Opinion
CR 16-00407 PHX GMS
08-10-2021
George Alonzo Renteria, Movant/Defendant, v. United States of America, Respondent. No. CV 20-02494 PHX GMS CDB
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW:
Movant George Renteria, proceeding pro se, seeks relief from his convictions for first degree murder, possession of a firearm during a crime of violence, and assault with a dangerous weapon pursuant to 28 U.S.C. § 2255. The Government responded to the § 2255 motion and Renteria has filed a reply (Civil Docket (“CV”) ECF Nos. 10 & 11).
I. Background
The following summary of the evidence presented at Renteria's trial is taken from the Government's appellate brief:
This case is about the murder of a homeless man named Eduardo Moroyoqui, known simply to his friends and family as “Max.” (RT 11/15/17 327; ER 446.) On February 17, 2014, Max was last seen alive getting into a white Dodge Intrepid being driven by the defendant. (RT 11/15/17 378; ER 497.) Max then texted his sister that he was “[g]oing to the res” with the defendant and asked her to “[f]ind me if i disapear.” (RT 11/15/17 328-30; ER 447-449; TE 17; SER 118.)
A few hours later, Max's bullet-riddled body was found in a remote dirt field on the Gila River Reservation. (RT 11/15/17 247; RT 11/21/17 702;1
ER 88, 366.) The defendant spent the rest of the day thoroughly cleaning and wiping down the Dodge Intrepid (TE 90-95) and then boasting to a relative that “he shot Max and left him laying” out “in one of the fields.” (RT 11/15/17 350; ER 469.)Appellee's Brief, United States v. Renteria, 2019 WL 3461243, at *5 (9th Cir. July 24, 2019).
On February 17, 2014, the defendant was in the midst of a violent crime spree in both Chandler, Arizona, and on the Gila River Indian Community. The day before murdering Max, the defendant stole a white Dodge Intrepid from off the Gila River Reservation. (RT 11/16/17 512-13; ER 169-70.) The stolen Dodge Intrepid was distinctive in that it had a mismatched set of tires; three were Douglas Xtra Trac II tires, while the fourth (the front passenger side) was a Precept Touring tire. (RT 11/16/17 565-68; ER 222-25.) By the defendant's own admission, he “was in control of the Intrepid from February 16, 2014, until February 18, 2014.” (RT 11/16/17 512-13; ER 169-70.)
The next day, in the early morning hours of February 17, the defendant committed a home invasion and armed robbery at the apartment of K.T. (RT 11/15/17 415-22; ER 534-41.) At approximately 6 a.m., the defendant, his girlfriend, and two other people forced their way into K.T.'s apartment in Chandler. (RT 11/15/17 416-18; ER 535-37.) The defendant appeared “mad” because, as best K.T. could tell, he “thought that [she] had something to do with [his girlfriend's] mother getting beat up.” (RT 11/15/17 419; ER 538.) The defendant “was wearing nothing but black” and “had a gun, ” which he pointed at K.T. while demanding to know who beat up his girlfriend's mother. (RT 11/15/17 418-19; ER 537-38.) The defendant then stole K.T.'s cell phone and forced her outside to start knocking on neighboring apartment doors for him, while he stood behind her. (RT 11/15/17 417, 420; ER 536, 539.)
K.T. was the first witness to see Max (her friend) and the defendant together. (RT 11/15/17 424; ER 543.) Although Max was homeless, he would often be found with his friends who lived in that area, including K.T. (RT 11/16/17 627-28; ER 284-85.) After the home invasion and theft of her cell phone, K.T. saw the defendant with Max at one of the neighboring apartments. (RT 11/15/17 416, 424; ER 535, 543.) K.T. saw the two men leave from there and get into a white car, with the defendant driving and Max in the back. (RT 11/15/17 424-25; ER 543-44.) K.T. would never see Max alive again. (RT 11/15/17 425; ER 544.)
***
Later that morning, the defendant and Max were seen together twice by D.P. D.P. is the defendant's cousin. (RT 11/15/17 341; ER 460.) D.P. testified that the defendant and Max pulled up to her house the morning of2
his murder in the white car. (RT 11/15/17 343-44; ER 462-63.) Later that day, the defendant came back in the white car, with Max walking separately to D.P.'s residence 10-15 minutes later. (RT 11/15/17 347-48; ER 466-67.) While Max was walking up, the defendant asked D.P. “if I knew him, saying that he was going to - he was going to fuck him up, he was going to get him.” (RT 11/15/17 348; ER 467.) She understood the defendant's words to mean “[t]hat Max wasn't safe.” (RT 11/15/17 376; ER 495.)
