Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Crim. No. 04-cr-429-MSK Civil No. 08-cv-455-MSK UNITED STATES OF AMERICA, Plaintiff/Respondent, v. RAMON MARTINEZ, Defendant/Movant.

UNITED STATES' ANSWER TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255

The United States responds to defendant's post-conviction motion, and supporting memorandum, to vacate his convictions and sentence, under 28 U.S.C. § 2255 (doc's 187-88). Stated Grounds For Relief The defendant asks this court to vacate his drug-trafficking convictions, alleging that he received ineffective assistance of counsel at trial, at sentencing, and on direct appeal. The defendant seeks an evidentiary hearing on these issues. See Motion (doc. 187) at 5-6. For the reasons set forth below, the government asks that defendant's motion be denied without a hearing.

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Defendant's Motion Is Timely Title 28, U.S.C. § 2255 requires that a motion be filed within one year of "the date on which the judgment of conviction becomes final . . . ." Final judgment entered in this court on May 11, 2006, see doc. 158 (attachment 1), and defendant's convictions were affirmed on April 26, 2007. See United States v. Ramon Martinez, 230 Fed.Appx. 808, 2007 WL 1219420 (10th Cir. 2007) (attachment 2). When a defendant appeals, finality attaches on the later of the expiration of the 90 day time for filing a certiorari petition with the Supreme Court or the Court's final disposition of the petition. United States v. Burch, 202 F.3d 1274, 1276 (10th Cir. 2000). The Supreme Court denied certiorari on December 3, 2007.1 Defendant's § 2255 motion (doc. 187) was filed February 29, 2008 and is timely. Pursuant to Rule 5(b) of the Rules Governing § 2255 Proceedings, the United States informs the court that no prior post-conviction motions have been filed by the defendant. Factual Background Following trial to a jury, Ramon Martinez was found guilty of Counts Two and Three of a Superseding Indictment: conspiracy to distribute and

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possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & 846 (Count Two); and distribution of, and possession with intent to distribute, 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & 18 U.S.C. § 2 (Count Three). Defendant was found not guilty of engaging in a continuing criminal enterprise (Count One). Doc. 158. Count Four of the indictment, an additional distribution charge, was dismissed by the government before trial. Doc. 114. The investigation was conducted through the use of court ordered wiretaps. The defendant moved to suppress the wiretaps prior to trial, doc. 53, and this court denied the motion. Doc. 97. The defendant also moved pretrial to suppress evidence seized as the result of a traffic stop and subsequent search of his vehicle. Doc. 52. The court denied this motion also. Doc. 71. Both rulings were affirmed on appeal. United States v. Ramon Martinez, supra, 2007 WL 1219420 at 4, 6. At sentencing, this court found a total offense level of 42 and a criminal history category of II, yielding an advisory guideline range of 360 months to life imprisonment. Doc. 158 at 7. The court sentenced defendant to 360 months on each count of conviction, to be served concurrently. Id. at 2.

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Argument I. Defendant Has Not Shown He Suffered From Ineffective Assistance Of Counsel At Trial To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) his "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 confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). This court must "give considerable deference to an attorney's strategic decisions and `recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 690). In reviewing such claims"a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of

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sufficient prejudice, which we expect will often be so, that course should be followed." Id. A. Failure to Investigate Defendant's first claim is that his trial counsel failed to investigate his case.2 Memorandum (hereafter "Memo") at 6. Under this argument heading defendant makes a broad range of allegations. The key arguments seem to be as follows. (1) Defendant's counsel failed to call as a witness Ms. Christina Alvarado, who defendant alleges would have testified that $8,000 in cash found following a February 2, 2004 traffic stop was "hers to purchase an automobile." Id. at 7. Defendant provides no evidence supporting his assertion that Ms. Alvarado would have so testified and the record suggests otherwise. At the suppression hearing, Officer Neve testified that Ms. Alvarado told him that the defendant had the money because he might buy a car. Supp.Vol. I at 22.3 This testimony is corroborated by the fact that $4,000 of the money was on

