1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jesus Lionel Sanchez-Meza, No. CV-21-00419-TUC-DCB No. CR-11-00150-TUC-DCB 10 Petitioner, ORDER 11 v.
12 United States of America,
13 Respondent. 14 15 Petitioner Jesus Lionel Sanchez-Meza seeks relief, pursuant to a Motion under 28 16 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 17 (Petition). Petitioner was part of a “rip crew” that entered Arizona from Sonora, obtained 18 AK-47-style weapons from a hidden cache, and began searching for marijuana traffickers 19 to rob them at gunpoint. Instead, the “rip crew,” including the Petitioner, encountered 20 Border Patrol agents and during a gunfight with agents, the coconspirators, including 21 Defendant Sanchez-Meza, murdered Agent Brian Terry. 22 Petitioner was convicted by a jury of first-degree murder, second degree murder, 23 conspiracy to interfere with commerce by robbery, assault on a federal officer, and using 24 and carrying a firearm in the course of a violent crime. On December 9, 2015, the Court 25 sentenced Petitioner to life in prison. On direct appeal, the convictions were affirmed, 26 except for Count 9, which was voluntarily dismissed by the Government’s concession that 27 conspiracy to commit Hobbs Act robbery is not a crime of violence according to United 28 States v. Davis, 139 S.Ct. 2319, 2336 (2019). 1 On October 13, 2021, the Petitioner filed this habeas motion pursuant to 28 U.S.C. 2 § 2255, raising four claims of error: (1) this Court’s exclusion of all references to the Fast 3 and Furious operation by the Bureau of Alcohol, Tobacco and Firearms; (2) the 4 Government’s reference in closing to Defendant’s illegal entry into the United States; (3) 5 the Court’s handwritten correction to a jury instruction adding “did not testify” in bigger 6 darker letters than the remainder of the typed instruction, and (4) the Court’s admission 7 into evidence of a photo showing the fatal wound on Agent Terry’s body. 8 A. 28 U.S.C. § 2255: Motion to Vacate or Correct Sentence 9 Title 28 of the United States Code, Section 2255 provides for collateral review of 10 Petitioner's sentence as follows:
11 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence 12 was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the 13 sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence 14 to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. 15 28 U.S.C. § 2255. 16 A district court shall summarily dismiss a § 2255 petition "[i]f it plainly appears 17 from the face of the motion and any annexed exhibits and the prior proceedings in the case 18 that the Petitioner is not entitled to relief." Rule 4(b), Rules Governing § 2255 Actions. 19 The district court need not hold an evidentiary hearing when the Petitioner's allegations, 20 viewed against the record, either fail to state a claim for relief or are patently frivolous. 21 Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). 22 B. Denied: Procedurally Defaulted and Lack of Merit 23 The Government is correct that the Petitioner procedurally defaulted his claims 24 because he failed to raise them before in this Court or on appeal. Issues which could have 25 been raised at trial or on direct appeal from a conviction, but were not raised, cannot be 26 brought in a § 2255 proceeding unless the defendant can show cause for the procedural 27 default and prejudice arising from the failure to raise those claims. United States v. Frady, 28 456 U.S. 152, 167-69 (1982); McCleskey v. Zant, 499 U.S. 467, 493-495 (1991); Parks v. 1 United States, 832F.2d 1244, 1245-46 (11th Cir. 1987). "[A] procedural default of even a 2 constitutional issue will bar review under § 2255, unless the defendant can meet the “cause 3 and prejudice test." Campino v. United States, 968 F.2d 187, 189-90 (2d Cir. 1992). Where 4 there is no showing of cause and prejudice pertaining to the failure to raise issues on direct 5 appeal that are raised for the first time in a § 2255 motion, summary dismissal of those 6 claims is warranted. Parks, 832 F.2d at 1246; Garland v. United States, 837 F.2d 1563, 7 1565 n.4 (11th Cir. 1988). 8 “Cause” under the cause and prejudice test must be something that cannot be fairly 9 attributed to the Petitioner, something external to the Petitioner. Coleman v. Thompson, 10 501 U.S. 722, 753 (1991) (emphasis in original). Examples of external factors that 11 constitute cause, include "interference by officials," or "a showing that the factual or legal 12 basis for a claim was not reasonably available to counsel." Murray v. Carrier, 477 U.S. 13 478, 488 (1986). If there is no showing of cause for the failure to raise the claims, the Court 14 need not consider whether the Petitioner was prejudiced by the procedural default. Billy- 15 Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993). 