The defendant then introduced Max to D.P., but he referred to D.P. as “his niece named Jessica, ” a lie she found strange. (RT 11/15/17 348-49; ER 467-68.) The defendant eventually started talking with Max about driving him to Maricopa; the defendant then got into the driver's seat and drove Max away. (RT 11/15/17 378; ER 497.)
***
The last anyone heard from Max was a series of text messages he sent to his sister in the late morning that day. (RT 11/15/17 328-30; ER 447-49; TE 17; SER 118.) Max texted that he was “[g]oing to the res with little g.” (RT 11/15/17 328-30; ER 447-49; TE 17; SER 118.) The defendant goes by the nickname “Little G” and has “L-I-L-G” tattooed on his knuckles. (CR 107 at 2; RT 11/16/17 521, 635; ER 178, 292; SER 2.)
Max then texted his sister: “Find me if i disapear.” (RT 11/15/17 32830; ER 447-49; TE 17; SER 118.) Alarmed, Max's sister called him repeatedly, but he did not answer his phone or return her calls. (RT 11/15/17 334-35; ER 453-54.)
***
Just a few hours later, around 3 p.m., Gila River police Sgt. Figueroa was called to respond to a report that a body was lying in a field on the Gila River Reservation. (RT 11/15/17 247; ER 366.) It was Max. (RT 11/15/17 248; ER 367.) His body had been found by a passing motorist, who called the police. (RT 11/16/17 622-23; ER 279-80.)
Max's body was riddled with bullet holes. There were at least seven separate entrance wounds, four exit wounds, and three bullets still left inside him. (RT 11/21/17 702; ER 88.) The bullets pulled from Max's body were all .40 caliber. RT 11/21/17 716; ER 102.) The entrance wounds were clustered on the right side of Max's body, with bullets transecting his heart and other vital organs. (RT 11/21/17 703-12; ER 89-98.)
The field where Max's body was found is “very remote and rural, ” adjacent to agricultural land. (RT 11/16/17 624; ER 281.) There are no residences or businesses in the immediate area of the dirt field. (RT 11/15/17 261; ER 380.) However, less than a mile from where Max's body was found is the “Riggins Compound, ” a group of residences on the reservation where the defendant lived with his girlfriend and her mother. (RT 11/16/17 636; ER 293.)3 Id., 2019 WL 3461243, at *6-10.
Prior to being indicted in the instant matter, Renteria was convicted on state charges relating to the theft of the Dodge Intrepid. See Appellant's Brief, United States v. Renteria, 2019 WL 1025382, at *12 (9th Cir. Feb. 25, 2019). While in state custody on the charge of car theft, Renteria was recorded on jail telephone calls. (Id.).
A federal grand jury indictment returned April 6, 2016, charged Renteria with one count of first-degree murder and one count of possession of a firearm during a crime of violence. (Criminal Docket (“CR”) ECF No. 1). On or about March 3, 2017, Renteria rejected a plea agreement providing that, in return for a guilty plea to one count of second degree murder and admitting a supervised release violation in United States v. Renteria, 2:07-cr-1055 PHX, the Government would dismiss the remaining charge in the instant matter and not oppose a request for any sentence imposed on the release violation to run concurrent to his sentence in the instant matter. (CR ECF No. 34 at 1). At a pretrial conference conducted October 31, 2017, the following colloquy occurred:
THE COURT: .. Any objection if we allow the government to put the terms of the settlement offer on the record?
MR. EISENBERG: I don't object to that at all, Your Honor. but I would trust that any inquiry concerning whether it's been discussed or addressed between myself and my client come from me and not Mr. Renteria.
THE COURT: ... Mr. Renteria, I'll expect you to listen to the settlement offer that the government is now going to describe that they have made to you on the record. If you feel like you haven't received that offer, then you should raise that with your counsel immediately and/or you can state on the record that you don't believe you've received that offer. But otherwise, I'm not going - I don't have any intention of inquiring whether or not the defendant has received the offer.
Does that meet with your concern?
MR. EISENBERG: Any question Your Honor would like to raise with respect to this should come through me, Your Honor, rather than through Mr. Renteria. But I think you've captured my concern. I just simply don't want him to speak in court.
[THE GOVERNMENT]: We have no problem with that, Judge.
We would only ask that Mr. Renteria also advise his counsel immediately if he believes we are incorrect in stating that he has rejected this offer and wishes to proceed to trial.4
THE COURT: All right.
MS. KELLER: The - the government would like to just state quickly the terms of the plea agreement.
Defendant is charged with the most serious crime of First Degree Murder, which is a - which would involve a mandatory life sentence. If also convicted of using a firearm in connection with that crime, he would face a mandatory consecutive sentence of 10 years up to life.