Grounds stated in the motion (at 5-6) differ somewhat from grounds argued in the attached memorandum (at 6-22). The government responds to the memorandum. Citations are to the record on appeal. The government expects the Circuit to return the record to this court in the near future. Page 5 of 27
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the defendant's person. While speaking to the defendant, the officer observed bundles or bulges in the defendant's front pockets. The defendant then pulled $4,000 in cash from his pockets. Id. at 20. Defendant's argument that there "was no reason at all not to call Ms. Christina Alvarado," Memo at 7, is also contradicted by the record. Ms. Alvarado was a passenger in the vehicle driven by the defendant. The remaining $4,000 was found in the trunk of the vehicle after a dog alerted on a duffel bag containing the cash. Id. at 26. Following the stop of his vehicle, the defendant produced a Mexican driver's license in a false name. Id. at 1112. Ms. Alvarado had a gun in her purse ­ which she lied to police about by denying the presence of any weapons ­ and the vehicle contained marijuana. Id. at 21, 27. Thus, there are many reasons a reasonable defense lawyer would not desire to call Ms. Alvarado as a witness and subject her to crossexamination regarding these events. Given the circumstances, any testimony by Ms. Alvarado concerning the ownership of the cash would have had little credibility and in all likelihood would have hindered rather than helped defendant's case. Defendant's counsel was able to establish the same defense by calling Manuela Dominquez, who testified that Ms. Alvarado was her niece and that she (Dominquez) gave Alvarado (and the defendant) the money to buy a car. Supp.Vol. VIII at 649, 651-52, 657-58. Page 6 of 27

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(2) Counsel failed to point out the lack of nexus between the $8,000 seizure of cash and drugs from him, and the money found on Ms. MezaChaidez on January 28, 2004. Memo at 7. Defendant's reasoning here is unclear. At the time of the seizure of the $8,000 (discussed above), the persons present were the defendant and Ms. Alvarado. On January 28, 2004, defendant alleges drugs and money were found on Ms. Meza-Chaidez. It is unclear from defendant's pleadings what he would have had his trial counsel argue. Defendant concedes that MezaChaidez testified that she had a telephone conversation with him around this same time concerning the sale of a pound of methamphetamine. A reasonable jury might infer that the $8,000 in cash, found in defendant's possession only a few days later, was connected to the earlier methamphetamine transaction. Attempting to counter this inference, as discussed above, defense counsel called Ms. Dominquez to try and establish an innocent explanation for defendant's possession of such a large sum of cash. And in his closing remarks, defense counsel cited Dominquez' testimony in arguing that the $8,000 in cash was not derived from a drug transaction. Supp.Vol. VIII at 740. Thus, the record shows defense counsel did in fact argue against the "nexus" defendant is concerned about.

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(3) Counsel failed to require the government to produce evidence that he was the one speaking on a recorded conversation with Ms. Meza-Chaidez concerning the sale of a pound of methamphetamine. Memo at 7, 9. At trial, Ms. Adelaida Meza-Chaidez, a government cooperating witness, testified at length concerning her work selling drugs for the defendant. See Vol. III at 116-157; vol. V at 158-246.4 Meza was introduced to the defendant by Pablo Beltran. Vol. III at 130. The defendant told her that if they were stopped, she was to say that the drugs were hers and that he would help her. Id. at 132. Meza recalled a trip to Durango with the defendant when he had 6 pounds of methamphetamine; the defendant gave a guy a pound in exchange for $8,000. Id. at 134-35. Meza knew the amount because she counted the money. Id. at 135. Meza also testified about a storage facility, that she rented and which the defendant paid for, which contained five pounds of methamphetamine. Id. at 136. The defendant told Meza that she would get a thousand dollars per pound sold. Id. at 137. Meza started working for the defendant in June of 2003; she sold 5 pounds the first two weeks and "then gradually sales increased to the point that I was selling 10

To avert potential confusion, the government alerts the court that more than one transcript of this testimony is on file. Meza's testimony is also contained (with different page numbers) in supplemental volumes V and VI of the record on appeal. Page 8 of 27

