Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona LINDA C. BOONE Assistant U.S. Attorney Arizona State Bar No. 6108 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff-Respondent, v. Francisco Gonzalez-Cisneros, Defendant-Movant. CR-01-118-PHX-SMM CV-05-882-PHX-SMM (LOA) SUPPLEMENTAL RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, by and through undersigned counsel, hereby requests leave

15 of this court to submit the following Supplemental Response in opposition to the Motion of 16 defendant Francisco Gonzalez-Cisneros to Vacate, Set Aside, or Correct Sentence pursuant to 17 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and 18 Authorities. 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 11th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s LINDA C. BOONE Assistant U.S. Attorney Appellate Section

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SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Issues Presented 3 Defendant-movant Francisco Gonzalez-Cisneros filed a Reply to the government's

4 Response in which he notes that a petition for en banc review was denied by the Ninth Circuit 5 in his case on March 31, 2004. Defendant's case history did not reveal the filing of an en banc 6 petition, however, undersigned counsel has subsequently checked the Ninth Circuit docket and 7 determined that defendant was correct, albeit that the filing was late. Therefore, respondent 8 withdraws its objection on the basis of untimeliness to defendant's motion pursuant to 28 U.S.C. 9 § 2255, and respectfully requests leave to submit the following Supplemental Response 10 addressing defendant's claims. Defendant alleges three bases for relief: (1) violation of his Sixth 11 Amendment rights in the district court determination of his criminal history category in reliance 12 upon Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124 S.Ct. 2531 13 (2004); (2) ineffective assistance of trial and appellate counsel; and (3) under the Supreme 14 Court's holding in United States v. Booker, 125 S.Ct. 738 (2005), that his sentence was void ab 15 initio. (CR 151; Motion at 5.) 16 II. 17 Procedural History Respondent hereby incorporates the Procedural History from its original Response.

18 Defendant also filed a late pro se petition for panel hearing and rehearing en banc in the Ninth 19 Circuit which was accepted and ordered filed on December 5, 2003. ( See Docket Proceedings, 20 Exhibit A.) The Ninth Circuit subsequently denied defendant's petition for panel hearing and 21 rehearing en banc on March 31, 2004. (See Exhibit A.) This pro se §2255 motion was filed by 22 defendant on March 23, 2005. 23 III. 24 25 Analysis A. Defendant's Motion Is Timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132,

26 110 Stat. 1214, became effective on April 24, 1996. It established both procedural and 27 substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 28
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1 2255. Particularly, in section 105 of AEDPA, Congress established a one-year period of 2 limitations for such motions. The statute of limitations under § 2255 begins to run on the date 3 on which the judgment of conviction becomes final. 28 U.S.C. § 2255(1). 4 For habeas purposes, a conviction becomes final when the availability of direct appeal

5 is exhausted. United States v. Schwartz, 274 F.3d. 1220, 1223 (9th Cir. 2001). The Ninth 6 Circuit denied defendant's petition for panel hearing and rehearing en banc on March 31, 2004. 7 Defendant then had ninety days from March 31, 2004, until on or about June 30, 2004, to file 8 a petition for writ of certiorari in the United States Supreme Court. 9 The one-year limitation period begins to run from the expiration of the ninety days in

10 which a petition for writ of certiorari could be filed, if a federal prisoner did not in fact file such 11 a petition. United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000). In that defendant did 12 not file a petition for writ of certiorari, he had one year from June 30, 2004, or until on or about 13 June 30, 2005, to file a timely § 2255 motion. Accordingly, because the instant § 2255 motion 14 was filed March 23, 2005, the motion is timely. 15 16 B. Defendant's Sentencing Enhancements Did Not Violate Apprendi Defendant claims that the use of two prior convictions by the district court to enhance his

17 sentence was a violation of his Sixth Amendment rights in reliance upon Apprendi v. New 18 Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124 S.Ct. 2531 (2004). (Motion, 19 Supporting Memo at 1-3.) He alleges that one point was improperly added for an alleged driving 20 infraction when there was no evidence of an arrest record, conviction or attorney representation. 21 However, the record reveals in a hearing on April 8, 2002, the government provided this court 22 and defense counsel copies of records of a misdemeanor DUI conviction defendant received in 23 1997 after a bench trial in which defendant was represented by counsel. Based on review of 24 those records, this court determined and all parties agreed that a criminal history point was 25 properly assessed for that conviction. (See RT 4/8/02 2-3; Exhibit B.) Defendant alleges that a 26 second point was assessed based on a conviction for marijuana possession, and in reliance upon 27 Apprendi, that this was improper because he did not admit the conviction, nor did a jury find that 28
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1 he was so convicted. The record reveals no challenge to the validity of this conviction. (See RT 2 3/18/02 2-3; Exhibit C.) 3 In Apprendi, the Supreme Court announced a general rule that "[o]ther than the fact of