The government on September 18th, 2017, offered to plead the defendant to the lesser-included offense of Second Degree Murder and stipulate that his sentence would not exceed the low end of the guidelines as determined by the Court.
The plea offer would also resolve the defendant's outstanding supervised release case, and the parties would stipulate that his sentence for that violation would not exceed the midrange of the sentencing guideline.
The plea further would allow the Court to determine whether those two sentences would run concurrent or consecutive to each other.
On October 2nd, 2017, defense counsel notified the government that the defendant rejected the proposed plea offer, and further advised that it would not be productive to pursue alternative plea possibilities. As such, the government's plea has since been withdrawn.
THE COURT: All right. Mr. Renteria, if you feel like you haven't received that offer, or if you have received it and have not rejected it, you should communicate with your counsel immediately. Okay?
THE DEFENDANT: (Nods head in the affirmative.)
THE COURT: All right.(CR ECF No. 181 at 19-21).
A superseding indictment docketed September 19, 2019, charged Renteria with an additional count of possessing a firearm during a crime of violence and a count of assault with a dangerous weapon. (CR ECF No. 65). On November 28, 2017, at the conclusion of a five-day trial, the jury found Renteria guilty as charged.
A presentence investigation report (“PSR”) was prepared. (CR ECF No. 159). Through defense counsel, Mr. Eisenberg, Renteria filed both a sentencing memorandum and a response to the Government's objections to the PSR. (CR ECF No. 154; CR ECF No. 157). On June 11, 2018, the Court sentenced Renteria to life in prison pursuant to his conviction on the charge of first-degree murder, and to a concurrent sentence of 120 months' imprisonment pursuant to his conviction on the charge of assault with a dangerous 5 weapon, and to a consecutive sentence of 120 months' imprisonment on the conviction for use of a firearm in the commission of a crime of violence. (CR ECF No. 163).
Count Four of the superseding indictment, the second charge of possessing a firearm during a crime of violence, was dismissed on May 3, 2018. (CR ECF No. 152).
On appeal Renteria asserted there was insufficient evidence from which the jury could conclude the murder was premeditated. See United States v. Renteria, 793 Fed.Appx. 646, 647 (9th Cir. 2020). He further argued the Court abused its discretion at trial by admitting a recorded jail telephone call between Renteria and his brother's girlfriend, and that the Court erred in admitting the lay opinions of a police officer, Sergeant Figeroa, who responded to the scene of the murder. Id. Renteria asserted, inter alia, the Court erred in admitting Figeroa's “blended” “fact/expert” evidence in the absence of notice or a jury instruction on how the jury should assess this testimony. See Appellant's Brief, 2019 WL 1025382, at *7. He further argued Figeroa's testimony on police practices amounted to both improper vouching and bolstering by the Government, and that Figeroa lacked the qualifications to provide expert opinions on shoe tracks and the time the shoe and tire tracks were made; ballistics (“to which the defense twice objected and the district court ultimately overruled”); blood evidence; and blood trail evidence. Id., 2019 WL 1025382, at *7 & 15.
In a memorandum decision the Ninth Circuit Court of Appeals denied relief on all of Renteria's claims. See Renteria, 793 Fed.Appx. at 647. With regard to Figeroa's testimony, the appellate court concluded:
The district court did not plainly err in admitting the lay opinions of a police officer who responded to the scene of the murder. See Fed.R.Evid. 701; United States v. Yazzie, 976 F.2d 1252, 1255 (9th Cir. 1992). In any event, no alleged error in admitting the testimony “affected substantial rights” or “seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Washington, 462 F.3d 1124, 1136 (9th Cir. 2006); see also United States v. Tydingco, 909 F.3d 297, 304-05 (9th Cir. 2018). Neither this testimony nor the prosecutor's comments constituted improper vouching. See United States v. Brooks, 508 F.3d 1205, 1209-12 (9th Cir. 2007).Id. 6
II. Claims for Relief
In his § 2255 motion Renteria asserts trial counsel was ineffective for failing to object to an “erroneous jury instruction.” (CV ECF No. 4 at 5). Citing Taylor v. Sisto, 606 F.3d 622 (9th Cir. 2010) and Taylor v. Louisiana, 419 U.S. 522 (1975), Renteria argues the Court should not have instructed the jury to perform its “duties fairly and impartially, ” and to “not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion” to influence them. (CV ECF No. 4 at 13-14).
