Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona ROGER DOKKEN Assistant U.S. Attorney 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 20483 Arizona State Bar No. 03778 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Nicholas Pablo, Defendant-Movant. GOVERNMENT'S RESPONSE TO PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 CR-03-764-PHX-JAT CV-07-2094-PHX-JAT-(JCG)

The United States, by and through undersigned counsel, submits that the Petitioner's
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motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 should be dismissed
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because he has failed to carry his burden of proving ineffective assistance of counsel and that
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his due process rights were violated.
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Respectfully submitted this 19th day of March, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona /s/Roger Dokken ROGER DOKKEN Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES I. Issues Presented On October 26, 2007, Petitioner filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 based upon claims of ineffective assistance of trial counsel and due process violations. He is currently confined at the United States Penitentiary in Beaumont, Texas. II. Procedural History On July 22, 2003, a federal grand jury returned a two-count indictment against defendant, and seven others.1 The indictment charged defendants with First Degree Murder, in violation of 18 U.S.C. § 1111, and Conspiracy to Commit Murder, in violation of 18 U.S.C. §§ 1117 and 1111. (CR1.) Pablo was subsequently convicted by a jury of Conspiracy to Commit Murder and was acquitted of First Degree Murder on January 26, 2005. (CR 981.) On June 7, 2005, defendant was sentenced to life imprisonment for Conspiracy to Commit Murder. (CR 1113.) He was also ordered to serve five years of supervised release, assessed $100 and ordered to pay restitution. (CR 1113.) A notice of appeal was filed June 13, 2005. (CR 1116.) The Ninth Circuit affirmed the conviction on October 23, 2006 with the mandate issuing on December 8, 2006. (CR 1171.) Petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 on October 26, 2007. On December 4, 2007, the court ordered the government to file a response. III. Legal Standard A. Ineffective Assistance of Counsel To prevail on a motion under 28 U.S.C. § 2255 based on a claim of ineffective assistance of counsel, petitioner's alleged errors must demonstrate "an omission inconsistent

The six others were Jesse Moore, Henri Markov, Joseph Fuentes, John Yellowman, Mark Case, and Keith and Stephanie Thomas. (CR1; F-ER 8-10.) Henri Markov and Keith and Stephanie Thomas pled guilty prior to trial. (CR708, 792, 793.) Charges were dismissed, on government motion, against Mark Case. (CR680.) Co-defendants Moore, Fuentes and Yellowman were tried jointly with Pablo. (CR 817.) 2

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with the rudimentary demands of fair procedure," or "a fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471 (1962). In Strickland v. Washington, the Supreme Court held the standard for evaluating claims of ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process, the trial could not have produced a just result. 466 U.S. 668, 686, 104 S.Ct 2052, 2064 (1984). To prove ineffectiveness of counsel, Petitioner must show (1) counsel's performance was deficient for Sixth Amendment purposes and (2) but for the deficient performance, a reasonable probability exists the result of the proceeding would have been different. 466 U.S. at 687, 104 S.Ct at 2064. Deficient performance is demonstrated when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. An evidentiary hearing is not required if "... the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' 28 U.S.C. § 2255" United States v. Chacon-Palomares 208 F.3d 1157, 1159 (9th Cir. 2000). B. Alleged Perjured Testimony To prevail on a motion under 28 U.S.C. § 2255 based on a claim of perjured testimony, petitioner must show the testimony was perjured and that the prosecuting attorney knew at the time the testimony was presented that it was perjured. United States v. ReynosoUlloa, 548 F.2d 1329, 1340 (9th Cir. 1977). "`A conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the outcome of the trial.'" United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1992)(quoting United States v. Polizzie, 801 F.2d 1543, 1549 (9th Cir. 1986)). An evidentiary hearing is not required in a motion under 28 U.S.C. § 2255 unless the petitioner alleges "specific facts which, if true, would entitle him to relief." United States v.

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McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996). IV. Petitioner's Grounds For Relief Petitioner raises the following issues: 1. Ineffective assistance of counsel - Counsel failed to call defense witness. 2. Use of perjured testimony of Keith Thomas to obtain a conviction. 3. Use of perjured testimony of Pedro Perez Vega to obtain a conviction. 4. Use of perjured testimony of Kyle Richard to obtain an indictment. 5. Use of perjured testimony of Sean Aguilar to obtain a conviction. 6. Ineffective assistance of counsel - Counsel improperly waived defendant's speedy trial right. V. Facts The Federal Correctional Institution at Phoenix, Arizona ("FCI-Phoenix") is a medium-security facility of approximately 1,200 male inmates, run by the Federal Bureau of Prisons. (CR1078; RT 12/16/2004 5-6.)2 Shortly before the recreation yard closed at 8:30 p.m. on May 9, 2001, inmate Jesus Lopez-Rocha ("Lopez") was stabbed to death in the yard with a "shank," a home-made, ice-pick type weapon. He had been in general population for less than 24 hours. (CR1078; RT 12/16/2004 26-27; CR1079; RT 12/17/2004 55-57, 61, 8283; CR1080; RT 12/21/2004 154; CR1084; RT1/5/2005 18, 24, 29-32, 35-39, 48-49; CR1085; RT 1/6/2005 187-88.) 1. The Investigation. Forrest Barton, a special investigative agent at FCI-Phoenix, collects intelligence on inmates, including their groupings and associations, and uses the information to create "security threat group files." These files include information on an inmate's gang affiliation,

