MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #235) filed May 7, 2012. For reasons set forth below, the Court overrules defendant's motion.
In February 2009, DEA agents conducted surveillance of a Mexican national, Taurino Cereceres-Morales, who had checked into a Best Western motel in Kansas City, Kansas. DEA agents suspected that Cereceres-Morales was involved in drug trafficking. Over the next several days, Jesus Robles and Juan Morales both joined Cereceres-Morales at the motel.
On February 17, 2009, the three men rented a U-Haul truck, drove to a Yellow Freight facility in Kansas City, Missouri and picked up 40 boxes which were labeled as cookies. The three men drove to the home of Joel Areguin and unloaded the boxes into his garage. DEA agents approached the garage and identified themselves. Areguin and Morales, who was renting a room in Areguin's home, gave written consent to search the premises. All four men denied ownership of the 40 boxes in the garage. The agents searched the boxes and discovered that seven boxes contained marijuana and cookies, and the remaining 33 boxes held only cookies. In total, the seven boxes contained 221 bundles of marijuana.
In the ensuing investigation, the DEA learned that Jorge Cabada had paid for Robles's airfare to Kansas City and that the email address associated with the flight belonged to "George Cabada." Robles had flown to Kansas City under the alias "Isaac Botello" and entered the same name in the Yellow Freight visitor's log when he picked up the boxes. Isaac Botello was a real person who lived in California and had a California driver's license. DEA agents discovered a Missouri state identity card with the name Isaac Anthony Botello, and the same date of birth as the Isaac Botello in California, but with a picture that looked like Robles. Cereceres-Morales also gave Cabada's cell phone as a local contact number when checking into the Best Western motel.
On March 18, 2009, a grand jury charged Robles, Cereceres-Morales and Morales with conspiracy to possess with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 846 and possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii). See Indictment (Doc. #25).
Robles filed a motion to suppress which asserted that in violation of his rights under the Fourth Amendment, law enforcement officers unlawfully searched the boxes which he was holding as a bailee. The Court overruled defendant's motion because he did not meet his initial burden to show lawful possession of the searched property. Defendant asserted that he had met his burden because DEA agents saw him drive a U-Haul truck with the boxes of cookies and marijuana a short distance from a gas station to a nearby residence in Kansas City, Kansas where two individuals unloaded the boxes and placed them in the garage. The Court held that these limited observations did not establish that (1) defendant gained possession of the boxes from someone with authority to grant permission or (2) defendant had possession of the boxes when agents seized them in the garage of the residence. The Court noted that even if defendant could show lawful possession of the boxes, he had not shown that he manifested a subjective expectation of privacy in the boxes. Indeed, defendant affirmatively denied owning the boxes and did not claim that he had any other possessory interest as a bailee or otherwise. In addition, defendant had not shown that after he delivered the boxes to the residence, he had a continued privacy interest in them. Defendant did not explain the terms of his alleged bailment or what duty he had after Morales and Areguin accepted the boxes and placed them in the garage.
On November 16, 2009, pursuant to a plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P., Cereceres-Morales pled guilty. See Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #93). Morales and Robles proceeded to trial. The jury found Morales not guilty on both counts. The jury found Robles guilty of both conspiracy to possess with intent to distribute marijuana (Count 1) and possession with intent to distribute marijuana (Count 2). The Court sentenced Robles to 64 months in prison and four years of supervised release.
Robles appealed. He argued that the Court erred because it admitted testimony of Iran Rodriguez regarding prior uncharged misconduct by Robles. The Tenth Circuit affirmed. See Order And Judgment (Doc. #225) filed September 1, 2011. The Tenth Circuit held that the testimony was properly admitted as intrinsic evidence of the charged marijuana distribution conspiracy and the danger of unfair prejudice did not substantially outweigh its probative value. See id. at 7, 12.
G. Gordon Atcheson represented defendant in the district court proceedings. Veronica S. Rossman represented defendant on appeal.
Liberally construed, defendant's motion alleges that Mr. Atcheson was ineffective because (1) before trial, he did not inform Robles about the benefits and disadvantages of going to trial versus pleading guilty, (2) he did not effectively present defendant's Fourth Amendment claim, (3) he did not obtain a reversal of defendant's conviction based on the admission of testimony of Iran Rodriguez and (4) he did not obtain a downward departure of defendant's sentence. Defendant's motion also alleges that Ms. Rossman was ineffective on appeal because she did not appeal the Court's ruling on defendant's Fourth Amendment claim (Claim 5) and she did not effectively argue that the Court had erred by admitting the testimony of Iran Rodriguez (Claim 6).
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States , 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a ...