U.S. v. Hernandez

450 F.Supp.2d 950

UNITED STATES of America, Plaintiff, v. Rogelio HERNANDEZ, Jr., a/k/a "Ro,", Defendant.

No. CR 00-4030-MWB.

United States District Court, N.D. Iowa, Western Division.

August 31, 2006.

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Janet L Petersen, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

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

BENNETT, Chief District Judge.

TABLE OF CONTENTS
I. INTRODUCTION ..................................................... 956
     A. Charges, Conviction, Sentencing, and Appeal ................... 956
     B. The Motion To Vacate Sentence ................................. 957
     C. The Evidentiary Hearing ....................................... 958
 II. LEGAL ANALYSIS ................................................... 963
     A. Standards For Relief Pursuant To § 2255 ....................... 963
     B. The "Booker Error" ............................................ 964
     C. Ineffective Assistance Of Counsel ............................. 966
        1. Applicable standards ....................................... 966
        2. The "ineffective assistance" at issue here ................. 967
           a. Failure to assert an "Apprendi challenge" ............... 967
           b. Failure to investigate .................................. 968
               i. Arguments of the parties ............................ 968
              ii. Pertinent facts ..................................... 969
             iii. Analysis ............................................ 969
           c. Failure to challenge sentencing enhancements ............ 971
               i. Arguments of the parties ............................ 971
              ii. Analysis ............................................ 971
           d. Failure to make a multiple conspiracies argument ........ 973
               i. Arguments of the parties ............................ 973
               ii. Pertinent facts .................................... 973
              iii. Analysis ........................................... 973
           e. Inadequate advice concerning alternatives to trial ...... 974
                i. Applicable standards ............................... 974
               ii. Application of the standards ....................... 975
     D. The Remedy .................................................... 979
        1. Arguments of the parties ................................... 979
        2. Analysis ................................................... 980
     E. Certificate Of Appealability .................................. 983
III. CONCLUSION ....................................................... 984

This matter comes before the court pursuant to the June 25, 2003, pro se Petition Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (docket no. 97) by defendant Rogelio Hernandez, Jr., as supplemented by counsel on January 6, 2006 (docket no. 121), after initial review by the court, and as further supplemented in the course of an evidentiary hearing on the claims presented. In his motion, as supplemented, Hernandez seeks relief from his sentence to 360 months of imprisonment after conviction by a jury on a charge of conspiracy to distribute 500 grams or more of methamphetamine. Hernandez seeks such relief based on a "Booker error" in his sentencing and ineffective assistance by his trial and appellate counsel in numerous respects. The parties have briefed the issues presented, the court has held an evidentiary hearing, and the parties have submitted post-hearing briefs on certain issues. Therefore, the court finds that the motion is now ripe for disposition.

I. INTRODUCTION

A. Charges, Conviction, Sentencing, and Appeal

In a single-count Indictment handed down on March 24, 2000, defendant Hernandez was charged with conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(A)(viii). After he was charged, Hernandez was represented, in quick succession, by the Federal Defender's Office, by an attorney appointed pursuant to the Criminal Justice Act (CJA), then by R. Scott Rhinehart, the first of Hernandez's privately-retained attorneys.

On June 6, 2000, Mr. Rhinehart filed a motion to suppress (docket no. 22) on Hernandez's behalf seeking to suppress statements and evidence obtained from Hernandez in the absence of counsel after he had purportedly asserted his right to an attorney. On August 2, 2000, United States Magistrate Judge Paul A. Zoss filed a Report and Recommendation (docket no. 29) recommending that Hernandez's motion to suppress be denied. Mr. Rhinehart filed Hernandez's objections to the Report and Recommendation on August 3, 2000 (docket no. 30), then filed a motion to withdraw (docket no. 31). By order dated August 4, 2000 (docket no. 32), Mr. Rhinehart was granted leave to withdraw upon the appearance of new counsel and Hernandez's trial was continued. On September 1, 2000, while Hernandez's objections to the Report and Recommendation on his motion to suppress were pending, another privately-retained attorney, Jerry J. Trevino from Corpus Christi, Texas, entered an appearance on Hernandez's behalf. A member of Mr. Rhinehart's firm appeared as local counsel for Mr. Trevino pursuant to local rules governing admissions pro haec vice. By order dated September 19, 2000 (docket no. 37), the undersigned accepted Judge Zoss's recommendation that Hernandez's motion to suppress be denied.

