Free Brief - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Criminal Action No. 04-CR-00429-MSK Civil Action No. 08-cv-00455-MSK UNITED STATES OF AMERICA, Plaintiff, v. 1. RAMON MARTINEZ, a/k/a Edi Burciago-Orosco, Defendant.

DEFENDANT RAMON MARTINEZ' SUPPLEMENTAL BRIEF RE: PETITION FOR WRIT OF HABEAS CORPUS

COMES NOW the Defendant, RAMON MARTINEZ, by his court-appointed counsel, Patrick D. Butler, and respectfully submits the following Supplemental Brief Re: Defendant's Petition for Writ of Habeas Corpus, and states as follows: I. A. STATEMENT OF FACTS

Procedings up to this point.

On or about May 1, 2006, this Court entered Judgment against Defendant after a jury trial. Defendant Ramon Martinez was convicted of Counts two and three of the Superseding Indictment; Conspiracy to Possess with Intent to Distribute 500 or more Grams of Methamphetamine; and Distribution or Possession with Intent to Distribute 500 grams or more of Methamphetamine. Defendant was acquitted of Continuing Criminal Enterprise. Another Count of Distribution of 500 grams or more of Methamphetamine was dismissed by the Court.

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On May 11, 2006, Mr. Martinez was sentenced to 360 months in the custody of the United States Bureau of Prisons. Mr. Martinez appealed his conviction to the Tenth Circuit Court of Appeals, case number 06-1225. On or about April 26, 2007, Mr. Martinez' conviction was affirmed by the Tenth Circuit. Certiorari to the United States Supreme Court was denied in case number 07402. Mr. Martinez then filed a Petition for Writ of Habeas Corpus raising several issues. On or about May 19, 2008, this Court appointed undersigned counsel to investigate the claims of Mr. Martinez and to file a supplemental brief with the Court which specifically identifies which, if any, of Defendant's claims of ineffective assistance of counsel and prosecutorial misconduct should be determined by the Court, whether an evidentiary hearing is required, and how long should be allotted for such hearing. B. Investigation by undersigned counsel into Mr. Martinez' claims.

Undersigned counsel reviewed the entire trial and appellate file of the Federal Public Defender regarding this matter. Counsel has corresponded directly with Mr. Martinez regarding his claims. Counsel has conducted legal research regarding the issues raised by Mr. Martinez. II. ISSUES PRESENTED

Defendant Ramon Martinez presents two main issues which are further broken down into sub-parts of the main issues in the case. A. Did Mr. Martinez' trial counsel render ineffective assistance of counsel? Encompassed in this issue Mr. Martinez raises specific instances in which he claims that his trial counsel was ineffective.

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1. Mr. Martinez claims that his trial counsel inadequately failed to investigate his claim that he had been the subject of racial profiling when he was arrested on February 2, 2004 on I-40 in Arizona. 2. Mr. Martinez contends that had his trial attorney properly investigated the facts surrounding his traffic stop, he would have been able to determine that; a. Arizona DPS officers were supposed to videotape every traffic stop. If a copy of the traffic stop had been obtained, it would have refuted several statements made by Officer Neve both pretrial and at trial. Specifically, Officer Neve testified that the probable cause for the traffic stop was due to the heavy tint on the windows, which were impermissibly dark under Arizona law. The Officer also testified that in relation to racial profiling, that such a case could not exist here since the entire reason for the traffic stop on February 2, 2004 was because the windows were too dark for him to see into the car to see who the occupants were. Mr. Martinez claims that a proper investigation and viewing of the videotape from the Arizona DPS would have revealed that his window was down as he passed the officer, which would refute the Officer's testimony and also refute the reason for the traffic stop. Further, it would have bolstered Mr. Martinez' claim that the only reason for the stop was racially motivated. b. During the time of this case, the Arizona DPS was embroiled in a lawsuit against them for racial profiling. Arnold v. Arizona Dep't of Public Safety, 2006 U.S. Dist. LEXIS 53315, No. CV-01-1463-PHX-LOA. Officer Neve, the DPS officer involved in the stop of Mr. Martinez on February 2, 2004 was not individually named as a

