United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
GONZALES RAMOS, UNITED STATES DISTRICT JUDGE.
Miguel Antonio Ramos filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 (D.E.
42). Pending before the Court is the United States of
America's (the "Government") Motion to Deny
Relief on the Record (D.E. 47), to which Movant has responded
(D.E. 52). For the reasons stated herein, the
Government's motion is GRANTED, and
Movant's § 2255 motion is DENIED.
26, 2009, this Court sentenced Movant to 100 months'
imprisonment and 5 years' supervised release following
his conviction in Case No. 2:08-CR-761-7 for conspiracy to
possess with intent to distribute more than 5 kilograms of
cocaine. On January 22, 2015, the Court reduced his sentence
to 80 months under Amendment 782 to the Sentencing
Guidelines. Movant was released later that year and began
serving his term of supervised release on October 30, 2015.
November 4, 2016, the United States Probation Office (USPO)
issued a Petition for Warrant or Summons for Offender under
Supervision in Case No. 2:08-CR-761-7 alleging the following
supervised release violations: assault causing bodily injury
to a family member, criminal mischief, violation of a
protective order, and tampering with a witness.
events giving rise to the supervised release violations and
Movant's eventual i conviction for witness tampering in
the above-captioned case began on September 4, 2016. At
around 2:49 A.M., Movant was intoxicated and assaulted his
girlfriend, Valerie Morales, at the home they shared. Morales
received treatment at a hospital in Corpus Christi and gave a
statement to a Corpus Christi Police Department (CCPD)
officer naming Movant as her assailant. However, when Bryce
Stark-the USPO officer assigned to Movant's supervision
on the cocaine trafficking conviction-interviewed Morales
over the telephone on September 12, 2016, she stated that an
ex-boyfriend, not Movant, had assaulted her.
assaulted Morales again on November 13, 2016, when she was a
passenger in his car. Morales eventually convinced Movant to
stop at a convenience store, and she got out of the car and
refused to get back in. A CCPD officer responded to an
emergency call at the convenience store and interviewed
Morales. She told the officer that Movant had assaulted her
several times in the past, but the only one she reported was
the September assault because she thought he had broken her
jaw. After Movant drove past the convenience store, another
officer followed and arrested him.
a December 6, 2016 interview with USPO officers, Morales
revealed that Movant was present during her earlier telephone
call with Officer Stark on September 12, 2016. Morales stated
that Movant had threatened her not to cooperate with Officer
Stark and told her during subsequent telephone calls from
jail not to cooperate or provide any information to the USPO.
Recordings of jail telephone conversations confirmed that in
at least 22 calls between November 13, 2016 and December 7,
2016, Movant told Morales not to cooperate with or answer any
questions from Officer Stark.
January 25, 2017, Movant was charged in a one-count
indictment with knowingly attempting to intimidate, threaten,
and corruptly persuade V.M. (Morales), a witness, by
instructing her to withhold testimony and provide limited
information to a United States District Court, with the
intent to hinder, delay, and prevent the communication to a
United States judge of information relating to the commission
of a violation of conditions of supervised release, to wit:
law violation of assault causing bodily injury to a family
member, an allegation in a pending petition related to a
supervised release violation revocation hearing in Case No.
2:08-CR-761-7, in violation of 18 U.S.C. § 1512(b)(3).
On March 2, 2017, Movant pled guilty to tampering with a
witness before a magistrate judge. This Court accepted the
Findings and Recommendation on Plea of Guilty.
Presentence Investigation Report (PSR, D.E. 22) calculated
Movant's base offense level at 14. Eight levels were
added under U.S.S.G. § 2J1.2(b)(1)(B) because the
offense involved causing or threatening to cause physical
injury to a person, or property damage, in order to obstruct
the administration of justice; three levels were added under
U.S.S.G. § 2J 1.2(b)(2) because the offense resulted in
substantial interference with the administration of justice;
and two levels were added under U.S.S.G. § 3A1. 1(b)(1)
because Movant knew or should have known the victim of the
offense was a vulnerable victim. After a two-level reduction
for acceptance of responsibility, the PSR calculated a total
offense level of 25 and a criminal history category of V.
