Rodriguez v. United States

• Court: District Court, S.D. California
• Decided: July 10, 2024
• Docket: 3:23-cv-01591
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIO RODRIGUEZ Case No.: 13-CR-4514-JO-4

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 Julio Rodriguez (“Petitioner”) moves to reduce his sentence pursuant to 23 28 U.S.C. § 2255 on the grounds that he received ineffective assistance of counsel during 24 his trial, sentencing, and appeal. Dkt. 760 (“§ 2255 Motion”). He also filed motions for 25 discovery and to appoint counsel. Id. at 22. For the reasons below, the Court DENIES 26 Petitioner’s motions. 27 /// 28 /// 1 I. BACKGROUND 2 Petitioner seeks to reduce the sentence that the Court gave him for conspiring to 3 smuggle drugs into various California state prisons on behalf of the Mexican Mafia. On 4 December 19, 2013, the government charged Petitioner, an associate of the Mexican 5 Mafia (a prison gang notorious for drug trafficking in federal and state prisons), with 6 conspiring to (1) commit racketeering and (2) distribute controlled substances. Dkt. 394, 7 Pre-Sentence Report (“PSR”) at 1, 5. As to the second count, Petitioner was charged 8 with conspiracy to distribute at least 100 grams of heroin and at least 50 grams of 9 methamphetamine. Id. at 1. 10 In the lead-up to his trial, Petitioner’s counsel allegedly failed to advise him that he 11 had the option of entering an “open plea” (i.e., pleading guilty without entering a formal 12 plea agreement) and withheld information from him that he needed to meaningfully 13 evaluate this choice. Specifically, he alleges that his counsel failed to advise him of (1) 14 the extent of the evidence against him; (2) the likelihood of a three-point reduction in his 15 base offense level for acceptance of responsibility if he pled guilty; and (3) his option to 16 raise certain defenses at sentencing even if he pled guilty. § 2255 Motion at 13–14. 17 During Petitioner’s trial, his attorney argued that Petitioner was a heroin addict 18 whose involvement in the case stemmed from his own drug addiction. His opening 19 statement largely focused on this theme as illustrated by these examples: 20 • “The evidence is going to demonstrate . . . that at all times relevant to this 21 case, [Petitioner] was minding his own business in prison and using large 22 quantities of heroin.” 23 • “The fact of the matter is most of [the heroin] was for him.” 24 • “You are going to hear from officers from the California Department of 25 Corrections, who found syringes in [Petitioner’s] cell, who disciplined him 26 for having hypodermic syringes made out of a ballpoint pen. So, he is using 27 drugs in prison.” 28 1 Trial Transcript, Day 1 at 73–80. Defense counsel also introduced trial testimony from 2 Petitioner’s wife as well as corrections officers regarding the severity of Petitioner’s 3 addiction. See Dkt. 423 (“Trial Witness List”). At the close of evidence, Petitioner’s 4 counsel declined to pursue a jury instruction which stated that drugs trafficked for 5 personal use could not be considered for determining the drug quantity in a conspiracy 6 case. Dkt. 344, Proposed Jury Instructions. 7 At the conclusion of trial, the jury convicted Petitioner on both counts: conspiracy 8 to engage in racketeering and conspiracy to distribute controlled substances. Dkt. 364, 9 Jury Verdict. As to the controlled substances count, however, the jury convicted 10 Petitioner on the heroin charge only and acquitted him on the methamphetamine charge. 11 Id. 12 Petitioner’s sentencing took place on March 21, 2016. Dkt. 646, Sentencing 13 Transcript. During this hearing, counsel argued that Petitioner’s drug addiction 14 warranted a more lenient sentence, asserting “the offense conduct here was undeniably 15 fueled by [Petitioner’s] heroin addiction” and “[the heroin] was for [Petitioner’s] personal 16 use.” Id. at 10–11. In calculating the sentencing guidelines, the Court applied a base 17 offense level of 24 based on the drug amounts implicated in the heroin conviction. Id.; 18 U.S.S.G. § 2D1.1(c)(8). Had Petitioner entered into an open plea for all charges, his 19 guideline calculations would have started at a base offense level of 30 to account for the 20 methamphetamine