United States District Court, S.D. Texas, Brownsville Division
Tagle Senior United States District Judge
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.
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. 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.
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.
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
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). ...