United States District Court, D. Arizona
REPORT AND RECOMMENDATION
K. Duncan United States Magistrate Judge.
Eugene Joseph Escalanti has filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence
(“Motion”) where he claims that his trial
contained several errors. (Doc. 1) Respondent argues that
these claims fail. (Doc. 4) As explained below, the Court
recommends that this Motion be denied.
was indicted for five counts, including assault, kidnapping,
and murder on Indian Country for the death of Stephen
Holland. (09-CR-946 (“CR”), Doc. 4) The case
proceeded to a jury trial. The testimony at trial was that
Escalanti and Holland were in the back of a truck when
Escalanti stabbed Holland with pruners or cable cutters,
bound his hands with cord, and then beat Holland to death
with a large wrench. (CR Doc. 101 at 114, 116-17, 137,
143-45) The physical evidence introduced at trial
showed that Escalanti's fingerprints were inside the
truck and that his shoes contained blood whose DNA matched
Holland. (CR Doc. 101 at 59, 90-91) As relevant here, the
Court reviewed each jury instruction with both sides before
submitting the case to the jury. (CR Doc. 102 at 184-95)
timely appealed to the Ninth Circuit Court of Appeals and
argued that the government did not present sufficient
evidence to establish his Indian status or that the
kidnapping and murder occurred on tribal land. (CR Doc.
111-1) The Ninth Circuit affirmed and he petitioned for a
rehearing en banc. After this petition was denied, he
petitioned the United States Supreme Court for certiorari.
(C.A. No. 10-10465 at Docs. 77, 79) After that petition was
denied, Escalanti timely initiated Section 2255 proceedings.
(C.A. No. 10-10465 at Doc. 80; Doc. 1)
One: Ineffective Assistance of Counsel.
prevail on his claims of ineffective assistance of trial
counsel, Escalanti would have to show that his attorney's
performance was deficient and that he was prejudiced as a
result of that deficiency. Strickland v. Washington,
466 U.S. 668 (1984). When evaluating a claim of ineffective
assistance of trial counsel, this Court must “determine
whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of
professionally competent assistance.” Id. at
Ground One of his Motion, Escalanti claims that the
government disclosed that a witness, not otherwise
identified, stated that he “went to Circle K.”
Escalanti argues that trial counsel was ineffective for
failing to obtain video from Circle K because that video
would have confirmed he was not with Holland or Baker at that
time. (CV Doc. 1 at 5) However, Escalanti does not explain
how he was prejudiced by the absence of this video and it is
not clear to the Court how this video would have contradicted
the testimony and physical evidence that linked him to
Holland's murder. Accordingly, he is not entitled to
relief on this claim.
Escalanti claims that his trial counsel “failed to
object to jury instructions” but, again, he does not
allege any prejudice. (Doc. 1 at 5) Moreover, the Court notes
that his statement about his counsel's performance is
belied by the transcript which shows his counsel, the
prosecution, and the Court actively reviewing jury
instructions. (CR Doc. 102 at 184-95) Thus, this claim is not
Two: “Acquitted of Assault.” In Ground Two
of his Motion, Escalanti states that he was acquitted of
assault and so he could not have been found guilty of murder.
(Doc. 1 at 6)
argument misstates the underlying facts of his criminal case:
Escalanti's assault charges were dismissed because the
Court found that the evidence at trial showed that the
elements of those claims were part of the murder charge not
because of an absence of evidence to support either charge.
In other words, the evidence that supported the assault
charges also supported the murder charge. (CR Doc. 103 at
addition, this argument could have been raised on direct
appeal and was not. (CR Doc. 111-1) As a result, this Court
cannot review this argument unless Escalanti
“demonstrate[d] both cause excusing his procedural
default, and actual prejudice resulting from the claim of
error.” U.S. v. Johnson, 988 F.2d 941, 945
(9th Cir. 1993) (citing U.S. v. Frady,
456 U.S. 152, 168 (1982)). He has made no attempt to do so
and, thus, the Court cannot review this claim.
Three: “Jurisdiction.” In Ground Three of
his Motion, Escalanti argues that the evidence at trial did
not establish that the crimes occurred on tribal land. (Doc.
1 at 7) It appears that Escalanti is raising the same
argument that he prosecuted on appeal and that the Ninth
Circuit rejected. (Doc. 111-1) When a claim is
“expressly rejected” on appeal, it “cannot
be the basis of a ...