United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER UNITED STATES DISTRICT JUDGE
Esteban Chavez-Cruz, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1.
The government now moves to dismiss the petition for failure
to state a claim. Docket 36. The matter was assigned to
United States Magistrate Judge Veronica L. Duffy under 28
U.S.C. § 636(b)(1)(B) and this court's October 16,
2014 standing order. Magistrate Judge Duffy recommends that
Chavez-Cruz's motion be dismissed. Docket 41. Chavez-Cruz
timely filed his objections to the report and recommendation.
Docket 43. For the following reasons, the court adopts
Magistrate Judge Duffy's report and recommendation and
dismisses Chavez-Cruz's motion.
factual background was provided by the magistrate judge in
her report and recommendation. Docket 41. Therefore, this
court will only give a simple explanation and point to the
magistrate judge's report and recommendation for the full
found Chavez-Cruz guilty of conspiracy to distribute
methamphetamine. See United States v. Chavez-Cruz,
CR No. 14-40021, Docket 2. The district court sentenced him
to a 262-month sentence. CR Docket 59. Michael W. Hanson
represented Chavez-Cruz during the trial and sentencing.
Chavez-Cruz appealed, and the Eighth Circuit Court of Appeals
affirmed his conviction. See United States v.
Chavez-Cruz, 612 Fed.Appx. 871 (8th Cir. 2015). James
Eirinberg represented Chavez-Cruz during the appeal to the
November 7, 2016, Chavez-Cruz filed a pro se motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. Docket 1. First, Chavez-Cruz argued that his
trial counsel was ineffective in failing to object to Michael
Roemeling's testimony about “Spanish” people
and failing to immediately move for a mistrial. Second,
Chavez-Cruz argued that his appellate counsel was ineffective
in failing to appeal an overruled hearsay objection. Third,
Chavez Cruz argues that trial counsel was ineffective in
failing to object at his sentencing hearing when the district
court committed “procedural error” by failing to
consider certain 18 U.S.C. § 3553(a) factors and
appellate counsel was ineffective for failing to appeal the
same. Fourth, Chavez-Cruz argues that appellate counsel was
constitutionally ineffective for failing to raise on appeal
the issue of whether the district court erred in denying
trial counsel's motion for judgment of acquittal.
court's review of a magistrate judge's report and
recommendation is governed by 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure. The court reviews
de novo any objections to the magistrate judge's
recommendations with respect to dispositive matters that are
timely made and specific. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). In conducting its de novo review, this
court may then “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir.
four claims involve his Sixth Amendment right to effective
assistance of counsel. Docket 1. In order to establish
ineffective assistance of counsel, a petitioner must meet the
two-pronged standard articulated by the United States Supreme
Court in Strickland v. Washington. See 466
U.S. 668, 687 (1984). “First, the [petitioner] must
show that counsel's performance was deficient.”
Id. This “performance prong” requires a
petitioner to show that counsel's representation was
deficient and “fell below an objective standard of
reasonableness.” Id. at 687-88. To show
deficiency, a petitioner must show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Ragland v. United States, 756 F.3d
597, 599-600 (8th Cir. 2014) (quoting Strickland,
466 U.S. at 687). This court must assess “whether
counsel's assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688.
is a “strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.'
” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). “Thus, a
court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct.” Id. at 690.
Ordinarily, the Eighth Circuit Court of Appeals
“consider[s] strategic decisions to be virtually
unchallengeable unless they are based on deficient
investigation.” Worthington v. Roper, 631 F.3d
487, 500 (8th Cir. 2011) (quoting Link v. Luebbers,
469 F.3d 1197, 1204 (8th Cir. 2006)). The court
“generally entrust[s] cross-examination techniques,
like other matters of trial strategy, to the professional
discretion of counsel.” United States v. Orr,
636 F.3d 944, 952 (8th Cir. 2011) (quoting United States
v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001)).
the [petitioner] must show that the deficient performance
prejudiced the defense.” Strickland, 466 U.S.
at 687. This “prejudice prong” requires the
petitioner to “show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. In other
words, “[i]t is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693. Thus, “[a]n
error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.”
Id. at 691.
raises four objections to Magistrate Judge Duffy's
conclusion that Chavez-Cruz failed to establish a claim for
ineffective assistance of trial counsel or appellate counsel.