Renteria further contends his trial counsel was “ineffective for failing to investigate fully and present evidence of” his “mental state, mental disorders, prior psychiatric evaluations, intoxication, and other psychological factors” that “demonstrate[d]” his incompetence to stand trial. (CV ECF No. 4 at 14). Renteria cites the psychological evaluation obtained April 30, 2018, after his conviction and prior to his sentencing, indicating a history of prenatal alcohol exposure and diagnostic impressions of PTSD, addiction, antisocial and borderline personality disorders, and borderline intellectual functioning. (CV ECF No. 4 at 14-15). Renteria notes his in-patient mental health treatment for one month in 2004 and on two occasions in 2013, and a 2003 diagnosis of mild retardation. (CV ECF No. 4 at 15). Renteria also notes that in June of 2018 his IQ was reported as 70. (CV ECF No. 4 at 15-16). Renteria further alleges that, as noted in the PSR, he has been abusing inhalants, marijuana, cocaine, crack cocaine, alcohol, heroin, and methamphetamine “since the age of 6 when he began abusing inhalants and marijuana.” (CV ECF No. 4 at 16).
Renteria also asserts his trial counsel was ineffective because he stipulated “to a fact that adversely affected defendant's case.” (CV ECF No. 4 at 7, 18-19). Renteria argues counsel was ineffective for stipulating that he was in possession of a stolen vehicle from February 16, 2014 through February 18, 2014, “as that stipulation served as the underlying proof of defendant's guilt.” (CV ECF No. 4 at 18). 7
Additionally, Renteria contends counsel failed to investigate “all reasonable lines of defense, ” (CV ECF No. 4 at 19), alleging counsel did not discuss any strategy with Renteria, and that counsel
... did not have a plan designed to create reasonable doubt in the jury's mind, did not investigate the crime scene, did not interview any witnesses, did not call any witnesses, did not submit any exhibits, did not seek expert testimony to rebut government experts, and when the government rested its case, defense counsel also rested, even after promising that defense would need two to three days to present its case.(CV ECF No. 4 at 19-20). Renteria argues: “Defense counsel simply felt there was not enough evidence to convict, which cannot be considered a sound strategy given the options available at the time.” (CV ECF No. 4 at 20). Broadly construing this claim, Renteria implies counsel was ineffective for failing to present defense expert witnesses to challenge the Government's experts in forensics, including tire tread patterns, cell site locations, ballistics, and forensic pathology. (CV ECF No. 4 at 20).
Renteria also contends his counsel was ineffective “for failing to object to the improperly admitted expert testimony of government witness, Sergeant Figueroa, in the absence of required notice.” (CV ECF No. 4 at 9, 22-23). He asserts counsel “failed to object to the expert testimony of Sergeant Figueroa on the grounds that this witness was not on the list of experts on which the government had provided proper notice.” (CV ECF No. 4 at 23).
Respondents argue Renteria is unable to establish that his counsel's performance was deficient or that, given the weight of the evidence against Renteria, any alleged error was prejudicial.
III. Analysis
A. Standard governing ineffective assistance of counsel claims
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Span, 75 F.3d 1383, 1386-87 (9th Cir. 1996). To prevail on a claim of ineffective assistance of counsel, a § 2255 movant must show both that his attorney's performance was deficient 8 under reasonable professional standards and there is a reasonable probability that, but for counsel's unprofessional errors, the results would have been different. Span, 75 F.3d at 1387; United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). Strickland defines a “reasonable probability” as a probability sufficient to undermine confidence in the outcome of the criminal proceedings. Span, 75 F.3d at 1387. See also United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005). Absent a conflict of interest, a movant bears the burden of establishing both prongs of the Strickland test. See United States v. Quintero-Barraza, 78 F.3d 1344, 1347-48 (9th Cir. 1995). It is the movant's burden to provide the Court with sufficient evidence from which the Court can conclude counsel's performance was unconstitutionally ineffective. See United States v. Walter-Eze, 869 F.2d 891, 906 (9th Cir. 2017); United States v. Withers, 638 F.3d 1055, 1066-67 (9th Cir. 2011). Unsupported and conclusory allegations, without more, are not sufficient to support relief on a claim of ineffective assistance of counsel. United States v. McMullen, 98 F.3d 1155, 1158-59 (9th Cir. 1997).
