United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER UNITED STATES DISTRICT JUDGE
Luciano Camberos-Villapuda, 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 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
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
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.
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.
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.
Ineffective Assistance of Counsel
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.
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.
Camberos-Villapuda's Objections and New
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.
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.
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.
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.
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.
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 § 2255 case. Docket 15 at 15.
Magistrate Judge Duffy did not have to ...