`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CIVIL ACTION NO. 4:13CV11
` CRIMINAL ACTION NO. 4:08CR107 (1)
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`§§
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`§
` §
`§
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`OSCAR CANTU-RAMIREZ, #15325-078
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`VS.
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`UNITED STATES OF AMERICA
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`REPORT AND RECOMMENDATION
`OF UNITED STATES MAGISTRATE JUDGE
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`Movant Oscar Cantu-Ramirez filed a pro se motion to vacate, set aside, or correct sentence
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`pursuant to 28 U.S.C. § 2255, alleging constitutional violations concerning his Eastern District of
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`Texas, Sherman Division conviction. The motion was referred to the undersigned United States
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`Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition
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`of the case pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for
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`the Assignment of Duties to the United States Magistrate Judge.
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`I. FACTUAL BACKGROUND
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`The United States Court of Appeals for the Fifth Circuit provided a broad factual
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`background:
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`This case arises from the successful investigation and prosecution of an international
`criminal organization that trafficked in significant amounts of marijuana and cocaine.
`The conspirators brought drugs from Mexico to the United States in a conspiracy so
`large that law enforcement investigated it on two fronts simultaneously. The first
`front was based in Texas, the second in Mississippi. The conspirators regularly
`shipped thousands of pounds of marijuana and hundreds of kilograms of cocaine at
`a time across the Mexican border and to various destinations in the United States
`ranging from Laredo to New York.
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`Nazario Cavazos ran the drug trafficking organization, and Cantu-Ramirez and
`Grimaldo were major figures in his organization. Cantu-Ramirez’s co-conspirators
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`1
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`testified that he was one of Cavazos’s most trusted confidantes. Cantu-Ramirez
`negotiated the sale of marijuana and cocaine with an undercover agent; was
`responsible for the delivery of four marijuana samples to the agent; discussed
`customers who did not pay for drugs with co-conspirators; took orders for cocaine
`and marijuana from customers and co-conspirators; transported and collected
`payment for drugs on behalf of Cavazos; and was present when a vast quantity of
`marijuana was delivered to a business called Landmark Tile that testimony showed
`acted as a regular stopping point on the drugs’ journey from Mexico to their ultimate
`destinations in the United States.
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`The more specific factual background as it concerns Movant’s trial is taken from the
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`Government’s Response, which, in turn, was gathered from the presentence report (citations
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`omitted):
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` Investigation in this case began when law enforcement officers received a tip relating
`to Cantu-Ramirez’s marijuana trafficking activities. During the investigation Cantu-
`Ramirez was identified as lieutenant in a well-organized and influential drug
`organization.
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`During trial, numerous government witnesses testified that Cantu-Ramirez was
`intimately involved with the shipment and sale of marijuana, cocaine, and MDMA.
`Wiretaps revealing the sale of 251 pounds of marijuana were introduced at trial. The
`wiretaps also revealed that Cantu-Ramirez used his minor son to negotiate drug
`deals.
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`According to the testimony of numerous government witnesses, Cantu-Ramirez was
`responsible for a total of 14,101.33 pounds or 6,396.36 kilograms of marijuana,
`3,000 tablets of MDMA, and 406.12 kilograms of cocaine. For example, Fabian Lara
`testified that he delivered 6,500 pounds of marijuana to Landmark Tile Supply
`Company and observed Cantu-Ramirez supervising the unloading of the marijuana.
`Landmark Tile Supply was located directly across the street from a Dallas ISD
`elementary school. In addition, Victor Rodriguez, an undercover law enforcement
`officer, witnessed Cantu-Ramirez negotiate the sale of cocaine and a total of 4,865
`pounds of marijuana. Finally, Victor Thomas testified that Cantu-Ramirez picked
`up $879,000 from Thomas as payment for previous sales of cocaine and marijuana.