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pounds a week." Id. at 138. Other people sold drugs for the defendant. Id. at 137-139. On January 28, 2004, Meza received a phone call from the defendant asking her to take a pound of methamphetamine to a Mr. Ram. Id. at 141. Following her arrest on that date, she agreed to cooperate with law enforcement. Vol. V at 167. The next day, Meza made (consensually monitored) phone calls to the defendant at the direction of the DEA. Id. at 169. Recordings of these calls were admitted at trial and Meza identified the defendant's voice on the recordings. Id. at 172, ls. 22-25, and at 178, ls. 7-8; see generally pages 171-179. Thus, defendant's allegation that the government failed to produce such evidence is incorrect. The trial record shows Meza knew the defendant well ­ she also had a personal relationship with him, id. at 180 ­ and was qualified to identify his voice. (4) Counsel failed adequately to investigate and cross-examine MezaChaidez regarding matters that affected her credibility. Memo at 8-11. Defendant faults his counsel for failing to effectively cross-examine Meza-Chaidez, which defendant alleges would have revealed: "what it was she was being offered by the government, and what exactly she was to do in exchange," id. at 8; that she had prior drug convictions, id. at 9; that she was Page 9 of 27

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"committing criminal Acts for the government," id.; that she was an informant, paid in the sum of $25,000, id. at 10; and that she was working for the DEA and other law enforcement agencies, id. Contrary to defendant's allegations, this information was elicited at trial. On direct examination, the government brought out that around the years 2000-2001, Meza worked as an informant with Phoenix, Arizona, police and was also moving drugs for Pablo Beltran. Vol. III at 128-29. The government also exposed that Meza cooperated with the DEA, entered a state guilty plea, and served jail time. Vol. V at 167-169. On cross-examination, defendant's counsel explored this background and more at considerable length. Defense counsel re-visited her sale of drugs for Beltran, vol. V at 203, while at the same time she was working as an informant with the Phoenix police, id. at 211; defense counsel confronted Meza with the fact she was in practice lying to the Phoenix police, id. at 212; counsel explored her substantial payments from the DEA, id. at 214 (300 per week, totaling around $20-25,000); her special parole terms that allowed her to avoid deportation, id. at 215-16; that she was working both sides of the fence and broke the law, id. at 223; that her plea agreement in state court conferred a "great benefit" upon her, including a probationary sentence, id. at 231; and obtained her acknowledgment that "the only reason why you're not in jail or Page 10 of 27

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not in Mexico is because you're a witness for the Government in this case,"id. at 234. Although the defendant alleges that Meza was lying, her credibility was for the jury to evaluate; the record shows that defense counsel did what he could to impeach Meza's credibility with the evidence available. (5) Counsel failed to argue that the defendant could not be convicted of conspiracy because there were no co-conspirators. Memo at 10. The trial record also refutes this allegation. Defendant was not a solo flier in the drug dealing business. Meza testified to her involvement with numerous others in distributing drugs for the defendant. See, e.g., Vol. III at 143, 148; vol. V at 161, 185-187, 189, 191. A conspiracy may be shown with evidence of the statements and acts of others, whether or not they are formally charged. See, e.g.,United States v. Busch, 758 F.2d 1394, 1397 (10th Cir. 1985), citing United States v. Rodgers, 652 F.2d 972, 976 (10th Cir. 1981). The wiretap evidence also showed conversations between the defendant and others concerning the distribution of drugs. Thus, defense counsel cannot be faulted for failing to advance such an argument. B. Failure to Call Defense Witnesses Defendant alleges his counsel failed to call crucial defense witnesses. Memo at 11. Defendant reiterates his argument that his counsel should have called Christina Alvarado and the government responded to this above. Page 11 of 27

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Defendant also maintains that Ms. Alvarado's "parents and members of both our families could have testified in petitioner's behalf." Id. at 12. Defense counsel called Ms. Alvarado's Aunt to testify about the source of the $8,000 in cash. The defendant does not identify what other witnesses might have been called, what testimony they might have given, or how the testimony would have assisted his defense. Thus, he has failed to show his counsel was ineffective. C. Failure to Prepare or Present the Case as Requested Defendant complains that his counsel never visited him at the holding facility; that during hearings in the case his counsel "only discussed petitioner pleading guilty"; that counsel refused to interview witnesses that would support his defense; and that a breakdown in communication occurred during trial. Memo at 12-13. However as with his earlier complaints, the defendant does not allege how these matters prejudiced his defense. Where defense counsel met with the defendant is largely immaterial so long as counsel was able to effectively prepare. Defendant also complains that his counsel wanted to discuss a possible guilty plea. A similar allegation is made earlier, where defendant accuses his counsel of "relentlessly attempting to convince petitioner to plead guilty so counsel would not have to prepare in any form for trial."Id. at 10. But given Page 12 of 27

