United States v. Molina-Uribe

United States Court of Appeals Fifth Circuit F I L E D August 24, 2005 In the United States Court of Appeals Charles R. Fulbruge III Clerk for the Fifth Circuit _______________

m 04-40534 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

FELIPE MOLINA-URIBE,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas ______________________________

Before GARWOOD, SMITH, and CLEMENT, for relief under 28 U.S.C. § 2255. In March Circuit Judges. 2003, after a two-day evidentiary hearing, a magistrate judge recommended that relief be JERRY E. SMITH, Circuit Judge: granted on the ground that Molina-Uribe’s trial counsel was ineffective. The district court Felipe Molina-Uribe was convicted of first adopted that recommendation and vacated the degree murder of a DEA agent and sentenced conviction. to life imprisonment in 1987.1 In 1997 he filed

1 1 That life sentence is being served concurrently (...continued) with a cumulative sentence of thirty years that the district court imposed for drug trafficking and (continued...) firearm convictions.

Although Molina Uribe’s trial defense was shortly thereafter in a van loaded with large at least arguably of questionable quality, we plastic bags containing the marihuana. Ortiz and the district court must nonetheless observe and Rodriguez-Ramirez went to Molina-Uri- the standards for evaluating tactical decisions be’s van to inspect the marihuana, then all as set forth in § 2255 and the associated case- three men walked to the undercover vehicle law. Under those standards, we reverse the where Ramos was waiting in the driver’s seat.2 order granting § 2255 relief and remand for Molina-Uribe entered the rear seat of the car. further proceedings. The plan was for Ramos and Molina-Uribe to swap vehicles and later to re-exchange them I. after Molina-Uribe had removed the money A. from Ramos’s car and Ramos the marihuana This case arises from the killing of DEA from Molina-Uribe’s van. Special Agent William Ramos by a drug traf- ficker during an undercover drug deal. Some- After a brief conversation about the money, time before 3:00 p.m. on December 31, 1986, Ortiz and Rodriguez-Ramirez walked to the in McAllen, Texas, Molina-Uribe and his rear of Ramos’s car to get the money from the co-defendant, Jesus Garcia Nieto, were look- trunk so Molina-Uribe could inspect it. By ing for a buyer for over 300 pounds of mari- pre-arrangement, the lifting of the trunk lid huana. They met the other co-defendant, was the signal for a number of DEA agents to Benito Cavazos-Lamas, in McAllen. Cavazos- converge o n Ramos’s vehicle. As the lid was Lamas indicated that he knew a buyer. Mo- opened, Ortiz observed through the car’s rear lina-Uribe, without knowing that Roberto window that Ramos had turned in his seat, “Raul” Ortiz was a paid undercover DEA in- drawn his revolver, and pointed it at Molina- formant, arranged a meeting for Molina-Uribe, Uribe, whereupon Molina-Uribe grabbed Ram- Garcia Nieto, and Ortiz, who was accompa- os and the revolver and attempted to wrest it nied to the meeting by Ernesto Rodri- from Ramos. With the car shaking from the guez-Ramirez, another paid undercover DEA struggle and Ramos calling for help, Ortiz and informer. Rodriguez-Ramirez sprang to assist Ramos.

Ortiz, at various times between the first Ortiz entered the car to help Ramos while contact by Cavazos-Lamas and completion of yelling they were federal drug agents, ordering the sale arrangements, communicated with the Molina-Uribe to release the gun and admon- DEA agents to obtain instructions as the ne- ishing him that he could get into serious prob- gotiations progressed. The parties ultimately lems if he failed to act as ordered. Rodriguez- arranged that Ramos, working undercover but Ramirez remained outside on the right side of representing himself to be a New York drug dealer, would be the buyer of the marihuana 2 and of a quantity of illegal pills. Delivery and The car was a government vehicle assigned to payment were to be made at 7:00 p.m. in the DEA Special Agent Alvarez. The revolver that parking lot of a supermarket. Ramos used and with which he was ultimately shot was issued to Alvarez; it was a second gun that Alvarez kept on the door side of the driver’s seat of Ramos, Ortiz, and Rodriguez-Ramirez ar- his car. The revolver discharged four rounds rived at the parking lot in an undercover vehi- during the incident. Ramos was also carrying a cle at about 7:00 p.m. Molina-Uribe arrived revolver, issued to him, but he did not discharge it.

