Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marquez v. United States

United States District Court, W.D. Texas, El Paso Division

September 10, 2019

CHARLES MARQUEZ, Reg. No. 99443-280, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          FRANK MONTALVO UNITED STATES DISTRICT JUDGE.

         Movant Charles Marquez challenges his consecutive life sentences for sex trafficking through a pro se motion under 28 U.S.C. § 2255 (ECF No. 348).[1] For the reasons discussed below, the Court will deny the motion. The Court will additionally deny Marquez a certificate of appealability.

         BACKGROUND AND PROCEDURAL HISTORY

         On December 19, 2012, a grand jury in the Western District of Texas returned a superseding indictment against Marquez and co-defendant Martha Jimenez Sanchez. Superseding Indictment, ECF No. 74. It charged Marquez with sex trafficking children, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2), and (b)(2) (Count One); sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2), and (b)(1) (Counts Two and Three); transporting for prostitution, in violation of 18 U.S.C. § 2421 (Count Four); coercing and enticing a person to travel in interstate commerce to engage in prostitution and sexual activity, in violation of 18 U.S.C. § 2422(a) (Count Five); conspiring to coerce and entice a person to travel in interstate commerce to engage in prostitution and sexual activity, in violation of 18 U.S.C. § 371 (Count Six); and importing an alien for immoral purpose, in violation of 8 U.S.C. § 1328 (Count Seven).

         Marquez pleaded not guilty and proceeded to trial. The evidence presented established Marquez, for several years, ran an escort service in El Paso, Texas. He recruited women through advertisements in Spanish language newspapers in El Paso and Juarez, Mexico. He sought desperate and vulnerable women who could not work legally in the United States. He invited the women who answered his advertisements to meet him for interviews in the United States. During the interviews, he told them something about the job, but not everything. As a result, some of the women first learned the job involved prostitution when they found themselves in hotel rooms confronted by men asking for sex.

         Marquez sexually assaulted many of the women or coerced them into having sex with him. On one occasion, he recruited a sixteen-year-old girl identified as C.V.C., raped her, and scheduled her to have sex with numerous men. He knew she was sixteen, but he told her not to disclose this fact to anyone else.

         During a joint Federal Bureau of Investigation and Homeland Security investigation into Marquez's activities, the agents identified thirty women who worked for Marquez as prostitutes.

         Marquez advertised for clients for the women on the internet. When he received responses, he sometimes drove the women to meet their clients at residences or hotel rooms. He took women on at least three trips from El Paso to Albuquerque, New Mexico. His third trip to Albuquerque ended when police officers arrested one of his employees for prostitution. He also transported at least one former employee from Mexico into Texas after he demanded that she return to work for him as a prostitute.

         Recorded phone calls, phone records, text messages, and ledgers also established that Marquez ran a prostitution business. Text messages included over 100 evaluations by one client about the sexual performance of women who worked for Marquez. The ledgers contained the names of clients, the names of the women, and the amounts the clients paid for the services provided by the women.

         Marquez kept the women working for him through threats of violence or deportation. He punished women who angered him by sending them more than the usual number of clients. He threatened women who wanted to leave by implying he had friends who could arrest or deport them. He even told one woman he had friends in a drug cartel in Juarez. Thus, he made the women believe he would harm them if they ever crossed or left him.

         Once both parties rested, Marquez moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 on all counts of the superseding indictment. The Court denied the motion as to all counts except Count Three. The Court reserved ruling on the motion as to Count Three.

         On November 21, 2013, after a nine-day trial, the jury found Marquez guilty on all seven counts of the superseding indictment. The Court then granted the motion for a judgment of acquittal as to Count Three. Order, ECF No. 232.

         Marquez was sentenced on September 3, 2014 to life imprisonment on Counts One and Two, 120 months' imprisonment on Count Four, 240 months' imprisonment on Count Five, 60 months' imprisonment on Count Six, and 120 months imprisonment on Count Seven. J. Crim. Case, ECF No. 314. Each of the individual sentences fell within the advisory sentencing guideline range. The Court ordered the sentences to run consecutively.

