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United States v. Iturres-Bonilla

United States District Court, E.D. Louisiana

September 30, 2019




         Before the Court are Defendant Jose Iturres-Bonilla’s Petition for Relief under 28 U.S.C. § 2255 (Doc. 1446) and Motion to Expand the Record (Doc. 1447). For the following reasons, Defendant’s Petition for Relief is DENIED, and the Motion to Expand the Record is GRANTED.


         On May 24, 2013, a jury convicted Defendant Jose Iturres-Bonilla of Conspiracy to Possess with Intent to Distribute One Kilogram or More of Heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and Use of a Communication Facility in Committing Conspiracy to Distribute Heroin in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. He was sentenced by this Court to 292 months’ imprisonment and five years of supervised release. His sentence was subsequently reduced to 235 months pursuant to the retroactive application of 18 U.S.C. § 3582(c)(2).

         Defendant now moves for relief from his sentence or conviction pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of trial, sentencing, and appellate counsel. Defendant also seeks to include two declarations in support of his motion. The Government has not specifically opposed Defendant’s request to expand the record to include these declarations, and this Court considered the declarations in resolving Defendant’s § 2255 motion. Accordingly, Defendant’s Motion to Expand the Record is granted. The Court will consider each of Defendant’s arguments for relief under § 2255 in turn.


         28 U.S.C. § 2255(a) provides a prisoner with four grounds upon which he may seek relief from his sentence: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” or (4) that the sentence “is otherwise subject to collateral attack.”[1] Generally, a claim not raised on direct appeal may not be raised on collateral review “unless the petitioner shows cause and prejudice” or actual innocence.[2] The Supreme Court has held, however, that “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought” in a § 2255 proceeding.[3]


         Defendant alleges that he was deprived of effective assistance of counsel during his trial, sentencing, and appeal. “The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding, ” which includes during trial.[4] Nevertheless, “the right to counsel does not guarantee error-free counsel.”[5]

         The Supreme Court in Strickland v. Washington established a two-part test to determine when a defendant’s right to effective assistance of counsel has been violated.[6] “To demonstrate that counsel was constitutionally ineffective, a defendant must show that [1] counsel’s representation ‘fell below an objective standard of reasonableness’ and [2] that he was prejudiced as a result.”[7]

         “When evaluating the first Strickland criterion, [the Court] ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’”[8] Courts “must make ‘every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’”[9] Overall, “judicial scrutiny of counsel’s performance must be highly deferential.”[10]

         “To establish Strickland prejudice a defendant must ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”[11] “A failure to establish either deficient performance or resulting prejudice defeats the [defendant’s] claim.”[12]

         A. Trial Counsel

         First, Defendant argues that his trial counsel engaged in constitutionally deficient representation by (1) failing to interview and call as a witness his girlfriend, Marleny Asprilla, and (2) interfering with Defendant’s decision to testify. Defendant argues that his girlfriend would have offered testimony that Defendant was a “hardworking family man” who did not “exhibit the characteristics of a large scale drug dealer.”[13] He also argues that he was unaware that the decision of whether to testify on his own behalf was his to make and not his attorney’s.

         This Court does not find that either allegation shows objectively unreasonable representation. The purported testimony of Asprilla would have offered only character evidence, not fact testimony crucial to Defendant’s defense.[14] “This is not a case in which the defendant’s attorneys failed to act while potentially powerful mitigating evidence stared them in the face.”[15] “It is instead a case, like Strickland itself, in which defense counsel’s ‘decision not to seek more’ mitigating evidence from the ...

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