De Alvarez v. United States

SANDRA GARCIA DE ALVAREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. C 13-4026-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

February 6, 2015

(No. CR 11-4049-2-MWB)

MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE

TABLE OF CONTENTS

I. INTRODUCTION...........................................................................2

A. Factual Background...............................................................2

B. Criminal Proceedings..............................................................3

C. Section 2255 Proceedings.........................................................5

II. LEGAL ANALYSIS........................................................................6

A. Standards For § 2255 Relief......................................................7

1. Grounds for relief..........................................................7

2. Standards for an evidentiary hearing.................................10

B. Garcia De Alvarez's "Ineffective Assistance Of Counsel" Claims...............................................................................12

1. Failure to seek a bill of particulars...................................12

2. Failure to explain alternatives to trial in "laymen's" terms ........................................................................ 13

3. Failure to challenge drug quantity and purity......................15

4. Failure to interview and present witnesses..........................16

a. Additional witnesses.............................................16

b. Arguments of the parties.......................................19

c. Analysis ............................................................ 20

C. Certificate Of Appealability.....................................................23

III. CONCLUSION ............................................................................ 24

This case is before me on petitioner Sandra Garcia De Alvarez's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (§ 2255 Motion) (Civ. docket no. 1), filed on March 4, 2013. Garcia De Alvarez claims that her trial attorney provided her with ineffective assistance of counsel in several respects. The respondent denies that Garcia De Alvarez is entitled to any relief on her claims.

I. INTRODUCTION

A. Factual Background

The trial transcript reflects that, in October of 2010, law enforcement officers conducted a controlled buy, involving the purchase of three ounces of methamphetamine for $6,000 by a confidential informant, from Garcia De Alvarez's husband, Lorenzo Alvarez. Law enforcement officers used the same confidential informant to set up a second meeting with Lorenzo, on November 16, 2010, purportedly to purchase another ten ounces of methamphetamine. When Lorenzo arrived at the place agreed upon to complete the transaction, law enforcement officers arrested him and seized additional methamphetamine.

That same evening, law enforcement officers obtained and executed a search warrant for Lorenzo's residence in Denison, Iowa, which he shared with Garcia De Alvarez and their five children. Garcia De Alvarez was asleep at the time that the law enforcement officers arrived at the residence to execute the warrant. During the search, law enforcement officers seized items, including the following: a total of $4,790 in cash found in a sewing container located in the closet next to the master bedroom where Garcia De Alvarez had been sleeping; approximately six ounces of methamphetamine found ina plastic container in the master bathroom; packaging materials found in the master bathroom; and two gram scales found in the master bedroom/bathroom areas. Garcia De Alvarez denied any knowledge of or involvement in her husband's drug activities. Nevertheless, law enforcement officers arrested her after concluding their search of the residence.

B. Criminal Proceedings

In an Indictment (Crim. docket no. 1), handed down March 24, 2011, a Grand Jury charged Lorenzo with possessing with intent to distribute 50 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In a Superseding Indictment (Crim. docket no. 17), handed down May 19, 2011, the Grand Jury reiterated the "possession with intent" charge against Lorenzo in Count 1, and added Count 2 charging Garcia De Alvarez (but not Lorenzo) with conspiracy to distribute 500 grams or more of a methamphetamine mixture containing 50 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. § 846. At her arraignment on June 24, 2011, Garcia De Alvarez pleaded not guilty and was released on bond. Minutes Of Initial Appearance And Arraignment (Crim. docket no. 29); Order (Crim. docket no. 30). The parties also stipulated to the standard "open file" discovery order. Id. By Order (Crim. docket no. 31), the court set a jury trial on the "conspiracy" charge against Garcia De Alvarez for the two-week period beginning August 1, 2011, the same date for which Lorenzo's trial on the "possession with intent" charge against him was already set. See Order (Crim. docket no. 27). By separate Order (Crim. docket no. 33), the court appointed counsel to represent Garcia De Alvarez.