the car but leaned into it and began pulling on ary 21, 1987.4 Count 3, brought under 18 Molina-Uribe’s boots. About then, the revolv- U.S.C. §§ 1111 and 1114, charged that Mo- er discharged; the shot struck Rodriguez-Ram- lina-Uribe, having been placed under arrest by irez in the hand, and he quickly retreated in Ramos and while attempting to escape, mur- pain. Ortiz then repeated his order to Molina- dered Ramos, while Ramos was in the perfor- Uribe and told him that Ramos was a federal mance of his official duties, by shooting him agent. Ramos then said, “I already told him with the agent’s revolver. Count 4 alleged that he is arrested and he does not want to pay that during and in relation to the crime of vio- attention.”3 lence described in count 3, Molina-Uribe used the firearm described in that count in violation As the struggle for the gun continued, the of 18 U.S.C. § 924(c). Molina-Uribe pleaded revolver discharged two more rounds. Again guilty to counts 1 and 2, and the jury convict- Ortiz admonished Molina-Uribe to release the ed him on counts 3 and 4. gun and told him they were federal agents. Ortiz said Molina-Uribe then made a statement C. in Spanish indicating that he thought Ramos Molina-Uribe testified that he conveyed his and Ortiz were about to steal the marihuana version of the incident to his attorneys, Ram- and hurt him. Finally, with Molina-Uribe in irez and Connors,5 explaining the struggle be- possession of the gun and while Ramos had a tween himself and the agents. The district hand on Molina-Uribe’s wrist trying to push court appointed Ramirez to represent Molina the gun hand to the side, Molina-Uribe forced a week after the grand jury returned the indict- the gun downward toward Ramos’s chest and ment. During pretrial motions Ramirez argued fired the fourth shot into his chest, fatally that the case was complex, and he made a wounding him. 4 DEA Agents Watkins and Alvarez arrived Count 1, pursuant to 21 U.S.C. § 846, alleged at Ramos’s car almost immediately following the co-defendants conspired to possess with intent the final shot. Watkins entered the car and put to distribute in excess of 100 kilograms of mari- huana, a Schedule I controlled substance, in vio- his revolver to Molina-Uribe’s head. Alvarez lation of 21 U.S.C. § 841(a)(1). In count 2, the removed Ramos’s gun from Molina-Uribe’s three were charged with the substantive offense. left hand, and the agents took him into cus- tody. 5 Molina-Uribe testified, at the evidentiary hear- ing before the magistrate judge, that he arrived at B. the location of the sting to complete a drug transac- Molina-Uribe, Cavazos-Lamas, and Garcia tion with Ramos. Molina-Uribe testified that he Nieto were jointly charged in counts 1 and 2 of thought Ramos and the other agents were drug a superseding indictment returned on Febru- dealers. Molina-Uribe did not take a gun to the scene but noticed one in the car’s side pocket; Ramos then turned with his gun drawn and, believ- ing the men to be drug dealers, Molina-Uribe 3 Rodriguez was unable to testify concerning construed the drawn weapon as a violent threat to Ortiz’s statements to Molina-Uribe or to Ramos’s shoot him and take the drugs. Throughout the statement to Molina-Uribe, as testified by Ortiz, struggle he could not ascertain who had control of because he was paying attention only to what he the gun during each discharge, but instead he was was doing at the time. focused on avoiding the bullets.

number of discovery requests. He sought the defendants the effective assistance of counsel. appointment of Connors as additional counsel. See Yarborough v. Gentry, 540 U.S. 1, 5 The court granted the requests. (2003). Section 2255 provides that a

