United States District Court, W.D. Louisiana, Lake Charles Division
RULING AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is a “Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody” (Doc. 92). Defendant Javier Munoz complains
that his retained attorney's representation fell below
the standard of what is required to provide effective
assistance of counsel. Mr. Munoz requests an evidentiary
hearing and seeks to have the Court dismiss the charge
Munoz asserts the following regarding his ineffective
assistance of counsel claim:
(1) Counsel failed to properly investigate the state and
(2) Counsel failed to file a motion to suppress based on the
initial traffic stop;
(3) Counsel failed to file a motion to suppress based on the
(4) Counsel failed to provide effective assistance of counsel
because the indictment did not state all of the elements of
the crime charged;
(5) Counsel failed to properly test the drugs to determine
the type of methamphetamine Defendant possessed.
informs the Court that he filed a motion to compel against
his former defense counsel requesting the entire case file,
and that the file he received did not contain a video of the
initial traffic stop. Thus, he contends that his attorney
could not have reviewed the video because he did not have it.
On that basis, Munoz is requesting an evidentiary hearing to
determine if his attorney had possession of the video and if
he reviewed it. For the reasons given below, the Court finds
that an evidentiary hearing is not necessary.
September 9, 2016, as part of his assignment on the Combined
Anti-Drug Task Force (CAT), Corporal Booth stopped a Silver
2014 Honda Accord with New Jersey license plates for improper
lane usage and speeding. Defendant, Javier Munoz, was the
driver of the vehicle and his son, Beljavier Rodriguez, was a
passenger. Cpl. Booth asked Munoz for his driver's
license, but because Munoz could not hear him due to passing
traffic, Cpl. Booth asked Munoz to step out of the car.
Booth asked Munoz numerous questions about his travels. Cpl.
Booth asked Munoz if he and his son had driven from New
Jersey. Munoz replied that they had gone to Houston to attend
his daughter's birthday. When asked her age, Munoz
replied, “14 years.” Cpl. Booth observed
Munoz's nervous behavior when he started asking questions
about his daughter and the visit to Houston, specifically
noting an unusual jerking movement of his left arm and some
movement of his head.
Booth also questioned Rodriguez separately and observed that
he was also nervous. Also indicative of his nervous behavior
was Rodriguez'a unsolicited comments about himself. Cpl.
Booth noted that Rodriguez supplied different answers to the
questions he had previously inquired of his father, Munoz; of
significance, Rodriguez stated that his sister was 23 years
of age. Rodriquez later corrected himself to indicate that
she was 22 years old. Another example was that Rodriquez told
Cpl. Booth that they stayed in Houston 1 or 2 days, whereas
Munoz told Cpl. Booth they had been in Houston 3 days.
more exchanges between Cpl. Booth and Munoz and completing a
check of Munoz's drivers' licenses, vehicle
registration, and criminal histories, Cpl. Booth issued Munoz
a warning notice of violation. Cpl. Booth asked Munoz if his
daughter was in school to which Munoz replied,
“yes.” Cpl. Booth then asked Munoz why he did not
make the trip to Houston over a weekend; Munoz responded that
the weekend was too short.
Munoz and Rodriguez's suspicious behavior, Cpl. Booth
asked Munoz if he would give him written permission to search
his vehicle to which Munoz replied “yes.” Cpl.
Booth presented Munoz a search and seizure form and asked him
to read the form and sign it at the bottom. After Munoz read
and signed the consent to search form, Cpl. Booth and another
officer searched the vehicle. During their search the
officers discovered a door panel under the vehicle's
Booth pried open the trap door panel and observed an
after-market locking mechanism (electronic piston) which held
it closed. Based on his training and experience, Cpl.
Booth suspected that the hidden compartment was used to
smuggle and transport drugs, money, and firearms. Upon closer
inspection, Booth observed a type of packaging that he
recognized as packaging commonly used on clandestinely
manufactured drugs. Cpl. Booth then arrested Munoz and
Rodriguez and had their vehicle transported to the CAT office
for further inspection and removal of the suspected
Booth hotwired and opened the hidden compartment and
retrieved two large professionally printed bags that appeared
to be packages of Mexican candy labeled Pelon Pelonetta
Hot Intenso. Each of the candy packages contained
21 individually wrapped candy packages. Cpl. Booth opened one
of the smaller candy packages and found that it contained a
crystalline substance. Using a standard chemical field-test,
the substance tested positive for methamphetamine.
crystalline substance was subsequently tested by a forensic
chemist at the South Central Regional Laboratory of the Drug
Enforcement Administration who weighed, analyzed and
identified it as a mixture or substance containing
methamphetamine with a combined total weight of 1935 grams.
Stipulated Factual Basis for Guilty Plea, Munoz stipulated to
the fact that he “knowingly possessed the
methamphetamine that was in the hidden compartment of his
Honda and was transporting it with the intent to deliver the
substance to another person or persons in New
Jersey.” He also agreed that he was
“responsible for possessing with the intent to
distribute a quantity of methamphetamine (actual) with a net
weight at least 1.5 kilograms, but less than 2
December 14, 2017, Munoz was charged with one count of
possession with intent to distribute 500 grams or more of a
mixture or substance containing methamphetamine, in violation
of 21 U.S.C. § § 841(a)(1) and
841(b)(1)(A). On March 21, 2018, Munoz pleaded guilty to
Count 1 of the Indictment.
was sentenced to 165 months' imprisonment to be followed
by five (5) years of supervised release. The sentence
fell within the advisory guideline range of 151-180 months.
timely appealed his sentence arguing that the District Court
abused its discretion in sentencing him to 165 months of
imprisonment. The Fifth Circuit affirmed the District Court,
per curium. Munoz did not file a writ for
certiorari; he subsequently filed the instant §
2255 motion which is now before the Court.
Sixth Amendment right to counsel is the right to the
effective assistance of counsel. The benchmark for judging
any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as
having produced a just result. Strickland v.
Washington, 466 U.S. 668 (1984). In order to prevail on
an ineffective assistance of counsel claim under the
Strickland standard, a petitioner must show (1)
counsel's performance was deficient, in that it fell
below an objective standard of reasonableness, and (2) the
deficient performance prejudiced him. Id. at 687.
The court need not address the two Strickland prongs
in any particular order, and the defendant's failure to
satisfy one means the court need not consider the other.
scrutiny of counsel's performance must be highly
deferential, and a fair assessment of attorney performance
requires that every effort be made 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. A Court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
669. “Strickland does not guarantee perfect
representation, only a reasonably competent attorney.”
Harrington v. Richter, 562 U.S. 86, 110 (2011).
prejudice, the defendant must demonstrate that there is a
“reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. The court must
consider the totality of the evidence. Id.
“The likelihood of a ...