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Gualtero v. United States

United States District Court, E.D. Virginia, Alexandria Division

September 25, 2017

OMAR FABIAN VALDES GUALTERO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Gerald Bruce Lee, United States District Judge.

         This matter is before the Court on Petitioner Omar Fabian Valdes Gualtero's ("Gualtero") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 396). On December 17, 2014, Gualtero pleaded guilty to aiding and abetting the murder of an internationally protected person in violation of 18 U.S.C. §§ 116(a) and 2, and conspiracy to kidnap an internationally protected person in violation of 18 U.S.C. § 1201(c) (Docs. 262, 263). He was subsequently sentenced to 348 months of incarceration (Doc. 352). Gualtero now challenges his conviction based on insufficiency of evidence and ineffective assistance of counsel.

         There are two issues before the Court. The first issue is whether the Court should grant Gualtero's § 2255 motion where Gualtero argues that he should have been given a two-level reduction for being a minor participant in the conspiracy that resulted in the death of a Drug Enforcement Agency ("DEA") Agent. The second issue is whether the Court should grant Gualtero's § 2255 motion where Gualtero claims (1) his counsel was ineffective for failing to challenge at sentencing his base-offense level calculation, and (2) his counsel was ineffective at sentencing and on appeal for failing to object to the obstruction of justice enhancement.

         The Court DENIES Gualtero's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 because the Court holds that Gualtero was not a minor participant in the conspiracy that resulted in the death of a DEA Agent, and Gualtero has failed to demonstrate a valid ineffective assistance of counsel claim. Additionally, while Gualtero's motion fails on its merits, the Court holds that he is procedurally barred from challenging his sentencing pursuant to his plea agreement. Therefore, the Court holds that no evidentiary hearing is required.

         I. BACKGROUND

         In or around June 20, 2013, Gualtero and five other co-conspirators kidnapped and murdered DEA Special Agent James Terry Watson in Bogota, Colombia (Doc. 410 at 2). Special Agent Watson's murder was part of a conspiracy known as "millionaire's ride robberies, " where Gualtero and other co-conspirators would pick up passengers they presumed to be wealthy and use weapons such as knives, tasers, and chemical sprays, to rob them. Id. The co-conspirators of these millionaire's ride robberies would "hold the victim to secure PIN numbers for bank cards while another conspirator would drive to bank ATMs to withdraw money." Id.

         On June 20, 2013, Gualtero and his co-conspirators planned to commit "millionaire's ride" robberies (Doc. 410 at 3). Gualtero used funds obtained through selling other stolen property from previous robberies to buy a taser and acid spray "with the purpose of using the weapons during the 'millionaire's ride' robberies" (Doc. 263 ¶ 16). Lopez, Gualtero's coconspirator, gave the taser to Sepulveda, another co-conspirator, on the evening of June 20, 2013. Id. Gualtero then spoke with Sepulveda about how to use the taser, "with the understanding that Sepulveda would use the taser to subdue those robbery victims who were not compliant with the conspirators' demands." Id. The conspirators planned to use three taxicabs to commit the robberies, but one of the taxis experienced mechanical issues prior to picking up Agent Watson. Id. ¶ 17. Lopez drove the second cab, while Gualtero, Sepulveda, and Murillo drove as passengers. Id. The conspirators had planned for Sepulveda and Murillo to enter the first cab, rob the victims, and detain them until the conspirators could use their bank cards. Id. Gualtero and Lopez were to remain in the second cab to receive the stolen bank cards and then use them at banks to withdraw money. Id.

         One of the conspirators picked up Special Agent Watson, and then stopped his taxicab and pretended to experience mechanical issues (Doc. 263 ¶ 18). Lopez stopped the second taxi, of which Gualtero was a passenger of, and Sepulveda and Murillo then proceeded to enter Agent Watson's cab. The two used a taser and knife to physically assault Agent Watson, and while he was able to escape, Agent Watson later died as a result from the stab wounds. Id.