By Order (Crim. docket no. 35), dated June 28, 2011, the court set a guilty plea hearing for Lorenzo for July 12, 2011, and struck the trial as to him. On July 12, 2011, Lorenzo pleaded guilty to the "possession with intent" charge against him pursuant to awritten plea agreement. See Minutes (Crim. docket no. 42); Report And Recommendation Concerning Plea Of Guilty (Crim. docket no. 43). I accepted his guilty plea the same day. See Order (Crim. docket no. 46). At various times, Lorenzo gave conflicting statements about whether or not Garcia De Alvarez was involved in his drug business.

Garcia De Alvarez elected to go to trial on the "conspiracy" charge against her. Jury selection for her trial was on March 29, 2012, and the parties presented evidence on March 30, 2012. See Minutes (Crim. docket nos. 112 and 114). The evidence at trial included the testimony of three cooperating witnesses to the effect that Lorenzo was their methamphetamine dealer, but that, on several occasions, when he was out of town or unavailable, Garcia De Alvarez would handle the exchange of methamphetamine and cash. The only defense witness was Garcia De Alvarez herself. She testified that she did not know anything about money or drugs or anything like that and that she had never delivered drugs to any of the cooperating witnesses or anyone else. See, e.g., Transcript, Vol. II, 206:12-207:13. She also testified that she did not try to get a plea agreement from the prosecution, like other people, "[b]ecause [she was] not going to say something that [she] did not do." Id. at 210:6-14.

Counsel made their closing arguments on April 2, 2012. See Minutes (Crim. docket no. 116). Later that same day, the jury found Garcia De Alvarez guilty of the "conspiracy" offense. See Verdict Form (Crim. docket no. 117). The jury found Garcia De Alvarez responsible for 50 grams or more but less than 500 grams of methamphetamine mixture, not for more than 500 grams of methamphetamine mixture, as charged in the Superseding Indictment. Id. Prior to trial, the prosecution had abandoned any request that the jurors determine any quantity of actual (pure) methamphetamine for which Garcia De Alvarez could be held responsible. On July 31, 2012, I sentenced Garcia De Alvarez to 60 months, the mandatory minimum sentencebased on her conviction, after granting her Motion For Downward Variance (Crim. docket no. 143) from a guidelines range of 78 to 97 months, with four years of supervised release. Minutes (Crim. docket no. 146); Judgment (Crim. docket no. 147).

Garcia De Alvarez filed a Notice Of Appeal (Crim. docket no. 149) on August 7, 2012. She was represented on appeal by her appointed trial counsel. Her counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), "challenging the sufficiency of the evidence to support the jury's verdict," because "the testimony of cooperating witnesses was unreliable and not credible." United States v. Garcia De Alvarez, No. 12-2858, Opinion (per curiam) (Crim. docket no. 163), 2. On February 6, 2013, the Eighth Circuit Court of Appeals affirmed Garcia De Alvarez's conviction and sentence, finding "no nonfrivolous issues for appeal." Id. A Mandate (Crim. docket no. 165) issued on March 8, 2013.

C. Section 2255 Proceedings

On March 4, 2013, Garcia De Alvarez filed her Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody (§ 2255 Motion) (Civ. docket no. 1), pro se, which is now before me. She sought relief on four "ineffective assistance of counsel" claims, based on the following allegations: (1) her trial counsel failed to establish her "position" in the alleged conspiracy by requesting a bill of particulars; (2) her trial counsel failed to challenge the amount and purity of the methamphetamine that was charged against her; (3) her trial counsel failed to call witnesses who would have testified to her innocence and her trial counsel's "unavailability" when she tried to contact him; and (4) her trial counsel failed to explain in "laymen's" terms the process of a plea agreement, a guilty plea, or the process of a jury trial. The respondent filed an Answer (Civ. docket no. 3) on March 6, 2013. By Order (Civ. docket no. 4), filed March 7, 2013, I directed that counsel be appointed torepresent Garcia De Alvarez in this matter and set a briefing schedule on her § 2255 Motion.

On June 18, 2013, counsel filed Petitioner's Brief (Civ. docket no. 13). Counsel clarified Garcia De Alvarez's "ineffective assistance of counsel" claims, as follows: (1) her trial counsel failed to investigate and interview witnesses, which resulted in a failure to call witnesses on her...