Due to the voluminous nature of this case and the fact the transcripts are available in the Court Record, the United States has not attached copies of the cited transcripts as exhibits.
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escape history, or history of violence or drug introductions into the prison. The information is utilized in the event there is an incident at the prison. Barton's office is the "first responder" if there is an incident, but the FBI is the primary investigative agency if the incident is criminal in nature. (CR1080; RT 12/21/2004 128-29.) Shortly after Investigator Barton learned of the homicide of Jesus Lopez, he notified FBI Agent Kyle Richard, the prison went into lockdown, and a joint investigation began. In an attempt to develop potential suspects, the investigators reviewed Lopez' prison file, which revealed that several inmates at FCI-Phoenix had been convicted in the same drug case as Lopez, one involving the Fuentes family. Prison staff also interviewed every inmate at the facility twice. During the interviews, inmate Pedro Perez-Vega identified Jesse Moore as the person he saw stab Jesus Lopez. (CR873; RT 12/16/2004 4, 9-16; CR1078 12/16/2004 4, 16-17; CR1079; RT 12/17/2004 77-82; CR1080; RT 12/21/2004 149-50, 158-59, 161; 24041; CR1084; RT 1/5/2005 46-49.) Although Agent Richard and Investigator Barton did not participate in the mass inmate interviews, information developed during the interviews was passed along to them. (CR1079; RT 12/17/2004 83-85; CR1084; RT 1/5/2005 49.) As all inmate phone calls are recorded by the prison, Investigator Barton also caused a prison employee to review the tapes of all calls made by potential suspects, including Jesse Moore, in the days immediately preceding the murder. Investigation revealed that Moore made two calls, one of which was highly suspicious. It was suspicious because lockdowns are unplanned events, triggered by gang fighting, assaults, or murders, yet Moore advised his girlfriend not to bother coming to the prison for a visit the up-coming weekend, because the prison "might be in lockdown." (CR1079; RT 12/17/2004 4, 8-10, 14-21.) 2. The Prison Hierarchy. Inmates at FCI-Phoenix tend to associate according to race or ethnic group. The groups try to keep their members together, and to avoid conflict with other groups. To accomplish this, the groups have "shot callers," described as leaders or spokesmen, usually
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older inmates, whose job it is to work things out when a problem arises between group members. (CR988; RT 12/23/2004 13; CR1081; RT 12/22/2004 135, 140-50.) Shot callers are tasked with keeping the peace and solving problems, in addition to directing the actions of people within their group. (CR988; RT 12/23/2004 14.) One becomes a shot caller through longevity at the prison, through prior prison time, or because one develops status or respect for "taking care of business." (CR988; RT 12/23/2004 13.) Prisoners do not take kindly to "snitches" or "rats" ­ individuals who cooperate and/or testify against others. (CR987; RT 12/23/2004 4, 9; CR1080; RT 12/21/2004 258; CR1081; RT 12/22/2004 167-70.) Status as a "rat" can affect an inmate's safety. It makes him subject to a "hit," meaning anything from being assaulted and removed from the yard, to being killed. When an individual "rats somebody out," his own people become ashamed of him, and it is easy to get permission for a hit on a "rat" when the offended party is of the same racial or ethnic group. All it requires is the production of documentation to the group leader showing the person was a "rat." (CR987; RT 12/23/2004 21; CR1081; RT 12/22/2004 145-46, 172-73; CR1087; RT 5/24/2005 88-89.) A presentence report is the preferred source of such information. (CR987; RT 12/23/2004 22.) An interracial "hit," however, requires more. There is a protocol in prison regarding interracial hits. (CR987; RT 12/23/2004 18.) When an individual "rats out" a person of another race, the offended party must go to the "chain of command" of the other group before a hit can occur, in order to avoid conflict. Otherwise, people get hurt. Conflict between the races usually results in escalated violence, and the use of weapons. Therefore, it is a shot caller's duty to try and work things out before it reaches that level of violence. (CR988; RT 12/23/2004 15.) Shot callers from each group know each other, and know who to talk to in the event of a problem. By talking to a shot caller from another group, parties often reached a compromise regarding what to do to the "rat." (CR987; RT 12/23/2004 18889; CR1081; RT 12/22/2004 145-46, 172-73.) //
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3. The Conspiracy. Inmate Sean Aguilar was considered an elder among the Arizona Chicanos at FCIPhoenix, based on his age and the time he had served in prison. Defendant Joseph Fuentes was placed in Aguilar's housing unit when Fuentes arrived at the prison, and Fuentes and Aguilar eventually became cell mates. (CR987; RT 12/23/2004 11.) While cell mates, Fuentes told Aguilar that two people from his drug case "had told on him," one of whom, Jesus Lopez, he described as "a Native." Native Americans are referred to as "Natives" or "Chiefs" at FCI-Phoenix. (CR988; RT 12/23/2004 12.) Fuentes said he pled guilty, so Lopez never testified against him personally, but he had testified against Fuentes' family and co-defendants. (CR987; RT 12/23/2004 12-16.) Fuentes told Aguilar that Lopez was being transferred to FCI-Phoenix, and that when he came onto the yard, Fuentes wanted to "move on him" ­ some kind of assault. (CR987; RT 12/23/2004 17.) Aguilar advised Fuentes that he needed to seek help from a shot caller with the Natives to make the hit happen. (CR987; RT 12/23/2004 19, 23-26.) Co-defendant Nicholas ("Slicc") Pablo introduced Fuentes to co-defendant Keith ("Tooter") Thomas, a shot caller for the Natives. Thomas and Pablo both grew up on the Salt River Reservation, and associated with one another after they met in prison. Fuentes thereafter coordinated the hit with Thomas, Pablo and Mark ("Speedy") Case. (CR987; RT 12/23/2004 44-45, 187; CR988; RT 12/23/2004 9-11, 13-14, 17.) Fuentes told Thomas that Jesus Lopez, his former co-defendant who was half Mexican and half "Chief," had "ratted" on Fuentes' uncle. Fuentes said he had paperwork on Lopez, and he wanted something done to him. (CR988; RT 12/23/2004 12, 16-18) Fuentes said he wanted Lopez "hit," meaning stabbed rather than just beat up, and he offered heroin in exchange for the hit, because he hated Lopez so much. (CR988; RT 12/23/2004 23-26; CR990; RT 1/5/2005 63.) Thomas was cautious about proceeding against Lopez without confirmatory paperwork, because a recent similar allegation against someone else had proved to be false. That prior incident had resolved itself "more or less" peacefully, in that an entire group had