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defendant in that lawsuit. However, his employer, the Arizona Dep't of Public Safety was the lead defendant. Mr. Martinez claims that if his trial counsel had properly investigated the case and/or submitted a request, pursuant to Brady v. Maryland, that knowledge of the Arnold lawsuit would have become known and could have been used to help exculpate Mr. Martinez. c. Mr. Martinez further claims that his trial counsel failed to raise the racial profiling issue during his trial; specifically during the cross-examination of Officer Neve. 3. Mr. Martinez further contends that his trial counsel failed to take certain steps regarding witness Meza-Chaidez. Ms. Meza-Chaidez and Mr. Martinez had a prior romantic relationship. Ms. Meza-Chaidez was arrested by Arizona police with methamphetamine and became an informant to assist herself. Ultimately, Ms. MezaChaidez pled guilty to a drug charge in State court and received a probationary sentence. In partial exchange for such plea and sentence, Ms. Meza-Chaidez cooperated with law enforcement officials and testified against Mr. Martinez. Mr. Martinez claims that his trial counsel failed to adequately impeach Ms. Meza-Chaidez regarding her cooperation with law enforcement officials; failed to adequately impeach her regarding prior arrests for drug-related charges; failed to extensively explore her prior cooperation with law enforcement officials which led to the conviction and life sentence; and failed to cross-examine her regarding her ownership of real property. Mr. Martinez asserts that all this could have been contrasted with Mr. Martinez' lack of arrests, ownership of real property, and lack of motive. Further, Ms. Meza-Chaidez testified that she had rented a storage locker to use as a drug

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storage facility and had rented it at the request of Mr. Martinez. Mr. Martinez claims that his counsel failed to obtain copies of any videotape surveillance tapes from the storage unit to show his lack of contact with that facility. Further, Mr. Martinez claims that his counsel failed to adequately challenge the manner and means of lifting fingerprints off of the surfaces of the storage unit. 4. Mr. Martinez asserts that he was not adequately informed as to the consequences (potential length of sentence) of going to trial and being convicted in this matter. Mr. Martinez claims that although there were some discussions between him and his trial attorney and that some plea offer was made to him, Mr. Martinez asserts that he was never informed that he could be sentenced to 30 years in prison if he were convicted. Mr. Martinez claims that such failure on the part of his trial attorney to inform him of the potential consequences of going to trial and conviction over a plea offer prejudiced his decision to go to trial and amounted to ineffective assistance of counsel. B. Did Mr. Martinez' appellate counsel render ineffective assistance of counsel? Mr. Martinez generally claims that his appellate counsel failed to raise these similar issues during the appeal. Mr. Martinez claims that his appellate counsel should have raised the racial profiling issue and the ineffective assistance of counsel issue on appeal. Instead, his appellate counsel essentially challenged some of the pretrial rulings regarding suppression issues and did not raise the racial profiling issue of ineffective assistance of counsel issue.

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III.

GOVERNMENT'S RESPONSE TO DEFENDANT MARTINEZ' ISSUES AND APPLICABLE CASE LAW

The Government filed an Answer to Defendant's Motion Under 28 U.S.C. §2255. In that Answer, the Government concedes that the Defendant's Motion was timely filed. A. Response to issues raised regarding ineffective assistance of trial counsel. The Government contends in its Answer that Mr. Martinez did not suffer from ineffective assistance of counsel. The Government has correctly stated the proper standard for Mr. Martinez to show in order to prevail on his claim of ineffective assistance of counsel. For almost 25 years now the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984) has been followed by courts throughout the United States for determining whether a counsel's acts or omissions in representing a client rise (or fall) to the level of ineffective assistance of counsel. The two-part test is that (1) "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment;" and (2) counsel's performance prejudiced him in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Strickland, supra. at p. 687-688, 694. a. Failure to investigate issues: The Government responds that Mr. Martinez provided no evidence that Ms. Christina Alvarado would have testified consistent with his allegations regarding the source of the money; that counsel may have had valid reasons not to call Ms. Alvarado due to the possession of the firearm by her and alleged false statements made by her to the Officer; and further asserts that Mr.