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the testimony of Meza-Chaidez and the wiretap evidence reflecting defendant's drug trafficking activities, it is not surprising that his counsel wished to explore this possibility. Discussing plea possibilities is part of defense counsel's job. In any event, defendant's allegations are insufficiently specific to show his counsel was ineffective, much less do they show he was prejudiced by any of these matters. II. Counsel Was Not Ineffective In Challenging The Sufficiency Of The Evidence At Trial The defendant alleges his counsel was ineffective by failing to argue the insufficiency of the evidence on four different grounds. A. Testimony of Meza-Chaidez

According to the defendant, his counsel should have moved for dismissal based upon "the uncorroborated testimony of a paid informant." Memo at 13. This is not a ground for dismissal, however. It was for the jury to decide whether to credit Meza's testimony. Nor was Meza's testimony regarding defendant's drug trafficking activities uncorroborated. Detective Flores testified that in December of 2003 he arrested the defendant, who at the time had possession of approximately a pound of methamphetamine. Supp.Vol. V at 141. The defendant told Det. Flores that he was delivering the drugs to someone else and that "he could produce a lot more

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methamphetamine for me and was willing to work his charges off." Id. at 146. Based upon this information, Det. Flores was able to locate "two subjects who were in possession of 4 pounds of methamphetamine and some weapons." Id. at 147. The defendant also offered to work as a paid informant, promising "he could set up a deal for 200 pounds of methamphetamine, along with some heroin." Id. at 148. Defendant's direct involvement in drug dealing was also established through the testimony of DEA agent Karl Hedrick, who testified to defendant's meeting with Hugo Sotelo and Jose Loya and the seizure of approximately two kilograms of methamphetamine. Supp.Vol. VII at 527-554. The agents' surveillance confirmed wire interceptions in which the defendant appeared to be arranging the drug deal. Thus, abundant trial evidence corroborated Meza's testimony that the defendant was heavily involved in selling methamphetamine. Defendant's allegation that he did not receive evidence of government payments to Meza is likewise unfounded. The testimony cited above (at issue I(A)(4)) shows his counsel cross-examined Meza regarding the substantial payments she received while working as an informant. Defendant has failed to show that there was anything his counsel should have done, but failed to do, in the face of this evidence.

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B.

The Conspiracy Charge

Asserting that he could not as a matter of law conspire with a government agent, defendant argues his trial counsel failed to request an instruction that he could not conspire with Meza-Chaidez. Memo at 14. This is substantially the same argument defendant makes at issue I(A)(5) above and the government refers the court to the response above and the trial evidence of multiple co-conspirators. A similar allegation in a § 2255 proceeding was considered in United States v. Clark, 198 F.3d 259, 1999 WL 979243 at 2 (10th Cir. 1999) (unpublished), where the court noted that "[w]hile it is certainly correct that one cannot, as a matter of law, conspire with only government agents and informants, see United States v. Newman, 733 F.2d 1395, 1402 (10th Cir.1984), that was not the charge in this case." Here, as in Clark, the government alleged, and the trial evidence showed, that the defendant was involved with others, who were not government agents.5 The testimony of Meza, the wiretap evidence, and the testimony of Detective Flores all show that the defendant was involved with numerous

Because Meza-Chaidez was working outside the scope of any cooperation agreement she had at the time ­ by dealing drugs on the side ­ it is probably the case that the defendant could have conspired with her. But the existence of numerous other co-conspirators renders it unnecessary for the court to address this question. Page 15 of 27

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other individuals in distributing drugs. See United States v. Hardwell, 80 F.3d 1471, 1482 (10th Cir. 1996) ("The jury may infer an agreement constituting a conspiracy from the acts of the parties and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose"). C. The Aiding and Abetting Charge