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`II. PROCEDURAL BACKGROUND
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`Movant was charged with conspiracy to manufacture, distribute, or possess with intent to
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`manufacture or distribute a controlled substance, in violation of 18 U.S.C. § 846. On August 26,
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`2
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`2009, Movant proceeded to a jury trial. The court gave the jury several instructions regarding the
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`testimony of witnesses and the finding of guilty on a conspiracy charge. The jury found Movant
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`guilty, holding him responsible for five kilograms of cocaine, 1,000 kilograms of marijuana, and
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`some amount of 3,4 methylenedioxymethamphetamine. On March 19, 2010, the court sentenced
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`Movant to 360 months’ imprisonment. On February 6, 2012, the United States Court of Appeal for
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`the Fifth Circuit affirmed Movant’s conviction and sentence. United States v. Cantu-Ramirez, 669
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`F.3d 619, 622 (5th Cir. 2012).
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`Movant filed the present motion pursuant to § 2255, asserting that he is entitled to relief
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`based on ineffective assistance of counsel and trial court error. The Government filed a Response,
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`asserting that Movant’s claims are without merit. Movant did not file a Reply.
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`III. § 2255 PROCEEDINGS
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`As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
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`from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
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`§ 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction.
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`The range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be
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`drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the
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`other.” United States v. Pierce, 959 F.2d 1297, 1300-01 (5th Cir. 1992). A collateral attack is
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`limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v. Shaid, 937
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`F.2d 228, 232 (5th Cir. 1991).
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`3
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`IV. INEFFECTIVE ASSISTANCE OF COUNSEL
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`Movant claims, in several grounds for relief, that his trial counsel was ineffective.
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`Legal Standard
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`A movant who seeks to overturn his conviction on the grounds of ineffective assistance of
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`counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56
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`F.3d 662, 667 (5th Cir. 1995). In order to succeed on a claim of ineffective assistance of counsel,
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`a movant must show that “counsel’s representation fell below an objective standard of
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`reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel
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`rendered assistance. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L.
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`Ed.2d 864 (1984). The standard requires the reviewing court to give great deference to counsel’s
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`performance, strongly presuming counsel exercised reasonable professional judgment. 466 U.S. at
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`690, 104 S. Ct. at 2066. The right to counsel does not require errorless counsel; instead, a criminal
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`defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir.
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`1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d
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`279 (5th Cir. 1984).
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`Secondly, the movant “must show that there is a reasonable probability that, but for counsel’s
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`unprofessional errors, the result of the proceeding would have been different. A reasonable
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`probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
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`at 694, 104 S. Ct. at 2068. Movant must “affirmatively prove,” not just allege, prejudice. Id., 466
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`U.S. at 693, 104 S. Ct. at 2067. If he fails to prove the prejudice component, the court need not
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`address the question of counsel's performance. Id., 466 U.S. at 697, 104 S. Ct. 2052.
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`4
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`Failure to Object
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`In several issues, Movant asserts that trial counsel was ineffective for failing to object. A
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`trial counsel’s failure to object does not constitute deficient representation unless a sound basis exists
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`for objection. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (a futile or meritless
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`objection cannot be grounds for a finding of deficient performance). Even with such a basis,
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`however, an attorney may render effective assistance despite a failure to object when the failure is
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`a matter of trial strategy. See Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) (noting that a
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`failure to object may be a matter of trial strategy as to which courts will not second guess counsel).
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`To succeed on such a claim, a petitioner must show that the trial court would have sustained the
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`objection and that it would have actually changed the result of his trial. Strickland, 466 U.S. at 694,
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`104 S. Ct. at 2068. Failure to make frivolous objections does not cause counsel’s performance to
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`fall below an objective level of reasonableness. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir.