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not been hurt, but Thomas wanted to avoid a similar situation by making sure that Fuentes in fact had paperwork demonstrating that Lopez was a rat before any action was taken. (CR988; RT 12/23/2004 18-21, 27, 34-35.) Aguilar testified that Fuentes reported being under pressure from Thomas to produce paperwork before any action would be taken. (CR987; RT 12/23/2004 26-29.) Fuentes told Aguilar that the delay in getting the paperwork was due to the fact that his drug case involved a lot of family members, and his mother had to go through a box with lots of documents to find the particular document he wanted. Eventually the paperwork arrived, and copies were made. (CR987; RT 12/23/2004 27-28.) Although later investigation revealed that Lopez was not an informant, and that the paperwork that gave rise to that belief had been misinterpreted, Mark Case reviewed the paperwork and reported to Thomas that Lopez was "no good, he was a rat." (CR988; RT 12/23/2004 33-34; CR1085; RT 1/6/2005 65-66, 171, 175.) While Fuentes was negotiating with Thomas over the hit on Lopez, defendant Jesse Moore approached Thomas. Moore was also from the Salt River Reservation. (CR988; RT 12/23/2004 11.) Moore told Thomas that he had heard that Lopez was coming to FCIPhoenix, and that Lopez was "a rat" and "no good." (CR988; RT 12/23/2004 28.) Moore was angry and embarrassed because he and Lopez were from the same neighborhood, and Moore believed that Lopez's status as a rat reflected badly on him. Moore insisted that he wanted to take care of any hit on Lopez himself. (CR988; RT 12/23/2004 28-29.) After a later meeting with Fuentes, Thomas received three balloons containing heroin. Thomas gave the heroin to Moore, because Moore had volunteered to do the hit. (CR988; RT 12/23/2004 31-32.) Aguilar was present on at least two occasions when Fuentes had a discussion about the hit with defendant Pablo. These conversations took place in the cell that Aguilar shared with Fuentes. One occurred before the paperwork on Lopez arrived, the other afterward. (CR987; RT 12/23/2004 30-31, 116-17.) During the first conversation, Pablo told Fuentes
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that he and a person named "Jesse" were going to take care of the hit. Pablo said that "Jesse" ran with the Natives, and he described "Jesse" as being half Black, and that he played handball a lot. (CR987; RT 12/23/2004 32-33.) Aguilar testified that it had previously been decided that the hit would be a stabbing, and in the second conversation Pablo reiterated that "Jesse" would do the stabbing, while Pablo backed him up at a distance. Aguilar said that Fuentes pressed Pablo to get the hit done, because he had already paid for it, and Pablo acknowledged that the heroin had been received. (CR987; RT 12/23/2004 34-38.) Thomas was transferred to a maximum security penitentiary in Colorado in February of 2001. (CR988; RT 12/23/2004 29; CR990; RT 1/5/2005 87.) On the day he was transferred, he met with Pablo and Mark Case in Pablo's cell. Pablo asked what was going to happen, in light of Thomas' transfer, explaining that Fuentes wanted to make sure the hit was going to get done, since he had already paid for it. (CR988; RT 12/23/2004 35-37.) Thomas responded that he was leaving Pablo in charge, so it was up to Pablo, but he gave him three options: go upstairs and hit Fuentes; give Fuentes back the heroin and tell him the hit on Lopez was not going to happen; or make sure the hit on Lopez was accomplished. Before the meeting ended, Thomas instructed Pablo to make sure that Moore carried out the hit, and further instructed him that if Moore failed to make the hit, it was up to Pablo to care of Lopez himself, or to find a way to do it. (CR988; RT 12/23/2004 37-40.) After Thomas' transfer, he had contact with Pablo through letters forwarded through Thomas' wife, Stephanie. Thomas received a letter from Pablo a few weeks after he left Phoenix, in which Pablo asked for confirmation on the hit. This angered Thomas, as he had already instructed Pablo on what he was supposed to do. (CR988; RT 12/23/2004 41-43; CR989; RT 1/4/2005 4-9.) Thomas sent Pablo a letter, utilizing code and slang to make it more difficult for the authorities to understand, should it be intercepted, and instructed Pablo that "it's supposed to go the way it's supposed to go." (Ex.15; CR988; RT 12/23/2004 4346.) He also questioned whether Jesse Moore was going to take care of the hit on Lopez, and
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he instructed Pablo that Moore "better not back off from what he volunteered for, that if he does that Slicc [Pablo] knows he has to take care of it." (CR988; RT 12/23/2004 46-47.) Investigator Barton discovered Pablo ripping up the letter from Thomas when Barton went to the cell after the murder to place Pablo in administrative detention. (CR1080; RT 12/21/2004 162-63.) One to two days before the murder, Benjamin Delacruz, an Arizona Chicano who was an associate of Fuentes, overheard a conversation between co-defendant Henri "P-Boy" Markov and Fuentes after a softball game. (CR1081; RT 12/22/2004 152-54, 163, 174, 191.) Fuentes told Markov that they had to "take care of" an unnamed co-defendant, that "he had to go down" because of what he did in their case. Delacruz understood this statement to mean that this person's life was in jeopardy, because Fuentes and Markov assumed the person had cooperated in their case. Delacruz understood that something bad was going to happen to the person, anything from a severe beating to being killed. (CR1081; RT 12/22/2004 167-70.) Delacruz