Pursuing a similar line of reasoning, defendant asserts he was the only person standing trial on the charge of aiding and abetting and that his counsel therefore should have argued the evidence was insufficient to sustain his conviction. Memo at 15. His counsel also failed to seek dismissal of the charge, defendant complains, on the ground that the indictment, while citing the statute, did not specifically charge him with aiding and abetting using the language of 18 U.S.C. § 2. Id. The Tenth Circuit rejected both arguments in United States v. Cooper, 375 F.3d 1041 (10th cir. 2004). As to the first proposition, the court rejected the argument that the aiding and abetting conviction could not be upheld "because he was the only person charged [with the bank robbery] . . . ." Id. at 1050. On the second argument, the court held that section 2 does not establish an independent crime and upheld a jury instruction allowing defendant's conviction as an aider and abettor, even thought the charge was not contained in the indictment. Id. at 1049-50. See Page 16 of 27

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also United States v. Alexander, 447 F.3d 1290, 1298 (10th Cir. 2006) (citing Cooper and other authority for the proposition that aiding and abetting "need not be alleged in the indictment"). Because defendant's arguments are without legal merit, his counsel properly did not advance them. D. Selective and Malicious Prosecution

At this section of his § 2255 motion, the defendant reiterates his oftrepeated complaint that Ms. Meza-Chaidez was lying at trial when she testified that she worked for the defendant in dealing drugs. Memo at 16. The defendant then offers this court his own version of what transpired. In defendant's version of events, Meza was the "kingpin" and the government allowed her to receive a lenient sentence while he received a long one. Id. at 16-17. The defendant cites no evidence not already discussed above in support of his version of events. Nor did the defendant offer this story at trial, where he exercised his constitutional right not to testify. As argued above, Meza's credibility was for the jury to decide. Defendant cites no evidence supporting his claims that Meza's testimony was untruthful and his repeated assertions, at this point in the proceedings, amount to little more than name-calling. It is not misconduct for the government to extend favorable plea terms to cooperating witnesses. In United States v. Horn, 946 F.2d 738, 746 (10th Cir. 1991), the court held that a sentencing disparity resulting from a coPage 17 of 27

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defendant's cooperation "does not offend equal protection because a rational connection exists between obtaining information concerning narcotics and providing an opportunity for a sentence reduction in exchange for such information." See also United States v. Cain, 487 F.3d 1108, 1114-15 (10th Cir. 2007) (rejecting § 3553(a)-based argument of unwarranted sentencing disparity on the ground defendant was not similarly situated to co-defendants who cooperated with and testified for the government). III. Defendant Has Not Shown His Appellate or Sentencing Counsel Provided Ineffective Assistance Defendant maintains he was denied the effective assistance of counsel on direct appeal and, in the same section of his motion, challenges the performance of his counsel at sentencing. Memo at 19-20. A. Sentencing

The first alleged error is that his appellate counsel failed to appeal "any aspect" of his sentence or conviction. Id. at 19. This claim is inaccurate. Appellate counsel appealed on two grounds: that this court erred in denying a motion to suppress the government's wiretaps, and erred in denying a motion to suppress evidence found during the traffic stop involving Ms. Alvarado. The Tenth Circuit affirmed both rulings. United States v. Ramon Martinez, 230 Fed.Appx. 808, 2007 WL 1219420 (10th Cir. 2007).

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Defendant then challenges his counsel's handling of two sentence enhancements: a 2 level increase, under USSG § 2D1.1(b)(1), for possession of a dangerous weapon, and a second 2 level increase, under § 2D1.1(b)(4), because the offense involved the importation of methamphetamine. Defendant alleges his counsel failed to object to the importation enhancement and failed to argue, regarding the weapon enhancement, that the firearms were not connected to the drug conspiracy. Memo at 19-20. The record contradicts both allegations. Counsel objected on the ground that there was no evidence to show the defendant knew the methamphetamine was imported or made from listed chemicals defendant knew to be imported. Vol. XII PSIR, Addendum at A-3 (See attached Objections at 6).6 Regarding the weapon enhancement, counsel objected to consideration of numerous weapons that the government maintained could support the enhancement. As to the pistol-gripped shotgun found during a search of defendant's residence,

In arguing this issue defendant also asserts his counsel should have argued a "mitigating role" applied. Memo at 20. Although defendant is correct that the importation enhancement under § 2D1.1(b)(4) does not apply if a defendant is subject to a mitigating role adjustment under § 3B1.2, the evidence, which has already been discussed, did not support such an adjustment. To the contrary, defendant's sentence was enhanced 2 levels, under § 3B1.1(c), for being a leader of the activity. Supp. vol. XI at 26-27. Because there was no factual basis for this argument, trial court counsel was not ineffective for failing to make it. Page 19 of 27