16 To establish prejudice, a petitioner must demonstrate prejudice so substantial that it 17 undermines the integrity of the entire proceeding. Frady, 456 U.S. at 170; Campino, 968 18 F.2d at 188-91. 19 Here, the Petitioner asserts there is both cause and prejudice. According to the 20 Petitioner, cause exists because his trial counsel, who was also his appellate counsel, admits 21 he did not notice the alleged prosecutorial misconduct by the Government’s reference in 22 closing to Defendant’s illegal entry into the United States when no evidence supported this 23 statement. As for prejudice, the Petitioner argues prejudice due to ineffective assistance of 24 counsel should be assessed in combination for all the alleged errors. 25 The Court notes that the habeas Petition (Doc. 1) did not allege ineffective 26 assistance of trial counsel or appellate counsel as a claim, but only provided counsel’s 27 oversights, intentional or otherwise, in explanation for why these claims were not raised in 28 1 his direct appeal. Both parties, however, addressed the assertion that trial counsel and/or 2 appellate counsel was ineffective. The Court will too. 3 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a 4 two-prong test for determining ineffective assistance of counsel. To prevail on an 5 ineffective assistance claim, the Petitioner, a convicted defendant, must show that (1) 6 counsel’s representation fell below an objective standard of reasonableness, and (2) there 7 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 8 proceeding would have been different. Id. at 687-88.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jesus Lionel Sanchez-Meza, No. CV-21-00419-TUC-DCB No. CR-11-00150-TUC-DCB 10 Petitioner, ORDER 11 v.
12 United States of America,
13 Respondent. 14 15 Petitioner Jesus Lionel Sanchez-Meza seeks relief, pursuant to a Motion under 28 16 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 17 (Petition). Petitioner was part of a “rip crew” that entered Arizona from Sonora, obtained 18 AK-47-style weapons from a hidden cache, and began searching for marijuana traffickers 19 to rob them at gunpoint. Instead, the “rip crew,” including the Petitioner, encountered 20 Border Patrol agents and during a gunfight with agents, the coconspirators, including 21 Defendant Sanchez-Meza, murdered Agent Brian Terry. 22 Petitioner was convicted by a jury of first-degree murder, second degree murder, 23 conspiracy to interfere with commerce by robbery, assault on a federal officer, and using 24 and carrying a firearm in the course of a violent crime. On December 9, 2015, the Court 25 sentenced Petitioner to life in prison. On direct appeal, the convictions were affirmed, 26 except for Count 9, which was voluntarily dismissed by the Government’s concession that 27 conspiracy to commit Hobbs Act robbery is not a crime of violence according to United 28 States v. Davis, 139 S.Ct. 2319, 2336 (2019). 1 On October 13, 2021, the Petitioner filed this habeas motion pursuant to 28 U.S.C. 2 § 2255, raising four claims of error: (1) this Court’s exclusion of all references to the Fast 3 and Furious operation by the Bureau of Alcohol, Tobacco and Firearms; (2) the 4 Government’s reference in closing to Defendant’s illegal entry into the United States; (3) 5 the Court’s handwritten correction to a jury instruction adding “did not testify” in bigger 6 darker letters than the remainder of the typed instruction, and (4) the Court’s admission 7 into evidence of a photo showing the fatal wound on Agent Terry’s body. 8 A. 28 U.S.C. § 2255: Motion to Vacate or Correct Sentence 9 Title 28 of the United States Code, Section 2255 provides for collateral review of 10 Petitioner's sentence as follows:
11 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence 12 was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the 13 sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence 14 to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. 15 28 U.S.C. § 2255. 16 A district court shall summarily dismiss a § 2255 petition "[i]f it plainly appears 17 from the face of the motion and any annexed exhibits and the prior proceedings in the case 18 that the Petitioner is not entitled to relief." Rule 4(b), Rules Governing § 2255 Actions. 19 The district court need not hold an evidentiary hearing when the Petitioner's allegations, 20 viewed against the record, either fail to state a claim for relief or are patently frivolous. 21 Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). 