         Marquez filed a timely notice of appeal. He asserted four claims:

(1) the district court abused its discretion by admitting as intrinsic evidence that he had sexual intercourse with an underage girl (C.V.C.), and by admitting as extrinsic, for the purpose of demonstrating knowledge and intent under Federal Rule of Evidence 404(b), evidence that he was separately investigated in 1998 and 1999 for running an escort service; (2) his due process rights were violated by the Government's failure to correct false testimony; and (3) his sentence was substantively unreasonable. Although Marquez's brief mentions a fourth issue, that his convictions should be reversed based on cumulative error, he fails to adequately brief this issue and has accordingly abandoned it.

United States v. Marquez, 667 Fed.Appx. 496, 497 (5th Cir. 2016). The Fifth Circuit Court of Appeals rejected Marquez's claims and affirmed his convictions and sentences on August 25, 2016. Id., at 498. The Supreme Court denied his petition for a writ of certiorari on March 27, 2017. Marquez v. United States, 137 S.Ct. 1387 (2017).

         Marquez certified he mailed his § 2255 Motion on March 19, 2018, but it was not filed in the Court until April 2, 2018. Mot to Vacate, ECF No. 348. He alleged eleven grounds for relief:

Claim I - The Superseding Indictment was fatally defective.
Claim II - The Court constructively amended Count One of the Superseding Indictment by improperly instructing the jury.
Claim III - Trial counsel provided constitutionally ineffective assistance by (1) failing to oppose the government's motion in limine; (2) waiving opening statement; (3) failing to conduct relevant cross-examination and to properly impeach witnesses; (4) failing to call alibi witnesses; (5) failing to present witnesses to establish a defense; (6) failing to interview eyewitnesses; (7) failing to expose prosecutorial misconduct; (8) failing to challenge perjured testimony; (9) failing to object to the improper questioning of H.C.P.; (10) failing to object to the prosecutor's reference to rape in his questioning of H.C.P.; and (11) failing to demand non-testimonial evidence he engaged in the prostitution business.
Claim IV - Trial counsel failed to challenge the defective superseding indictment.
Claim V - Trial counsel failed to demand the disclosure of agreements between the Government and its witnesses.
Claim VI - Trial counsel failed to demand the disclosure of the agreement between the Government and Ana Rosa Quezada.
Claim VII - Trial counsel failed to demand the disclosure of the agreement between the Government and Hossein Tabatabain.
Claim VIII - Trial counsel failed to demand the disclosure of the agreement between the Government and Doctor Durwood Spencer.
Claim IX - Trial counsel failed to demand the disclosure of the agreement between the Government and Maria and Ronald Blake.
Claim X - The cumulative effect of the foregoing ineffectiveness of trial counsel rendered the trial fundamentally unfair.
Claim XI- Appellate counsel provided ineffective assistance by (1) refusing to raise an issue that required reversal on direct appeal; (2) failing to challenge the sufficiency of the evidence; (3) failing to address the ineffective assistance of trial counsel at sentencing; (4) failing to investigate the entire court record; (5) failing to challenge the sentences; and (6) failing to challenge the sufficiency of the evidence to support the conspiracy conviction.

         Marquez asks the Court to vacate the convictions and sentences and schedule him for a new trial.

         LEGAL STANDARD

         After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted." United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)). A § 2255 motion '"provides the primary means of collateral attack on a federal sentence.'" Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)). Relief under § 2255 is warranted for errors that occurred at trial or at sentencing. Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). But it '"is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.'" United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (emphasis added) (quoting United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)). Before a court will grant relief pursuant to § 2255, a movant must establish (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).

         Ultimately, the movant bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980) (citing United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980)). A court may deny a § 2255 motion without a hearing if "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990) ("Faced squarely with the question, we now confirm that § 2255 requires only conclusive evidence-and not necessarily direct evidence-that a defendant is entitled to no relief under § 2255 before the district court can deny the motion without a hearing."). "If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." See 28 U.S.C. foil. § 2255 Rule 4(b). When a court finds that the movant is entitled to relief, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). Thus, the Court has '"broad and flexible power... to fashion an appropriate remedy.'" United States v. Stitt, 552 F.3d 345, 355 (4th Cir. 2008) (quoting United States v. Hillary, 106 F.3d 1170, 1171 (4th Cir. 1997)); see also Andrews v. United States, 373 U.S. 334, 339 (1963) ("[T]he provisions of the statute make clear that in appropriate cases a § 2255 proceeding can also be utilized to provide a... flexible remedy."); United States v. Torres-Otero, 232 F.3d 24, 30 (1st Cir. 2000) ("As an initial matter, we note the broad leeway traditionally afforded district courts in the exercise of their § 2255 authority. ... This is so because a district court's power under § 2255 'is derived from the equitable nature of habeas corpus relief.'") (quoting United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997)).