charge in addition to the heroin charge. See PSR at 23. Because 21 Petitioner was only convicted of the heroin charge at trial, his base offense level at 22 sentencing was calculated at 24. His adjusted offense level was 28 as a result of two 23 upward adjustments: plus two offense points for the specific offense of smuggling drugs 24 within a prison, and plus two for his aggravated role in the offense. Sentencing 25 Transcript at 10–11. Petitioner did not receive a downward adjustment to his offense 26 level for acceptance of responsibility. Id. at 23–24. With no applicable sentencing 27 28 1 departures, Judge Benitez calculated the offense level as 28 and the guideline range as 2 140 to 175 months in custody. Id. at 23. Judge Benitez ultimately sentenced Petitioner to 3 175 months. Dkt. 542, Judgment. 4 On appeal, counsel again emphasized the role that Petitioner’s drug use played in 5 his involvement with the Mexican Mafia’s drug distribution activities. For example, he 6 argued that “[Petitioner’s] addiction was so debilitating, in fact, that his wife would 7 sometimes help him inject the drug into his muscles because he no longer had any usable 8 veins” and “[t]here simply was no dispute that a significant quantity of the heroin 9 smuggled into prison by [Petitioner’s] wife was for [Petitioner’s] personal use.” 10 Appellate Dkt. 13 at 8; Appellate Dkt. 86 at 7. 11 Petitioner filed this § 2255 motion on August 28, 2023, asking the Court to vacate 12 or reduce his sentence because his counsel was ineffective in the following ways. Dkt. 13 760. First, Petitioner contends that his attorney failed to argue that Petitioner’s drug 14 addiction warranted an acquittal or lower sentence at all stages of the process and also 15 failed to pursue a “personal use” jury instruction during trial. Id. at 18. Second, 16 Petitioner contends that his attorney failed to properly advise him regarding his option to 17 enter an open plea and the benefits of doing so. Id. at 12. He also filed a motion for 18 discovery and a motion to appoint counsel. Id. at 22. 19 II. DISCUSSION 20 The Court will address each of Petitioner’s above arguments in turn. First, it will 21 consider whether Petitioner established that his counsel was objectively unreasonable in 22 failing to argue that Petitioner’s addiction warranted an acquittal or a lighter sentence and 23 in declining to pursue a “personal use” jury instruction. Second, the Court will examine 24 whether Petitioner suffered prejudice as a result of his attorney’s failure to advise him 25 about entering an open plea. 26

27 1 Judge Benitez presided over Petitioner’s trial and sentencing. See Dkts. 552, 646. The case 28 1 A prisoner may collaterally attack a sentence on grounds of ineffective assistance 2 of counsel. United States v. Span, 75 F.3d 1383, 1387 (9th Cir. 1996). To prevail on an 3 ineffective assistance of counsel claim, the petitioner must show that counsel’s 4 performance was constitutionally deficient and that, as a result, the petitioner suffered 5 prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both poor 6 performance and prejudice are required elements, failure to show one or both prongs is 7 fatal to an ineffective assistance of counsel claim. Id. at 697. Thus, “[i]f it is easier to 8 dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that 9 course should be followed.” Id. at 670. 10 To constitute constitutionally deficient representation, a lawyer’s representation 11 must be objectively unreasonable. Id. at 697–98. There is a “strong presumption that 12 counsel’s conduct falls within the wide range of acceptable professional assistance.” Id. 13 at 689. Thus, counsel is objectively unreasonable only when their conduct was so poor 14 that it made the trial a “mockery or farce.” Dodd v. United States, 321 F.2d 240, 243 (9th 15 Cir. 1963); see also Washington v. United States, 297 F.2d 342, 344 (9th Cir. 1961) 16 (stating that ineffective assistance of counsel requires conduct which is “shocking to the 17 conscience of the court”). A petitioner’s mere disagreement with counsel over trial 18 strategy is insufficient to show that counsel was constitutionally ineffective. Strickland, 19 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law and facts 20 relevant to plausible options are virtually unchallengeable.”); Smith v. Stewart, 77 F. 21 App’x 925, 926 (9th Cir. 2003) (holding that counsel’s decision of which jury 22 instructions to pursue is a strategic decision entitled to deference); Chilinski v. Montana, 23 No. CV 18-41-H-BMM-JTJ, 2019 WL 5865300, at *6 (D. Mont. Aug. 6, 2019) (noting 24 that determinations such as which arguments to present at trial are within counsel’s 25 discretion). Counsel is not ineffective in refusing to raise meritless arguments or in 26 declining to pursue every conceivable non-frivolous claim. See Strickland, 466 U.S. at 27 687–88. 