22 B. Denied: Procedurally Defaulted and Lack of Merit 23 The Government is correct that the Petitioner procedurally defaulted his claims 24 because he failed to raise them before in this Court or on appeal. Issues which could have 25 been raised at trial or on direct appeal from a conviction, but were not raised, cannot be 26 brought in a § 2255 proceeding unless the defendant can show cause for the procedural 27 default and prejudice arising from the failure to raise those claims. United States v. Frady, 28 456 U.S. 152, 167-69 (1982); McCleskey v. Zant, 499 U.S. 467, 493-495 (1991); Parks v. 1 United States, 832F.2d 1244, 1245-46 (11th Cir. 1987). "[A] procedural default of even a 2 constitutional issue will bar review under § 2255, unless the defendant can meet the “cause 3 and prejudice test." Campino v. United States, 968 F.2d 187, 189-90 (2d Cir. 1992). Where 4 there is no showing of cause and prejudice pertaining to the failure to raise issues on direct 5 appeal that are raised for the first time in a § 2255 motion, summary dismissal of those 6 claims is warranted. Parks, 832 F.2d at 1246; Garland v. United States, 837 F.2d 1563, 7 1565 n.4 (11th Cir. 1988). 8 “Cause” under the cause and prejudice test must be something that cannot be fairly 9 attributed to the Petitioner, something external to the Petitioner. Coleman v. Thompson, 10 501 U.S. 722, 753 (1991) (emphasis in original). Examples of external factors that 11 constitute cause, include "interference by officials," or "a showing that the factual or legal 12 basis for a claim was not reasonably available to counsel." Murray v. Carrier, 477 U.S. 13 478, 488 (1986). If there is no showing of cause for the failure to raise the claims, the Court 14 need not consider whether the Petitioner was prejudiced by the procedural default. Billy- 15 Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993). 16 To establish prejudice, a petitioner must demonstrate prejudice so substantial that it 17 undermines the integrity of the entire proceeding. Frady, 456 U.S. at 170; Campino, 968 18 F.2d at 188-91. 19 Here, the Petitioner asserts there is both cause and prejudice. According to the 20 Petitioner, cause exists because his trial counsel, who was also his appellate counsel, admits 21 he did not notice the alleged prosecutorial misconduct by the Government’s reference in 22 closing to Defendant’s illegal entry into the United States when no evidence supported this 23 statement. As for prejudice, the Petitioner argues prejudice due to ineffective assistance of 24 counsel should be assessed in combination for all the alleged errors. 25 The Court notes that the habeas Petition (Doc. 1) did not allege ineffective 26 assistance of trial counsel or appellate counsel as a claim, but only provided counsel’s 27 oversights, intentional or otherwise, in explanation for why these claims were not raised in 28 1 his direct appeal. Both parties, however, addressed the assertion that trial counsel and/or 2 appellate counsel was ineffective. The Court will too. 3 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a 4 two-prong test for determining ineffective assistance of counsel. To prevail on an 5 ineffective assistance claim, the Petitioner, a convicted defendant, must show that (1) 6 counsel’s representation fell below an objective standard of reasonableness, and (2) there 7 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 8 proceeding would have been different. Id. at 687-88. 9 The court need not address both Strickland requirements if the petitioner makes an 10 insufficient showing regarding just one. Id. at 697 (explaining: “[i]f it is easier to dispose 11 of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course 12 should be followed.”); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (stating: “[f]ailure 13 to satisfy either prong of the Strickland test obviates the need to consider the other.”) 14 The Court finds that the Plaintiff’s Strickland claim fails because he cannot establish 15 prejudice. Likewise, the lack of prejudice means that the Petitioner’s claims are 16 procedurally defaulted because he cannot satisfy the “cause and prejudice test," for failing 17 to raise on direct appeal the four issues he seeks to raise in this habeas petition. Summary 18 dismissal of those claims is warranted because they are procedurally barred. 19 Petitioner does not describe at all how the result would have been different had an 20 objection been made to the statements made by the Prosecutor in closing that the Defendant 21 crossed the border illegally. The Court finds that even if the statements could be construed 22 as improper, any such error did not result in prejudice because the evidence supported that 23 the Defendant did not cross legally and, in addition, the evidence against the Defendant 24 was overwhelming. See United States v. Nobari, 574 F.3d 1065, 1083 (9th Cir. 2009) 25 (holding defendants not prejudiced by prosecutorial misconduct as it was harmless in light 26 of “overwhelming evidence” presented); United States v. Necoechea, 986 F.2d 1273, 1280 27 (9th Cir. 1993) (holding that the general instruction regarding the need to review cooperator 28 testimony with “greater care” cured any vouching by the prosecutor in opening statement). 