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counsel argued that no drug transactions were occurring at that time and no illegal substances were found in the residence; as to the firearm found on defendant's night stand at Meza's apartment, counsel argued that no evidence linking this firearm to the charged conduct and that Meza was holding the weapon for someone else; as to the firearm found in defendant's pants pocket upon his arrest, counsel asserted defendant's position that there was no connection between this weapon and methamphetamine found in a vehicle driven by Hugo Sotelo. PSIR, Addendum at A-2 (see attached Objections at 4-5). See also Second Addendum (attaching similar objections). Defense counsel also sought a variance from the Guidelines. Supp.Vol. XI at 28-29 (but not a departure, id. at 3). Counsel asserted the argument advanced by the defendant here that the disparity between his sentence and Mesa's was unfair. Id. at 5-6, 29.7 Thus, contrary to defendant's allegation, his counsel at sentencing made the arguments in question. B. Direct Appeal

To the extent defendant means also to argue that his appellate counsel should have pursued these issues on appeal, defendant has failed to show the

This court appeared sympathetic to this argument, but found it was a disparity in charging, which was the province of the government, and did not implicate the court's sentencing decision. Supp.Vol. XI at 30. Page 20 of 27

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issues were meritorious. In determining whether counsel was ineffective for failing to raise an issue, this court examines the merits of the omitted issue. United States v. Larson, 175 Fed.Appx. 236, 2006 WL 895491 at 5 (10th Cir. 2006), citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir. 1993). At the sentencing hearing, this court made clear that it was not crediting Meza's testimony regarding the quantity of drugs sold and instead adopted the defendant's position on this issue. Supp.Vol. XI at 19 (ls. 16-20) 21. This quantity, based upon trial evidence of amounts seized, was more than 5 kilograms, but less than 15 kilograms, of methamphetamine, yielding a base offense level of 36. Id. at 19-20. Thus, the defendant prevailed on this issue and no appeal was necessary. The enhancement for possession of a weapon provided no basis for an appeal. This court noted that numerous firearms were potentially possessed in connection with the offense and that possession could be shown by the government by demonstrating mere proximity to the offense, which shifts the burden to the defendant to show that it is clearly improbable a weapon was connected to the offense. Id. at 22 (citing United States v. Humphrey, 208 F.3d 1190, 1210 (10th Cir. 2000)). This court cited the numerous weapons established by trial evidence, id. at 22-23, and found the defendant had not satisfied this burden. These weapons are discussed above and all were seized Page 21 of 27

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under circumstances that suggest connections with the drug trafficking activity. These facts ­ which defendant has not successfully countered in this § 2255 motion ­ coupled with the clear error standard of review, Humphrey, 208 F.3d at 1211, leaves no prospect for success on appeal and his appellate counsel wisely did not pursue this issue. For similar reasons, the enhancement to defendant's sentence based upon his knowledge the methamphetamine was imported was not reasonably subject to challenge on appeal. This court found the enhancement applied based upon testimony from Special Agent Preeg regarding wiretap calls in which the defendant is discussing with others loads of drugs coming from Mexico. Supp.Vol. XI at 24. The court accurately described Agent Preeg's testimony at an earlier hearing (vol. XI at 24-30), and this fact-based enhancement also was not reasonably subject to challenge on appeal. Last, maintaining there is "no fixed rule" precluding ineffectiveness arguments on direct appeal, defendant faults his appellate counsel "for failing to argue trial counsel was ineffective." Memo at 20-21. However the Tenth Circuit has held that claims of ineffective assistance should not ordinarily be brought on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) ("Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct Page 22 of 27

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appeal are presumptively dismissible, and virtually all will be dismissed"). It is the rare case where the record is sufficiently developed to permit consideration of such issues on appeal, see United States v. Beaulieu, 930 F.2d 805, 807 (10th Cir. 1991), and this is not one of those cases. Defendant does not allege he made these claims during the trial proceedings or that a factual record was developed. See Beaulieu, 930 F.2d at 807 (as a "general rule," ineffectiveness claims "cannot be resolved on direct appeal when the claim has not been raised before the district court") (citations omitted). And the government does not assert that a procedural bar exists to defendant's raising the issues ­ as he has done here ­ in his § 2255 motion. Thus, whether or not some of those claims might have been brought on appeal, no prejudice has accrued from his appellate counsel's decision not to do so.8 The absence of any merit to defendants claims also compels the finding that he has suffered no prejudice. IV. Miscellaneous Issues From Defendant's Motion Defendant's motion raises two issues that he does not pursue in his memorandum. As the first point of ground I of his motion, the defendant