4 a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory 5 maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 6 S.Ct. at 2362-2363 (emphasis added). The Supreme Court specifically left proof of a prior 7 conviction as an exception to the rule of Apprendi and has not overruled Almendarez-Torres 8 v. United States, 523 U.S. 224, 239 (1998). Therefore, a district court properly enhances a 9 defendant's offense level on the basis of a prior conviction even if the defendant did not admit 10 the conviction, and even though the government neither alleged it in the indictment, nor proved 11 it at trial beyond a reasonable doubt. United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir. 12 2001); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-415 (9th Cir. 2001). 13 Defendant's reliance upon the Supreme Court decision in Blakely v. Washington, 124

14 S.Ct. 2531 (2004) is misplaced. Blakely did not change the rule of Apprendi regarding the use 15 of prior convictions. Furthermore, Blakely involved state sentencing principles which were not 16 held applicable to the Federal Sentencing Guidelines until January 12, 2005, in United States 17 v. Booker, 125 S.Ct. 738 (2005). Defendant's conviction became final, at the latest, on June 30, 18 2004 when his time to file a petition for writ of certiorari in the United States Supreme Court 19 expired. Booker does not apply retroactively to cases, such as defendant's, on collateral review 20 where the conviction was final before that decision was announced. Booker, 125 S. Ct. at 769 21 (specifying that its dual holdings are to be applied to all cases then pending on direct review or 22 not yet final); see also Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005), and cases cited therein 23 (holding Blakely not retroactively applicable to cases on collateral appeal where the conviction 24 was final before that decision was announced). 25 26 C. Defendant Has Failed To Establish Ineffective Assistance of Counsel. It is well-settled that in order to prevail on a claim of ineffective assistance of counsel,

27 defendant must show (1) that specific acts or omissions of counsel fell below an objective 28
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1 standard of reasonableness, and (2) that defendant was prejudiced by these acts. Strickland v. 2 Washington, 466 U.S. 668, 687-8 (1984); Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995); 3 Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir. 1994); Campbell v. Wood, 18 F.3d 662, 673 (9th 4 Cir. 1994). Where movant cannot establish prejudice, the court need not reach the performance 5 prong. Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir 1995). 6 There must be a reasonable probability shown that, but for counsel's errors, the result of the 7 proceeding would have been different. Strickland, 466 U.S. at 694. In reviewing defense 8 counsel's performance, a court must "strongly presume that counsel's conduct was within the 9 wide-range of reasonable assistance, and that he exercised acceptable professional judgment in 10 all significant decisions made." Strickland, 466 U.S. at 689. This presumption can only be 11 overcome with concrete evidence. United States v. Cronic, 466 U.S. 648, 658 (1984). 12 Defendant claims that trial counsel "exhibited an attitude of indifference and disinterest

13 during the trial, giving the jury the impression that defendant was guilty." (Motion, Supporting 14 Memo at 4.) However, defendant provides no evidence or citation to the record to support such 15 an inference. Cursory allegations that are purely speculative cannot support a claim of ineffective 16 assistance of counsel. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989). 17 Secondly, defendant claims that trial and appellate counsel failed to challenge the lack

18 of a jury finding regarding the amount of drugs attributable solely to him. (Motion, Supporting 19 Memo at 4.) However, during the trial, defendant and the government entered into a stipulation 20 regarding the scientific test results of the type and quantity of drug received by undercover 21 officers during the investigation of his case. (RT 7/10/02 237- 240; Exhibit D.) Additionally, 22 contrary to defendant's claim, the jury made specific findings on special verdict forms regarding 23 the amount of drugs attributable to defendant. (RT 7/10/02 337- 338; Exhibit E.) 24 Lastly, in this regard, defendant claims that trial and appellate counsel failed to challenge

25 his sentencing enhancements for prior convictions. (Motion, Supporting Memo at 4.) As 26 detailed above in paragraph III B., defendant was properly assessed criminal history points for 27 his prior criminal convictions. Failure of counsel to raise a meritless legal argument does not 28
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1 constitute ineffective assistance of counsel. Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 2 1989). 3 4 D. Defendant's Sentence Is Not Void. Defendant claims based on United States v. Booker, 125 S.Ct. 738 (2005) that his

5 sentence was void ab initio, that he is "entitled to have his sentence set aside, and to be released 6 forthwith." (Motion, Supporting Memo at 28.) As explained above in paragraph III B., Booker 7 was decided on January 12, 2005, and defendant's conviction became final, at the latest, on June 8 30, 2004. Booker does not apply retroactively to cases, such as defendant's, on collateral review 9 where the conviction was final before that decision was announced. Booker, 125 S. Ct. at 769 10 (specifying that its dual holdings are to be applied to all cases then pending on direct review or 11 not yet final). 12 V. Conclusion 13 Accordingly, for all of the foregoing reasons, the Motion of Francisco Gonzalez-Cisneros

14 to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 should be denied and this 15 action dismissed. 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 11th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s LINDA C. BOONE Assistant U.S. Attorney Appellate Section

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CERTIFICATE OF SERVICE I hereby certify that on this date, August 11, 2005, I electronically transmitted the

3 attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of 4 a Notice of Electronic Filing to the following CM/ECF registrants: 5 6 7 8 I hereby certify that I served the attached document by mail to the above, also, in light of his pro 9 se status 10 _______________________ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Francisco Gonzalez-Cisneros Fed. Reg. No. 45855-008 FCI Safford P.O. Box 9000 Safford, AZ 85548

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