testified that Fuentes and Markov also discussed how they were going to talk to the Natives so that the Natives could take care of their own people instead of the Arizona Chicanos doing it, which would avoid a conflict with the Natives. They discussed that they needed to talk to "Slicc," (Pablo) because he was one of the people that ran with and had a high rank with the Natives. (CR1081; RT 12/22/2004 170-71, 199-200, 221.) Delacruz was warned to stay off the yard the evening of the murder, because something was going to happen. Based on the warning, he went to his cell right after dinner. (CR1081; RT 12/22/2004 155, 161-62, 256-57.) Aguilar was also made aware of when the stabbing was to take place because, as Fuentes' cell mate, it was his obligation to provide an alibi for him. (CR987; RT 12/23/2004 39, 182.) The hit was planned for later in the evening, and timed to coincide with a move, so that people could blend in with the crowd and get away quickly. (CR987; RT 12/23/2004 168.) Aguilar and Fuentes went to a movie in the chapel with Markov and Craig Fujinaka. (CR987; RT 12/23/2004 39-41.) After the movie,
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between 8:00 and 8:30, Aguilar and Fuentes returned to their housing unit. On the way, they commented that they had not heard any radio calls for assistance on the yard, and they saw no one running. (CR987; RT 12/23/2004 41-42.) Aguilar nonetheless took a shower and got ice in anticipation of a lockdown after the stabbing. Shortly thereafter, he saw officers running and the prison went into lockdown, and Fuentes commented to him, "Well, looks like it happened." (CR987; RT 12/23/2004 43.) The two settled in because they knew they would be in lockdown for a while. A short time later they heard a helicopter arrive. Aguilar observed that the arrival of a helicopter was a rare occurrence at the prison, and in response, Fuentes stated that "They must have got him good." (CR987; RT 12/23/2004 43-44.) 4. Defendant Yellowman's Statement to the FBI. Co-defendant Yellowman was placed in the Special Housing Unit ("SHU") for his protection on August 9, 2001, after prison officials discovered a letter from Keith Thomas accusing Yellowman of being a "rat." (CR1087; RT 1/11/2005 59-61.) Yellowman was interviewed by Agent Richard in the SHU on August 24, 2001. (CR1084; RT 1/5/2005 5859.) Agent Richard testified that after being advised of his rights, Yellowman advised Richard that he had heard about Lopez, a Native, around the time of Lopez's sentencing. He said that he was approached by others, told that Lopez had provided information to the authorities, and asked what should be done about the situation. (CR1084RT 1/5/2005 6874.) Yellowman told Agent Richard that usually in a "snitching situation" the individual would be forced to check into the SHU to get off the yard and out of general population, but in this case, he determined that Lopez needed to be killed, because the information had caused tension between the Natives and other racial groups. (CR1084; RT 1/5/2005 74.) Yellowman told Agent Richard that he was aware when Lopez arrived at FCIPhoenix in the Yuma Housing Unit, and that he came up with a plan for the attack on Lopez. He picked a person to conduct the attack, and provided that person with a shank. Yellowman said he showed the person how to use the shank to stab Lopez in the chest and neck.
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(CR1084; RT 1/5/2005 76.) Yellowman further said that he instructed the person that the hit should occur at move time, and that the person should not come back until the hit was completed. Yellowman advised that he did not specifically appoint a backup for the hit, but that it would have been up to the person's "homeboys" to do the hit if the person did not accomplish it. (CR1084; RT 1/5/2005 78) Agent Richard testified that he asked Yellowman whether Hispanics were involved in the plan, and that Yellowman denied being approached by the Hispanics. (CR1084; RT 1/5/2005 80.) Yellowman advised Agent Richard that prior to the hit, he notified the Hispanics and the Natives, so that they would have an alibi for the time of the hit. (CR1084; RT 1/5/2005 80-82.) Yellowman also claimed that co-defendant Pablo and Mark Case were not involved in the murder. (CR1085; RT 1/6/2005 71.) Agent Richard testified that Yellowman recanted his initial statement during a subsequent interview. (CR1085; RT 1/6/2005 75.) 5. Defendant Fuentes' Defense. Paul Dellinger, a teacher at FCI-Phoenix, testified that Fuentes came to him in late 2000, early 2001 regarding a safety issue, and that he notified prison officials about the information Fuentes provided, because he felt the information warranted their attention. (CR1086; RT 1/7/2005 8-9, 12-17, 23.) Dellinger said he feared for Fuentes' safety after he provided the information, because in prison, "you don't tell the authorities anything." (CR1086; RT 1/7/2005 24.) In response to a question, Dellinger testified that he could not recall an inmate by the name of Mike Romas (CR1086; RT 1/7/2005 25.), and the court sustained the government's objection to admission of an email that Dellinger wrote, after the murder, regarding the information Fuentes had previously provided. (CR1086; RT 1/7/2005 19-20, 25.) Fuentes also testified. He described how he and various relatives, all Ninth Street Gang members, were indicted in 1999 for selling drugs. Their drug case was based on wiretap and video surveillance evidence. He pled guilty to possession with intent to