         ANALYSIS

         Claim I - The Superseding Indictment was fatally defective.

         Claim II - The Court constructively amended Count One of the Superseding Indictment by improperly instructing the jury.

         Marquez first contends that "the [superseding] indictment is fatally defective." Mem. in Supp. 5, ECF No. 349. He makes three sub claims to support his contention. First, he asserts the superseding indictment lacks specific facts and is, therefore, legally insufficient. Id., at 8-13. Second, he maintains Counts Six and Seven are multiplicious. Id., at 20-21. Finally, he argues the superseding indictment was obtained through fraudulent misrepresentations. Id., at 14-20.

         In Claim II, Marquez argues the Court's instruction permitted the jury to convict on Count One-charging him with sex trafficking children, in violation of 18 U.S.C. § 1591-on a basis permitted by the statute, but not charged in the superseding indictment. Id., at 44-47. He relies on the Fifth Circuit's ruling in the direct appeal of Timothy McCullouch in United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016).[2]

         A § 2255 motion is not a substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). When raising issues of jurisdictional or constitutional magnitude for the first time in a motion seeking collateral relief, a movant must either (1) demonstrate "cause" for not raising the issue on direct appeal and "actual prejudice" resulting from the error; or (2) show that he is "actually innocent" of the crime for which he was convicted. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). The cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard ... applied on direct appeal." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996).

         The "cause" standard requires the movant to show that "some objective factor external to the defense" prevented him from timely raising the claims he now advances. Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective factors that constitute cause include interference by officials that make compliance with the procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available to counsel at the prior occasion, and ineffective assistance of counsel in the constitutional sense. Id.

         "A mere possibility of prejudice will not satisfy the actual prejudice prong of the cause and prejudice test," and a movant must instead'"shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Shaid, 937 F.2d at 231 (quoting Frady, 456 U.S. at 170).

         If the movant does not demonstrate "cause" for not raising the issue on direct appeal and "actual prejudice" resulting from the error, then he is procedurally barred from attacking his conviction or sentence. United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992).

         "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, 477 U.S. 478, 496, (1986). To establish actual innocence, petitioner must demonstrate that, "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513 U.S. 298, 327-328 (1995) (citations and quotation marks omitted). "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).

         Marquez has not alleged or shown that some objective factor prevented him from timely raising his claims concerning the superseding indictment at his trial or in a direct appeal. He has not alleged or shown that the factual basis for his claims were not available at the time of his trial. He has also not alleged or shown that the purported defects infected his entire criminal proceeding with error of constitutional dimension. Thus, he has not shown cause for failing to raise his claims at his trial or in a direct appeal, and he has not shown actual prejudice resulting from the alleged error. Furthermore, the evidence against Marquez was overwhelming. The Court finds Marquez is procedurally barred from pursing Claims I and II in a § 2255 motion.

         Claim III - Trial counsel provided constitutionally ineffective assistance by failing to oppose the government's motion in limine; waiving opening statement; failing to conduct relevant cross-examination and to properly impeach witnesses; failing to call alibi witnesses; failing to present witnesses to establish a defense; failing to interview eyewitnesses; failing to expose prosecutorial misconduct; failing to challenge perjured testimony; failing to object to the improper questioning of H.C.P.; failing to object to the prosecutor's reference to rape in his questioning of H.C.P.; and failing to demand non-testimonial evidence that he engaged in the prostitution business.

         Marquez makes eleven separate claims of ineffective assistance against his trial counsel. Mem. in Supp. 47-70, ECF No. 349. First, he asserts his counsel failed to oppose government's motion in limine. Id., at 26-28. Second, he contends his counsel erred by waiving an opening statement. Id., at 28-30. Third, he maintains his counsel failed to conduct relevant cross-examination and impeach witnesses. Id., at 30-33. Fourth, he avers his counsel failed to call alibi witnesses. Id., at 33-34. Fifth, he asserts his counsel failed to present witnesses to establish a defense. Id., at 34. Sixth, he claims his counsel also failed to interview eyewitnesses. Id. Seventh, he alleges his counsel failed to expose Government's Brady violations. Id., at 35-37. Eighth, he insists his counsel failed to challenge perjured testimony. Id., at 37-38. Ninth, he protests his counsel's failure to object to the prosecutor's reference to rape during his questioning of H.C.P. Id., at 38-40. Tenth, he argues his substantial rights were prejudiced by the prosecutor's remark about rape. Id., at 40. Finally, he complains about his counsel's failure to demand material evidence beyond testimony. Id., at 40-41.

