Pedrin v. United States

          ORDER

          HONORABLE CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.

         Pending 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.

         Factual and Procedural Background

         “For 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).

         Richard 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.

         On 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. Id.

         Agent 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 at 795.

         During 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).

         On May 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 defense; and

(5) Cumulative error.

         On May 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.

         Petitioner's 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.

         Analysis

         A. Ineffective Assistance of Counsel

         Petitioner's 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.

         As a 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 unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984) (emphasis added).

         Generally, “[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.

         With that standard in mind, the Court will address each alleged instance of ineffective assistance individually.

         1. 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 ...