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distribute and, as a result of his conviction, the government confiscated all of his property. He was sentenced to 96 months imprisonment and sent to FCI-Phoenix. (CR1086; RT 1/7/2005 55-63, 68-69.) Fuentes testified that Aaron Watters, a co-defendant in the drug case, was a Native from the Salt River Reservation, and he was transferred to FCI-Phoenix at the same time as Fuentes. (CR1086; RT 1/7/2005 69.) Fuentes said that once at the prison, Watters set up a meeting between Fuentes and Keith Thomas, because Thomas had heard that there were Natives involved in Fuentes' case and he wanted to know what part they played in the conspiracy and whether they had cooperated in exchange for lesser sentences. Fuentes testified that he assured Thomas that no Natives had cooperated against him. This seemed to satisfy Thomas, and he left Fuentes alone for a while. According to Fuentes, co-defendant Pablo was not at this meeting with Thomas, as Fuentes did not know Pablo while he was at FCI-Phoenix, and he never discussed Lopez with Pablo. (CR1086; RT 1/7/2005 71-73, 13133.) Fuentes further testified that Thomas approached him again a few months later. On one occasion, Thomas wanted to know whether Aaron Watters or John Moquino had cooperated against him. On another, Thomas pressured him for paperwork on Jesus Lopez, despite Fuentes' assurances that Lopez had not cooperated against him. (CR1086; RT 1/7/2005 76-80.) Fuentes said he eventually obtained some paperwork on Lopez, and he admitted providing that document to Mark Case, but he denied he ever asked Thomas or anyone else to harm or kill Lopez. Fuentes also denied bringing drugs into the prison, denied seeing drugs at FCI-Phoenix, and denied paying anyone drugs in exchange for anything while in prison. (CR1086; RT 1/7/2005 80-83, 102-03, 138-41.) Fuentes admitted making "general comments" to Sean Aguilar about Thomas pressuring him for paperwork, but he disputed Aguilar's testimony that he wanted Lopez hurt or killed, and he denied giving Thomas drugs to make that happen. (CR1086; RT 1/7/2005 111-12.) //
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Fuentes admitted associating with the Arizona Hispanics, but testified that the prison hierarchy that had been described was "not a hundred percent true." (CR1086; RT 1/7/2005 118.) He described prison as a "nice place," and disputed the authority of "shot callers." He also denied the existence of gang fighting or race wars at FCI-Phoenix. (CR1086; RT 1/7/2005 119-22.) Finally, over the objection of his co-defendants, Fuentes testified that he took a polygraph administered by the FBI. (CR1086; RT 1/7/2005 148-49.) Immediately preceding the testimony, the court instructed the jury as follows: You are going to hear testimony regarding a statement and polygraph test conducted with Mr. Fuentes. You are instructed that this evidence is to be considered only against Mr. Fuentes and is not to be considered against any of the other defendants. You are further instructed that the rules of court do not permit testimony related to polygraph evidence absent a stipulation of the parties because polygraph evidence does not meet the court's standard of reliability. The fact that no polygraph test evidence is admitted as to the other defendants is consistent with the rules of court and is not a proper matter for you to consider during your deliberations. (CR1086; RT 1/7/2005 148-49.) Fuentes thereafter testified that he suggested taking a polygraph, and that he stipulated to its admissibility at trial because he did not think there was any reason he could not pass it. He further testified that if he had been given a fair chance by the FBI examiner, he could have passed the polygraph. (CR1086; RT 1/7/2005 150-58.) On cross examination by the government, Fuentes acknowledged there is a "structure" among "certain races" in prison, and that those within the structure discipline their members. He also agreed there are "shot callers," and a potential for gang disturbance at any time. He denied, however, taking orders from anyone, and he further denied being a Ninth Street Gangster. (CR1086; RT 1/7/2005 161-72, 191-93.) Fuentes acknowledged that inmates are housed in Yuma Unit prior to receiving their permanent housing designation at FCI-Phoenix, and he agreed that there were rumors "all the time" about people coming into the Yuma Unit. (CR1086; RT 1/7/2005 174-75, 178.) He also agreed that it is "dangerous" to be labeled a snitch in prison, and he acknowledged that
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when inmates ask for paperwork on another inmate, it is to look for information that the person is a sex offender or a snitch. He admitted that he gave paperwork on Jesus Lopez to Mark Case to get Keith Thomas "off his back," but claimed he did not know what would happen when he turned it over. (CR1086; RT 1/7/2005 180-81, 196.) Fuentes acknowledged stipulating to the admissibility of the polygraph evidence, "no matter what happened," and he agreed that he had input on the wording of all the questions asked on the polygraph; in fact, a question regarding whether he was involved in "planning" the murder of Jesus Lopez was changed at his request to an inquiry whether he had "ever ask[ed] anybody to hurt" Lopez. (CR1086; RT 1/7/2005 197-203.) Fuentes admitted that the polygraph examiner found him to be deceptive in his response to that question. (CR1086; RT 1/7/2005 206.) Counsel for Fuentes' co-defendants declined to cross examine him. (CR1086; RT 1/7/2005 216.) On redirect, Fuentes testified that Mike Romas was an informant in the Fuentes drug case. (CR1086; RT 1/7/2005 218.) 6. The Government's Rebuttal Case. In rebuttal, FBI Agent Coy testified that he conducted a polygraph of defendant Fuentes, and that the examination was conducted in compliance with Department of Defense and FBI standards. The FBI conducts polygraphs on a strictly voluntary basis, and the person taking the exam has the ultimate say on the wording of the questions asked. (CR1089; RT 1/13/2005 131, 135, 138-54, 222, 228.) Prior to his polygraph, Fuentes expressed concern that his conduct in providing paperwork to the Chiefs might be considered "planning" or "involvement" in Lopez's death; therefore, he requested that one proposed question be changed to "did you ask anyone to hurt Jesus Lopez?" This change was made based on Fuentes' understanding that the term "hurt" meant any type of harm to Lopez, up to and including death. (CR1089; RT 1/13/2005 154-56, 174.) Agent Coy testified that during the polygraph, the first two charts had to be abandoned because of abnormal breathing and movement on Fuentes' part, and because
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Fuentes disregarded instructions to limit his answers to "yes" or "no." After completing four charts, Agent Coy formed the opinion that Fuentes was deceptive in his response to the question whether he had asked someone to harm Lopez. (CR1089; RT 1/13/2005 161-67.)

