United States District Court, D. Arizona
HONORABLE CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.
before the Court are Petitioner Alex Joseph Pedrin, Jr.'s
§ 2255 motions. (Doc. 1 and Doc. 5). The government
filed a response (Doc. 8) and Petitioner a reply (Doc. 12).
Petitioner requests oral argument and an evidentiary hearing.
The Court declines to schedule this matter for oral argument
or for an evidentiary hearing.
and Procedural Background
several decades, the Bureau of Alcohol, Tobacco, and Firearms
(‘ATF') has conducted reverse sting operations in
order to identify and apprehend people who can be enticed
into robbing fictitious drug ‘stash houses' (houses
in which drugs are ‘stashed'). In these
‘stash house stings,' an undercover agent poses as
a disgruntled drug courier with knowledge about a stash house
protected by armed guards and containing a large amount of
cocaine. The agent suggests to targets of the reverse sting
that they join forces, rob the house, and split the proceeds.
Once the targets have taken steps to rob the fictional house,
they are arrested and charged with conspiracy to violate
federal narcotics laws.” United States v.
Pedrin, 797 F.3d 792, 794 (9th Cir. 2015).
Zayas (“Agent Zayas”) is a special agent with the
ATF who posed as one of these disgruntled drug couriers. In
2009, Carlos Omar Perez (“Mr. Perez”) was looking
for “work” and contacted his uncle, Jesus
Contreras Alcaraz (“Mr. Contreras”), a
confidential informant. (Doc. 5, pg. 6). Mr. Contreras
informed Agent Zayas about Mr. Perez's request.
Id. Agent Zayas, posing as a disgruntled drug
courier, contacted Mr. Perez and, in conjunction with Mr.
Contreras, set up a meeting between Agent Zayas, Mr. Perez,
Mr. Contreras, and Petitioner on August 17, 2009. (Doc. 12,
pg. 3). During that meeting, Agent Zayas relayed his standard
story: that he knew about a stash house that was guarded by
armed men and that contained a significant quantity of
cocaine. (Doc. 8, pg. 3). Agent Zayas “said he was
looking for ‘someone to go in there and take
everything.' He asked the men, ‘What do you think?
. . . Can that be done?' Each man assented.”
Pedrin, 797 F.3d at 794.
August 19, 2009, Petitioner and Mr. Perez again met with
Agent Zayas and it was agreed that the robbery would take
place two days later. (Doc. 8, pg. 4). Agent Zayas
“pressed Perez and [Petitioner] for details about their
plan. [Petitioner] responded, ‘We'll just . . . go
right when you go in so we're all together, you know what
I mean? . . . Put everybody down. Make them tell us where
everything is at and then we leave and then we go split it
up.'” Pedrin, 797 F.3d at 795. In
addition, Petitioner also told Agent Zayas that he had
obtained walkie-talkies and scanners to help facilitate the
robbery. (Doc. 8-5, pg. 8). Petitioner and Mr. Perez also
elicited the assistance of three other participants - Terry
Bombard, Cory Lock, and Gilbert Galaz. (Transcript of Jury
Trial Day Two, pg. 56, 66). On August 21, 2009, Agent Zayas
told the participants that he had rented a storage unit to
store his share of the stolen narcotics and requested that
Petitioner, Mr. Bombard, Mr. Perez, Mr. Lock, and Mr. Galaz
follow him to the unit. (Doc. 8, pg. 5). Agent Zayas'
plan was to arrest the participants at the storage unit.
Zayas drove alone and was followed by a red Lexus containing:
Petitioner, Mr. Bombard, and Mr. Lock, and a blue Stratus
containing: Mr. Perez and Mr. Galaz. Id. “On
the way to the locker, however, the men became suspicious and
pulled into a nearby trailer park. One of the men took a
different car to the storage locker location, where he saw
ATF agents. He called the others and warned them that it was
a sting. The men fled but were picked up by federal and state
officers shortly afterward.” Pedrin, 797 F.3d
trial, Mr. Bombard testified that Petitioner had participated
in prior stash house robberies and was the leader and
organizer of the underlying crime. (Doc. 5, pg. 8). On
November 21, 2011, Petitioner was sentenced to a prison term
of 210 months for Conspiracy to Possess with Intent to
Distribute Cocaine in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(A)(ii). Petitioner filed an
appeal with the Ninth Circuit Court of Appeals and the Ninth
Circuit affirmed this Court's ruling on August 17, 2015.
