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United States v. Martinez

United States District Court, D. North Dakota, Southeastern Division

March 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GABRIEL MARTINEZ, Defendant. Civil No. 3:14-CV-46

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE

         INTRODUCTION

         On April 24, 2014, defendant Gabriel Martinez filed a motion to vacate, set aside, or correct a sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (“2255 petition”). (Docket 1411).[1] On November 3, 2014, Chief Judge Ralph R. Erickson entered a memorandum opinion and order. (Docket 1424). Judge Erickson's order denied Mr. Martinez's 2255 petition with prejudice except for two claims. Id. at p. 26. An evidentiary hearing was scheduled to address the following: “(1) whether counsel forced Martinez to plead guilty; and (2) whether counsel adequately prepared for trial.” Id. On May 7, 2015, Judge Erickson filed an order of recusal. (Docket 1442). The case was assigned to Chief Judge Jeffrey L. Viken of the United States District Court for the District of South Dakota. Id. A hearing was held on Mr. Martinez's 2255 petition on October 14, 2015.[2] Post-hearing briefing was ordered and filed. For the reasons stated below, Mr. Martinez's 2255 petition is denied.

         ANALYSIS

         On December 6, 2007, defendant Gabriel Martinez and 27 co-defendants were indicted in a multi-count fifth superseding indictment. (Docket 829). The 47-page indictment charged Mr. Martinez with the following offenses:

Count 1: Conspiracy to possess with intent to distribute and distribution of methamphetamine;
Count 10: Possession with intent to distribute methamphetamine;
Count 15: Death caused by use of a firearm during a crime of violence;
Count 16: Murder in furtherance of a continuing criminal enterprise;
Count 18: Attempted escape from custody;
Count 21: Conspiracy to escape from custody; and
Count 25: Obstruction of justice.

Id.

         A jury trial began on April 7, 2008, for Mr. Martinez and two co-defendants with Judge Erickson presiding. (Docket 985). Mr. Martinez was represented by Attorneys Thomas Dickson and Daniel Gast. Id. During the course of the third day of jury selection all three defendants decided to enter guilty pleas. (Docket 987). Mr. Martinez expressed his intention to plead guilty without a formal plea agreement with the government. Id. The trial court was advised the government intended to argue in Mr. Martinez's case for a life sentence and Mr. Dickson would argue for a 30-year sentence. Id. at p. 1. The jury was released at 9:35 a.m. and the change of plea hearing for Mr. Martinez was scheduled for 11 a.m. that morning. Id. at p. 2. The details of the change of plea hearing will be discussed later in this order. At sentencing, Judge Erickson sentenced Mr. Martinez to life imprisonment on counts 1, 10, 15 and 16; 60 months on counts 18 and 21; and 120 months on count 25 with “all sentences to run concurrently to the life sentence.” (Docket 1218 at p. 86:14-19; see also Docket 1195 at p. 3).[3]

         In his 2255 petition, Mr. Martinez asserts two principal claims of ineffective assistance of counsel:

1. “[He] was improperly coerced into changing his plea[s] to guilty;” and
2. “[His attorneys were not] adequately prepared for trial.” (Docket 1485 at p. 2). He claims his attorneys were “ineffective because they improperly coerced [him] to change his plea to guilty. [And they] continued to provide ineffective assistance as they failed to adequately prepare for trial.” Id. at p. 3. Mr. Martinez asserts that but for their ineffective assistance, he “almost certainly [would] have elected to continue with trial.” Id. The government opposes Mr. Martinez's petition.[4] (Docket 1501).

         BURDEN OF PROOF

         The Sixth Amendment to the Constitution affords a criminal defendant the right to assistance of counsel. The Supreme Court “recognize[s] that the right to counsel is the right to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks and citation omitted). “When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. The defendant must also show that counsel's deficiencies prejudiced the defendant and affected the judgment. Id. at 691. Stickland established a two-prong test to judge an ineffective assistance of counsel claim:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687.

         “There is a presumption that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.” Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir. 2002). See also Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (The burden of establishing ineffective assistance of counsel is on the defendant, who must “overcom[e] the strong presumption that defense counsel's representation fell ‘within the wide range of reasonable professional assistance.' ”) (citing Strickland, 466 U.S. at 689). It is the petitioner's burden to overcome this presumption, and a “petitioner cannot build a showing of prejudice on a series of errors, none of which would by itself meet the prejudice test.” Hall, 296 F.3d at 692.