28 1 A petitioner must also show that they were prejudiced by their counsel’s 2 objectively unreasonable performance. To demonstrate prejudice as a result of counsel’s 3 failure to advise during the plea process, a petitioner must demonstrate a reasonable 4 probability that, but for counsel’s shortcomings, (1) they would have pled guilty; (2) the 5 plea would have been entered without cancellation by the prosecution or the trial court 6 refusing to accept it; and (3) the plea would have resulted in a more favorable outcome by 7 reason of a plea to a lesser charge or a sentence of less prison time. Missouri v. Frye, 566 8 U.S. 134, 147 (2012). 9 A. Counsel’s Failure to Argue that Petitioner Suffered from Substance Abuse Issues 10 Petitioner argues that his counsel was constitutionally deficient because he failed to 11 argue during trial, sentencing, and on appeal that Petitioner’s drug addiction warranted a 12 lower sentence. He also alleges that his counsel failed him by declining to pursue a 13 “personal use” jury instruction, i.e., an instruction to the jury that they cannot consider 14 any drugs consumed by Petitioner for purposes of determining guilt for the conspiracy. 15 First, contrary to Petitioner’s allegations, counsel extensively argued that 16 Petitioner’s drug addiction warranted an acquittal or lessened his culpability in this case. 17 While Petitioner claims that his counsel “unprofessionally failed to present evidence and 18 argument that the court should not and could not use heroin quantities which [Petitioner] 19 obtained for personal use,” § 2255 Motion at 19, the record belies this assertion. In fact, 20 at all stages of this case, counsel argued that Petitioner’s drug addiction justified a “not 21 guilty” verdict or a reduction in his sentence. See Trial Transcript, Day 1 at 73–80; 22 Sentencing Transcript at 10–11; Appellate Dkts. 13 at 8, 86 at 7. Although Petitioner 23 may have preferred that his counsel argue this point differently or more forcefully, 24 decisions such as these—determining which arguments to pursue and how vigorously to 25 pursue them—are strategic in nature and entitled to significant deference. See Strickland, 26 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law and facts 27 relevant to plausible options are virtually unchallengeable.”). Contrary to Petitioner’s 28 arguments, his counsel did in fact advance arguments regarding Petitioner’s addiction at 1 trial, sentencing, and during appeal. Because any decisions not to further advance these 2 points would have been strategic calls that fall within the wide range of acceptable 3 lawyering, see Chilinski, 2019 WL 5865300, at *6, the Court finds that counsel’s 4 performance was not objectively unreasonable on this basis. 5 Counsel was also not objectively unreasonable in declining to pursue a “personal 6 use” jury instruction stating that the quantity of drugs personally consumed by Petitioner, 7 but obtained through his role in a conspiracy, could not be used in determining his guilt 8 for participating in the underlying conspiracy. The instruction Petitioner advances is not 9 an accurate statement of the law surrounding conspiracy to distribute controlled 10 substances.2 The offense of conspiracy to distribute controlled substances has only two 11 elements: first, there must be an agreement between two or more people to distribute a 12 controlled substance, and second, the defendant must have joined in the agreement 13 knowing and intending to help accomplish its purpose. Ninth Circuit Model Crim. 14 Instruction 12.5; see United States v. Collazo, 984 F.3d 1308, 1319 (9th Cir. 2021). 