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Martinez' counsel did properly address this issue by calling Ms. Alvarado's Aunt, Manuela Dominguez, to testify as to the source of the money. b. Failure to properly identify the identity of the person speaking during recorded conversations. The Government responds to this allegation by stating that Ms. Adelaida Meza-Chaidez, the cooperating witness in the case, testified at length during the trial. According to the Government, Ms. Meza-Chaidez did identify Mr. Martinez' voice and engaged in certain consensually monitored calls with Mr. Martinez. c. Consideration for cooperation provided to Ms. Meza-Chaidez by Government. The Government identified a number of areas that counsel for Mr. Martinez crossexamined Ms. Meza-Chaidez during trial; including her making false statements to the police; her prior payments for informing on others; her plea deal which included probation; and her special parole terms which permitted her not to be deported. d. Failure to call defense witnesses. The Government notes that it may have been a tactical reason why counsel for Mr. Martinez failed to call Christina Alvarado as a witness at the trial. The Government previously addressed this issue, essentially asserting that due to other issues which may have been detrimental to Mr. Martinez' case if Ms. Alvarado testified, (e.g., lying to the police, etc). that failure to call Ms. Alvarado did not necessarily result in ineffective assistance of counsel. e. Failure to prepare or present the case as requested. The Government states that it does not really matter how many times Mr. Martinez' counsel visited him in prior to trial, but rather, whether counsel was properly prepared for trial. Further, as part of

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this response, the Government further states that trial counsel's discussions of taking a plea so that he wouldn't have to prepare for trial are without any specifics being asserted. f. Failure to challenge the sufficiency of the evidence at trial. The Government responds to this allegation by essentially setting forth ways in which a challenge to the sufficiency of the evidence at trial would have been denied because there had been, in fact, sufficient evidence for a jury, if it were to believe the witnesses, to find against Mr. Martinez. B. Malicious prosecution allegation. Mr. Martinez essentially claims that since the

Government did not prosecute Ms. Meza-Chaidez federally, and that she received a probationary sentence in State court and an agreement not to deport her, that the Government engaged in malicious prosecution since, according to Mr. Martinez, Ms. Meza-Chaidez was really the "kingpin" of the operation. Mr. Martinez' theory is that since he was exposed, and sentenced, to a 30 year term and that the alleged kingpin of the operation got probation in State court and no federal prosecution that the Government must have been engaging in malicious prosecution. The Government responds by stating that it is not misconduct for the Government to extend favorable plea terms to cooperating witnesses. C. Response to issues raised regarding ineffective assistance of appellate

counsel. Defendant essentially alleged that his appellate counsel failed to raise certain issues regarding racial profiling and ineffective assistance of trial counsel on the direct appeal of the conviction. The Government responded by pointing out that the appellate attorney did appeal suppression rulings made by the court pretrial. The Government concedes that appellate

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counsel did not raise ineffective assistance of trial counsel in the direct appeal. However, the Government also contends that such issues are generally not raised on direct appeal and further, that appellate counsel was from the same office as trial counsel (Federal Public Defender's office). Raising such an issue would have been a conflict for appellate counsel. Also, since Mr. Martinez raised an issue of counsel's failure to challenge certain sentence enhancements, the Government responded by stating that trial counsel did, in fact, make such challenges at sentencing, but that no direct appeal issue was raised by the Court's denial of such challenges. D. Issues not responded to by Government. The Government did not address the

issue raised by Mr. Martinez regarding the failure to investigate based upon the racial profiling matters. These include the basis for the traffic stop, the lawsuit which had been taking place in Arizona regarding racial profiling, and the failure to make a Brady request for any such materials. IV. ASSESSED MERIT OF DEFENDANT'S CONTENTIONS OF DEFICIENT CONDUCT BY TRIAL AND APPELLATE COUNSEL

There are two issues raised by Mr. Martinez which counsel believes are meritorious with regard to his claim of ineffective assistance of counsel. That is, counsel believes that a further record and hearing should be held to determine the validity of this issue and the prejudice, if any, suffered by Mr. Martinez if trial counsel's actions or omissions were determined by this Court to rise to the level of ineffective assistance of counsel. Those two issues are: (1) Failure of trial counsel to inform Mr. Martinez of the potential consequences of a

conviction (30 years to life sentence) and not just whether trial counsel conveyed any offer made by the Government to Mr. Martinez, and 9

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(2)

What efforts, if any, trial counsel made to properly investigate and follow up on

Mr. Martinez' claim of racial profiling by the Arizona DPS. V. LEGAL AUTHORITY AND ARGUMENT