Defense counsel filed written objections to all three
Court conducted a joint sentencing hearing on the instant
witness tampering case and on the revocation of supervised
release in Case No. 2:08-CR-761-7. 6/8/2017 Sent. Tr., D.E.
32. At the hearing, defense counsel renewed his written
objections to the PSR, and the Court heard testimony from
Officer Stark in order to resolve those objections. On
September 12, 2016, Officer Stark received a phone message
from Morales' mother stating that Movant had assaulted
Morales and that Morales went to the hospital and reported
the assault to the CCPD. Officer Stark immediately called
Morales, but she stated that her ex-boyfriend, not Movant,
had assaulted her. Morales agreed to meet with Officer Stark
on September 14, 2016; however, she never showed up.
the USPO filed a petition to revoke supervised release on
November 4, 2016, Officer Stark learned that Movant assaulted
Morales again on November 13, 2016. In a December 6, 2016
statement, Morales acknowledged that Movant had also
assaulted her on September 4, 2016, but while she was on the
telephone with Officer Stark, Movant had instructed her not
to cooperate. She also revealed that she had spoken with
Movant while he was in jail and that he told her not to
communicate, cooperate, or participate in any way with
Officer Stark regarding the investigation of his violation of
supervised release, and to stop her mother from speaking to
Officer Stark. Movant also gave Morales explicit instructions
on how to get his state charges dismissed and asked about her
progress in doing so.
Stark obtained 890 recorded telephone calls made by Movant
from both the Nueces County Jail and the Coastal Bend
Detention Center, and he spent approximately 90 hours
listening to the calls. Afterwards, he gave the call logs
to the Government, and the FBI conducted its own
investigation. The USPO filed a superseding petition to
revoke supervised release on January 11, 2017, which
accounted for Morales' admission that Movant had in fact
assaulted her in September 2016. This final petition to
revoke was delayed for months because Officer Stark was
unable to communicate with Morales regarding the information
related to the September assault.
Stark testified that he believed Morales legitimately feared
Movant based upon his meetings with her, the recorded jail
conversations, and a specific discussion with her on December
6, 2016, when she told him that she feared for her life.
Morales also told Officer Stark she feared for her
children's lives because she believed Movant had access
to a gun. On cross-examination, Officer Stark disagreed with
defense counsel that the majority of the recorded jail
conversations related to Movant's fears of Morales'
argument by counsel, the Court took a brief recess and
reviewed the recorded jail conversations. The Court overruled
Movant's objections related to threatening to cause
physical injury and substantial interference with justice,
but found that the two-level enhancement for vulnerable
victim should not apply. The Court further found that Movant
was entitled to a third point off for acceptance of
responsibility. With a total offense level of 22 and criminal
history category of V, Movant's recommended Guideline
sentencing range was 77-96 months. The Court sentenced Movant
to 84 months' imprisonment, to be followed by three
years' supervised release. Judgment was entered June
appeal, Movant challenged the Court's application of the
sentencing enhancements for threatening to cause physical
injury and substantial interference with justice. United
States v. Ramos, U.S.C.A. No. 17-40623, 731 Fed.Appx.
329, 330 (5th Cir.), cert, denied, 139 S.Ct. 277 (2018). The
Fifth Circuit determined that the factual findings underlying
the application of both enhancements were plausible in light
of the record as a whole, and the district court did not
clearly err in applying the enhancements. Id. at
331. The court affirmed Movant's conviction on May 16,
2018, and it became final on October 1, 2018, when the
Supreme Court denied his petition for a writ of certiorari.
filed the current § 2255 motion on February 13, 2019. It
raises the following grounds for relief:
A. Trial counsel was ineffective for failing to properly
present arguments and evidence to the Court in support of his
objections to ...