The record indicates that Ramirez pursued prisoner in custody under sentence of a an unusual defense theory to which the various court established by Act of Congress claim- litigators referred as the “conspiracy theory,” ing the right to be released upon the ground the gist of which was that Ramos’s colleagues that the sentence was imposed in violation disliked Ramos for a variety of reasons and of the Constitution or laws of the United orchestrated the sting operation to assassinate States, . . . may move the court which im- him. It is uncertain whether the theory posed the sentence to vacate, set aside or involved the agents’ shooting Ramos directly correct the sentence. or planting the gun hoping that Molina-Uribe would kill Ramos with Alvarez’s revolver. Molina-Uribe argues that his trial counsel’s Counsel introduced little or no direct evidence assistance was ineffective because they pur- to support this theory. sued a far-fetched theory. To make a substan- tial showing of the denial of his Sixth Amend- Molina-Uribe testified that he did not un- ment right to reasonably effective assistance of derstand his attorneys’ pursuit of this defense counsel, Molina-Uribe must satisfy the stan- in light of the absence of evidence to support dard set forth in Strickland v. Washington, 466 it. He also stated that he requested that his U.S. 668, 686 (1984). He must therefore attorney cease pursuing that theory and instead demonstrate “that counsel’s performance was advance a self-defense or accident theory, a deficient,” id. at 687, and that “the deficient story conforming far better to the evidence and performance prejudiced [his] defense.” Id.7 his own testimony. He did not insist on testifying.6 To establish deficient performance, Molina- Uribe “must show that counsel’s represen- The district court’s instructions to the jury tation fell below an objective standard of rea- included the issues of self-defense, accident, sonableness.” Id. at 687-88. Our scrutiny of and heat of passion. These matters were also counsel’s performance must be “highly defer- argued, albeit only quite briefly, by Connors in ential.” Id. at 689. We must make every ef- closing argument. fort “to eliminate the distorting effects of hind- sight, to reconstruct the circumstances of II. counsel’s challenged conduct, and to evaluate The Sixth Amendment guarantees criminal the conduct from counsel’s perspective at the time.” Id. There is a “strong presumption that counsel’s conduct falls within the wide range 6 The magistrate judge’s report that the district of reasonable professional assistance.” Id. court adopted states that “[t]he Government points to the record of the pre-trial suppression hearing, which shows that Molina was aware of his right to testify and upon advice of counsel, decided not to 7 exercise this right.” It appears that although Moli- Because counsel’s performance was not con- na-Uribe wanted to testify, he deferred to the ex- stitutionally deficient, we do not reach the prejudice pertise of his attorneys. prong.

The degree of deference we are to afford to norms. See Lyons v. McCotter, 770 F.2d 529, Molina-Uribe’s trial counsel obviously drives 533 (5th Cir. 1985). Although we give strong the outcome of our deliberations. To prevail deference to trial counsel’s tactical decisions, on an ineffective assistance claim Molina-Uribe see Washington, 466 U.S. at 689-91, those de- must argue more than mere sub-optimal trial cisions must stem from “reasoned strategic tactics. Our role under § 2255 is not to audit judgment.” See Wiggins v. Smith, 539 U.S. decisions that are within the bounds of pro- 510, 534 (2003). fessional prudence. The record suggests that the district judge A. held Ramirez and Connors in high regard. The We “review a district court’s conclusions judge recognized Ramirez to be a very com- with regard to a petitioner’s § 2255 claim of petent, experienced, and well respected crim- ineffective assistance of counsel de novo.”⁸ inal defense attorney. The judge chose Con- We review § 2255 findings of fact for clear nors as an additional counsel because he error. United States v. Faubion, 19 F.3d 226, viewed Connors as experienced in both crim- 228 (5th Cir. 1994). Any subsidiary findings inal trials and appeals. of basic, historical fact made by the district court after a § 2255 evidentiary hearing are We view counsel’s performance in light of subject to review under the clearly erroneous the fact that the case was very difficult to de- standard of Federal Rule of Criminal Proce- fend. Trial counsel had to consider a number dure 52(a).9 In determining whether Molina- of variables in the course of developing Mol- Uribe received effective assistance of counsel, ina-Uribe’s defense, not the least of which was we thus make an independent evaluation based the potential sanctions associated with sub- on the district court’s subsidiary findings. See orning perjury. Counsel performed all nec- United States v. Rusmisel, 716 F.2d 301, 305 essary investigation and discovery. Most of (5th Cir. 1983). the time, viable ineffective assistance claims arise from some failure to pursue certain types B. of evidence during discovery with sufficient Washington, 466 U.S. at 689-91, requires vigor.10 us to assess the tactics of the attorneys against what courts would expect from an attorney of Molina-Uribe, however, does not question average competence. Alternately phrased, the the fervor with which trial counsel acquired proper measure of attorney performance is evidence; he instead doubts the theory pro- reasonableness under prevailing professional pounded at trial, given the admissible evidence