VI. ARGUMENT (1) Ineffective Assistance of Counsel - Failure to Call Defense Witness

Petitioner argues that his counsel was ineffective because she failed to call John Yellowman, a co-defendant, as a witness in petitioner's defense. John Yellowman chose not to testify in his own defense at trial. Petitioner's counsel could not force John Yellowman to testify for the defendant as John Yellowman had a constitutional right not to testify. United States v. Ellsworth, 481 F.2d 864, 870 (9th Cir. 1973)("Under the circumstances of a joint trial, of course, counsel for [defendant] could not call [co-defendant] to the stand."). To the extent petitioner is claiming his counsel was ineffective for not seeking a motion to sever on this basis, that argument must also fail. First, there is no evidence John Yellowman was willing to testify for petitioner. In addition, this was a tactical decision made by petitioner's counsel and cannot be the basis for a claim of ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984). Lastly, petitioner has failed to demonstrate a reasonable probability that the outcome at trial would have been different if John Yellowman had testified. Petitioner wanted Yellowman to testify in order to impeach Keith Thomas. Yellowman had previously provided a statement to the FBI that he, not Keith Thomas, was the shotcaller and had orchestrated the "hit" on Lopez-Rocha. (CR 1084; RT 1/5/2005 75-79) He also said that Nicholas Pablo had nothing to do with the murder. (CR 1085; RT 1/6/2005 70-71) Despite the fact Yellowman did not testify, these statements were admitted at trial through SA Kyle Richard. Despite Yellowman's claim to have orchestrated the "hit," the jury found him not guilty. (CR 980.) Petitioner's counsel was legally precluded from calling John Yellowman

as a witness at trial. Even if Yellowman could have been a witness for defendant, defendant
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has failed to show that there is a reasonable probability the outcome at trial would have been different. (2) -(5) Alleged Perjured Testimony A defendant's Due Process rights are violated if the prosecution knowingly uses false testimony. United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). In order to have his sentence vacated, petitioner must show the testimony was perjured and that the prosecutor knew that it was perjured at the time it was used. United States v. Reynoso-Uloa, 548 F.2d 1329, 1340 (9th Cir. 1977). Perjury is defined as "giv [ing] false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993). Inconsistency in a witness' testimony is not "tantamount to perjury absent a showing of knowing falsehood. United States v. Flake, 746 F.2d 535, 539 (9th Cir. 1984), overruled on other grounds by United States v. Gaudi, 515 U.S. 506 (1995). Merely asserting that a prosecutor presented witnesses with contradictory stories does not necessarily establish the prosecution presented perjured testimony if the petitioner cannot show the prosecutor knew which testimony was false. United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1992)(holding that the prosecutor's use of contradictory stories was not presentation of false testimony when there was no evidence the prosecutor knew which testimony was false). If false testimony is presented, the petitioner must show there was a reasonable likelihood that the false testimony would have affected the outcome of the trial. Id. //

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(2) Keith Thomas Petitioner alleges the United States knowingly used perjured testimony of Keith Thomas. It appears the petition alleges a series of 9 statements made by Thomas were false. (Petition p. 8-9.) Statement 1: According to petitioner, Keith Thomas said "no' to a concurrent sentence. The testimony was actually: Q: ... Will that run with the sentence or will it begin after your other sentence? A: I don't know. I haven't been sentenced on it yet. Q: You haven't been sentenced yet. A: No. Q: Do you have an understanding was there any agreement that it will run at the same time or will run consecutive? A: No (Petitioner's Motion, Issue 2, Exhibit A.) Keith Thomas did not testify "no" to a concurrent sentence. He testified there was no agreement that the sentence would be concurrent or consecutive. Petitioner has presented no evidence this testimony was false. Statement 2: Petitioner alleges Keith Thomas falsely testified that he met Joseph Fuentes at prison in 1998. A review of petitioner's attached transcript shows that Keith Thomas actually testified that he thought it was around 1998 and that the "years all run together." (Motion, Issue 2, Exhibit B.) There is no evidence Keith Thomas intentionally provided inaccurate testimony on the year he met Fuentes. Rather, it appears his testimony was due to faulty memory, which is not perjury. See Dunnigan, 507 U.S. at 94. In addition, the information is
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immaterial and, if false, there is no reasonable likelihood the information would have affected the jury verdict. Statement 3:

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Petitioner alleges Thomas falsely testified that Moore approached Thomas around the same time Thomas met with Fuentes about Lopez-Rocha. Petitioner's argument goes back to Thomas' testimony that his meeting with Fuentes was in 1998. Petitioner argues that neither Moore nor Fuentes was at FCI Phoenix in 1998. As stated above, Thomas' testimony was that he was unclear on the year. There is no evidence he knowingly provided inaccurate testimony. Statements 4, 5 and 6: Petitioner alleges Thomas falsely testified that he received heroin from Fuentes a month or two after the initial meeting, but before he received the paperwork, and that he gave the heroin to Moore. To demonstrate that these statements are false, petitioner points to the testimony of another government witness, Sean Aguilar, and petitioner's co-defendant, Joseph Fuentes. Petitioner has failed to show that Thomas' testimony was false, that he knowingly committed perjury or that the government knew the testimony was false at the time the testimony was presented. Sean Aguilar testified that the paperwork and heroin came to Joseph Fuentes around the same time. Aguilar further testified that he did not see when Fuentes gave either to Thomas. (Petitioner's Motion Issue 2, Exhibit J.) Aguilar's testimony is not inconsistent with Thomas and petitioner has failed to demonstrate Thomas knowingly testified falsely.
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Even if the two witnesses' statements were inconsistent, petitioner has failed to show the government knew which statement was false. If the prosecutor did not know which statement was false, he could not have knowingly presented perjured testimony. See