15 Petitioner cannot avoid liability for agreeing to help distribute drugs within prisons 16 merely because he consumed some of the drugs himself, as the identity of the end user 17 has no bearing on the elements of conspiracy. See id. There is also no model jury 18 instruction that reflects Petitioner’s interpretation of the law. Because there was no legal 19 basis for such an instruction and because counsel retains significant discretion over 20 strategic decisions like which jury instructions to pursue, Petitioner’s counsel was not 21 objectively unreasonable in declining to pursue this course of action. See Strickland, 466 22 U.S. at 687–88; Smith, 77 F. App’x at 926 (holding that decisions such as which jury 23 instructions to pursue are largely up to counsel’s discretion). 24

25 26 2 Petitioner’s citation to United States v. Gonzales, 307 F.3d 906 (9th Cir. 2002) is inapposite. The Gonzales court held that, in the context of a charge for possession with intent to distribute to other 27 people (i.e., sell), a defendant’s personal drug use may be relevant to the extent that some of the drugs were not for distribution. Id. at 912. Here, in contrast, Petitioner’s crime was conspiring to distribute 28 1 Because Petitioner has failed to establish that he received objectively unreasonable 2 representation related to his personal use of drugs, his ineffective assistance of counsel 3 claim on these grounds fails. The Court declines to consider whether Petitioner was 4 prejudiced by these alleged failures. See Strickland, 466 U.S. at 670. 5 B. Failure to Advise Regarding Open Pleas 6 Petitioner also argues that his counsel was constitutionally defective in failing to 7 advise him to plead guilty. Specifically, Petitioner contends that counsel failed to advise 8 him that he could enter an open plea without cooperating with the government. § 2255 9 Motion at 12–18. If he had known about this option and received advice that (1) there 10 was a substantial amount of evidence against him; (2) he could receive a three-point 11 adjustment for acceptance of responsibility; and (3) he could still raise certain defenses at 12 sentencing, he asserts he would have pled guilty. Id. Because Petitioner was ultimately 13 not prejudiced by this lack of advice during the plea process, the Court concludes that his 14 ineffective assistance claim on this ground fails. 15 Here, Petitioner suffered no prejudice because he ultimately fared better with a 16 post-trial sentencing than he would have with an open plea. The government gave 17 Petitioner no plea offer that he was willing to accept, so the only plea he could have 18 entered was an open plea.3 Entering into an open plea would have required Petitioner to 19 plead guilty to all aspects of the indictment, including both the heroin and 20 methamphetamine charges in the second count. Because he was acquitted of the 21 methamphetamine charges at trial and only sentenced on the heroin charges, a pre-trial 22 open plea based on the heroin and methamphetamine charges would have led to a higher 23 base offense level and final sentencing guideline range than he actually received after 24

25 26 3 It appears from the record that the only plea offer Petitioner received was conditioned on his cooperation with the government. See Dkts. 760, 776. Petitioner does not argue that he would have 27 accepted the offered agreement with effective representation or that he was entitled to receive a plea offer to his particular liking. See Weatherford v. Bursey, 429 U.S. 545, 561 (1977). 28 1 trial. With an open plea, his base offense level would have been 30 (due to the charged 2 quantities of heroin and methamphetamine) instead of the 24 he received post-trial (for 3 heroin only). See PSR at 23. With a starting point of 30, after a total of six points in 4 upward adjustments as well as a three-point downward adjustment for acceptance of 5 responsibility, his final offense level in the open plea scenario would have been 33. See 6 generally PSR; U.S.S.G. § 2D1.1(c)(5). In Petitioner’s actual post-trial sentencing, his 7 base offense level was 24 and, after four points in upward adjustments and no downward 8 adjustment for acceptance of responsibility, his final offense level was 28.4 In other 9 words, Petitioner fared better with his post-trial sentencing than he would have with an 10 open plea sentencing even with the three-point downward adjustment for acceptance of 11 responsibility which he may have received in the open plea scenario. See U.S.S.G. § 12 2D1.1(c)(5); U.S.S.G. § 2D1.1(b)(5); PSR at 10–11. 