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United States v. Valdez

United States District Court, District of Columbia

August 2, 2016

UNITED STATES OF AMERICA
v.
ANTONIO VALDEZ, Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER United States District Judge.

         In June 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 motions.

         I. Background

         Valdez 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.

         Valdez 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.

         On May 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.[1] 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.

         II. Analysis

         In 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 consider:

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 counsel.

         A. Motion to Vacate under § 2255

         A 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.

         A 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).

         Valdez 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 ...


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