         “Judicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' ” Id. (internal citation omitted).

         “[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, (1985). “[I]n order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. “[T]he determination whether the error ‘prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” Id. “Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” Id. “[T]hese predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker.' ” Id. at 59-60 (citing Strickland, 466 U.S. at 695).

         A 2255 petitioner “faces a heavy burden to establish ineffective assistance of counsel . . . .” DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000).

         A. INEFFECTIVE ASSISTANCE-CHANGE OF PLEA

         Five witnesses testified at the 2255 hearing: Ralph R. Erickson, Chief Judge for the District of North Dakota; Thomas Dickson, Mr. Martinez's lead trial counsel; Daniel Gast, Mr. Martinez's trial counsel; Mr. Martinez; and Attorney Ross Brandborg. Mr. Martinez claims his testimony at the hearing supports his allegations his attorneys were ineffective because they (1) represented that guilty pleas would ensure less than a life sentence; (2) advised that if he did not plead guilty, they would withdraw from his case; and (3) suggested that if he did not plead guilty his brother, Alejandro Martinez, would be indicted. (Docket 1485 at p. 3). The court will separately address each of Mr. Martinez's claims.

         1. PLEAS OF GUILTY WOULD RESULT IN A 30-YEAR SENTENCE

         Mr. Martinez alleges he changed his pleas “only after considerable encouragement from his counsel . . . in order to receive a sentence of thirty years.” Id. at p. 4 (referencing Docket 1467 at p. 191). The essence of this argument is that his attorneys told him there was no way the case could be won at trial and if Mr. Martinez pled guilty, he at least had the potential to receive a 30-year sentence. Id. Mr. Martinez alleges his attorneys' testimony “shows counsel had no intention of putting forth a full and complete case, but also that counsel encouraged [him] to enter an open plea of guilty in a case punishable by life in prison.” Id. Mr. Martinez asserts because he was not “learned in the law or fully appreciative of the trial process . . . [he] was not aware of the risks associated with entering an open plea of guilty.” Id. He claims “he did not have a full appreciation that the prosecution was able to recommend a life sentence.” Id. at pp. 4-5. Mr. Martinez argues his attorneys should have done more to impress upon him the risks of a potential life sentence if he pled guilty. Id. at p. 5. He claims that had he “known he would be solely at the mercy of the Court, he would not have elected to plead guilty.” Id. at p. 5.

         Mr. Dickson testified he had a good relationship with Mr. Martinez. “I actually liked him very much. I enjoyed him. He was smart. He was charming. . . . I liked him, in all honesty, I really liked him very much.” (Docket 1467 at p. 134:3-9). Mr. Dickson testified Mr. Martinez was never promised a 30-year sentence. Id. at pp. 69:24-70:2. Mr. Dickson insists he told Mr. Martinez they were “hopeful, but not confident” he would get less than a life sentence. Id. at pp. 70:23-71:2.

         Mr. Gast met with Mr. Martinez frequently, especially after the authorities moved him from Jamestown to Fargo where Mr. Gast practiced. Id. at p. 147:12-18. He testified neither of the attorneys ever guaranteed Mr. Martinez less than a life sentence. Id. at p. 150:19-24. Mr. Gast insists that neither of them ever guaranteed Mr. Martinez any specific sentence. Id. Mr. Gast adamantly declared “[a]solutely not” when asked if defense counsel guaranteed Mr. Martinez a 30-year sentence. Id. at p. 246:1-3; see also id. at p. 151:5-8.

         Mr. Dickson testified that had Mr. Martinez continued through trial he would have gotten “life for sure.” Id. at p. 72:9-10. According to Mr. Dickson, pleading guilty provided his client a “chance that he didn't get life. That's what the decision was about.” Id. at p. 72:10-12. Mr. Dickson testified Mr. Martinez's goal was to get something less than a life sentence. Id. at p. 73:2-4.

         As Mr. Dickson put it:

What did he have to lose [by going to trial]? He had a chance, when he changed his plea, to get less than life. If you go through a trial- there were two young children in that mobile home that night, that was part of the horror of this case, and they were going to be part of the trial of that. That horror of these children and the photographs, it was all going to be played out, and I didn't think he had a chance with the jury. I thought by the end of the trial the judge would be where the jury would be. That was my opinion.

Id. at p. 129:7-16.

