United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
2011, Defendant Antonio Valdez was convicted by a jury of
conspiracy to distribute one kilogram or more of heroin in
violation of 21 U.S.C. § 846. Former Chief Judge Richard
W. Roberts subsequently sentenced Valdez to a term of 240
months of incarceration followed by 120 months of supervised
release. Currently before the Court is Valdez’s pro
se motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, as well as his motion for appointment of
counsel. In his § 2255 motion, Valdez asserts several
claims of error in his trial and sentencing, as well as
ineffective assistance of counsel. The government opposes
both of Valdez’s motions, arguing that each of his
claims is procedurally barred and/or fails on the merits. For
the reasons that follow, the Court will deny Valdez’s
was arrested by the FBI on November 6, 2009 as part of a
conspiracy to transport heroin from Toronto, Canada to
Washington, D.C. for further distribution in the United
States. Gov’t’s Opp’n Def.’s Mot.
Vacate Sent. 2, ECF No. 409. The FBI obtained evidence of
Valdez’s substantial role in the conspiracy through
court-authorized wiretaps of the cellphones of his supplier,
Mouloukou Toure. Id. at 5. Valdez was indicted,
along with several co-conspirators, on October 27, 2009. The
indictment charged Valdez with two counts: (1) conspiracy to
distribute and possess with intent to distribute one kilogram
or more of heroin, in violation of 21 U.S.C. § 846; and
(2) tampering with a witness, victim, or informant by
physical force or threat, in violation of 18 U.S.C.
§1512(a)(2)(A). Re-typed Indictment, ECF No. 286-1. In
June 2011, a jury found Valdez guilty of the drug charge but
not guilty of the witness tampering charge. Verdict Form, ECF
No. 288. He was sentenced to 240 months of incarceration, the
statutory mandatory minimum.
timely appealed, and the United States Court of Appeals for
the District of Columbia Circuit affirmed his conviction and
sentence. See United States v. Valdez, 723 F.3d 208
(D.C. Cir. 2013). On appeal, Valdez argued that the District
Court erred by permitting the government to introduce Rule
404(b) evidence of his prior drug activity and by denying
Valdez’s motion requesting severance of the drug
conspiracy charge from the witness tampering charge. The D.C.
Circuit held that the District Court did not abuse its
discretion on either claim. Id. at 208.
16, 2015, Valdez filed a motion for appointment of counsel
for his “appeal affairs.” Def.’s Mot.
Appoint Counsel, ECF No. 392. The Court ordered that the
motion be treated as a motion to appoint counsel for the
purpose of pursuing a motion to vacate under 28 U.S.C. §
2255. Min. Order, October 9, 2014. While the motion was
pending, Valdez filed a substantive motion to vacate his
sentence under § 2255. Def.’s Mot. Vacate Sent.,
ECF No. 402. Both motions were timely, as they were received
within one year of the date on which Valdez’s judgment
became final. But because Valdez’s claims are
either procedurally barred or lack merit, the Court will deny
his motion to vacate his sentence and, accordingly, his
motion for appointment of counsel as well.
habeas corpus proceedings, the Court may appoint counsel
“for any financially eligible person who . . . is
seeking relief under section . . . 2255 of title 28” if
“the interests of justice so require.” 18 U.S.C.
§ 3006A(a)(2)(B). In determining whether appointment of
counsel serves the interests of justice, courts must
1) the petitioner’s likelihood of success on the
merits, 2) the ability of the petitioner to articulate his
claims pro se in light of the complexity of the
legal issues involved, and 3) the factual complexity of the
case and whether the petitioner has the ability to
investigate undeveloped facts.
United States v. King, 4 F.Supp.3d 114, 125 (D.D.C.
2013) (quoting United States v. Washington, 782
F.Supp.2d 1, 3 (D.D.C. 2011)). Therefore, because a motion to
appoint counsel depends in part on the viability of the
petitioner’s claims, the Court will first analyze the
merits of Valdez’s § 2255 motion to vacate his
sentence before addressing his motion for appointment of
Motion to Vacate under § 2255
prisoner serving a federal sentence may move the court to
vacate his sentence if he believes that it “was imposed
in violation of the Constitution or laws of the United States
. . . or is otherwise subject to collateral attack. . .
.” 28 U.S.C. § 2255(a). The petitioner bears the
burden of proof and must demonstrate by a preponderance of
the evidence his right to relief. See United
States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C. 2009).
(1988). Valdez’s motion was received in the District
Court’s mail room on January 12, 2014, and thus was
deposited into the prison mail system at least by that date.
It is therefore timely.
petitioner cannot raise any claim collaterally that has
already been litigated on direct appeal. United States v.
Greene, 834 F.2d 1067, 1070 (D.C. Cir. 1987). Collateral
review may be appropriate, however, when there has been an
intervening change in the law, when necessary to
“rectify an error not correctable on direct appeal, or
when exceptional circumstances excuse a failure to assert the
error on appeal.” Id. (quoting Garris v.
Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)). Even if
the petitioner may re-raise a claim, he is unlikely to
succeed if he was previously unsuccessful on identical
claims. See Washington, 782 F.Supp.2d at 3 (citing
Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir.
2001)). Additionally, a petitioner may not raise any claim
that he has procedurally defaulted by failing to raise it on
direct review, unless he can demonstrate “cause”
and “prejudice, ” Bousley v. United
States, 523 U.S. 614, 622 (1998) (quoting Murray v.
Carrier, 477 U.S. 478, 485 (1986); Wainwright v.
Sykes, 433 U.S. 72, 87 (1977)) (internal quotation marks
omitted), or “actual innocen[ce], ”
id. (quoting Murray, 477 U.S. at 496)
(internal quotation marks omitted).
raises five claims in his motion to vacate his sentence: (1)
the trial court failed to make a finding on the quantity of
drugs attributed to him; (2) the grand jury selection
proceedings were unlawful; (3) the wiretap evidence was
illegally obtained; (4) the trial court erroneously admitted
evidence of Valdez’s prior drug conviction under Rule
404(b); and (5) he was denied his right to effective
assistance of counsel. Def.’s Mot. Vacate Sent. 2. The
majority of these claims are ...