         A movant may collaterally attack a sentence by alleging his counsel failed to meet the Sixth Amendment requirement for an accused "to have the assistance of counsel for his defense." U.S. CONST, amend. VI. The Sixth Amendment not only guarantees a criminal defendant the right to counsel, but also the right to the effective assistance of counsel. Lee v. United States, 137 S.Ct. 1958, 1964 (2017). A court analyzes an ineffective assistance of counsel claim presented in a § 2255 motion under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001).

         Under the Strickland test, to succeed on an ineffective assistance of counsel claim, a movant must prove: (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness; and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 689-94. In other words, a movant must show that his counsel's performance was outside the broad range of what is considered reasonable assistance and that this deficient performance led to an unfair and unreliable conviction and sentence. United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001). The burden of proof is on the movant alleging ineffective assistance. United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999). If the movant fails to prove one prong, it is not necessary to analyze the other. See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) ("A court need not address both components of the inquiry if the defendant makes an insufficient showing on one."); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.").

         1. Failure to oppose Government's Motion in Limine

         Marquez asserts his trial counsel were ineffective because, had they been effective, they "would have objected to the government's motion in limine, precluding the defense from advancing their main defense ... to disprove force, fraud, and coercion." Mem. in Supp. 47, ECF No. 349.

         Marquez's assertion is factually incorrect. His trial counsel, Richard Jewkes, correctly notes:

[O]n October 25, 2013, Ms. Harbour-Valdez and I filed Defendant's Response to the Government's Motion in Limine raising objections and/or responding to twelve grounds raised by the government in its motion (ECF Doc. 184). On October 30, 2018 [sic], the Court issued an order granting in part and denying in part the government's motion in limine. (ECF Doc. 186). Mr. Marquez's claim that we did not oppose the government's motion in limine is unfounded.

Gov't's Resp., Ex. 32 (Aff. of Richard Jewkes), ECF No. 374-31. See also id, Ex. 33 (Def's Resp. To Gov't's Motion in Limine), ECF No. 374-32 ("Evidence of any Victim's Sexual Behavior or Predisposition. This topic will be addressed in Defendant's forthcoming Motion Pursuant to Rule 412."); Ex. 34 (Order Granting in Part and Denying in Part Gov't's Mot. in Limine), ECF No. 374-33.

         Furthermore, the evidence Marquez sought to introduce at trial-proof that some of the witnesses were professional prostitutes-was inadmissible under the Federal Rules of Evidence. See Fed. R. Evid. 412(a) ("Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition."). "[E]vidence of the victims' pre-and-post-indictment acts of prostitution would be irrelevant to this case as it does not 'make... more or less probable' the fact that [Movant] caused [his] victims to engage in a commercial sex act during the time period alleged in the indictment." Lockhart, 844 F.3d at 510. See also United States v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009) ("Whether the children engaged in acts of prostitution before or after their encounters with Elbert is irrelevant, and would only prove other people may be guilty of similar offenses of recruiting, enticing, or causing these victims to engage in a commercial sex act."); United States v. Valenzuela, 495 Fed.Appx. 817, 820 (9th 2012) ("evidence of prior prostitution is irrelevant to whether the victims consented to working as prostitutes").

         Consequently, Marquez cannot meet either prong of the Strickland test. His counsel did in fact fight the motion in limine; thus, their performance was not deficient. Even if his counsel had failed to object to the motion in limine, he cannot show prejudice; the evidence he wanted to introduce was not relevant under the Federal Rules of Evidence. As such, Marquez's claim lacks merit.

         2. Waiving an opening statement

         Marquez claims his trial counsel were ineffective for their failure to make an opening statement in order to rebut the statements made by the Government. Mem. in Supp. 49-53, ECF No. 349.