To satisfy the Strickland test Renteria must overcome a strong presumption that his counsel's representation was within a wide range of reasonable professional assistance. See, e.g., United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). In a § 2255 matter the Court's “[r]eview of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation.” Id. Counsel's performance is deficient when it is not “within the range of competence demanded of attorneys in criminal cases.” Strickland, 466 U.S. at 687. With regard to the “deficient performance” prong of the Strickland test, to establish that his counsel's conduct was unconstitutionally substandard, a §2255 movant must establish that no competent counsel would have acted as his counsel acted, i.e., that his counsel's acts were unreasonable. United States v. Fredman, 390 F.3d 1153, 1156 (9th Cir. 2004); Ferreira-Alameda, 815 F.2d at 1253. The Ninth Circuit has long recognized that the definition of reasonable professional assistance encompasses a broad range of actions and decisions. See Quintero-Barraza, 78 F.3d at 1348; United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). See also United States v. Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000) 9 (“we presume that attorneys made reasonable judgments and decline to second guess strategic choices.”). The reasonableness of an attorney's actions is judged from the attorney's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 688-89. With regard to the prejudice prong of the Strickland analysis, the probability of prejudice may not be based merely upon conjecture or speculation. See Mickens v. Taylor, 535 U.S. 162, 176-77 (2002) (Kennedy, J. concurring) (stating speculation has no place in the Strickland analysis). To satisfy the prejudice prong of the Strickland test the movant must establish that, but for counsel's error, the result of his criminal proceedings would have been different. E.g., United States v. Houtchens, 926 F.2d 824, 828 (9th Cir. 1991).
B. Analysis of Renteria's claims for relief
1. Ground One
Renteria alleges his trial counsel was ineffective for “not objecting to [an] erroneous jury instruction, ” i.e., that the jurors should perform their “duties fairly and impartially, ” and “not allow personal likes or dislikes” to influence their decision. (CV ECF No. 4 at 13). Renteria notes statements by the Court to prospective jurors that they should “put aside your own life's experiences, if you have any that bear on this trial, [and] put aside your own biases or prejudices, if you have any.” (CV ECF No. 4 at 5, 12-14). The Court made these latter statements at the outset of voir dire, explaining the need to select fair and impartial jurors. (CR ECF No. 183 at 22-23).
Renteria claims the jury instruction was contrary to Taylor v. Sisto, 606 F.3d 622 (9th Cir. 2010), a § 2254 matter in which the Ninth Circuit initially criticized a judge's statement that jurors were required to “take all the decisions that you have made, all the opinions you have about how people act, how people behave, what kind of people behave in what way, what makes them do that, and you leave them in [a] box.” However, the opinion to which Renteria cites was withdrawn, see 2011 WL 6581 (9th Cir. Jan. 3, 2011), and superseded by a decision that reached the opposite conclusion, see 449 Fed.Appx. 665 (9th Cir. 2011). 10 In the superseding opinion the Ninth Circuit Court of Appeals concluded the trial court's instruction was not clearly contrary to established Supreme Court precedent, because the instruction could reasonably be interpreted “as telling jurors to put aside biases and prejudices rather than to ignore life experiences.” Id., 449 Fed.Appx. at 668.
Additionally, the Court's formal jury instruction clarified that the jurors were required to “decide the case solely on the evidence and the law, ” but that in determining whether the Government had met its burden of proof “[a] reasonable doubt is a doubt based on reason and common sense, and is not based purely on speculation.” (ECF No. 187 at 7).
The Court's jury instruction and the statements made during voir dire were not objectionable and, accordingly, counsel's decision to not object was not deficient performance nor prejudicial. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) (holding counsel's failure to raise a meritless legal argument was not ineffective assistance). Even if an objection was arguably proper, the lack of an objection was within counsel's discretion. Renteria's trial counsel explains in his affidavit (attached to the response to the § 2255 motion) that “based on my professional experience, it would have been a serious strategic risk to lodge such an early objection to the Judge's explanation about being fair and impartial, which might have alienated the entire venire panel from the outset.” (ECF No. 8-1 at 3). Because counsel “perceived nothing in the Judge's comment that appeared likely to yield a successful objection, especially given that the parties had otherwise stipulated to use standard Ninth Circuit model instructions properly explaining the role and duties of the jury” (Id.), counsel's strategic decision to withhold an objection was not deficient performance.
Additionally, Renteria is unable to establish prejudice arising from this alleged error. Renteria does not dispute that the actual jury instructions properly informed the jury of their duties and role, including by defining reasonable doubt to include doubts based on reason and common sense. Given the context in which the allegedly improper statement was made, the jury instructions as a whole, and the overwhelming evidence of his guilt, 11 Renteria fails to establish the comments or jury instruction prejudiced him in any way and, therefore, he fails to establish that any error of counsel for failure to object was prejudicial.
2. Ground Two
Renteria asserts his counsel was “ineffective for failing to investigate and present evidence of [Renteria's] incompetence to stand trial.” (CV ECF No. 4 at 6, 14-18).