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Sherlock, 962 F.2d at 1364. In addition, petitioner's counsel fully explored the inconsistences with the witnesses at trial and impeached their credibility. Petitioner has not been prejudiced. Statement 7: Petitioner alleges Keith Thomas falsely testified that Pablo introduced Fuentes to Thomas. Petitioner has failed to present any evidence that this testimony was false. Statement 8: Petitioner alleges Keith Thomas falsely testified that he sent a letter to Pablo regarding the hit. Petitioner has failed to present any evidence that this testimony was false. In fact, corrections officers found petitioner ripping up the letter from Thomas. (CR1080; RT 12/21/2004 162-63) The letter was admitted as an exhibit at trial. (Exhibit 15; CR 988; RT 12/23/2004 43-46.) Statement 9: Petitioner alleges Keith Thomas falsely testified that he was not a member of LVL gang. Petitioner has failed to show this statement was false. Petitioner's counsel impeached Thomas with a prior statement he had made in a psychological evaluation. (Petitioner's Motion Issue 2, Exhibit 1.) Again, there is no evidence the testimony was false. He was impeached with his prior inconsistent statement and the defendant was not prejudiced. In
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addition, even if false, petitioner has failed to show any reasonable likelihood a false statement on this immaterial matter would affect the jury verdict. (3) Pedro Perez-Vega Petitioner alleges Pedro Perez-Vega made 9 false statements at trial. Statements 1, 2 and 9: Petitioner alleges Perez-Vega testified falsely that he saw two guys wrestling near the handball court and he saw one of the guys stab the other one when they were face to face. Petitioner alleges this is false because SA Kyle Richard testified at grand jury that PerezVega described the incident as one of the guys giving the other guy a bear hug. Petitioner has failed to establish Perez-Vega's trial testimony was false. While Perez-Vega used different words to describe the stabbing, the statements are not necessarily contradictory. In addition, it does not prove the testimony was perjured as opposed to due to confusion, mistake or faulty memory. Petitioner also has not proven the government knew the testimony was false. All defense counsel were aware of Perez-Vega's prior statements and had an opportunity to cross-examine him regarding them. (CR 1078; RT 12/16/2004 57-78.) Statements 2 and 6: Petitioner alleges Perez-Vega testified falsely that the only benefit he received from the government was $100 and that he did not agree to testify in exchange to stay in this country. Defendant has failed to establish that these statements are false. There is no evidence that Mr. Perez-Vega agreed to testify in this matter in order to stay in the country. Evidence was presented that the government attempted to get Perez-Vega a work visa, but
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that it was unsuccessful. (CR 1080; RT 12/21/2004 54-58.) This fact, however, does not establish that Perez-Vega knowingly presented false testimony. There was also evidence at trial that Perez-Vega received $250 and not merely $100. (CR 1078; RT 12/16/1004 48.)

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There is no evidence this was a willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. See Dunnigan, 507 U.S. at 94. As explained in the testimony of SA Richard, the money was placed in Perez-Vega's account at FCI Phoenix and he may not have realized the amount that was put in his account by the government. (Petitioner's Motion Issue 3, Exhibit K.) Certainly, defense counsel was aware prior to trial of the correct amount that was put in Perez-Vegas' account. The alleged perjury was fully explored at trial as evidenced in petitioner's Exhibit K to Issue 3. See United States v. Reynoso-Ulloa, 548 F.3d 1329, 1340 (9th Cir. 1977). Statements 4 and 5: Petitioner alleges Perez-Vega testified falsely when he testified that he never saw Sean Aguilar after the homicide and that he never had contact with Aguilar's family. Petitioner has failed to established these statements were false. Petitioner alleges PerezVega's testimony was false because Sean Aguilar testified that he and Perez-Vega were cellmates for one or two weeks. The testimony of Aguilar established that Perez-Vega were cellmates for a brief period after the homicide while the two were being transferred to different BOP facilities. (CR 987; RT 12/23/2004 50-51, 171-73.) This does not contradict Perez-Vega's testimony. Perez-Vega testified that he had not seen Aguilar since he was shipped out of that prison. In all likelihood, Perez-Vega was saying that he had not seen
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Aguilar since he arrived at a new BOP designated facility. Regardless, petitioner cannot show Perez-Vega intentionally provided the false testimony and that it was not due to confusion or mistake. The question and response were not as direct at petitioner alleges.

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The same is true for the statement that he never had contact with Aguilar's family. While evidence was presented that someone using Perez-Vega's prison account had made calls to Aguilar's family, there is no evidence the person actually made contact with anyone in PerezVega's family. In fact, Aguilar testified contact was never made with his family. He testified he found out through an FBI investigation of his brother's phone records that PerezVega had attempted contact with his family. (CR 987; RT 12/23/2004 172-179.) In addition, as the alleged inconsistencies were brought out before the jury and Perez-Vega's credibility was challenged, and petitioner was not prejudiced. There is no reasonable likelihood the alleged false statements impacted the jury's verdict. Statements 7 and 8: Petitioner alleges Perez-Vega falsely testified that he removed the "picture cards" from the "card box," that he stopped looking at the cards after identifying Moore and that Barton never showed him pictures of Moore. Petitioner has failed to show these were intentionally false statements made by Perez-Vega as opposed to confusion, mistake or faulty memory. See Dunnigan, 507 U.S. at 94. As stated in petitioner's exhibit, Perez-Vega could not remember if Barton showed him another picture of Moore. (Petitioner's Exhibit H, Issue 3.) As for the viewing of the cards, as demonstrated by petitioner's exhibits, SA Richard remembered the viewing of the cards differently than Perez-Vega, but that does not show that
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Perez-Vega intentionally lied. It is more likely that Perez-Vega simply remembers it differently than SA Richard. Regardless, the inconsistencies were presented to the jury, they judged the credibility of the witness, and petitioner was not prejudiced. There is no

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reasonable likelihood the alleged false statements impacted the jury's verdict. (4) Kyle Richard

