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Osorio-Martinez v. United States

United States District Court, S.D. Texas, Brownsville Division

July 18, 2017



          Hilda Tagle Senior United States District Judge

         Pending before the Court is Petitioner Reyna Osorio-Martinez's (“Osorio-Martinez”) Motion to Vacate, Set Aside, or Correct Sentence (Dkt. No. 1) and the United States' Response and Motion to Dismiss (“Government's Motion”) (Dkt. No. 14). On March 26, 2016, United States Magistrate Judge Ignacio Torteya, III, the Magistrate Judge to whom this case was referred pursuant to 28 U.S.C. § 636(b), issued his Report and Recommendation (“R&R”) recommending that the Court dismiss Osorio-Martinez's motion with prejudice and that a Certificate of Appealability be denied. See Dkt. No. 45.

         This recommendation is based on a finding that Osorio-Martinez's petition should be denied because she has not met her burden to show that her trial counsel, Oscar de la Fuente, Jr., (“De la Fuente”) or counsel at sentencing, Nathaniel C. Perez (“Perez”) provided her with ineffective assistance.[1] On November 18, 2015, the Magistrate Judge held an evidentiary hearing regarding Osorio-Martinez's habeas petition grounds, in which Osorio-Martinez and De la Fuente, among other witnesses, appeared. The R&R describes the hearing in detail. See generally Dkt. No. 45.

         Osorio-Martinez filed her objections through her attorney on June 9, 2016. See Dkt. No. 46. She objects on two grounds. First, Osorio-Martinez objects to the Magistrate Judge's conclusion that she did not meet her burden to show that De la Fuente's decision not to interview her adult children and their families constituted ineffective assistance of counsel. Dkt No. 46 at 1. Osorio-Martinez argues that testimony of such individuals would “negat[e] any affirmative links between [her] and the contraband discovered in the Blue Camry.” Dkt No. 46 at 1. She points to the Fifth Circuit's ruling on her direct appeal, see 1:11-CR-444, Dkt. No. 129 at 2-3, which stated that trial testimony representing that Osorio-Martinez did not visit with her family members on the crossings helped establish the sufficiency of the evidence to support her conviction. Id.

         The Magistrate Judge addressed these arguments in the R&R. The R&R provides:

As the movant, Osorio-Martinez bears the burden to demonstrate that De la Fuente provided ineffective assistance for failing to interview her children, or call them as witnesses. A movant cannot demonstrate ineffectiveness on the part of her counsel for failing to call a witness unless she can: (1) name the witness; (2) show that the witness was available to testify during the relevant time; (3) show that the witness would have testified; (4) identify the content of the witness's proposed testimony; and, (5) demonstrate that the testimony would have been favorable to the movant. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citations omitted). “[C]omplaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative.” Id. Therefore, a movant's failure “to present some evidence from the uncalled witness regarding that witness's potential testimony and willingness to testify is usually fatal to an ineffective assistance of counsel claim.” United States v. Zuniga, No. CA C-10-00324, 2012 WL 642061, at *15 (S.D. Tex. Feb. 24, 2012) (citing Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 1997) and Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
Here, Osorio-Martinez's attempts to meet her burden fall short in several respects. First, although she claims that De la Fuente should have interviewed her son, Pedro Vasquez, and called him as a witness, she has failed to show that Vasquez was available to speak with De la Fuente, or testify. Vasquez did not appear or testify at Osorio-Martinez's evidentiary hearing before this Court. Osorio-Martinez has submitted no affidavit from him indicating that he was available to speak with De la Fuente, or testify. At the evidentiary hearing, Osorio-Martinez also testified that De la Fuente was not able to interview her son because he was in Mexico. Dkt. No. 38 at 157. Although it is true that De la Fuente could have attempted to subpoena Vasquez, Osorio-Martinez has not demonstrated that this would have been successful, nor has she demonstrated that his testimony would have been favorable.
Second, De la Fuente credibly testified that he did not interview Vasquez because Osorio-Martinez “was not very forthcoming with information concerning her family.” Dkt. No. 38 at 18. In fact, De la Fuente credibly testified that he questioned Osorio-Martinez about the facts surrounding her case and her family, but that she was mostly nonresponsive, prompting him to move for a determination concerning competency. Id. at 13, 18, 33-34. De la Fuente's testimony here is consistent with the record evidence, as he did move to have Osorio-Martinez's competency evaluated, and a mental competency hearing was held. See CR Dkt. No. 30 (Motion); CR Minute Entry, dated June 26, 2011 (Competency Hearing). De la Fuente's testimony is also supported by the fact that the United States Probation Office could not corroborate Osorio-Martinez's “personal and family data” due to her failure to recall the phone numbers of her children living in the United States. CR Dkt. No. 95, at ¶ 44.
Third, the testimony Osorio-Martinez provided was not credible. In addition to the fact that Osorio-Martinez's responses and inconsistency indicated a willingness to lie; her testimony conflicted with the record evidence. For example, at the evidentiary hearing Osorio-Martinez testified that, when she was apprehended at the United States port of entry, she never stated that Adolfo Aguirre was her son-in-law because he is not her son-in-law. Dkt. No. 38 at 59. However, during Osorio-Martinez's trial, United States Customs and Border Protection Agent Brenda Garza testified, under oath, that Osorio-Martinez told her that the blue Camry belonged to her son-in-law, Adolfo Aguirre. CR Dkt. No. 114-1 at 13-14. Similarly, Special Agent Paul Altenburg from Immigration and Customs Enforcement testified, under oath, that Osorio-Martinez told him that Adolfo Aguirre was her son-in-law. CR Dkt. No. 114-2 at 5.
More tellingly, Osorio-Martinez has filed an affidavit in this case wherein she indicates that she did refer to Adolfo Aguirre as her son-in-law. Dkt. No. 15-1 at (“Isabel insisted I claim the car belonged to my son-in-law. I didn't want to, but she said that if I said he was a friend they'd never believe it.”).
At the evidentiary hearing, Osorio-Martinez also testified that she told De la Fuente to speak with her children . . . but he refused. Dkt. No. 38 at 158. This testimony conflicts with the testimony that two of Osorio-Martinez's children provided at the hearing. Id. at 83-144. Modesta Vasquez stated that De la Fuente spoke with her several times, questioned her regarding the alleged facts of Osorio- Martinez's case, and asked her if she would be willing to testify at Osorio-Martinez's trial. Id. at 88-90. Servando Vasquez also testified that he spoke with De la Fuente about Osorio-Martinez's case, and that De la Fuente asked him if he would be willing to testify at her trial. Id. at 108. . . .
Finally, Osorio-Martinez's attempts to meet her burden fall short because the testimony her children provided at the evidentiary hearing did little to support her claims. Although her children did allege that Osorio-Martinez had visited them on certain occasions, their testimony was too vague to allow the Court to conclude that Osorio-Martinez had visited her children during the dates she was suspected of visiting the United States for the purpose of trafficking drugs. See generally Dkt. No. 38 at 83-134. As such, it appears unlikely that the testimony of Osorio-Martinez's children would have undermined the Government's attempt to prove its case against her at trial. Osorio-Martinez's own testimony at the evidentiary hearing also tended to support the Government's case, as she testified that she did not always tell her children when she was coming into the United States because she would come here to shop and then go directly back to Mexico. Id. at 145 (“I didn't tell them because I had my thing going on about me coming here to buy $500 worth of things to sell and then going back.”).
Thus, even in hindsight, De la Fuente's decision to avoid calling Osorio-Martinez's children as witnesses appears reasonable and informed. “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983). ...

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