, see United States v. Ramirez, No. 19- 17 50360, 2021 WL 3615379, at *2 (9th Cir. Aug. 16, 2021); Appellant’s Opening Br.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESUS ALFREDO RAMIREZ Case No.: 18-CR-4217-JO
12 Petitioner,
13 v. ORDER DENYING PETITIONER’S MOTION TO REDUCE SENTENCE 14 UNITED STATES OF AMERICA, PURSUANT TO 28 U.S.C. § 2255 15 Respondent. 16 17 18 19 20 21
22 Petitioner filed this 28 U.S.C. § 2255 motion on January 9, 2023, asking the Court 23 to vacate or reduce his sentence because he received ineffective assistance of counsel. Dkt. 24 339 (“§ 2255 Mot.”). Specifically, Petitioner contends that his counsel acted unreasonably 25 in the following ways: (1) declining to conduct an extensive investigation into Petitioner’s 26 confession; (2) declining to cross examine a witness regarding this confession; (3) opting 27 not to object to a firearm enhancement at sentencing; (4) failing to adequately consult with 28 Petitioner during the attorney-client relationship; (5) declining to pursue a particular jury 1 instruction at trial; and (6) failing to convey a formal plea offer and advise Petitioner of the 2 option to enter an open plea. Id. Petitioner also filed a motion for discovery, an evidentiary 3 hearing, and to appoint counsel. Id. at 15–17. 4 First, Petitioner has not established that counsel’s failure to investigate the 5 circumstances around his confession warrants relief under 28 U.S.C. § 2255. Petitioner 6 claims that if his lawyer had conducted an adequate investigation, he would have learned 7 that Petitioner’s confession was inadmissible because he was not read his Miranda rights. 8 Id. at 6. In fact, Petitioner was read his rights prior to his confession and signed a waiver 9 of these rights in his native language. See Dkt. 158, Trial Ex. List, Exs. 25, 27. He does 10 not identify any other specific prejudice resulting from counsel’s alleged failure to 11 investigate, such another ground to challenge the admissibility or the weight of the 12 confession evidence. Thus, even assuming counsel failed to investigate the context of 13 Petitioner’s confession, Petitioner has not established that this decision was prejudicial. 14 See Strickland v. Washington, 466 U.S. 668, 690 (1984) (holding that because unreasonable 15 conduct and prejudice are both required elements, “[a] court need not first determine 16 whether counsel’s performance was deficient before examining the prejudice suffered by 17 the defendant”); Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). 18 Second, Petitioner has not established that counsel’s decision to not cross examine 19 Agent Martin regarding his confession was objectively unreasonable under Strickland. See 20 § 2255 Mot. at 6; Strickland, 466 U.S at 690. Petitioner made a videotaped confession 21 after he was read his rights and waived them in a signed document written in his native 22 language. See Trial Ex. List, Exs. 25, 27. The record reflects that counsel made the 23 decision not to cross examine the agent who obtained the confession after determining that 24 the confession was admissible. See generally Dkt. 259, Trial Tr., Day Two Afternoon. It 25 appears that, given the conclusive nature of this evidence, Petitioner’s counsel made a 26 strategic decision not to further highlight the confession by cross examining Agent Martin 27 on the topic. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough 28 investigation of law and facts relevant to plausible options are virtually unchallengeable.”); 1 Chilinski v. Montana, No. CV 18-41-H-BMM-JTJ, 2019 WL 5865300, at *6 (D. Mont. 2 Aug. 6, 2019). In this context, counsel’s use of his discretion not to cross examine cannot 3 be said to be objectively unreasonable. See Strickland, 466 U.S. at 690. Thus, his request 4 for § 2255 relief on this ground also fails. 