United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
a jury trial, defendant Pedro Garcia was convicted of
participating in a racketeering conspiracy, and numerous
crimes in support of the conspiracy, including first degree
murder, attempted murder, conspiracy to commit murder, and
assault with a dangerous weapon. The court sentenced Garcia
to life imprisonment for the murder convictions, with an
added mandatory consecutive term of 32 years to life for two
firearms convictions pursuant to 18 U.S.C. § 924(c).
Defendant's conviction and sentence were affirmed on
now seeks relief under 28 U.S.C. § 2255, arguing that
the government committed misconduct, that his sentence was
illegal under Johnson v. United States, the statutes
of conviction were unconstitutional, that he was denied
access to the courts, and that his counsel was ineffective.
The court has reviewed the record of the proceedings and
briefs of the parties, and finds that defendant's motion
for relief should be denied.
defendant's arguments of prosecutorial misconduct,
charging the government failed to disclose promises to its
witnesses and relied on false evidence substantially
replicate claims that were advanced to, and rejected by the
Tenth Circuit in the direct appeal. United States v.
Garcia, 793 F.3d 1194, 1205-09 (10th Cir. 2015). This
conclusion forecloses consideration of the same arguments by
collateral attack. See United States v. Warner, 23
F.3d 287, 291 (10th Cir. 1994). This is equally true for
Garcia's as-applied constitutional argument relating to
the VICAR statute, which the Tenth Circuit considered and
rejected. Id. at 1211.
arguments claiming he was deprived of access to the courts
have also previously been addressed. Garcia has previously
sought discovery, requested transcripts, and applied for
appointment of counsel. (Dkt. Nos. 1090, 1092, 1093). This
court granted defendant access to transcripts and denied
other relief. See United States v. Garcia, 2016 WL
4398972 *2 (D. Kan. Aug. 18, 2016). If defendant wished to
challenge the denial, the proper vehicle was a timely motion
for reconsideration rather than a collateral proceeding.
Further, the defendant has failed to make any credible
showing of actual injury of a hampering of his ability to
present non-frivolous legal claims. See Lewis v.
Casey, 518 U.S. 343, 349-51 (1996).
defendant does present some claims which have not been
previously advanced: an alleged defect in Count 9 charging a
violation of 18 U.S.C. § 924(c), additional arguments
relating to the RICO and VICAR statutes, and instructional
error. However, the court finds that each of these claims is
subject to procedural default because they should have been
presented either at trial or on direct appeal. See United
States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir.
respect to Count 9, which defendant argues was defective
because the underlying crime was allegedly a state rather
than a federal crime, the claim is procedurally defaulted
because defendant has failed to show any good rationale for
failing to raise the argument at the time of trial. Moreover,
the argument is without merit. Count 9 charges the federal
crimes of interference with commerce by threats of violence
(18 U.S.C. § 1951), as well as robbery and violent
crimes in aid of racketeering (18 U.S.C. § 1959).
Section 1959 specifically prohibits such violent racketeering
activity “in violation of the laws of any State or the
United States.” Count 9 properly charged the defendant.
now argues that RICO and VICAR are unconstitutionally vague
on their face, and that RICO is unconstitutional as applied
in his case. The defendant presents no valid reason for
failing to present such claims in conjunction with his
as-applied challenge on direct appeal, and the claims are
therefore procedurally barred. Even if they were not, the
facial validity claim lacks merit. Challenges to the facial
validity of statutes are considered only for laws affecting
First Amendment rights, see Village of Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 494-95 (1982),
which RICO and VICAR do not. Similarly, the defendant's
argument that the RICO statute was unconstitutional as
applied to him because he was engaged in personal drug
activity lacks any underlying merit, even if it were not
defaulted. The Tenth Circuit rejected this exact argument in
the direct appeal, advanced with respect to the VICAR charges
and the RICO jury instruction, stressing evidence that some
of the conspiracy's activities involved exchanging drugs
and money with confederates in California, and further
concluding that the enterprise was commercial in nature.
See Garcia, 793 F.3d 1209-11. Such conclusions are
fatal to defendant's present RICO argument. The
indictment charged violations of federal law, and the court
accordingly had jurisdiction to address the charges against
the defendant. See United States v. Bjorkman, 270
F.3d 482, 490-91 (7th Cir. 2000).