The fact that a defendant has a history of mental health issues does not require counsel to challenge his competency to stand trial. See Dixon v. Ryan, 932 F.3d 789, 801 (9th Cir. 2019); Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003). Instead, the
... failure to move for a competency hearing violates the defendant's right to effective assistance of counsel when there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (internal quotation omitted). See also United States v. Quintero, 995 F.3d 1044, 1059 (9th Cir. 2021); Dixon v. Ryan, 932 F.3d 789, 802-03 (9th Cir. 2019), cert. denied, 140 S.Ct. 2810 (2020); Jones v. United States, 2013 WL 4648542, at *14 (D. Idaho Aug. 29, 2013), citing Stanley, 633 F.3d at 862, and Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001). As in other contexts, “defense counsel is empowered to make strategic decisions, including decisions regarding how to fulfill the duty to conduct an investigation of a client's mental health.” Martin v. Quinn, 472 Fed.Appx. 564, 567 (9th Cir. 2012).
Renteria fails to show that counsel's alleged failure to investigate his competency constituted deficient performance, and he has not established he was actually incompetent at the time of trial. Evaluating the situation from “counsel's perspective at the time, ” Turner, 281 F.3d at 876, defense counsel took reasonable steps with regard to the issue of Renteria's competency. Counsel “met with Mr. Renteria many times” and, although Renteria clearly did not want his counsel exploring his involvement with the murder, Renteria nevertheless “appeared engaged and interested during [those] interactions.” (CV ECF No. 8-1 at 6). Defense counsel concluded: “based on all of my interactions with him, 12 Mr. Renteria appeared competent to proceed.” (CV ECF No. 8-1 at 4). Specifically, counsel believed Renteria “appeared to understand the nature of the charges against him, the criminal process, and what was happening during the various proceedings.” (Id.) Defense counsel discussed various legal concepts with Renteria, including plea issues, evidence, and court procedure, and “[i]n all these respects, Mr. Renteria expressed to me his understanding of what was happening” and “never expressed to me any indication that he failed to understand the proceedings or that he could not aid in his defense.” (Id.).
Counsel also reviewed Renteria's criminal history, noting prior felony cases that resulted in pleas and convictions in 2007 (in federal court) and 2014 (two state court cases). (Id.). As counsel states, Renteria did not “indicate to [counsel] that he had failed to understand prior criminal proceedings.” (Id.). Furthermore, counsel reviewed the transcript of Renteria's September 16, 2014 change of plea hearing in state court, in which Renteria expressed an understanding of those criminal proceedings and was found to have knowingly and intelligently pleaded guilty. (Id.). Additionally, counsel reviewed the voluminous discovery produced in this case, including audio and video statements made by Renteria to law enforcement, and audio recordings of Renteria's jail calls. (CV ECF No. 8-1 at 5-6). “Based on the material [he] reviewed, [his] interactions with Mr. Renteria, and [his] professional experience, ” counsel reasonably concluded Renteria appeared competent, and that no mental health evaluation was necessary. (CV ECF No. 8-1 at 4).
In support of his claim that he was incompetent, Renteria cites a pre-sentencing mitigation evaluation, which noted several behavioral and mental health conditions. (CR ECF No. 156-2). However, because the evaluation followed rather than preceded the trial, the mitigation evaluation, does not establish counsel was ineffective with regard to questioning Renteria's competency prior to or at trial. Additionally, the mitigation evaluation did not conclude Renteria was incompetent at the time of the evaluation (April 30, 2018), or indicate that he was unable to understand his criminal proceedings or unable to assist in his own defense. The evaluation does not mention or call into question Renteria's competency to proceed to sentencing. 13
The express purpose of the evaluation was “to determine if there are mitigating factors present that may be relevant for sentencing.” (CR ECF No. 165-2 at 2). The evaluation noted Renteria's inclination to “exaggerat[e] regarding complaints and problems, ” and “suggest[ed] possible malingering” by Renteria. (CR ECF No. 165-2 at 16). The report noted that the evaluator's test results “should be considered with caution due to slight elevations suggesting possible over-reporting of symptoms.” (Id.). The report also “noted information provided by [Renteria] may be uncorroborated and unverified” and, therefore, “[t]he reader of this report should possibly limit the weight attached to the examinee's statements based on this disclosure.” (CR ECF No. 165-2 at 3).
