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United States v. Munoz

United States District Court, W.D. Louisiana, Lake Charles Division

November 20, 2019

UNITED STATES OF AMERICA
v.
JAVIER MUNOZ (01)

          KAY MAGISTRATE JUDGE

          RULING AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         Before 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 against him.

         Mr. Munoz asserts the following regarding his ineffective assistance of counsel claim:

(1) Counsel failed to properly investigate the state and federal charges;
(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 search itself;
(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.

         Munoz 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.

         CRIMINAL CONDUCT [1]

         On 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.

         Cpl. 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.[2]

         Cpl. 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.

         After 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.

         Due to 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 center console.

         Cpl. Booth pried open the trap door panel and observed an after-market locking mechanism (electronic piston) which held it closed.[3] 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 narcotics.[4]

         Cpl. 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.[5] 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.

         The 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.

         In his 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.”[6] 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 kilograms.”[7]

         PROCEDURAL HISTORY

         On 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).[8] On March 21, 2018, Munoz pleaded guilty to Count 1 of the Indictment.[9]

         Munoz was sentenced to 165 months' imprisonment to be followed by five (5) years of supervised release.[10] The sentence fell within the advisory guideline range of 151-180 months.

         Munoz 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.

         LAW AND ANALYSIS

         The 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. Id.

         “Judicial 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).

         To show 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 ...


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