Opinion
Civil No. 02-4063 ADM, Criminal No. 99-351(7) ADM/AJB.
February 26, 2003
Alejandro Flores-Romero, pro se.
Susan Nolting Burke, Assistant United States Attorney, Minneapolis, Minnesota on behalf of Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner Alejandro Flores-Romero ("Petitioner") brings the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Civil Docket No. 1; Criminal Docket No. 502] before the undersigned United States District Court Judge. Petitioner alleges two grounds of ineffective assistance of counsel in violation of the Sixth Amendment. Respondent contends that Petitioner has failed to demonstrate any deficiencies in his counsel's representation. Petitioner also alleges that he was not competent to stand trial, claiming that he was forcibly medicated. Respondent argues that Petitioner has already raised these claims on direct appeal, and has had numerous competency hearings. For the following reasons, Petitioner's Motion is denied.
Petitioner filed a Motion for Default Judgment in this matter on December 16, 2002 [Docket No. 510]. This Motion is moot and will not be addressed, as the Government responded to Petitioner's § 2255 Motion on November 22, 2002, within the time prescribed by the Court.
II. BACKGROUND
In November 1999, the grand jury returned an indictment against Petitioner and ten other individuals, charging them with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and 841(b)(1)(A). At the conclusion of his trial in May 2000, the jury found Petitioner guilty of conspiracy to distribute methamphetamine and this Court subsequently sentenced him to 151 months imprisonment. Petitioner appealed his conviction to the Eighth Circuit [Docket No. 431], which affirmed the judgment of the District Court. United States v. Jimenez-Villasenor et al., 270 F.3d 554 (8th Cir. 2001). Petitioner now brings the instant Motion seeking to reduce his sentence.
III. DISCUSSION
To succeed in his claim of ineffective assistance of counsel in violation of the Sixth Amendment, Petitioner must establish both deficient representation and actual prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Robinson, 301 F.3d 923, 925 (8th Cir. 2002). This standard presents a "heavy burden," requiring Petitioner to prove that his counsel "failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibited under similar circumstances." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citation omitted). Prejudice is shown when there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.
Petitioner argues his sentence should be reduced because he was prejudiced by his attorney's deficient failure to raise a "buyer-seller" defense and to request a "buyer-seller" defense jury instruction. Because Petitioner has not established deficient performance by counsel, this claim must fail.
Regarding the "buyer-seller" defense, Petitioner's counsel did raise this defense at the trial during his closing argument. See Trial Tr. Day 7 at 62-94 [Docket No. 439]. Petitioner's counsel also requested and successfully received a jury instruction on the "buyer-seller" defense. Id. at 154-55. Accordingly, these alleged failures are nothing more than unsupported assertions that cannot amount to deficient representation. Petitioner additionally argues that his medication deprived him of a fair trial. He claims that he was forced to take anti-psychotic medication, which prevented him from understanding the proceedings against him, from communicating with his counsel, from staying awake during trial, from participating in the trial, from testifying on his own behalf, and from communicating to his attorney his desire to testify at trial. These claims are barred because Petitioner raised all of these claims on direct appeal, and the Court of Appeals rejected them. See Jimenez-Villasenor, 270 F.3d at 559-61.
In Jimenez-Villasenor, the Court of Appeals accepted this Court's finding that Petitioner was taking his medication voluntarily and affirmed the Court's determination that Petitioner was competent. Id. at 560-61. Multiple proceedings and occurrences support this conclusion. First, a competency hearing was held on April 12, 2000, before Magistrate Judge Boylan, where Dr. Ronald C. Riggs found that Petitioner was competent to stand trial. As a result, Magistrate Judge Boylan determined that Petitioner was competent to stand trial. See Findings, Conclusions and Order on Petitioner's Competency to Stand Trial [Docket No. 302]. This Court affirmed Magistrate Judge Boylan's findings on April 28, 2000. See Order Denying Appeal [Docket No. 308].
On the first day of trial, Petitioner also filed a motion for a re-examination of Petitioner's competency and a motion asking the Court to order that his medication be terminated. See Motion to Suspend Anti-Psychotic/Psychotrophic Medication [Docket No. 325]. This Court found that the drugs were being prescribed and administered voluntarily and at the request of the Petitioner. Trial Tr. Day 2 at 113 [Docket No. 434]. The Court took the motions under advisement and observed Petitioner throughout the trial, determining that Petitioner made appropriate responses, understood the proceedings, and was tracking them. On the sixth day of trial, Petitioner indicated that he wished to waive his right to testify. Trial Tr. Day 6 at 49 [Docket No. 438]. The Court specifically addressed him and made sure that he understood his constitutional right to testify. Id. at 50-51. After trial, the government requested a post-conviction competency evaluation. The Court again held that Petitioner was legally competent to stand trial. Competency Hearing and Sentencing Tr. Day 2 at 63 [Docket No. 447].
Absent exceptional circumstances, a Petitioner may not use a § 2255 motion to collaterally attack issues raised and decided on direct appeal. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001); United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2001). Petitioner is unable to point to any new facts in support of a new legal basis for his claim. Accordingly, Petitioner cannot resubmit this assertion through a § 2255 motion.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence [Civil Docket No. 1; Criminal Docket No. 502] Pursuant to 28 U.S.C. § 2255 is DENIED.