Gutierrez-Castro v. USA, No. 3:2011cv00554 - Document 2 (S.D. Cal. 2011)
Court Description: ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge William Q. Hayes on 9/29/2011. (All non-registered users served via U.S. Mail Service.) (mdc)
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Gutierrez-Castro v. USA Doc. 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, CASE NO. 07cr677WQH 11cv554WQH Plaintiff, 12 vs. 13 YOLANDA GUTIERREZ-CASTRO, 14 15 ORDER Defendant. HAYES, Judge: 16 The matter before the Court is the motion to vacate, correct or set aside sentence 17 pursuant to 28 U.S.C. § 2255 filed by Defendant Yolanda Gutierrez-Castro. (ECF No. 92). 18 BACKGROUND FACTS 19 On March 6, 2007, Defendant was detained at a Highway 86 checkpoint near 20 Westmorland, California after an x-ray scan of her vehicle indicated an anomaly in the rooftop. 21 Subsequent investigation revealed packaging containing 23.89 kilograms of cocaine concealed 22 in a non-factory compartment installed in the roof of the vehicle. The wholesale value of this 23 cocaine was approximately $315,000.00. 24 On June 7, 2007, Defendant was charged in a two-count superseding indictment with 25 conspiracy to distribute 5 kilograms and more of cocaine, in violation of 21 U.S.C. §§ 841 and 26 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). 27 (ECF No. 13 at 1-3). Defendant entered a plea of not guilty. 28 On July 3, 2007, jury trial commenced. Defendant testified that she traveled to the -1- `07CR00677 Dockets.Justia.com 1 United States to meet with a potential real estate client and that she did not know that drugs 2 were in the vehicle. (ECF No. 76 at 78-104). 3 4 5 6 On July 6, 2007, the jury deliberated and returned a verdict of guilty on both counts. (ECF No. 48). On June 20, 2008, Defendant was sentenced to a term of imprisonment of 148 months, followed by 5 years of supervised release. (ECF No. 70 at 2-3). 7 On June 25, 2008, Defendant filed a notice of appeal in the Court of Appeals for the 8 Ninth Circuit on the following grounds: 1) the trial court improperly admitted evidence of 9 Defendant’s prior border crossings, 2) the trial court improperly admitted hearsay evidence and 10 expert testimony regarding drug smuggling tactics and modus operandi, 3) the mandatory 11 minimum for a drug trafficking conviction under § 841(a) is unconstitutional, 4) the trial court 12 improperly applied the sentencing guidelines, and 5) the 148 month sentence is unreasonable. 13 (ECF No. 71). 14 15 16 17 On July 13, 2009, the Court of Appeals affirmed the judgment of this Court on all grounds. (ECF No. 86). On June 9, 2010, Defendant filed a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255. (ECF No. 87). 18 On June 11, 2010, Defendant moved to dismiss and withdraw her § 2255 motion, 19 stating that she “received a requested treaty transfer, which allows her to be transferred to a 20 prisoner [sic] in Mexico.” (ECF No. 89). 21 22 23 24 25 On June 17, 2010, the Court granted Defendant’s motion to withdraw her § 2255 motion without prejudice. (ECF No. 90). On March 18, 2011, Defendant filed the § 2255 motion now pending before the Court. (ECF No. 92). CONTENTIONS OF PARTIES 26 Defendant moves the Court to vacate, set aside, or correct her sentence on the following 27 grounds: 1) trial counsel rendered ineffective assistance by failing to “investigate known 28 defenses and present these defenses at trial,” 2) trial counsel failed to object to prejudicial -2- `07CR00677 1 statements and evidence introduced at trial, and 3) appellate counsel rendered ineffective 2 assistance of counsel by failing to raise the ineffectiveness of trial counsel. (ECF No. 92 at 5- 3 9). Plaintiff United States contends that the motion to vacate should be dismissed as untimely. 4 (ECF No. 95 at 9-12). Plaintiff further contends that Defendant’s motion is without merit on 5 the grounds that her trial and appellate counsel “performed well within the range of 6 professional competence.” Id. at 12. ANALYSIS 7 8 28 U.S.C. § 2255 provides: 9 A prisoner under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the 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 to vacate, set aside or correct the sentence. 10 11 12 13 14 15 16 17 18 Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of facts and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. 19 28 U.S.C. § 2255(a) and (b). 20 1) Statute of Limitations 21 A “1-year period of limitations” applies to a § 2255 motion. 28 U.S.C. § 2255(f). The 22 limitation period begins to run on “the date on which the judgment of conviction becomes 23 final.” Id. In the context of a habeas corpus review, a conviction is final when “a judgment 24 of conviction has been rendered, the availability of appeal exhausted, and the time for a 25 petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 26 479 U.S. 314, 321, 107 S.Ct. 708, 712 n. 6 (1987). Petitioner has 90 days after the Court of 27 Appeals renders judgment to petition the United States Supreme Court for certiorari. See 28 Sup.Ct. R. 13. -3- `07CR00677 1 In this case, the Court of Appeals for the Ninth Circuit affirmed the judgment of the 2 district court on July 13, 2009. Defendant’s deadline for filing a petition for certiorari was 3 October 11, 2009. The § 2255 statute of limitations in this case expired on October 11, 2010, 4 one year after the judgment of conviction became final, and prior to March 18, 2011, when 5 Defendant filed her motion. 