The report reveals Renteria told demonstrable lies to the evaluator. Inter alia, Renteria “stated he does not know how to read or write.” (CR ECF No. 165-2 at 8-9). However, at his state court plea proceeding Renteria admitted he could read and understand English. (CR ECF No. 153-1 at 5). Additionally, Renteria's jail mail indicates he that he can read and write English. (CR ECF No.160-1). Although Renteria told the mitigation evaluator he spoke only “a little Spanish, ” he acknowledged to a probation officer that he was fluent in both English and Spanish. (CR ECF No. 165-2 at 4; CR ECF No. 159 at 17). The evaluation also noted Renteria's “deceitfulness as indicated by repeated lying, ” “use of aliases, ” and “conning others for personal profit, ” in support of the conclusion that Renteria's history indicated antisocial personality traits. (CR ECF No. 165-2 at 21).
Renteria fails to establish his counsel's investigation as to his mental competency was inadequate and constituted deficient performance, and he does not demonstrate that any inadequacy in counsel's investigation was prejudicial.
3. Ground Three
Renteria contends the “stipulation, agreed to by defense counsel, that Renteria was in possession of the stolen Dodge Intrepid from 02/16/2014 through 02/18/2014 was ineffective assistance of counsel.” (CV ECF No. 4 at 7, 18-19). However, as noted by the Government, the stipulation that Renteria was in control of the Dodge Intrepid during this time period was the direct result of the proffered factual basis to Renteria's guilty plea in 14 Maricopa County Superior Court in State v. Renteria, Case No. CR2014-109496, the case in which Renteria was charged and convicted for stealing the Dodge Intrepid. (CV ECF No. 8-6).
During his change of plea hearing in the state court matter on September 16, 2014, Renteria admitted that “on the dates of between February 16th and February 18th, 2014, [he] was in control of a vehicle that belonged to Stanley Nelson. It was a Dodge Intrepid, a white one. He was observed entering and leaving this vehicle. His fingerprints were in the vehicle.” (CV ECF No. 8-6 at 18-20). Accordingly, Renteria's federal trial counsel reasonably concluded that “it would have been a serious strategic blunder for the defense to contest a fact that Mr. Renteria had previously admitted as part of a court proceeding.” (CV ECF No. 8-1 at 5). Defense counsel also made the reasonable decision that “agreeing to the stipulation was the best strategic option to deal with that bad fact, ” because otherwise “the government would have been able to dwell at length on Mr. Renteria's prior admitted criminal behavior.” (Id.). Such strategic decisions are “virtually unchallengeable” and fall “within the wide range of reasonable professional assistance” allowed pursuant to Strickland, 466 U.S. at 689-90.
Additionally, overwhelming evidence of guilt leads to the conclusion that Renteria was not prejudiced by his counsel's alleged error. See Walter-Eze, 869 F.3d at 901; Molina, 934 F.2d at 1448 n.7; Hart v. Gomez, 174 F.3d 1067, 1072-73 (9th Cir. 1999); United States v. Howard, 406 Fed.Appx. 216, 217 (9th Cir. 2010) Renteria fails to establish that his counsel's performance was deficient, and also fails to establish prejudice arising from this alleged error, inter alia because of the overwhelming evidence of his guilt and because the Government could have admitted evidence of this fact without a stipulation.
4. Ground Four
Renteria maintains his counsel was ineffective for failing “to investigate all reasonable lines of defense.” (CV ECF No. 4 at 8, 19-22). Renteria asserts counsel “did not seek expert testimony” (Id.), however the record reveals defense counsel consulted with several experts (CV ECF No. 8-1 at 7-8) and filed a Rule 702 notice. (CR ECF No. 94). 15 Additionally, although Renteria alleges counsel “did not investigate the crime scene” (CV ECF No. 4 at 19), counsel had an investigator inspect the crime scene notwithstanding the passage of time since the crime, and counsel received hundreds of crime scene photos in discovery (CV ECF No. 8-1 at 8).
Furthermore, Renteria's counsel undertook a thorough investigation of the facts and the evidence, made a strategic decision about the best defense to present to the jury, and vigorously presented a reasonable defense to the jury. (CV ECF No. 8-1 at 5-9). Counsel reviewed the voluminous discovery, including documents, witness interviews, media, and physical evidence. (CV ECF No. 8-1 at 5-6). Counsel also “met with Mr. Renteria many times to attempt to discuss the case with him, ” in an effort to determine whether there was a plausible alibi or whether someone else may have committed the crime. (CV ECF No. 81 at 6-7). However, Renteria declined to assist counsel with those efforts. Counsel explains that although Renteria “appeared engaged and interested during our interactions, [but] when it came to discussing the case itself, he generally refused to do so.” (CV ECF No. 81 at 6). This included Renteria refusing to tell defense counsel “where he had been during the murder, ” what his relationship with the victim was, or how to reach community members that might know about what happened. (Id.). Defense counsel “nevertheless attempted to locate witnesses to have them interviewed.” (CV ECF No. 8-1 at 7). In this attempts counsel was sometimes successful but often not successful, most notably in the case of D.P., a witness to whom Renteria had confessed. (Id.). Effort was made, however, as Renteria's investigator went to D.P.'s residence, left a business card, and even enlisted a fellow community member to try to track her down for an interview. (Id.).