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`1998). On habeas review, federal courts do not second-guess an attorney’s decision through the
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`distorting lens of hindsight, but rather, the courts presume that counsel’s conduct falls within the
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`wide range of reasonable professional assistance and, under the circumstances, that the challenged
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`action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
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`Failure to Object to Testimony Concerning Wiretap
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`Movant claims that counsel’s failure to object to “irrelevant” testimony regarding the
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`procedures required to obtain a Title III wiretap caused prejudice to his case. He claims that the
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`evidence regarding the procedure used to obtain wiretaps was not needed for the jury to evaluate the
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`conversations recorded by the wiretap or his guilt or innocence. Specifically, Movant complains that
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`the testimony of Agents Mark Styron and John Gottlob was overly prejudicial. He argues the
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`5
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`following statements were overly prejudicial:
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`Agent Mark Styron: It’s actually pretty rigorous. You have to go through all those
`things that we talked about before and put that information together. You work with
`a prosecutor, an Assistant U.S. Attorney, and put together an affidavit. They’re
`usually fairly lengthy. They can be 50, 60, 70 pages in length.
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`Agent John Gottlob (in response to whether wiretaps can be instituted for as long as
`one year): Wiretaps are expensive. I don’t see that happening.
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`Questioning between the Government and Agent John Gottlob (procedure for
`procuring a wiretap):
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`Q:
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`A:
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`Q:
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`And, in fact, is there a finding by the United States District Judge in this
`order under “A” here.
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`Yes, Ma’am, there is.
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`And is that finding that there’s probable cause to believe that Oscar Ramirez
`. . . and other persons yet unknown are committing, will commit, violations
`of Title 21, United States Code, Section 841, which is possession with intent
`to distribute and distribution of controlled substances, namely cocaine, and
`Title 21 United States Code 843, use of a communications facility to conduct
`a drug trafficking offense?
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`And then, focusing on page 2 again, the Judge made a probable cause finding
`that Title 21 United States Code, conspiracy to distribute and possess with the
`intent to distribute controlled substances, namely cocaine, and then the other
`offenses that were being committed, there was a probable cause finding,
`conspiracy to import a controlled substance, namely cocaine, interstate and
`foreign transportation in aid of racketeering activity, money laundering, and
`bulk cash smuggling. Did the United States District Judge make a finding or
`probable cause to believe that these events were occurring?
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`A:
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`Yes, Ma’am.
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`In support of his claim, Movant relies on a case from the Seventh Circuit, United States v.
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`Cunningham, 462 F.3d 708 (7th Cir. 2006). There, the Seventh Circuit held that the extensive
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`opinions of senior government officials, who believed there was probable cause for a wiretap,
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`amounted to improper vouching regarding the strength of the evidence. Id. at 712. However,
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`6
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`subsequent to that decision, the Seventh Circuit held that any error in admitting the testimony of
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`government agents about the procedures used to obtain a wiretap did not affect the substantial rights
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`of the defendant because the inference that the defendant was engaged in illegal activity before the
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`wiretap was harmless given the overwhelming evidence of the defendant’s guilt. United States v.
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`Bustemante, 493 F.3d 879, 888 (7th Cir. 2007). Moreover, the Fifth Circuit has held that the
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`Government meets its burden of authenticating tapes and transcripts of tapes used at trial where the
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`government establishes how a wiretap is initiated, how the equipment was operated, the operator’s
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`competency, the recording equipment’s fidelity, the accuracy of composite tapes, and the separate
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`identification of each speaker. United States v. Brown, 693 F.2d 345, 350 (5th Cir. 1982).
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`First, Movant relies on an opinion from the Seventh Circuit. Even if Movant had directed
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`the court to a similar Fifth Circuit case, the decision in Brown shows that the Government is required
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`to show how the process for obtaining a wiretap was initiated. The Government met its burden
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`through the testimony about which Movant complains. Id. Assuming arguendo, however, that
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`counsel should have objected to the comments concerning probable cause, the record shows
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`overwhelming evidence of Movant’s guilt outside of that testimony. Movant fails to show that, had
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`counsel objected and had the trial court sustained the objection, it would have actually changed the
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`result of his trial given the substantial amount of other evidence of guilt. Strickland, 466 U.S. at 694,
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`104 S. Ct. at 2068.
