United States v. Sandoval

          ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Derrick Anthony Sandoval's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. (Doc. # 104.) For the reasons discussed below, the motion is denied.

         I. BACKGROUND

         On December 3, 2014, a jury convicted Mr. Sandoval of: (1) possession of firearms and ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1); (2) possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A); and (4) possession of body armor by a violent felon in violation of 18 U.S.C. § 931. (Doc. # 55.) Mr. Sandoval appealed his conviction on August 27, 2015, and the Tenth Circuit affirmed Mr. Sandoval's conviction on March 3, 2017. (Doc. # 102.) On May 23, 2018, proceeding pro se, Mr. Sandoval timely filed this 28 U.S.C. § 2255 habeas petition, wherein he asserts nine claims for relief arising from an overall allegation that his attorney, R. Scott Reisch, provided ineffective assistance of counsel. (Doc. # 104 at 4-6C.)

         II. PRO SE STANDARD OF REVIEW

         Mr. Sandoval is proceeding pro se, therefore, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court is “not required to fashion [a d]efendant's arguments for him where his allegations are merely conclusory in nature and without supporting factual averments.” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Indeed, “[i]t is [not] the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall, 935 F.2d at 1110; Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a [movant's] complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the [movant] in the absence of any discussion of those issues.”). Further, pro se litigants are still subject to the Federal Rules of Civil Procedure. Abdelsamed v. Colorado, 6 Fed.Appx. 771, 772 (10th Cir. 2001).

         III. DISCUSSION: INEFFECTIVE ASSISTANCE OF COUNSEL

         A. LEGAL STANDARD

         The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The Supreme Court has recognized that “the right to counsel is the right to the effective assistance of counsel” and has set forth two factors to assess whether a particular counsel's representation was constitutionally ineffective. Strickland v. Washington, 466 U.S. 668, 686-87 (1984).

         First, Mr. Sandoval must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. This is no easy proposition, as “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Otherwise, “it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002). Further, Mr. Sandoval “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 164 (1955)). A court 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.

         Second, Mr. Sandoval must identify acts or omissions made by the attorney that resulted in prejudice to him. Id. A defendant is prejudiced when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “The proper focus is on whether counsel's ineffectiveness rendered the proceedings fundamentally unfair or unreliable.” LaFevers v. Gibson, 182 F.3d 705, 724 (10th Cir. 1999) (citing Lockhart v. Fretwell, 506 U.S. 364, 369-73 (1993)).

         B. ANALYSIS

         To support his § 2255 claim of ineffective assistance, Mr. Sandoval asserts his trial counsel failed to: (1) object regarding whether fleeing and eluding was a valid predicate violent crime; (2) object regarding whether conspiracy to commit menacing was a valid predicate violent crime; (3) object regarding whether Mr. Sandoval was a violent offender and subject to an “enhancement” for possession of body armor; (4) allow him to testify in his own defense; (5) object regarding whether his prior drug offense was serious; (6) present the rule of lenity; (7) defend him by agreeing with the prosecution that Mr. Sandoval is a career criminal; (8) investigate his “background”; and (9) preserve his due process rights. (Doc. # 104 at 4-6C.)

         While Mr. Sandoval makes a general argument for ineffective assistance of counsel, some of his claims fail to show how his counsel acted unreasonably, other claims fail to show prejudice, and three claims are procedurally defaulted from consideration. The Court considers each claim in its appropriate section below.

         1. First Prong of the Strickland Test - Reasonableness

         The Court finds that in in Claims 1-3 and 5-8, Mr. Sandoval has not met the first component of the Strickland test-that his counsel's representation fell below an objective standard of reasonableness.

         Most of Mr. Sandoval's allegations challenge his counsel's strategic trial decisions. The decision of which witnesses to interview or subpoena, what pre-trial motions to file, when to object during a court proceeding, and what legal arguments to raise at sentencing are quintessentially matters of strategy for the trial attorney. DeLozier v. Sirmons, 531 F.3d 1306, 1323-24 (10th Cir. 2008); Yarrington v. Davies, 992 F.2d 1077, 1080 (10th Cir. 1993). An attorney is “entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.” Harrington v. Richter, 562 U.S. 86, 107 (2011); see Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008). A defendant “may prevail on an ineffective assistance claim relating to trial strategy only if he can show counsel's strategy decisions would not be considered sound.” Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995).

         Although displeased with his attorney's performance, Mr. Sandoval does not adequately demonstrate in the following seven claims how his attorney's strategic decisions were objectively unsound.

         a. Claim 1 - Conspiracy to Commit Vehicular Eluding

         Mr. Sandoval alleges his counsel was ineffective for failing to object to the trial court's determination that Mr. Sandoval's felony conviction for conspiracy to commit vehicular eluding as an offense that qualified him for the armed career criminal enhancement provided in the United ...