A. Failure to inform Mr. Martinez of potential consequences of conviction vs. plea. "[C]riminal defendants have a Sixth Amendment right to `reasonably effective' legal assistance." Roe v. Flores-Ortega, 528 U.S. 470, 476, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This right is violated when counsel's representation falls "below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. "[E]ffective assistance of counsel includes counsel's informed opinion as to what pleas should be entered." United States v. Carter, 130 F.3d 1432, 1442 (10th Cir.1997). A defendant is prejudiced by counsel's deficient performance in regard to plea bargaining if there is "a reasonable probability that but for incompetent counsel [the] defendant would have accepted the plea offer and pleaded guilty." Carter, 130 F.3d at 1442; U.S. v. Martinez, 2008 WL 1844062, 3 (C.A.10 (Colo.) 2008). In this case Mr. Martinez contends that he was not informed by his trial counsel that he could receive 30 years if convicted and would have accepted a ten (10) year offer made by the prosecutor if he had been so informed. Counsel believes that a trial counsel's failure to inform the client of all of the potential risks and consequences of going to trial as opposed to accepting any plea agreement offered would result in prejudice and would amount to ineffective assistance of counsel.

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B. Racial profiling-malicious prosecution issue. The Equal Protection Clause precludes selective enforcement of the law based on race or ethnicity. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). To establish discriminatory effect in a motion for discovery on a selective enforcement claim based on race, the defendant must provide credible evidence that a similarly situated individual of another race or ethnicity could have been subjected to the same law enforcement action as the defendant, but was not. See United States v. Armstrong, 517 U.S. at 465, 116 S.Ct. at 1487; United States v. James, 257 F.3d 1173, 1179 (10th Cir.2001). Here, Mr. Martinez argues that his counsel failed to properly investigate this potential claim of violation of his Constitutional rights and failed to raise it prior to and at trial. Certainly, if the Court had determined that the sole basis for the traffic stop of Mr. Martinez was based upon a Constitutionally impermissible basis of racial profiling, the Court may have entered an Order suppressing the traffic stop and the evidence located during the traffic stop, including the gun, the cell phones and the money. A failure to raise the issue prior to and at trial resulted in the evidence being introduced at trial, which was prejudicial to Mr. Martinez. A jury very much could have come to a different conclusion if no direct connection between Mr. Martinez and Ms. Meza-Chaidez had been established by the Government. Counsel believes that this would result in the necessary prejudice prong as set forth in Strickland. NEED FOR AN EVIDENTIARY HEARING, EXPECTED LENGTH OF HEARING AND LIMITS ON HEARING Counsel believes that an evidentiary hearing should be held in this matter to present evidence on the issues that counsel believes are meritorious and to present argument after such testimony is given. It is expected that Defendant's trial counsel would be a necessary witness. It 11

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is also possible that Defendant would call an expert attorney witness to testify regarding the issues set forth herein. Defendant would also likely be a witness at this hearing. It would be expected that such hearing would last approximately two (2) hours. Counsel recommends that the hearing be limited to the issues which counsel believes may have merit and that the Court consider the evidence, apply the two-prong test in Strickland and decide whether Mr. Martinez should be afforded any relief, including vacating the Judgment and granting him a new trial. VI. CONCLUSION AND RELIEF SOUGHT

Mr. Martinez is seeking an evidentiary hearing regarding the issues raised in his Petition for Writ of Habeas Corpus. Undersigned counsel believes that Mr. Martinez should receive an evidentiary hearing on the specific issues stated above. Undersigned counsel does not believe, either because of failure to develop the issues in the record in the case, or due to prevailing case law, that Mr. Martinez is entitled to an evidentiary hearing on the other issues raised by him in his Petition. Respectfully submitted, LAMM & BUTLER, L.L.C.

Date: 7-30-08

By:

___s/Patrick D. Butler_____________ Patrick D. Butler, #17413 Attorneys for Defendant 287 Century Circle, Suite 103 Louisville, CO 80027 (303) 664-9106

A duly signed original is on file in the offices of Lamm & Butler, LLC

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CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served on this 30th day of July, 2008 by: Placing in the U.S. Mail, first class postage prepaid and/or via electronic service addressed to the following: James C. Murphy, Esq. Asst. United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 [email protected] By ____s/ Rhonda Bender _

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