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`Failure to Object to Dual Role Testimony
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`Movant next claims that the purported dual roles of Styron, Rodriguez, and Gottlob as both
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`fact and expert witnesses confused the jury, and the court’s instructions to the jury failed to cure the
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`error. According to Movant, he was not given the proper protections to which he is entitled.
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`7
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`In support of his claim, Movant cites again to a Seventh Circuit case, United States v.
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`Farmer, 543 F.3d 363 (7th Cir. 2008). There, the Seventh Circuit found that (1) an appropriate
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`cautionary instruction by the court, (2) the examination of witnesses to establish when the witness
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`is testifying as an expert or fact witness, and (3) the cross-examination by defense alleviated any
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`prejudice or confusion when law enforcement officers testified as both a fact and expert witness.
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`Id. at 370-71. In Farmer, the district court instructed the jury that it could judge the testimony of
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`expert witnesses in the same way as lay witnesses, and give the testimony whatever weight it
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`believed was proper. Id. at 371.
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`In the instant case, a review of the record shows that the court gave an instruction that tracked
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`the Fifth Circuit Pattern Jury Instruction 1.17 and also covered the points set out in Farmer.
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`Movant’s counsel cross-examined Styron. Both parties and the court conducted an extensive voir
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`dire of Rodriguez, and Movant objected to Rodriguez’s testimony based on hearsay and requested
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`a limiting instruction. Movant’s counsel extensively cross-examined Gottlob. Additionally, the
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`Government laid a foundation for all three witnesses to be considered experts.
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`The record shows that Movant was afforded all protections to which he was entitled,
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`including those enunciated in the Seventh Circuit case upon which Movant relies – Farmer. Movant
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`fails to point to any evidence from the record, or otherwise, to show he was prejudiced by the dual
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`role testimony of these witnesses. Failure to make frivolous objections does not cause counsel’s
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`performance to fall below an objective level of reasonableness. Green, 160 F.3d at 1037. Trial
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`counsel’s failure to object does not constitute deficient representation unless a sound basis exists for
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`objection. Emery, 139 F.3d at 198. Movant fails to show that the trial court would have sustained
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`the objection and that it would have actually changed the result of his trial. Strickland, 466 U.S. at
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`8
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`694, 104 S. Ct. at 2068.
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`Failure to Object to Prosecutor’s Alleged Improper Vouching
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`Movant also complains that counsel was ineffective for failing to object to the Government’s
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`implication that cooperating witnesses – Lonnie Johnson, Walter Velasquez, Fabian Lara, Federico
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`Garcia, and Jorge Gaytan – must be telling the truth when the Government questioned them about
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`their plea agreements and if they were testifying in front of the same judge that would eventually
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`sentence them. Specifically, Movant asserts that this line of questioning resulted in an improper
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`implication that the witnesses must be telling the truth since the judge in this case will be the same
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`judge sentencing them eventually.
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`Where improper prosecutorial argument is asserted as a basis for habeas relief, “it is not
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`enough that the prosecutor’s remarks were undesirable or even universally condemned.” Darden v.
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`Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2462, 91 L. Ed.2d 144 (1986). Rather, the relevant
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`question is whether the prosecutor’s comments “so infected the trial with unfairness as to make the
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`resulting conviction a denial of due process.” Id. The appropriate standard of review on habeas
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`corpus “is the narrow one of due process, and not the broad exercise of supervisory power.” Id. To
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`constitute a denial of due process, the acts complained of must be of such character as to necessarily
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`prevent a fair trial. Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir. 1995). Moreover, the burden is
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`on the habeas petitioner to show a reasonable probability that, but for the remarks, the result would
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`have been different.1 Id.
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`When evaluating whether a prosecutor’s remark affected the substantial rights of a defendant,
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`1Counsel’s failure to object to an argument at trial is an indication that it was not perceived
`as having a substantial adverse effect. Id.