13 Because he ultimately received a lower guideline range than if he had entered an 14 open plea, Petitioner cannot establish that he was prejudiced by his counsel’s failure to 15 advise him to take this route. See Frye, 566 U.S. at 147; see also Cuellar-Chavez, 2013 16 WL 425886, at *11. Thus, Petitioner’s claim for ineffective assistance of counsel fails on 17 this ground. The Court declines to consider whether this conduct was objectively 18 unreasonable as it caused no prejudice. See Strickland, 466 U.S. at 670. 19 III. PETITIONER’S ADDITIONAL REQUESTS 20 Petitioner also requests leave to conduct discovery regarding his claims. Dkt. 760 21 at 22. For the same reasons discussed above, even if Petitioner could develop further 22 factual support with the assistance of discovery, the Courts finds that the nature of the 23 allegations themselves demonstrate that he would not be able to establish that he suffered 24 25 4 Both his actual post-trial sentencing and the hypothetical open plea calculations account for two 26 two-point upward adjustments applied by the Court for (1) the specific offense of smuggling drugs within a prison and (2) his aggravated role in the offense. Sentencing Transcript at 10–11. Both of 27 these adjustments would have applied even if Petitioner entered an open plea. See PSR at 9. Additionally, had he entered an open plea, he would have received an additional two-point upward 28 1 prejudice from a lack of plea advice or that his attorney was objectively unreasonable in 2 advancing his “personal drug use” defense. See United States v. Suris, 625 F. Supp. 3d 3 1040, 1051 (C.D. Cal. 2022) (declining to grant § 2255 discovery where “further 4 development of the record would be futile because the record conclusively demonstrates 5 [the Petitioner’s] claims lack merit”); Bracy v. Gramley, 520 U.S. 899, 908–09 (1997). 6 The Court thus DENIES his request for discovery. 7 Finally, the Court DENIES Petitioner’s motion to appoint counsel, Dkt. 760 at 22, 8 because he has not established that “extraordinary circumstances” warrant such an 9 appointment. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (holding that there is 10 generally no right to counsel in § 2255 proceedings); Wilborn v. Escalderon, 789 F.2d 11 1328, 1331 (9th Cir. 1986) (stating that when there is no right to counsel, an attorney will 12 only be appointed in extraordinary circumstances). For the above reasons, the Court does 13 not find that Petitioner is likely to succeed on his § 2255 petition. Wilborn, 789 F.2d at 14 1331. Moreover, in his petition and his reply brief, Petitioner has shown that he can 15 successfully outline the legal bases for his claims as well as the facts relevant to these 16 claims. See generally § 2255 Motion; Dkt. 784 (“Reply Brief”); Wilborn, 789 F.2d at 17 1331 (“A finding of exceptional circumstances requires an evaluation of . . . the ability of 18 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 19 involved.”). Because he can establish neither a likelihood of success nor an inability to 20 articulate his claims, the Court concludes that appointment of counsel is not warranted. 21 IV. CONCLUSION 22 For the above reasons, the Court DENIES Petitioner Julio Rodriguez’s motion to 23 vacate or reduce his sentence. Dkt. 760. The Court also DENIES his requests for discovery 24 and his motion to appoint counsel. Id. Additionally, the Court DECLINES to certify this 25 case for appeal because Petitioner has not made a substantial showing that he was denied 26 a constitutional right. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 484 27 (2000) (stating that a § 2255 certificate of appealability may only be issued where 28 1 || “reasonable jurists would find the district court’s assessment of the constitutional claims 2 || debatable or wrong’’). 3 4 || IT ISSO ORDERED. _ 5 Dated: July 10, 2024

7 Honorable Jinsook Ohta 9 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28