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Chavez-Cruz v. United States

United States District Court, D. South Dakota, Southern Division

May 25, 2018

ESTEBAN CHAVEZ-CRUZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING MOTION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Movant, 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

         A full 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 background.

         A jury 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 Eighth Circuit.

         On 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.

         STANDARD OF REVIEW

         The 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. 1994).

         DISCUSSION

         Chavez-Cruz's 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.

         There 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)).

         “Second, 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.

         Chavez-Cruz 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. Docket ...


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