Johnson v. United States, 135 S.Ct. 2551 (2015), the
defendant argues that the jury was erroneously instructed
that murder is a crime of violence. The argument is
procedurally defaulted, as defendant has failed to present
any good cause for failing to present the claim in his direct
appeal. Even if it were not defaulted, the argument lacks
merit. Johnson addressed the definition of a crime
of violence as set forth in 18 U.S.C. §
924(e)(2)(B)(ii), it did not address how the crime of murder
is defined in jury instructions. K.S.A. § 5402(a)(1)
defines murder in the first degree as a killing of a human
being intentionally and with premeditation. Here, the jury
returned a special verdict finding Garcia had committed first
degree murder. Defendant has failed to show how the crime
charged in the indictment is not a crime of violence.
the defendant presents a list of supposed errors by trial
counsel to support his claim that his counsel was
constitutionally ineffective. Such claims require proof that
counsel acted beneath an objective standard of reasonableness
under prevailing professional norms, and that this resulted
in prejudice to the defendant. Strickland v.
Washington, 466 U.S. 668 (1984). The court finds that
the defendant in the present action has failed to meet his
burden to show that his trial counsel performed deficiently.
See Beeler v. Crouse, 332 F.2d 783, 783 (10th Cir.
1964) (defendant bears burden of proof in habeas corpus
the court finds that the defendant has not met his burden to
demonstrate the existence of actual or likely prejudice from
any of the alleged deficiencies. Prejudice exists only where
there is the “reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different, ” meaning a
“probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
Defendant has omitted any demonstration of probable
prejudice, and his claims of ineffective assistance are
addition, the court finds defendant has failed to show that
counsel's performance fell below any objective norm of
conduct. Defendant complains that counsel was deficient in
(1) failing to investigate the caliber of a fragmented bullet
recovered from the body of the murder victim, (2) failing to
call two rebuttal witnesses (Angelica Flores and Eusebio
Sierra), (3) failing to object to the testimony of a witness
(Fabian Neave) as to comments by Garcia while in pretrial
custody, (4) failing to object to references to Garcia's
previous or contemporary imprisonment, (5) failing to raise a
Napue argument, and (6) failing to challenge the
sufficiency of the evidence relating to the racketeering
charges. Having reviewed the record, the court finds that
trial counsel was not deficient, but in fact presented a
zealous, professional, and energetic defense of his client.
The specific challenges now raised as to that representation
are either incorrect (as counsel did in fact raise such
issues), or reflect valid tactical decisions which are
committed to the sound discretion of trial counsel. See
United States v. Miller, 643 F.2d 713, 714 (10th Cir.
Garcia contends that counsel should have investigated to
discover whether the fragmented projectile recovered from
victim's body was in fact a 9 millimeter projectile. He
stresses that the murder weapon was not introduced into
evidence, and the trial testimony only established that it
was likely that a 9 millimeter firearm was used in the
murder. But the defendant fails to show that an actual
investigation would indeed have shown the bullet was of a
different caliber, and thus cannot show that it would have
caused a different result. See United States v.
Green, 882 F.2d 999, 1008 (5th Cir. 1989)
(failure-to-investigate collateral claim “must allege
with specificity what the investigation would have revealed
and how it would have altered the outcome of the
trial”). Moreover, the decision must also be viewed in
the context of the remainder of the evidence at the trial
(both the testimony of co-defendants and Garcia's
admissions to other witnesses), which strongly supported the
conclusion that Garcia murdered the victim.
was not deficient in failing to call either Angelica Flores
(defendant's girlfriend) or Eusebio Sierra. Whether to
call a particular witness is a tactical decision and thus is
generally committed to the discretion for trial counsel.
See United States v. Miller, 643 F.2d 713, 714 (10th
Cir. 1981). The defendant fails to supply any exact statement
of what either witness would have testified, but the decision
not to call these witnesses was a legitimate tactical
decision. Calling Flores would have been a dangerous choice,
as she might have simply pled the Fifth Amendment and refused
to testify. Or she could have further incriminated the
defendant, by describing admissions made by him. Moreover,
even if she did testify and deny Neave's testimony that
defendant told him he had given the murder weapon to Flores
for disposal, there ...