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`9
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`three factors are considered: (1) the magnitude of the prejudicial remarks; (2) the efficacy of any
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`cautionary instruction by the judge; and (3) the strength of the evidence supporting the convictions.
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`United States v. Williams, 343 F.3d 423, 437-38 (5th Cir. 2003).
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`The comments that Movant points out were part of the Government’s foundation to admit
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`the plea agreements of the witnesses into evidence. The question elicited facts but did not bolster
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`the witnesses’ testimony. Moreover, the defense cross-examined the witnesses and the court gave
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`an instruction to the jury concerning cooperating witnesses.
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`Movant fails to show that the remarks were overly prejudicial, that the instruction by the
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`judge was not effective, or that the strength of the evidence in support of his conviction was weak.
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`Williams, 343 F.3d at 437-38. Trial counsel’s failure to object does not constitute deficient
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`representation unless a sound basis exists for objection. Emery, 139 F.3d at 198. He fails to show
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`that the trial court would have sustained the objection and that it would have actually changed the
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`result of his trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Movant also fails to show that the
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`alleged error prevented a fair trial. Nichols, 69 F.3d at 1278.
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`Failure to Object to Prosecutor’s Implication that Greninger was Truthful
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`Movant also claims counsel was ineffective for failing to object to the prosecutor’s
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`implication in closing arguments that Agent Sean Greninger must be telling the truth because “he
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`has nothing to do with the case,” and he “doesn’t look like someone who would do that.”
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`A prosecutor is confined in closing argument to discussing properly admitted evidence and
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`any reasonable inferences or conclusions that can be drawn from that evidence. United States v.
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`Mendoza, 522 F.3d 482, 490 (5th Cir. 2008). “The sole purpose of closing argument is to assist the
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`jury in analyzing, evaluating and applying the evidence.” United States v. Dorr, 636 F.2d 117, 120
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`10
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`(5th Cir. Unit A Feb. 1981). A prosecutor may argue fair inferences from the evidence that a witness
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`has no reason to lie, but cannot express a personal opinion on the credibility of a witness. United
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`States v. Gracia, Jr., 522 F.3d 597, 600-01 (5th Cir. 2008). If it is determined that the prosecutor’s
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`remarks were in error, the question then is whether the prosecutor’s remarks cast serious doubt on
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`the correctness of the jury’s verdict. United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir.
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`2001).
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`Movant concedes in his § 2255 motion that the prosecutor only implied that Greninger had
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`no reason to lie. In the statements about which Movant complains, the prosecutor was noting that
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`Greninger’s involvement in the case was limited to the arrest of Lauro Grimaldo. Even if the
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`prosecutor’s comments were in error, Movant fails to show that the remarks cast serious doubt on
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`the correctness of the jury’s verdict. Id. Movant fails to show that the trial court would have
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`sustained the objection and that it would have actually changed the result of his trial. Strickland, 466
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`U.S. at 694, 104 S. Ct. at 2068.
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`Failure to Object to Prosecutor’s Personal Opinion in Closing Argument
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`Movant claims counsel was ineffective because he failed to object when the prosecutor
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`purportedly injected a personal opinion in the closing argument. Follow are the statements about
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`which Movant complains:
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`You heard testimony from DEA Agent Mark Styron, who was the very first witness
`in the case. He’s an expert in drug distribution, drug transportation.
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`[Movant] uses his son - as you heard in a couple of those very sad and unfortunate
`calls, he’s using his son, Oscar Ramirez, Jr., to interpret.
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`Judge Schell will send the superseding indictment back to the jury room with you.
`If you look at the superseding indictment, you’ll see the defendant Oscar Ramirez is
`charged in the superseding indictment along with Kevin Smith and along with Raul
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`11
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`
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`Ramirez and [Lauro Grimaldo). He’s admitting that he conspired with Kevin Smith
`to distribute marijuana. Raul Ramirez and Kevin Smith are charged in the
`superseding indictment along with the (petitioner) Cowboy, and Judge Schell is
`instructing you if the defendant is involved on one occasion with another person, then
`they qualify as charged in the superseding indictment, then they’re guilty.
