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United States v. Ocegueda-Ruiz

United States District Court, D. Montana, Great Falls Division

April 18, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,



         This case comes before the Court on Defendant/Movant Eduardo Ocegueda-Ruiz's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. (Doc. 839.) Ocegueda-Ruiz is a federal prisoner proceeding pro se.

         On April 20, 2017, the Court ordered the Clerk of Court to retain a qualified translator to translate those portions of Ocegueda-Ruiz's § 2255 motion that are written in Spanish. (Doc. 841.) That translation was provided on April 27, 2017, (Doc. 842), and was reviewed in conjunction with the original motion.

         On February 21, 2018, the Court gave Ocegueda-Ruiz an opportunity to supplement his original motion as to his interpreter (Claim Three).[1] (Doc. 856.) Ocegueda-Ruiz responded on March 26, 2018. (Doc. 859.) This response will be reviewed in conjunction with his original petition.

         I. Preliminary Review

         The motion is subject to preliminary review before the United States is required to respond. The Court must determine whether “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(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.

         A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). It remains the duty of the court “to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         The government filed a criminal complaint on September 29, 2014, against Ocegueda-Ruiz, along with four co-defendants, charging conspiracy with intent to distribute methamphetamine, 21 U.S.C. §§ 846, 841(a)(1). (Doc. 2.) A grand jury indicted Ocegueda-Ruiz-along with 19 co-defendants-on 24 counts, on October 20, 2014. Seven of these counts applied to Ocegueda-Ruiz, including: Count 1: conspiracy to possess with intent to distribute and to distribute methamphetamine, 21 U.S.C. § 846; Count 5: possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1); Count 14: conspiracy involving firearm and drug trafficking crime, 18 U.S.C. § 924(o); Count 20: possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. §§ 2, 924(c)(1)(A); Count 21: felon in possession of firearm, 18 U.S.C. § 922(g)(1); Count 22: illegal alien in possession of firearm, 18 U.S.C. § 922(g)(5);[2] and Count 24: illegal reentry, 8 U.S.C. § 1326(a), (b)(2). (See Docs. 26, 27.)

         Counts 1 and 5 carried a mandatory minimum ten years imprisonment upon conviction. The government filed a notice pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851(a), to increase the potential penalty for Ocegueda-Ruiz for conviction under Counts 1 and 5 to a mandatory term of life imprisonment. (Doc. 408.) Count 20 carried a mandatory consecutive five-year term.

         The Court held a two-day jury trial on March 2, 2015, on Counts 1, 5, 20, 21 and 22.[3] (See Min. Entries, Docs. 514, 520.) The jury convicted Ocegueda-Ruiz on all counts. (See Verdict, Docs. 526, 527.) The Court sentenced Ocegueda-Ruiz on June 3, 2015, to a custodial term of the mandatory minimum of life on Counts 1 and 5, concurrent; 120 months on Counts 21 and 22, concurrent; and the mandatory minimum of five years on Count 20, consecutive. (Judg., Doc. 740.) Ocegueda-Ruiz appealed. (Notice, Doc. 742.) The Ninth Circuit affirmed his convictions and sentence on October 17, 2016. (Memo. Dispo., Doc. 830.) As Ocegueda-Ruiz sought neither rehearing nor certiorari, his conviction became final on January 15, 2018. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on April 11, 2017. 28 U.S.C. § 2255(f)(1).

         III. Claims and Analysis

         Ocegueda-Ruiz claims that counsel provided ineffective assistance of counsel in various respects. Strickland v. Washington, 466 U.S. 668 (1984), governs these claims. At this stage of the proceedings, Ocegueda-Ruiz must allege facts sufficient to support an inference (1) that counsel's performance fell outside the wide range of reasonable professional assistance, id. at 687-88, and (2) that a reasonable probability exists that, but for counsel's unprofessional performance, the result of the proceeding would have been different, id. at 694.

         A. Claim One: Sentencing Enhancement and Procedure

         1. § 841 Enhancement and Proposition 47

         First, Ocegueda-Ruiz claims trial counsel should have sought to have his prior felony convictions, upon which his § 841 enhancement relied, reclassified as misdemeanors under California law. California enacted Proposition 47 in November 2014, which, among other things, “permits previously-convicted defendants to petition the [state] court for a ‘recall of sentence, ' which, if granted, would effectively reclassify their qualifying felonies as misdemeanors.” United States v. Diaz, 838 F.3d 968, 971 (9th Cir. 2016) (citing Cal. Penal Code § 1170.18(a)). Since his federal sentencing, Ocegueda-Ruiz successfully petitioned to reclassify two of his felony convictions-identified in paragraphs 1 and 2 of the government's § 851 notice, (Doc. 408 at 2)-as misdemeanors. (See Supr. Ct. of Cal., Min. Ors., Doc. 839-2 at 7-10.)

         Ocegueda-Ruiz's present claim is foreclosed, however, by the Ninth Circuit's determination “that California's Proposition 47 . . . does not undermine a prior conviction's felony status for purposes of § 841.” Diaz, 838 F.3d at 975. Even assuming counsel provided ineffective assistance of counsel for failing to pursue this issue (given that Diaz was not decided until after Ocegueda-Ruiz's conviction and sentencing), Ocegueda-Ruiz suffered no prejudice from counsel's failure in light of Diaz. See Knowles v. Mirzayance, 556 U.S. 111, 121-22 (2009) (rejecting the argument that counsel is ineffective for failing to raise an argument if there is “nothing to lose”).

         2. Prior Conviction No. 3 Not a Drug Trafficking Offense

         Second, Ocegueda-Ruiz alleges that counsel provided ineffective assistance of counsel for failing to object to the government's § 851 notice on the grounds that count one in the prior conviction numbered “3, ” (see Doc. 408 at 2), “does not categorically qualify as a drug trafficking offense.” (Doc. 839-1 at 1.) Paragraph 3 of the § 851 notice reads as follows:

Sale/Transportation/Offer to Sell Controlled Substance (Heroin) (Count 1), and Possession for Sale of a Controlled Substance (Heroin) (Count 2)-committed on May 13, 2011, and convicted of both Count 1 and 2 on June 3, 2011. No. BA384524, in the Superior Court of the State of California, County of Los Angeles (Attached as Exhibit 3).

(Doc. 408 at 2.) Ocegueda-Ruiz's argument lacks merit.

         The enhancement under § 841(b)(1)(A) does not require that the prior conviction be for a drug trafficking offense, but merely a “felony drug offense.” This case can thus be distinguished from those, such as enhancements under USSG §2L1.2(b)(1)(A), that require a prior “drug-trafficking offense.” Second, a mandatory life sentence under § 841(b)(1)(A) requires only two prior convictions. The convictions outlined by the government in paragraphs 1 and 2 remain valid for the purposes of § 841. See Section III(A)(1) supra. Ocegueda-Ruiz would not be entitled to relief ...

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