1 The Court instructed the jury that arguments made at closing by the attorneys are 2 not evidence. Additionally, the Prosecutor’s statements that the Defendant illegally entered 3 were made in the context of arguing that he took a substantial step towards robbing drug 4 smugglers and that this made a confrontation with Border Patrol Agents reasonably 5 foreseeable. (Reply (Doc. 7) at 1-2.) There was no suggestion in the closing argument for 6 the jury to consider the fact of the illegal entry to show bad character. The Court finds that 7 the result would not have been different had an objection been made to the statements 8 because at best it would have resulted in a statement that the Defendant and his 9 coconspirators did not cross through a port of entry. The jury’s takeaway would have been 10 the same. 11 The Petitioner’s arguments of error, singularly or in combination, are wholly lacking 12 in merit. See (Response (Doc. 4) at 5-7 (explaining reasons why, alternatively, the Court 13 should deny Petition for lacking merit). 14 The Court expressly considered two of them in limine prior to trial, the autopsy 15 photo of Agent Terry and reference to Fast and Furious. For the same reasons the Court 16 ruled to admit and preclude, respectively, this evidence then, it finds those assertions of 17 error lack merit. (Minute Entry (Doc. 505)). The Petitioner offers no contrary substantive 18 legal arguments to the Court’s pretrial in limine rulings on these two evidentiary rulings. 19 The Court finds that appellate counsel’s decision to not include them in the direct appeal 20 fell well within the arena of effective appellate advocacy. See (Response (Doc. 4) at 3 21 (citing Garza v. Idaho, 139 S. Ct. 738, 746 (2019) (choice of argument to make on appeal 22 belongs to appellate counsel); Smith v. Murray, 477 U.S. 527, 536 (1986) (“winnowing out 23 weaker arguments on appeal and focusing on those more likely to prevail, . . . is the 24 hallmark of effective appellate advocacy.” (quoting Jones v. Barnes, 463 U.S. 745, 751– 25 52 (1983)). Likewise, there is no substantive legal support offered for Petitioner’s assertion 26 of plain error being derived from the hand-written correction to the jury instruction, which 27 caused “DID NOT TESTIFY” to stand out in conflict with the remainder of the instruction 28 emphasizing the defendants’ right to remain silent in the face of accusation. Id. at 3. 1 C. Conclusion 2 While the Petitioner asserts that the Court should find the closing argument 3 statements regarding Defendant’s illegal entry into the United States, “without even a 4 cautionary instruction, is per se prejudicial,” (Reply (Doc. 7) at 2), he offers no supporting 5 case law for finding prejudice as a matter of law. The Court finds that the Petitioner fails 6 to show any prejudice as a matter of fact. Given the overwhelming evidence of guilt in this 7 case, the Court finds the result would not have been different had an objection been made 8 to the statements by the Prosecutor in closing that the Defendant crossed the border 9 illegally. The Petitioner cannot avoid procedural default because he fails to show any 10 prejudice from the closing statement and the other assertions of error, even when 11 considered cumulatively. The claims made in the Petition are procedurally barred. His 12 failure to show prejudice also defeats his claim of ineffective assistance of trial/appellate 13 counsel. 14 Accordingly, 15 IT IS ORDERED that Petitioner's "Motion to Vacate Sentence or Correct Sentence 16 (Doc. 934)," pursuant to 28 U.S.C. ' 2255, filed in CR 11-150 TUC DCB and (Doc. 1) filed 17 in CV 21-419 TUC DCB is DENIED. 18 IT IS FURTHER ORDERED that Civil case number CV 21-419 TUC-DCB is 19 DISMISSED with prejudice. 20 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 21 accordingly. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules Governing 2|| Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a || certificate of appealability because reasonable jurists would not find the Court’s procedural 4|| ruling debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 Dated this 12th day of May, 2022. 6 SS . SY ° Honorabje David C. But 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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