United States District Court, D. Colorado
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
...