The fact that community members were reluctant to be involved with Renteria's defense was not the fault of counsel. A majority of the potential witnesses from the community were uncooperative. (CR ECF No. 185 at 172-73). D.P. herself testified at trial that she had been reluctant to talk to investigators, and that law enforcement attempted to meet with her “[m]any times” but she told them to go away. (CR ECF No. 184 at 165-66). The Government noted that “many of our witnesses in this case are reluctant to testify, ” 16 “[o]ur witnesses have dodged service, ” and several “told us that they are not going to testify due to their fear of the defendant.” (CR ECF No. 182 at 20). Community fear was so strong that on the first day of trial the Government gave notice of “a number of material witness arrest warrants for [the court] to sign.” (Id.). The Court did issue an arrest warrant for one such uncooperative witness. (CR ECF No. 114 at 1).
Based on the extensive evidence received in discovery, his own investigations and consultations with experts, and his knowledge that the Government-the party with the burden of proof-was also experiencing non-cooperation from witnesses, Renteria's counsel made the strategic decision to proceed to trial and “to focus the defense on challenging whether the government had met its burden of proof, whether it had undertaken a sufficiently robust investigation, and arguing against the existence of motive and for the possibility of another person having fired the shots that killed the victim.” (CV ECF No. 8-1 at 7-8). This was reasonable strategic choice by counsel and not deficient performance. “While a lawyer is under a duty to make a reasonable investigation, a lawyer may make a reasonable decision that particular investigations are unnecessary.” Babbitt v. Calderon, 151 F.3d 1170, 1173-74 (9th Cir. 1998). Moreover, “[t]o support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.” Harrington v. Richter, 562 U.S. 86, 109 (2011). “Strickland does not enact Newton's third law for the presentation of evidence, ” requiring “equal and opposite” witnesses from the defense. Id. at 111.
A review of the trial transcript reveals counsel reasonably carried through on his strategy, asserted appropriate objections, and acted well within the range of his discretion. (CV ECF No. 8-1 at 8). Renteria fails to adduce any witness testimony, expert opinions, or other evidence that should have been discovered in a pretrial investigation, and “[w]hen the record clearly shows that the lawyer was well-informed, and the defendant fails to state what additional information would be gained by the discovery she or he now claims was 17 necessary, an ineffective assistance claim fails.” Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), amended on denial of reh'g, 253 F.3d 1150 (9th Cir. 2001) .
Renteria fails to establish counsel's performance was deficient in this regard, or any prejudice arising from the allegedly deficient performance.
5. Ground Five
Renteria argues he was denied the effective assistance of counsel because counsel failed to object to the “improperly admitted expert testimony of [Gila River Police Sgt.] Figueroa, ” referring to “footmark” and “ballistics” evidence. (CV ECF No. 4 at 9, 22-23.)
On appeal Renteria asserted that this evidence was improperly admitted. The Ninth Circuit rejected this claim, finding Figueroa provided “the lay opinions of a police officer who responded to the scene of the murder.” Renteria, 793 Fed.Appx. at 647. Because any objection that the evidence was “improperly admitted” was likely to be overruled, Renteria's counsel was not ineffective for failing to challenge admissible evidence. Additionally, given the weight of the evidence against Renteria, including testimony corroborating the testimony of Figueroa, he is unable to establish prejudice from this purported error of counsel. See United States v. Harden, 846 F.2d 1229, 1231 (9th Cir. 1988) (concluding counsel's alleged failure to call a relevant witness not prejudicial when the evidence against the defendant was overwhelming), cited in United States v. Cruz, 165 F.3d 918, 1998 WL 840909, at *1 (9th Cir. 1998). See also United States v. Lumpkin, 44 Fed.Appx. 246, 247 (9th Cir. 2002); United States v. Ailemen, 43 Fed.Appx. 77, 83 (9th Cir. 2002).
IV. Conclusion
Renteria fails to establish that any of his trial counsel's alleged errors were deficient performance or that he was prejudiced by any alleged error, particularly given the weight of the evidence against him. Accordingly, 18
IT IS RECOMMENDED that Renteria's Amended Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CV ECF No. 4) be DENIED.
This report and recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen (14) days from the date of service of this recommendation within which to file specific written objections with the Court. See Fed.R.Civ.P. 72(b)(2). Thereafter, the parties have 14 days within which to file a response to the objections. Id.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72. 19