After Hernandez's motion for a further continuance was granted, Hernandez proceeded to trial before a jury on December 4 through 7, 2000. Although this case was assigned to the undersigned, owing to a conflict in the undersigned's schedule, this case proceeded to trial before then District Court Judge Michael J. Melloy.¹ Mr. Trevino served as trial counsel. The witnesses at trial consisted of three law enforcement officers, eight alleged co-conspirators, and defendant Hernandez himself. The jury convicted Hernandez and answered a separate interrogatory concerning drug quantity by finding that the offense of conviction involved a conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine. See Verdict Form (docket no. 65).

Hernandez filed both a motion for a new trial on December 12, 2000 (docket no. 67) and a notice of appeal on December 18, 2000 (docket no. 69). In light of the motion for new trial, the undersigned reassigned the case in its entirety to Judge Melloy by order dated January 2, 2001 (docket no. 71). On January 5, 2001, Judge Melloy denied Hernandez's motion for new trial. Therefore, Hernandez came on for sentencing before Judge Melloy on April 2, 2001.

At his sentencing hearing, Hernandez was again represented by Mr. Trevino. In the course of the hearing, Judge Melloy found that the offense of conviction was committed while Hernandez was on probation for another offense and determined, based on grouping of prior offenses, that Hernandez's criminal history category was III. Over Hernandez's objections, Judge Melloy also imposed enhancements for possession of a dangerous weapon in the course of the offense, Hernandez's leadership role in the offense, and Hernandez's obstruction of justice. The last enhancement was based on Judge Melloy's finding that Hernandez had deliberately testified untruthfully at trial. Judge Melloy initially determined the drug quantity for which Hernandez could be held responsible, based on quantities of methamphetamine, marijuana, and cocaine he found to be involved in the conspiracy, to be equivalent to 78,184 kilograms of marijuana, but based on a review of the evidence at trial, reduced the quantity sufficiently to take Hernandez's base offense level down from 38 to 36. With other adjustments, Judge Melloy found that Hernandez's adjusted offense level was 40, which at criminal history category III, meant that Hernandez's Guidelines sentencing range was 360 months to life. Judge Melloy expressed some surprise, having presided at trial, that Hernandez's offense level as calculated in the presentence investigation report (PSIR) was not 43, based on an enhancement for drug trafficking within 1,000 feet of a schoolyard, which would have required a mandatory life sentence, but then noted that, under a change in the Guidelines, the "schoolyard" enhancement could not be imposed unless stated in the indictment and submitted to the jury. On the other hand, Judge Melloy observed that this was, in some respects, "a tragic case," and that he "d[id]n't think that this case need[ed] a 30-year sentence," but that he "d[id]n't have any choice in the matter." See Sentencing Transcript at 39-40. Judge Melloy then sentenced Hernandez to 360 months of imprisonment, the bottom of Hernandez's Sentencing Guidelines range.

Hernandez appealed his conviction and sentence to the Eighth Circuit Court of Appeals. See United States v. Hernandez, 281 F.3d 746 (8th Cir.2002). Hernandez was represented on appeal by R. Scott Rhinehart, who had been his counsel at the district court level prior to Mr. Trevino filing his appearance.² On appeal, Hernandez asserted that the trial court erred in denying his motion to suppress and that his trial counsel was ineffective for failing to challenge the constitutionality of 21 U.S.C. § 841(b)(1)(A) and (B). See Hernandez, 281 F.3d at 748. The appellate court found that Hernandez's allegations of ineffective assistance of trial counsel were not cognizable on direct appeal, and affirmed Hernandez's conviction, rejecting his other arguments. Id. at 749.

B. The Motion To Vacate Sentence

On June 25, 2003, Hernandez filed his pro se Petition Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In...