United States District Court, W.D. Texas, El Paso Division
CHARLES MARQUEZ, Reg. No. 99443-280, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
MONTALVO UNITED STATES DISTRICT JUDGE.
Charles Marquez challenges his consecutive life sentences for
sex trafficking through a pro se motion under 28 U.S.C.
§ 2255 (ECF No. 348). For the reasons discussed below, the
Court will deny the motion. The Court will additionally deny
Marquez a certificate of appealability.
AND PROCEDURAL HISTORY
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).
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.
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
a joint Federal Bureau of Investigation and Homeland Security
investigation into Marquez's activities, the agents
identified thirty women who worked for Marquez as
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
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.
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.
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.
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.
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.
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
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).
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
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
Claim IX - Trial counsel failed to demand the disclosure of
the agreement between the Government and Maria and Ronald
Claim X - The cumulative effect of the foregoing
ineffectiveness of trial counsel rendered the trial
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.
asks the Court to vacate the convictions and sentences and
schedule him for a new trial.
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
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)).
I - The Superseding Indictment was fatally
II - The Court constructively amended Count One of the
Superseding Indictment by improperly
instructing the jury.
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.
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).
§ 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).
"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.
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).
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).
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).
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.
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
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.
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).
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
Failure to oppose Government's Motion in Limine
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.
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
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.
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").
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.
Waiving an opening statement
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.
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.
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
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.
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.
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.
Failure to conduct relevant cross-examination and to properly
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.
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).
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.
looking at Marquez's specific claims, he was not
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?
Q. It came to your knowledge that at various times she used
false identification, correct?
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.