5 Third, Petitioner has not established that his counsel was objectively unreasonable 6 in declining to challenge a specific offense enhancement at sentencing for the possession 7 of a gun. The record demonstrates that the Court had strong evidence that Petitioner 8 warranted this enhancement for owning a firearm. See Dkt. 226, Pre-Sentence Report at 9 9, 15 (“The investigation netted several seizures of drugs, as well as a firearm from 10 Ramirez’s residence.”); Trial Ex. List, Ex. 28; Trial Tr., Day Two Afternoon at 350–51; 11 see also U.S.S.G. § 2D1.1(b)(1) (stating that a two-point upward adjustment is appropriate 12 if the defendant possessed a dangerous weapon, such as a firearm, in furtherance of a drug 13 crime). Given the strong evidence illustrating that Petitioner possessed a gun in furtherance 14 of his drug dealing, counsel was not objectively unreasonable in declining to challenge this 15 enhancement. See Strickland, 466 U.S. at 687–88 (stating that counsel has no obligation 16 to raise meritless or frivolous arguments). Therefore, his request for relief under § 2255 17 on this ground also fails. 18 Fourth, Petitioner has not established that counsel’s actions were objectively 19 unreasonable or prejudiced him by not spending enough time with him in preparation for 20 trial. “Adequate consultation between attorney and client is an essential element of 21 competent representation of a criminal defendant.” United States v. Tucker, 716 F.2d 576, 22 581 (9th Cir. 1983). “While the amount of consultation required will depend on the facts 23 of each case, the consultation should be sufficient to determine all legally relevant 24 information known to the defendant.” Id. at 581–82 (stating that the amount of client 25 communication required depends on factors such as the amount and complexity of the 26 evidence to be presented at trial). Petitioner argues that he only met with counsel for a 27 cumulative total of one hour and that this fact by itself amounts to ineffective assistance of 28 counsel. § 2255 Mot. at 9. The Court finds that this, by itself, is insufficient to show that 1 counsel did not adequately consult with his client. The record demonstrates that Mr. 2 Pippins was well-versed in the facts and law of the case prior to as well as during trial. See 3 generally Dkt. 71, Def.’s Mot. to Suppress; Dkt. 354, Gov’t Opp’n, Ex. D; Trial Tr., Days 4 1 and 2. Moreover, aside from general assertions that Petitioner was not informed of the 5 costs and benefits of various litigation options and therefore could not help mitigate the 6 risks of his case, see § 2255 Mot. at 10, Petitioner has not identified any specific prejudice 7 to the litigation resulting from counsel’s alleged lack of communication. See Strickland, 8 466 U.S. at 688. Because Petitioner cannot establish that counsel was unreasonable or that 9 he was prejudiced by counsel’s failure to adequately consult with him, the Court denies 10 § 2255 relief on this ground. 11 Fifth, Petitioner’s argument that his counsel was deficient in declining to ask the 12 Court for a specific jury instruction at trial also fails. Specifically, Petitioner argues that 13 because he was only charged with one count of conspiracy but trial evidence included two 14 separate conspiracies, the jury should have been instructed that it had to unanimously agree 15 on which particular conspiracy he was guilty of. Because this issue was raised by Petitioner 16 (and denied by the Ninth Circuit) on direct appeal, see United States v. Ramirez, No. 19- 17 50360, 2021 WL 3615379, at *2 (9th Cir. Aug. 16, 2021); Appellant’s Opening Br. at 31, 18 Ramirez, 2021 WL 3615379, Petitioner is barred from relitigating this claim in a § 2255 19 motion. United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) (“When a defendant 20 has raised a claim and has been given a full and fair opportunity to litigate it on direct 21 appeal, that claim may not be used as basis for a subsequent § 2255 petition.”); see also 22 United States v. Redd, 759 F.2d 699, 700–01 (9th Cir. 1985). Accordingly, the Court 23 denies Petitioner’s motion on this ground. 