6 Equitable tolling applies to a § 2255 motion only when Defendant can establish an 7 “extraordinary circumstance beyond her control that made it impossible for her to file her 8 motion within the appropriate time period.” United States v. Schwartz, 274 F.3d 1220, 1224 9 (9th Cir. 2001) (equitable tolling not appropriate where petitioner delayed filing § 2255 motion 10 because she believed that her “sentence might be reduced under Rule 35 of the Federal Rules 11 of Criminal Procedure”). 12 In this case, Defendant does not state, and this Court cannot infer, any extraordinary 13 circumstance beyond her control that prevented her from filing the § 2255 motion by October 14 11, 2010. Defendant initially filed her motion on June 9, 2010, within the statute of limitations 15 period. Defendant moved to withdraw her motion two days later stating that she “received a 16 requested treaty transfer, which allows her to be transferred to a prisoner [sic] in Mexico.” 17 ECF No. 89. The Court granted her motion without prejudice.1 (ECF No. 90). 18 Defendant has not shown any extraordinary circumstance that prevented her from filing 19 her motion in a timely manner. Equitable tolling is not appropriate and her petition is barred 20 by the statute of limitations. 21 2) Merits of Defendant’s § 2255 Motion 22 23 Even if Defendant’s § 2255 motion was not time-barred, Petitioner has made no showing that trial counsel or appellate counsel was ineffective. 24 In order to prevail on a claim of ineffective assistance of counsel, Defendant must show 25 that the performance of defense counsel fell below an “objective standard of reasonableness” 26 27 1 This Court was not obligated to advise Defendant regarding the statute of limitation period. See Pliler v. Ford, 542 U.S. 225, 226, 124 S.Ct. 2441, 2447 (2004) (district court not 28 required to advise pro se defendant about statute of limitation period before dismissing a mixed habeas corpus petition challenging a state court judgment). -4- `07CR00677 1 and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 2 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). 3 Deficient performance is measured by the standard of “reasonably effective assistance.” 4 Id. Court applies a “strong presumption that counsel’s conduct falls within the wide range of 5 reasonable professional assistance ...” Id. at 689. “It is all too tempting for a defendant to 6 second-guess counsel’s assistance after conviction or adverse sentence ...” Id. at 690. “The 7 relevant inquiry under Strickland is not what defense counsel could have pursued, but rather 8 whether the choices made by defense counsel were reasonable.” Siripongs v. Calderon, 133 9 F.3d 732, 736 (9th Cir. 1998). Counsel is ineffective where an attorney “neither conducted a 10 reasonable investigation nor made a showing of strategic reasons for failing to do so.” Sanders 11 v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (citing Hendricks v. Vasquez, 974 F.2d 1099, 12 1109 (9th Cir. 1992)). 13 In this case, Defendant contends that trial counsel provided ineffective assistance by 14 failing to call Tito to testify at trial. Defendant asserts that she spoke with Tito on the 15 telephone regarding a real estate listing during her drive to the United States, and that he was 16 not a co-conspirator as the government alleged at trial. Defendant asserted at trial that she was 17 used by other co-conspirators to transport drugs without her knowledge. The Court concludes 18 that it was reasonable for defense counsel to employ a strategy implying that Defendant was 19 set up by others and not to call Tito as a witness. There is no indication in the record that Tito 20 was available as a witness or that Tito would have testified favorably. 21 Defendant also contends that her trial counsel was ineffective for failing to challenge 22 the introduction of telephone calls between herself and Tito, which were offered by the 23 government to prove a conspiracy. The record shows that her counsel challenged the 24 admission and relevance of the telephone calls between Defendant and Tito in a pretrial motion 25 (ECF No. 77 at 25-34), in the opening statement (ECF No. 79 at 127-131), in the closing 26 argument (ECF No. 81 at 93-95) and in direct examination of Defendant (ECF No. 76 at 88- 27 92). These objections, arguments and lines of questioning indicate that her counsel diligently 28 challenged evidence presented by the government that was offered to prove the conspiracy -5- `07CR00677 1 charge. Strickland, 466 U.S. at 687. 2 The Court concludes Defendant’s ineffective assistance of trial counsel claims are 3 without merit and that appellate counsel acted reasonably in not raising these same issues on 4 direct appeal. The Court finds that there were no deficiencies in the performance of trial 5 counsel or appellate counsel. CONCLUSION 6 7 IT IS HEREBY ORDERED that the motion to vacate, correct or set aside sentence 8 pursuant to 28 U.S.C. § 2255 filed by Defendant Yolanda Gutierrez-Castro (ECF No. 92) is 9 denied. 10 DATED: September 29, 2011 11 12 WILLIAM Q. HAYES United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- `07CR00677
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