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Camberos-Villapuda v. United States

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

May 7, 2019

LUCIANO CAMBEROS-VILLAPUDA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING MOTION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Movant, Luciano Camberos-Villapuda, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1.[1] The government now moves to dismiss the petition for failure to state a claim. Docket 8. The matter was referred 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 Camberos-Villapuda's motion be dismissed. Docket 15. Because Camberos-Villapuda did not timely file his objections, the court issued an order that adopted the report and recommendation, granted the motion to dismiss, and entered judgment in favor of the United States. Dockets 19, 20. After the court entered its judgment, Camberos-Villapuda filed his objections to the report and recommendation. Docket 21. The court will now consider these objections.

         FACTUAL BACKGROUND

         A full factual background was provided by the magistrate judge in her report and recommendation. Docket 15. Therefore, this court will only give a simple explanation and points to the magistrate judge's report and recommendation for the full background.

         A jury found Camberos-Villapuda guilty of conspiracy to distribute methamphetamine. See United States v. Camberos-Villapuda, Cr. 13-40104-01-KES, Docket 80. The district court sentenced him to a life imprisonment. Cr. Docket 112. Camberos-Villapuda appealed, and the Eighth Circuit Court of Appeals affirmed his conviction. See United States v. Camberos-Villapuda, 832 F.3d 948 (8th Cir. 2016). Michael Butler represented Camberos-Villapuda during the motion to suppress hearing but withdrew after the hearing. Cr. Dockets 16, 29, 35. Cesar Juarez represented Camberos-Villapuda at trial, sentencing, and during his appeal. Cr. Dockets 48, 72, 111, 117.

         On November 20, 2017, Camberos-Villapuda filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1. First, Camberos-Villapuda alleged that his trial counsel was ineffective in failing to preserve a record of jury selection strikes and for-cause challenges, and Camberos-Villapuda demonstrated that he had a legitimate expectation of privacy in the searched location. Id. at 4. Second, Camberos-Villapuda alleged that the district court erred in denying his motion to suppress the physical evidence. Id. Third, Camberos-Villapuda alleged that the district court committed plain error when it relied on the facts recited in the Presentence Investigation Report. Id. Last, Camberos-Villapuda alleged that “the district court imposed a procedurally and substantively unreasonable sentence in violation of 18 U.S.C. § 3553.” Id. at 5.

         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

         I. Ineffective Assistance of Counsel

         A. Legal Standard

         Camberos-Villapuda's first claim involves 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.

         B. Camberos-Villapuda's Objections and New Allegations

         In his original motion, Camberos-Villapuda alleged that his counsel was ineffective because “Camberos[] demonstrated that he possessed a legitimate expactation [sic] of privacy in the location searched, he never abandoned the interest of his home or expedition and/or the circumstances.” Docket 1 at 4. Magistrate Judge Duffy found Camberos-Villapuda did not establish Strickland prejudice because the Eighth Circuit Court of Appeals set aside Camberos-Villapuda's argument-unlawful entry of the curtilage-in favor of an alternative holding that Camberos-Villapuda did not have a legitimate expectation of privacy in the home or the SUV. Docket 15 at 17. She reasoned that the curtilage issue was considered moot because “[e]ven if errors were made, the Eighth Circuit held Mr. Camberos-Villapuda had no right to complain about the errors.” Id.

         In his objections to Magistrate Judge Duffy's report and recommendation, Camberos-Villapuda states Magistrate Judge Duffy erred because she failed to consider whether the officer's entrance into the curtilage was lawful. Docket 21 at 1. Camberos-Villapuda's objection is based on two new allegations of counsel's errors. Camberos-Villapuda alleges his counsel erred by: (1) failing to preserve an issue during the pretrial suppression hearing, and (2) failing to object to the magistrate judge's report and recommendation for his motion to suppress. Id. at 2.

         Camberos-Villapuda argues that counsel's inaction prejudiced him in four ways: (1) it allowed the court to overlook whether law enforcement's entry into the curtilage was unlawful; (2) the record is silent as to what constitutes exigent circumstances; (3) only his expectation of privacy was analyzed; and (4) if the Fourth Amendment issue would have fully been adjudicated, then the firearm would have been suppressed and he would not have received the two-point firearm enhancement at his sentencing. Id. at 2, 7.

         “If the defendant cannot prove prejudice, [the court] need not address whether counsel's performance was deficient.” DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). Here, Camberos-Villapuda cannot establish actual prejudice as required for an ineffective assistance of counsel claim.

         First, counsel's failure to preserve the issue and to object to the motion to suppress report and recommendation did not lead the court to “overlook” the curtilage argument, as alleged by Camberos-Villapuda. Docket 21 at 2. All three courts-the Eighth Circuit, the district court, and the magistrate court-considered or analyzed Camberos-Villapuda's argument about the lawfulness of the officer's entry into the curtilage. See Camberos-Villapuda, 832 F.3d at 952; Cr. Docket 40 at 5-9; Cr. Docket 50; Docket 15 at 16. The Eighth Circuit considered the curtilage issue on appeal and chose not to determine the issue. See Camberos-Villapuda, 832 F.3d at 952.

         Second, Camberos-Villapuda alleges he was prejudiced because the record is silent as to what constitutes exigent circumstances. Docket 21 at 2. But such prejudice does not exist because the record contains this analysis. In denying his motion to suppress, the district court adopted the magistrate judge's report and recommendation that held the search of the home was justified by the exigent circumstances exception. Cr. Docket 50 (adopting Cr. Docket 40). The magistrate judge listed two facts to support the application of the exigent circumstances exception. See Cr. Docket 40 at 10-11. Magistrate Judge Duffy also discussed the district court's analysis on this issue in her report and recommendation for Camberos-Villapuda's ยง 2255 case. Docket 15 at 15. Magistrate Judge Duffy did not have to ...


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