his counsel collected. Various courts, at by a polygraph examiner, and his answers were different stages of this case, have remarked deceptive, suggesting any testimony based on that there was no admissible evidence support- self-defense or any other customary theory ing the conspiracy theory.11 The magistrate would constitute perjury. judge’s report explains this: Now, in pursuit of § 2255 relief, Molina- In this case, there was no apparently sound Uribe places great significance on the follow- reason for counsel to predicate his client’s ing passage from the prosecution’s closing entire defense on a theory that is not only argument: bizarre, but devoid of evidentiary underpin- nings. This was not merely a flawed trial I am not sure that I was in the same court- tactic or a below par strategy. In essence, room with J.M. Ramirez when I was listen- there was no strategy when a completely ing to his arguments here a moment ago. idiosyncratic theory of defense was used in What horse is the defense riding in this place of a viable and supportable theory. case? According to Mr. Ramirez, Felipe Molina didn’t even have the gun. He didn’t These assertions, however, miss the point. shoot [Ramos]. According to Mr. Con- The soundness of the defense cannot be evalu- nors, maybe it was an accident. Maybe it ated in the relative vacuum of an appeal. Trial was self-defense. Maybe it was voluntary counsel obviously had alternatives available to manslaughter . . . . What horse are they them, and it seems they chose this particular going to ride, folks[?] . . . Why would J.M. defense strategy because those alternatives ex- Ramirez say that Felipe Molina didn’t shoot posed Molina-Uribe and his attorneys to other [Agent Ramos] when the evidence clearly legal risks. showed he did? . . . [W]hy would Mr. Connors argue for self-defense or accident, Thus, Molina-Uribe’s counsel had a per- so find him not guilty, if he didn’t shoot the fectly legitimate reason to pursue unusual de- gun? Because they don’t care how they get fenses: Pursuing more conventional ones that verdict. would require putting Molina-Uribe on the stand. Counsel’s concern about this was We are puzzled by the repeated invocation of acute, because Molina-Uribe had been tested this passage throughout the § 2255 litigation. At least insofar as it bears on the ineffective assistance claim, those comments help us very 11 See, e.g., United States v. Molina-Uribe, 853 little. Of course the prosecution is going to F.2d 1193, 1200 (5th Cir. 1988) (“There was not characterize the defendant’s trial arguments as a scintilla of evidence to support this theory.”). incoherent—that is the government’s job. If The government argues that trial counsel gathered anything, the statement serves as an inadver- some information suggesting that an extramarital tent testimonial to the presentation of self-de- affair and a pending case against the United States fense and accident theories—theories that Attorney General could furnish a motive for the Molina-Uribe now insinuates were not argued. alleged DEA conspirators. The district court cor- rectly excluded this evidence as irrelevant, so it The district court characterized Molina- could not have formed the evidentiary basis for counsel’s tactical decision to propound the conspir- Uribe’s defense theory as “bizarre” and “de- acy theory. void of evidentiary underpinnings.” The court

stated, “In essence, there was no strategy when a completely idiosyncratic theory of defense was used in place of a viable and supportable theory.” Although we appreciate the court’s consternation, its denunciation of Molina-Uribe’s defense is largely rhetorical and, to the extent that it is not, it is factually inaccurate.

There is no complaint or finding that de- fense counsel wrongfully failed to discover or present any evidence favorable to Molina-Uri- be; or wrongfully failed to have excluded any evidence harmful to him; or wrongfully con- ceded any fact or point of law harmful to him; or that the jury was not adequately instructed on all elements of the offense and all available defenses, including accident, self-defense, and heat of passion. The entire essence of the complaint of counsel’s performance is that counsel only briefly argued accident, self-de- fense, and heat of passion and instead over- whelmingly emphasized the bizarre conspiracy theory.

The district court asserts that there were other “viable” and “supportable” theories but ignores the fact that those theories would have arguably required Molina-Uribe’s counsel to suborn perjury. For us to grant Molina-Uri- be’s petition on the ground that his attorneys’ tactical decisions were utterly without reason at the time they were made would constitute Monday-morning quarterbacking on a Thurs- day.

The order granting § 2255 relief is REVERSED, and this matter is REMANDED for further proceedings as appropriate.

Footnotes

[8] 10 United States v. Conley, 349 F.3d 837, 839 See, e.g., United States v. Lampazianie, 251 (5th Cir.2003) (citing United States v. Bass, 310 F.3d 519, 527 (5th Cir. 2001) (discussing in dic- F.3d 321, 325 (5th Cir.2002); United States v. tum, the viability of a § 2255 claim, the substance Faubion, 19 F.3d 226, 228 (5th Cir.1994)). of which involved how fervently the defendant’s attorney sought information during discovery); 9 These are facts “in the sense of a recital of Matthew v. Johnson, 201 F.3d 353, 363 n.14 (5th external events and the credibility of their narra- Cir. 2000). We, however, do not mean to imply tors.” Washington v. Watkins, 655 F.2d 1346, this is the only context in which such claims can or 1351 (5th Cir. Unit A Sept.1981). do arise.