See Pedrin, 797 F.3d at 797. Petitioner appealed to
the United States Supreme Court but was denied certiorari on
May 31, 2016. (Doc. 5-2, pg. 35).
15, 2017, Petitioner filed a Motion under 28 U.S.C. §
2255 (Doc. 1) alleging five grounds for relief:
(1) Trial counsel accepted the Government's case against
Petitioner as fact and failed to conduct an independent
investigation into the facts and law of the case;
(2) Trial counsel failed to contact, interview, secure and
call a critical defense witness whose testimony refuted the
Government's case in chief and proved entrapment;
(3) Trial counsel failed to prepare and call Petitioner as a
witness at the jury trial in order to present evidence that
established that the Government created and presented the
crime to Petitioner, and that the Petitioner was not
predisposed to commit the crime;
(4) Trial counsel failed to raise a viable entrapment
(5) Cumulative error.
30, 2017, Petitioner filed an amended §2255 motion.
(Doc. 5). In the amended motion, Petitioner raises four
grounds for relief:
(1) Trial counsel was ineffective by failing to investigate,
preserve, secure, or present exculpatory evidence, in the
form of the testimony of a former co-defendant, Mr. Perez
before he was deported to Mexico or to have Mr.
Perez paroled into the country to testify or otherwise secure
the use of his testimony; this evidence would have changed
the result at trial;
(2) The exculpatory testimony of Mr. Perez constitutes
newly-discovered testimony that, had it been available at
trial, would have changed the result;
(3) Petitioner's trial counsel was also ineffective
because he failed to call Petitioner as a witness in his own
defense and failed to present an entrapment defense; and
(4) New law or evidence that applies to Petitioner's case
provides a basis for relief in that it can now be shown that
Petitioner was the victim of selective prosecution.
claims for relief in the original motion relate to an
argument that Petitioner's trial counsel was ineffective
and that there was cumulative error. Petitioner's amended
motion contains similar arguments, but adds a claim that
Petitioner was the victim of selective prosecution. The Court
will examine each claim separately.
Ineffective Assistance of Counsel
chief argument is that his trial counsel was ineffective
because he: (1) failed to investigate, preserve, secure, or
present exculpatory testimony; (2) failed to prepare and call
Petitioner as a witness at trial; and (3) failed to raise a
viable entrapment defense.
general matter, to support a finding of ineffective
assistance of counsel, a defendant must show two things:
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
Strickland v. Washington, 466 U.S. 668, 687 (1984)
“[j]udicial 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.”
Strickland, 466 U.S. at 669.
that standard in mind, the Court will address each alleged
instance of ineffective assistance individually.
Failed to investigate, preserve, secure, or present
exculpatory testimony Petitioner claims to have informed
his trial counsel that Mr. Perez could and would refute Mr.
Bombard's testimony by testifying that Petitioner never
intended to commit the robbery. Petitioner claims that
although counsel was allegedly aware of Mr. Perez's
testimony, counsel never interviewed Mr. Perez, or even
attempted to interview Mr. Perez. (Doc. 5, pg. 9). In
counsel's letter rebutting Petitioner's bar
complaint, counsel writes:
Any testimony by Mr. Perez would have only bolstered the
government's case against Mr. Pedrin as it would have
added another percipient witness testifying that Mr. Pedrin
was the organizer and leader of the “rip crew.”
It would have made any cross-examination of Mr. Bombard, the
government's “star” witness against Mr.
Pedrin, ineffective and fruitless. Moreover, Mr. Perez'
testimony would have established that ...