         As a matter of law, the Fifth Circuit has found "that waiver of opening statement is not unreasonable, given the presumption of competence afforded Counsel." King v. Davis, 883 F.3d 577, 593 (5th Cir. 2018). Moreover, counsel choosing to present a different defensive theory than the one a movant wanted, "does not amount to ineffective assistance." Id. at 587 (quoting Coble v. Quarterman, 496 F.3d 430, 437 (5th Cir. 2007)). So, as a matter of law, counsel's decision to waive opening does not establish their performance was deficient.

         Marquez specifically claims his counsel should have made an opening statement to point out he could not have known C.V.C. was a juvenile, as she was a "young woman with an ample and intense career of prostitution." Mem. in Supp. 49-51, ECF No. 349. He also asserts his counsel should have rebutted the Government's characterization of the witnesses against Marquez as "victims," because they were "experienced prostitutes." Id., at 52-53. As the Court noted above, the Federal Rule of Evidence 412 precluded Marquez's counsel from discussing the sexual behavior or predisposition of the victims. Consequently, even if trial counsel had given an opening statement, they could not have described the victims as "experienced prostitutes."

         Marquez also suggests an opening statement should have discussed the underage victim's employment as a bartender. Id., at 50. Presumably, the underage victim-C.V.C.-would have produced a fake identification card to work serving alcohol. But the evidence established C.V.C. did not present an identification card to obtain her bartending job. See Gov't's Resp., Ex. 35 (Cross-examination of Special Agent Anthony Miranda), pp. 76-77, ECF No. 374-34. So C.V.C.'s employment as a bartender was irrelevant to the question of whether she used false identification to establish her age.

         Finally, Marquez suggests an opening statement should have discussed how he met C.V.C. Mem. in Supp. 50, ECF No. 349. The only way Marquez could have presented this information to the jury was if he testified. As Jewkes points out, he and his co-counsel were not sure if Marquez would testify at the time of making the opening statement. Thus, to suggest facts that could only have come from Marquez's testimony would have "been foolhardy and counterproductive." Gov't's Resp., Ex. 32 (Aff. of Richard Jewkes), ECF No. 374-31.

         Trial counsel's failure to make an opening statement was neither deficient nor prejudicial to Marquez's cause. He is not entitled to relief on this claim.

         3. Failure to conduct relevant cross-examination and to properly impeach witnesses

         Marquez contends his counsel were ineffective when they failed to properly cross-examine and impeach witnesses. Mem. in Supp. 54-59, ECF No. 349. He provides specific questions he believes his counsel should have asked the witnesses.

         "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. State of La., 350 U.S. 91, 101 (1955)). "Counsel [are] entitled to formulate a strategy that [is] reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies." Harrington v. Richter, 562 U.S. 86, 107 (2011). The manner and extent of cross-examination is a matter of trial strategy. Bower v. Quarterman, 497 F.3d 459, 467 (5th Cir. 2007). "A few cherry-picked examples of mistakes or bad answers over the course of a long trial do not amount to constitutionally ineffective lawyering. Speculating about the effect of tinkering with the cross-examination questions is exactly the sort of hindsight that Strickland warns against." Castillo v. Stephens, 640 Fed.Appx. 283, 292 (5th Cir.), cert, denied sub nom. Castillo v. Davis, 137 S.Ct. 279 (2016).

         Marquez speculates about what would have happened if his counsel had asked the questions he now provides. "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Marquez's guesswork, without more, does not overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional conduct. Marquez fails to meet the first prong of Strickland.

         Moreover, looking at Marquez's specific claims, he was not prejudiced anyway.

         Marquez claims his trial counsel should have questioned C.V.C. about the identification she used to get her bartending job. Mem. in Supp. 56, ECF No. 349. He speculates that C.V.C. would have lied about possessing a fake Id. But his counsel brought up C.V.C.'s employment as a bartender in their cross-examination of Anthony Miranda, a special agent with Homeland Security Investigations assigned to the Border Security Task Force to investigate human trafficking:

Q. What about the first time you met CVC... named in count one of the indictment, did you ask to see her identification?
A. Excuse me, her what?
Q. Her identification?
A. Yes.
Q. It came to your knowledge that at various times she used false identification, correct?
A. No.
Q. No? Never?
A. Not to my knowledge.
Q. Did she ever hold herself out to be over the age of 18?
A. I - yes, she did.
Q. So that we understand each other, she held herself out to other people to be over the age of 18?
A. Yes, she did.
Q. She worked for a brief time at a bar?
A. That's correct.
Q. Yes?
A. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.