United States District Court, D. Colorado
OPINION AND ORDER ON MOTION TO VACATE SENTENCE
JOHN L. KANE SENIOR U.S. DISTRICT JUDGE
After a jury trial, Defendant Justin Hernandez was convicted of conspiracy to commit assault resulting in serious bodily injury in violation of 18 U.S.C. § 371 (Count 1) and second-degree murder in violation of 18 U.S.C. § 1111(a) and 2(a) (Count 2). Doc. 993 at 1. This Court sentenced Defendant to 60 months on Count 1 and 480 months on Count 2, to run concurrently. Id. at 2. Defendant appealed his conviction, which was affirmed by the Tenth Circuit in United States v. Rosalez, 711 F.3d 1194 (10th Cir. 2013). Defendant petitioned for certiorari, which was denied on October 7, 2013. Doc. 1269-4.
Defendant now brings a motion to modify or vacate his sentence pursuant to 28 U.S.C. § 2255. Doc. 1269. Defendant argues that he received ineffective assistance of counsel during trial, and that his due process rights were violated when the prosecutor engaged in misconduct by allowing perjured testimony to be presented to the grand jury. Doc. 1269 at 4-6. In particular, Defendant asserts that his counsel was ineffective in (1) failing to request recusal based on certain remarks made by the Court; (2) failing to cross-examine or directly call Ivan Ocon, who testified for a co-defendant; and (3) failing to obtain a handwriting expert to dispute Defendant’s authorship of a letter introduced at trial. Id.
Defendant’s conviction arose from a fatal attack on Pablo Zuniga-Garcia, an inmate at the Federal Correctional Institute (FCI) in Florence, Colorado. Rosalez, 711 F.3d at 1199. Hernandez is a member of the Sureños prison gang, and he was the leader of that gang at the FCI in Florence. Id. Hernandez believed that Zuniga-Garcia had disrespected him and was questioning his authority. Id. Hernandez asked Zuniga-Garcia’s cellmate, Mark Rosalez, who was in charge of the Sureños in FCI’s Pueblo Bravo unit, to help him recruit other Sureños members to “beat down” Zuniga-Garcia. Id. Hernandez hoped that Zuniga-Garcia would be beaten badly enough to receive a medical transfer. Id. Four Sureños carried out the beating, while two others served as lookouts. Id. The four who carried out the beating struck Zuniga multiple times with combination locks attached to fabric belts. Id. at 1200. Zuniga died from multiple blows to his head. Id. at 1199.
Hernandez was tried jointly with three of the other inmates. At trial, various government witnesses established that there was a conflict between Zuniga-Garcia and Hernandez, and that the two had engaged in a heated discussion in the prison yard two weeks prior to Zuniga-Garcia’s death. Id. at 1218. The government also introduced two letters into evidence, which were purportedly written by Hernandez and linked him to the crime. Doc. 883 at 2748, 2797. The defendants were convicted of all the charges against them. Rosalez, 711 F.3d at 1201.
1. Ineffective Assistance of Counsel Claims
To prevail on a claim for ineffective assistance of counsel, Defendant must show: (1) his counsel’s representation was objectively unreasonable under prevailing professional norms; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see United States v. Weeks, 653 F.3d 1188, 1200-01 (10th Cir. 2011) (applying Strickland test to ineffective assistance of counsel claims in § 2255 motion). Under the first prong of this test, Defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Under the second prong of the Strickland test, Defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
In his motion, Defendant claims that his trial counsel was ineffective in failing to (1) request recusal based on certain remarks by the Court allegedly evidencing bias; (2) cross examine Ivan Ocon when he was called by a co-defendant; and (3) call a handwriting expert in order to counter the prosecution’s assertion that Defendant was the author of a damaging letter introduced at trial. Doc. 1269 at 4-6. Defendant also alleges that his due process rights were violated when AUSA Richard Hosley committed prosecutorial misconduct by allowing Bryce Malcom to give false testimony to the grand jury. Id. at 6. In addition, Defendant was granted leave to amend his § 2255 motion to include a claim that his trial counsel was ineffective in failing to request that the indictment be dismissed pre-trial based on this same alleged prosecutorial misconduct. See Docs. 1300 & 1301. The government filed a response addressing this new claim. Doc. 1302.
a. Failure to Request Recusal
Defendant’s claim that Court was biased is based in part on the following remarks made by the Court regarding Defendant Morones’s motion to have his trial severed from that of the other defendants:
This is how I anticipate . . . the defense coming forward with the evidence. That each defense attorney, looking after the best interests of his own client, and Mr. Morones quite understandably looking out for his own best interests, I think it’s going - my impression is the scenario would be this: that Mr. Hernandez said to his lieutenant, he needs to be taught a lesson, take care of it. The lieutenant then secures other members of the Sureños gang, some ...