Petitioner argues SA Richard testified falsely before the grand jury and, therefore, his due process rights were violated. Dismissal of an indictment is appropriate when a defendant can show a witness knowingly provides false testimony relating to a material matter. Flake, 746 F.2d at 539. Even if error occurs before a grand jury, such error is rendered harmless by a subsequent conviction at trial. United States v. Mechanik, 475 U.S. 66, 70 (1986). Petitioner has failed to demonstrate SA Richard knowingly provided false information relating to a material matter. Petitioner relies on the trial testimony of PerezVega, Keith Thomas and Joseph Fuentes to claim that SA Richard provided false testimony before the grand jury. SA Richard's testimony before the grand jury was based on his investigation up to that point in time. He could not have known what the witnesses would later say at trial. The fact that witnesses at trial contradicted SA Richard's testimony before the grand jury does not demonstrate that SA Richard's knowingly committed perjury before the grand jury. Petitioner also claims SA Richard testified falsely before the grand jury concerning the amount of time the lock-down lasted at FCI Phoenix and what time the assault occurred. SA Richard testified that he believed the lock-down lasted for about a week, but was not
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certain. Petitioner also claims SA Richard falsely testified that the assault happened before 8:00pm. Petitioner has failed to establish these are knowingly false statements. In addition, neither of these statements are material to the charges that were returned in the indictment.

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(5) Sean Aguilar Petitioner alleges Sean Aguilar made ten false statements at trial. Statement 1: Petitioner alleges Aguilar testified falsely that Fuentes arrived at FCI Phoenix two or three months before the murder. Petitioner has failed to show this statement was false. Even if false, he has failed to show it was intentionally false and not based on a faulty memory. Statement 2: Petitioner alleges Aguilar testified falsely that a Native American and Caucasian testified against Fuentes and that this statement is false because Fuentes pled guilty. A review of Aguilar's testimony shows that he testified that Fuentes told him these individuals "told" on him, not testified. Petitioner has failed to show this statement was false. Statement 3: Petitioner alleges Aguilar testified falsely that paperwork on Lopez-Rocha was copied and distributed. Petitioner has failed to prove this statement was false. The fact LopezRocha also obtained his presentence report does not contradict Aguilar's testimony. Statement 4: Petitioner alleges Aguilar testified falsely that he did not have contact with PerezVega after the incident because he had contact with Perez-Vega at Lewisburg Penitentiary.
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A review of Aguilar's testimony shows he did say he had contact with Perez-Vega at Lewisburg Penitentiary. Even if the two witnesses testimony conflicted, petitioner has failed to demonstrate the government knew the testimony was false at the time it was presented.

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Additionally, contact between Perez-Vega and Aguilar was not material to the count of conviction. Statement 5: Petitioner alleges Aguilar testified falsely that he witnessed the removal of PerezVega after an interview with staff. A review of the testimony petitioner attached does not state that Aguilar witnessed the removal of Perez-Vega. Petitioner also has not demonstrated that Aguilar's testimony was false. Statement 6: Petitioner alleges Aguilar falsely testified that Keith Thomas had a tattoo on his neck and was a member of the "Warrior Society" while at FCI Phoenix. Petitioner has failed to show this was intentionally perjured testimony. Whether Keith Thomas was a member of Warrior Society while at FCI Phoenix was not material to the charges. In addition, petitioner has failed to show Aguilar's testimony was not a result of a mistake or faulty memory. Statements 7-10: Petitioner alleges Aguilar testified falsely about the timing of Keith Thomas receiving paperwork regarding Lopez-Rocha, about a meeting between a number of individuals and about the relationship between Fuentes and Lopez-Rocha. Petitioner has failed to show that any of these statements were false or were perjured testimony. Petitioner relies in part on the
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testimony of Joseph Fuentes to demonstrate Aguilar's testimony was false. There is no evidence Joseph Fuentes' testimony was truthful. Fuentes was petitioner's co-defendant at trial and it is not shocking his testimony contradicted the testimony of government witnesses.

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Petitioner alleges the government knowingly presented false testimony of multiple witnesses. Petitioner has failed to present evidence that any of the statements were false or that the government knew the statements were false at the time they were presented. Petitioner has also failed to demonstrate that the alleged false statements were material to the charges and that there is a reasonable likelihood they effected the outcome at trial. (6) Waiver of Speedy Trial

Petitioner alleges he received ineffective assistance of counsel because he wished to proceed to trial in July 2003 and his counsel continued to file motions to continue resulting in a delay of the trial until December 2004. Petitioner claims the delay allowed the government to pressure Keith Thomas into becoming a government witness. Petitioner was charged with First Degree Murder and Conspiracy to Commit First Degree Murder. The record reflects petitioner's counsel filed numerous pretrial motions on his behalf and needed time to prepare for trial. A tactical decision such as this is not appropriate for an ineffective assistance of counsel claim. Santos, 741 F.2d at 1169. The requested continuances were not unreasonable and there is no evidence the delay affected the outcome of the trial. IV. Conclusion There is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Counsel's performance
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in this case was well within that range. Trial counsel had no ability to compel John Yellowman to testify and requested appropriate continuance in order to raise a significant number of important legal issues. These tactical decisions cannot be the basis for an

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ineffective assistance of counsel claim. The government did not knowingly present inaccurate testimony at trial or before the grand jury. There is no evidence the government presented any material false testimony. The issues raised by the petitioner were either raised by counsel, established during trial or have no merit. He was fairly tried and convicted, which was affirmed on appeal.

There is no basis to find that the outcome of the trial would probably have been different. The files and the records conclusively establish that the petitioner is not entitled to relief. Therefore, a hearing is not required and the Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 should be denied. Respectfully submitted this19th day of March 2008. DIANE J. HUMETEWA United States Attorney District of Arizona

/s/Roger Dokken ROGER DOKKEN Assistant U.S. Attorney

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Copy of the foregoing in an envelope marked "Legal Mail" was mailed this of 19th day of March, 2008 to: Nicholas Pablo, inmate U.S. Penitentiary P.O. Box 26030 Beaumont, Texas 77720 /s/ Roger Dokken

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