The government notes that the Public Defender represented defendant both in the trial court and on appeal. Thus, the appellate defender would have been required to withdraw, in favor of unrelated counsel, had she presented such issues. Page 23 of 27

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alleges his counsel failed "to properly present Government's offer of a plea agreement." Motion at 5 (attached sheet, item (1)). However, as discussed above, defendant's memorandum makes the opposite complaint: that his counsel was pressuring him to plead guilty when he did not want to, rather than adequately preparing for trial. Memo at 10, 12-13. It may be that what the defendant means to say is that his counsel failed to properly deal with Meza's plea agreement with the government, an argument more consonant with the other arguments advanced in the memorandum. See Memo at 11 (referring to Meza's "plea agreement with the government"). In any event, neither the motion nor the memorandum advances any factual basis or argument showing that defense counsel failed to communicate a plea offer. And the memorandum is clear that the relief the defendant is seeking is a new trial, not a plea deal. See Memo at 18, 22 (asking for new trial). Even when a defendant alleges he wanted to enter a guilty plea, he must show that he was prejudiced by his counsel's alleged failure to communicate the offer. See, e.g.,United States v. Day, 969 F.2d 39, 44 (3rd Cir. 1992) (and cases cited therein). Prejudice is shown through evidence that, but for counsel's conduct, the defendant would have accepted the plea. See, e.g., Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991), citing Strickland, 466 U.S. at 694; Diaz v. United States, 930 F.2d 832, 835 (11th Page 24 of 27

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Cir. 1991); United States v. Turner, 281 F.3d 851, 881 (9th Cir. 2002). The defendant here has made no such allegation and, to the contrary, has made clear he wanted to go to trial. Defendant also alleges that his counsel should have submitted a sentencing memorandum setting forth mitigating factors and humane contributions defendant made throughout his life that would have supported a downward departure. Motion at 5 (attached sheet, item (8)). However defendant does not suggest what those factors or contributions were and therefore the government cannot address them. In a recent Circuit decision, however, United States v. Rojas-Hernandez, No. 07-2024, Slip Op. at 7 (10th Cir. April 16, 2008), the defendant argued the district court should have varied from the Guidelines based upon somewhat similar factors, such as (among others) his good character and high-minded motives. The circuit was unpersuaded, noting that these qualities were insufficiently remarkable to distinguish a case from "the mine run of cases" in which a Guideline sentence was reasonable. Id. at 8, citing Rita v. United States, 127 S.Ct. 2456, 2465 (2007). So also, the factors cited by the defendant here could not support a lower sentence. As shown above, defense counsel unsuccessfully sought a variance from the Guidelines on the ground that the disparity between his sentence and Mesa's was unfair. Supp.Vol. XI at 28-29. Defendant's § 2255 Page 25 of 27

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motion does not allege any other factors that might reasonably have supported either a departure or variance from the advisory Guideline range. Conclusion Defendant's motion to vacate his conviction and sentence under 28 U.S.C. § 2255 should be denied. Because the record clearly shows that Mr. Martinez' claims have no merit, he is not entitled to an evidentiary hearing. See United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996). See also, e.g., United States v. Cervini, 379 F.3d 987, 993 (10th Cir. 2004) (vague proffer by defendant regarding what witnesses would have said if called did not warrant evidentiary hearing). Respectfully Submitted, TROY A. EID United States Attorney

s/ James C. Murphy By: James C. Murphy Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone:(303) 454-0100 Fax: (303) 454-0461 E-mail: [email protected] Counsel for Plaintiff United States of America

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 21, 2008, I electronically filed the foregoing with the Clerk of Court using the ECF system. A hard copy will be sent to the following address: Ramon Martinez #26827-051 FCI P.O. Box 800 Herlong, California 96113

s/ Ma-Linda Stevens Ma-Linda Stevens U.S. Attorney's Office

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