24 Finally, Petitioner has not established that his counsel was ineffective in failing to 25 (1) communicate a plea offer from the government and (2) inform him of the option to 26 enter an open plea. Petitioner asserts that he “is informed and believes that a plea offer 27 was made” by the government, but that his counsel failed to notify him of this offer. § 2255 28 Mot. at 8. The government disputes this claim and offers evidence showing that, as of May 1 7, 2019 (approximately one month prior to trial), a formal offer had not been conveyed. 2 Gov’t Opp’n, Ex. D (“Gov’t Emails with Def.’s Counsel”). Petitioner’s bare assertion that 3 a plea offer was made, without further explanation or support, is insufficient to show 4 objectively unreasonable conduct. See Peabody v. United States, 394 F.2d 175, 177 (9th 5 Cir. 1968) (holding that conclusory allegations are insufficient to justify § 2255 relief or 6 an evidentiary hearing); Wallace v. United States, 457 F.2d 547, 548 (9th Cir. 1972) 7 (same). Further, even if Petitioner were able to demonstrate that a formal plea offer was 8 made but not conveyed to him by counsel, he does not make the requisite showing of 9 prejudice. To show prejudice in the plea context, a petitioner must demonstrate a 10 reasonable probability that, but for counsel’s shortcomings, (1) they would have pled 11 guilty; (2) the plea would have been entered without cancellation by the prosecution or the 12 trial court refusing to accept it; and (3) the plea would have resulted in a more favorable 13 outcome by reason of a plea to a lesser charge or a sentence of less prison time. Missouri 14 v. Frye, 566 U.S. 134, 147 (2012). Because Petitioner does not address whether the Court 15 would have accepted the guilty plea if an agreement had been offered and that the offer 16 would not have been cancelled by the prosecution, he has not demonstrated prejudice. 17 Petitioner similarly fails to address the prejudice he suffered due to his counsel’s failure to 18 discuss an open plea with him. The Court therefore finds that Petitioner has not established 19 that he suffered prejudice due to these alleged failures and denies relief on these grounds. 20 See Strickland, 466 U.S. at 670. 21 Petitioner also requests (1) leave to conduct discovery regarding his claims; (2) an 22 evidentiary hearing; and (3) the appointment of counsel. § 2255 Mot. at 15–17. For the 23 above reasons, Petitioner has not established that he can succeed on his § 2255 claims. He 24 therefore lacks good cause for discovery. See id. at 15; United States v. Kalfsbeek, No. 25 2:05-CR-0128 LKK AC, 2013 WL 129409, at *3 (E.D. Cal. Jan. 9, 2013) (quoting 26 Calderon v. U.S. Dist. Court, 98 F.3d 1102, 1106 (9th Cir. 1996)) (“Habeas petitioners 27 may not ‘use federal discovery for fishing expeditions to investigate mere speculation.’”). 28 Also, because Petitioner’s claims are either insufficient to show unreasonable conduct or | establish prejudice, the Court finds that there is no need to conduct an evidentiary hearing. 2 || See § 2255 Mot. at 16; Peabody, 394 F.2d at 177 (holding that bald, unsupported assertions 3 not warrant an evidentiary hearing). Finally, the Court denies Petitioner’s motion to 4 ||appoint counsel, § 2255 Mot. at 17, because he has not established that he is likely to 5 succeed on the merits of his claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 6 || Cir. 1986) (holding that appointment of counsel in a § 2255 case requires “extraordinary 7 || circumstances” such as a showing that the petitioner is likely to succeed on their claims). 8 For the above reasons, the Court DENIES Petitioner’s § 2255 motion and his 9 requests for discovery, for an evidentiary hearing, and to appoint counsel. Dkt. 339. The 10 |}Court also DECLINES to certify this case for appeal because Petitioner has not made a 11 substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see 12 || Slack v. McDaniel, 529 U.S. 473, 484 (2000) (stating that a § 2255 certificate of 13 || appealability may only be issued where “reasonable jurists would find the district court’s 14 || assessment of the constitutional claims debatable or wrong’’). 15 IT IS SO ORDERED. 16 ||Dated: August 8, 2024 17 18 Ho orgbfe Tinsook Ohta 19 United States District Judge 20 21 22 23 24 25 26 27 28