         During the course of jury selection the defense team was notified that co-defendant Alan Wessels had decided to enter into a plea agreement with the government. Id. at p. 158:6-20. Mr. Gast went to the jail that evening and gave the news to Mr. Martinez. Id. at pp. 158:24-159:3. “[I]t was at that point that Mr. Martinez agreed to change his plea.” Id. at p. 159:3-4. As Mr. Dickson explained the change of plea scenario:

It was his decision. I would-I've Dated this a long-I know lawyers, defense lawyers, do it different. I don't twist their arms. It's ultimately their life, it's their choice. I give my opinion as to what I think the outcome might be. I leave it up to them. And I support- I didn't twist his arm. It was his call. Nobody is going to coerce Gabriel Martinez into doing anything he doesn't want to do, not you, not me, not anybody. That's just the way he is.

Id. at pp. 76:22-77:5. Both Mr. Dickson and Mr. Gast forcefully deny Mr. Martinez's allegation that they promised him a 30-year sentence. Id. at pp. 237:1-6 and 246:1-3.

         Mr. Dickson testified he never suggested his relationship with Judge Erickson could ensure less than a life sentence. Id. at p. 66:24-67:15. Judge Erickson described his limited social relationship with Mr. Dickson from several years earlier and denied they had any relationship in which discussing sentencing of Mr. Martinez off-the-record would be appropriate. Id. at pp. 31:5-34:22.

         On April 9, 2008, at the beginning of the change of plea hearing, Mr. Martinez was advised of the maximum sentences which could be imposed on each of the seven counts. (Docket 1234 at pp. 3:18-5:17). That advisement is summarized as follows:

Count 1: Conspiracy to possess with intent to distribute and distribution of methamphetamine had a “maximum term of imprisonment of life, [and] a mandatory minimum 10-year term of imprisonment.” Id. at p. 3:18-23;
Count 10: Possession with intent to distribute methamphetamine had “a maximum term of imprisonment of life. . . .[and] a mandatory minimum 10-year term of imprisonment.” Id. at p. 4:3-8;
Count 15: Death caused by use of a firearm during a crime of violence had “a maximum term of imprisonment of life . . . . [and] a mandatory 10-year consecutive term to the underlying conviction.” Id. at p. 4:10-15;
Count 16: Murder in furtherance of a continuing criminal enterprise had “a maximum term of imprisonment of life, [and] a minimum mandatory 20-year term of imprisonment.” Id. at p. 4:18-23;
Count 18: Attempted escape from custody had “a maximum term of imprisonment of five years.” Id. at p. 5:1-5;
Count 21: Conspiracy to escape from custody had “a maximum term of imprisonment of five years.” Id. at p. 5:8-11; and
Count 25: Obstruction of justice had “a maximum term of imprisonment of 10 years.” Id. at p. 5:14-17.

         Because of the requirement for consecutive sentences, Mr. Martinez was advised he faced a maximum sentence of life and a mandatory minimum sentence of 30 years. Id. at p. 5:21-23. Mr. Martinez acknowledged he understood the maximum sentences and the mandatory minimum sentences which could be imposed. Id. at p. 6:7-12.

         The court advised Mr. Martinez of his constitutional rights. Id. at pp. 11:11-19:14. Mr. Martinez acknowledged understanding his constitutional rights as they were explained by the court. Id. at pp. 19:21-20-1. Mr. Martinez was then placed under oath. Id. at p. 20:2-11. Mr. Martinez acknowledged being able to read and write, that he had gone to college for a couple of years and suffered from no learning disability. Id. at p. 20:12-23. He stated he had never been treated or hospitalized for any mental illness, had not been treated for chemical dependency, alcoholism, obsessive-compulsive disorder or depression and was not having any difficulties understanding the hearing up to that point. Id. at p. 21:5-15. Mr. Martinez told the court that he had no “difficulty understanding or communicating with [his] lawyers.” Id. at p. 21:16-18.

         Judge Erickson addressed the present status of the case with Mr. Martinez.

THE COURT: Obviously we got to the point where we're in the middle of trying to pick a jury and try this case so I assume that you've had a chance to discuss this case with your lawyer and that you've had a chance to discuss the charges against you; is that true?
DEFENDANT MARTINEZ: Yes, Your Honor.
THE COURT: Did he explain to you the Fifth Superseding Indictment and the penalties that you faced under that Indictment?
DEFENDANT MARTINEZ: Yes, he did, Your Honor.
THE COURT: Did he answer all of your questions about those ...

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