         On June 25, 2013, Gualtero was arrested, and on July 18, 2013, a federal grand jury indicted him (Doc. 410 at 3). On July 14, 2014, The United States extradited Gualtero and his co-conspirators from Colombia to the United States, and the case was set for trial on January 12, 2015. Id. On December 17, 2014, Gualtero signed a plea agreement where he agreed to plead guilty to "Count One and Count Three of the indictment, which charged him with aiding and abetting the murder of an internationally protected person, in violation of Title 18, United States Code, Sections 1116(a) and 2, and conspiracy to kidnap an internationally protected person, in violation of Title 18, United States Code, Section 1201(c)." Id.

         On December 19, 2014, Gualtero appeared before the Court with his counsel ("trial counsel") and entered his guilty plea (Doc. 410 at 3). On April 13, 2015, Gualtero received a sentence of 348 months, and on April 23, 2015, his counsel filed a notice of appeal with the Fourth Circuit Court of Appeals (Doc. 337). Shortly after filing the appeal, Gualtero's trial counsel withdrew, and on May 1, 2015, Gualtero received his newly appointed counsel ("appellate counsel"). Id. Gualtero's appellate counsel filed a brief pursuant to Anders v. California ("Anders Brief), where he asserted that while he had "failed to identify any legally meritorious appealable issues, " there were two "arguable" issues, which included "[w]hether the [district] court properly applied the obstruction of justice enhancement, " and "whether [Gualtero] voluntarily and knowingly waived his right to appeal" (Doc. 410-1; Exhibit A at 4). Appellate counsel conceded that Gualtero's claim would likely fail because Gualtero "knowingly, voluntarily, and intelligently waived his right to appeal." Id. at 7. Moreover, appellate counsel stated that through applying the obstruction enhancement, "[t]he district court was entitled to make credibility determinations; the court found the agent's testimony [about whether a gun had been brandished during Gualtero's interrogation] was credible, and [Gualtero's] testimony incredible." Id. at 8. Appellate counsel concluded that the Court rightly found that Gualtero obstructed justice through his untruthful testimony at the suppression hearing. Id. Gualtero failed to file a pro se brief in response to the Anders brief, and the Government subsequently filed a motion to appeal, which the Fourth Circuit granted on November 19, 2015 (Doc. 410 at 4).

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 2255, a prisoner in custody under a court's sentencing may move a court to vacate, set aside, or correct the sentence if: (1) the sentence imposed violates the Constitution or United States' laws; (2) the court did not have jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; (4) or the sentence is otherwise vulnerable to collateral attack. 28 U.S.C. § 2255; See Watson v. United States, 2011 WL 6697900, *l (E.D. Va. Dec. 20, 2011). In collaterally attacking the judgment of his conviction, the petitioner bears the burden of proof to establish the allegations of his section 2255 motion by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         Courts construe a pro se litigant's pleadings liberally. Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)(per curiam))); Tucker v. United States, 2014 WL 3507453, at *2 (E.D. Va. Jul. 14, 2014). However, the pro se litigant must include each ground supporting his claim for relief in his § 2255 motion, and he must state his factual allegations with sufficient particularity to give a reader enough notice to determine whether the motion requires further review. Watson, 2011 WL 6697900 at *3, citing Oliver v. United States, 961 F.2d 1339, n.5 ("No hearing is required in a § 2255 proceeding if the motion raises no cognizable claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by the motion may be resolved on the record before the district court.").

         A § 2255 motion "may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982) (citing United States v. Addonizio, 442 U.S. 178, 184-85). Moreover, "the doctrine of procedural default bars the consideration of a claim that was not raised at the appropriate time during the original proceedings of on appeal." United States v. Hurdle, No. 2:07cv49, No. 2:06cr21, 2007 WL 1555779, *2 (E.D. Va. May 22, 2007). Procedural default will not act as a bar to collateral relief under limited circumstances. Watson, 2011 WL 6697900 at *2. Two of these limited circumstances include: (1) when a petitioner demonstrates cause and actual prejudice resulting from the alleged error underlying his section 2255 motion, and (2) when a petitioner shows ineffective assistance of counsel. Id. (citing Frady, 456 U.S. at 167; Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997).

         III. ...


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