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`The prosecutor’s statements are referring to evidence directly from the trial, which is not
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`improper. The statement concerning Styron was establishing the foundation for him to testify as an
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`expert witness. Evidence was presented at trial showing that Movant used his minor son as an
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`interpreter in his drug transactions. Finally, the prosecutor’s statements concerning the indictment
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`were reminders to the jury of the court’s instruction on the law. These statements are not improper,
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`and when compared to the overwhelming evidence against Movant, they also cannot be considered
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`prejudicial. Failure to make frivolous objections does not cause counsel’s performance to fall below
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`an objective level of reasonableness. Green, 160 F.3d at 1037. Trial counsel’s failure to object does
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`not constitute deficient representation unless a sound basis exists for objection. Emery, 139 F.3d
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`at 198. Movant fails to show that the trial court would have sustained the objection and that it
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`would have actually changed the result of his trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
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`This issue is meritless.
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`V. TRIAL COURT ERROR
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`Movant claims that the trial court erred because Movant was not able to cross-examine every
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`out-of-court declarant involved in obtaining the wiretap order. The United States Supreme Court
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`has held that the harmless error analysis that should be used on federal habeas review is the test
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`under Kotteakos – “whether the error ‘had substantial and injurious effect or influence in determining
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`the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 1722, 123 L.
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`12
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`
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`Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90
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`L. Ed. 1557 (1946)). Under this standard, “habeas petitioners may obtain plenary review of their
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`constitutional claims, but they are not entitled to habeas relief based on trial error unless they can
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`establish that it resulted in ‘actual prejudice.’” Brecht, 507 U.S. at 637, 113 S. Ct. at 1722 (quoting
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`United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88 L. Ed.2d 814 (1986)). Here,
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`Movant must show actual prejudice. Id.
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`Specifically, Movant first complains that he was not able to cross-examine Special Agent
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`Bret Spears. In Brown, the Fifth Circuit held that the trial court’s error was harmless when it
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`admitted the wiretap authorization order into evidence during the Government’s testimony to
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`establish the validity of the wiretap. Brown, 693 F.2d at 350. It found the error harmless because
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`the defendant was able to cross-examine the out-of-court declarants. Id.
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`In this case, Agent Spears prepared an initial affidavit, but then Agent Gottlob replaced
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`Spears for the majority of the process by preparing subsequent affidavits for the request to obtain the
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`wiretap order. Movant extensively cross-examined Agent Gottlob. Movant received the protections
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`of the hearsay rule by cross-examining Agent Gottlob. Moreover, a district court’s admission of
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`expert testimony is analyzed under harmless error analysis. United States v. Mendoza-Medina, 346
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`F.3d 121, 127 (5th Cir. 2003). Harmless error is any error that does not affect the substantial rights
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`of a defendant or when a mistake does not cause prejudice to the defendant. United States v. Munoz,
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`150 F.3d 401, 412-13 (5th Cir. 1998). When the error affects the outcome of the proceedings,
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`prejudice occurs. Id. Movant fails to show that he suffered prejudice. His claim is conclusory.
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`Federal courts do not “consider a habeas petitioner’s bald assertions on a critical issue in his pro se
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`petition . . . mere conclusory allegations do not raise a constitutional issue in a habeas proceeding.”
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`13
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`Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) (quoting Ross v. Estelle, 694 F.2d 1008,
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`1011-12 (5th Cir. 1983)). Conclusory claims are insufficient to entitle a habeas corpus petitioner to
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`relief. United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard, 691 F.2d 796,
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`799 (5th Cir. 1982).
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`Movant also complains about testimony from Styron, Rodriguez and Gottlob. It is well-
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`settled that experienced narcotics officers may testify concerning the significance of certain conduct
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`or methods of operation unique to drug distribution because such testimony has been found to be
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`helpful in assisting the jury to understand the evidence. United States v. Washington, 44 F.3d 1271,
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`1282-83 (5th Cir. 1995). When a witness is clearly qualified, there is no abuse of discretion when
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`the court does not formally qualify the witness as an expert. United States v. Griffith, 118 F.3d 318,
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`323 (5th Cir. 1997). Any error in the admission of opinions by government agents and confidential
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`informants can be considered harmless when compared to overwhelming evidence of the defendant’s
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`guilt. Washington, 44 F.3d at 1282-83.
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` The record shows that Styron was an experienced narcotics officer who testified about the
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`procedures used by drug traffickers. Rodriguez testified about his personal experience with Movant
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`while acting as an undercover officer. Gottlob testified about his personal experience concerning
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`the establishment of the Title III wiretaps. Movant has not shown the district court erred. Moreover,
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`Movant fails to show that he suffered prejudice or that the district court’s alleged error was not
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`harmless. Brecht, 507 U.S. at 637, 113 S. Ct. at 1722. He fails to show the alleged error “had
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`substantial and injurious effect or influence in determining the jury’s verdict.” Id., 507 U.S. at 637-
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`38, 113 S. Ct. at 1722.
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`14
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`VI. CONCLUSION
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`In his numerous ineffective assistance of counsel claims, Movant fails to show that there is
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`a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
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`proceeding would have been different. Id. He also fails to show that the district court’s alleged
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`error was not harmless or that he suffered prejudice. Brecht, 507 U.S. at 637, 113 S. Ct. at 1722. For
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`these reasons, Movant’s motion should be denied.
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`VII. CERTIFICATE OF APPEALABILITY
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`An appeal may not be taken to the court of appeals from a final order in a proceeding under
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`§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
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`2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
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`that the court, nonetheless, address whether Movant would be entitled to a certificate of
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`appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua
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`sponte rule on a certificate of appealability because “the district court that denies a petitioner relief
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`is in the best position to determine whether the petitioner has made a substantial showing of a denial
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`of a constitutional right on the issues before the court. Further briefing and argument on the very
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`issues the court has just ruled on would be repetitious.”).
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`A certificate of appealability may issue only if a movant has made a substantial showing of
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`the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
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`requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
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`v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
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`a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must
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`demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
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`15
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`
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`claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a
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`district court denies a habeas petition on procedural grounds without reaching the petitioner’s
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`underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
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`of reason would find it debatable whether the petition states a valid claim of the denial of a
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`constitutional right and that jurists of reason would find it debatable whether the district court was
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`correct in its procedural ruling.” Id.
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`In this case, it is respectfully recommended that reasonable jurists could not debate the denial
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`of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
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`are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,
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`123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
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`Accordingly, it is respectfully recommended that the court find that Movant is not entitled to a
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`certificate of appealability.
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`
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`VIII. RECOMMENDATION
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`It is accordingly recommended that Movant’s motion for relief under 28 U.S.C. § 2255 be
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`denied and the case dismissed with prejudice. It is further recommended that a certificate of
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`appealability be denied.
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`Within fourteen (14) days after service of the magistrate judge’s report, any party must serve
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`and file specific written objections to the findings and recommendations of the magistrate judge.
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`28 U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or
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`recommendation to which objection is made, state the basis for the objection, and specify the place
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`in the magistrate judge’s report and recommendation where the disputed determination is found. An
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`objection that merely incorporates by reference or refers to the briefing before the magistrate judge
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`16
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`
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`is not specific.
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`Failure to file specific, written objections will bar the party from appealing the unobjected-to
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`factual findings and legal conclusions of the magistrate judge that are accepted by the district court,
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`except upon grounds of plain error, provided that the party has been served with notice that such
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`consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
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`1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)
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`(extending the time to file objections from ten to fourteen days).
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`17