JESUS HUERTA v. UNITED STATES OF AMERICA (2017)

ORDER

Jesus Huerta, a federal prisoner proceeding pro se, appeals the district court's judgment denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He has filed an application for a certificate of appealability (“COA”). See Fed. R. App. P. 22(b)(1). He has also filed a motion to proceed in forma pauperis (“IFP”) on appeal. See Fed. R. App. P. 24(a)(5).

In 2009, a federal grand jury returned a second superseding indictment charging thirty-three defendants for their involvement in a multi-kilogram marijuana distribution conspiracy. Huerta was charged with conspiracy to manufacture 1000 or more marijuana plants (Count One), possession of firearms in furtherance of a drug trafficking crime (Counts Two and Seven), and conspiracy to distribute and possess with intent to distribute 1000 kilograms or more of marijuana (Count Three). The district court dismissed Count Two on the government's motion, and Huerta proceeded to trial with six codefendants on Counts One, Three, and Seven. In 2010, a jury convicted Huerta on Counts One and Three, but acquitted him on Count Seven. After the district court granted Huerta a new trial on Count One, the district court dismissed Count One on the government's motion without prejudice.

In preparation for sentencing on Count Three, the presentence report calculated Huerta's base offense level as 32 based on the quantity of marijuana involved in the offense. The presentence report also applied a 2-level enhancement under USSG § 2D1.1(b)(1) based on Huerta's possession of a firearm during the conspiracy. When combined with his criminal history category of II, Huerta's total offense level of 34 resulted in an advisory sentencing guidelines range of 168 to 210 months of imprisonment.

Both parties objected to the presentence report. Huerta objected to the application of the § 2D1.1(b)(1) enhancement. The government provided an alternative basis for the § 2D1.1(b)(1) enhancement and argued that a 4-level adjustment should apply under USSG § 3B1.1(a) based on Huerta's leadership role in the offense.

After a three-day evidentiary hearing, the district court overruled Huerta's objection to the § 2D1.1(b)(1) enhancement and sustained the government's objection to the extent that it provided an alternative basis for this enhancement. The district court relied on the testimony of Jeremy Bennett, who testified at trial that, in early 2007, he traded Huerta a twelve-gauge Mossberg shotgun for a half pound of marijuana and also sold Huerta a Ruger nine-millimeter handgun for $250. The district court alternatively relied on the testimony of William Bradford, who testified at the evidentiary hearing that, in July or August 2008, he gave Huerta a Sig nine-millimeter handgun as payment for a $1500 marijuana debt and Huerta carried the Sig when delivering marijuana. The district court found both Bennett and Bradford credible and concluded that the evidence preponderated in favor of finding that Huerta possessed a firearm. The district court also applied a 3-level adjustment under § 3B1.1(b), finding that Huerta was a manager or supervisor in the offense. When combined with his criminal history category of II, Huerta's total offense level of 37 resulted in a sentencing guidelines range of 235 to 293 months. After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Huerta to a below-guidelines sentence of 192 months, to be followed by five years of supervised release.

This court affirmed Huerta's convictions and sentence, holding in part that the district court did not abuse its discretion in finding that Huerta possessed a firearm based on Bennett's trial testimony and physical evidence of guns matching Bennett's description of the Mossberg and Ruger. United States v. Blake-Saldivar, 505 F. App'x 400, 408, 418 (6th Cir. 2012).

Huerta then filed a § 2255 motion, arguing that counsel was ineffective for failing to challenge the § 2D1.1(b)(1) enhancement and the § 3B1.1(b) adjustment. The district court denied Huerta's § 2255 motion on the merits and declined to issue a COA.

In his COA application, Huerta reasserts his claim that counsel was ineffective for failing to challenge the § 2D1.1(b)(1) enhancement. Huerta has forfeited review of his claim concerning the § 3B1.1(b) adjustment by failing to argue this claim in his COA application. See Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000); Jackson v. United States, 45 F. App'x 382, 385 (6th Cir. 2002).

To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate “that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

To prevail on an ineffective-assistance claim, a petitioner must establish that counsel's performance was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a petitioner “must show that ‘counsel's representation fell below an objective standard of reasonableness.’ ” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 688). To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

Huerta argues that counsel was ineffective for failing to challenge the § 2D1.1(b)(1) enhancement. Specifically, he faults counsel for failing to: (a) argue that Bennett's trial testimony was not credible, particularly in light of the jury's verdict of acquittal on Count Seven; and (b) request a continuance in order to respond to Bradford's evidentiary-hearing testimony. To the contrary, in objecting to the § 2D1.1(b)(1) enhancement, counsel argued that Bennett's trial testimony was “completely discredited” by the testimony of other witnesses and implicitly rejected by the jury's verdict. Counsel also requested and was granted a continuance in order to prepare to cross-examine Bradford at the evidentiary hearing, and argued at sentencing that Bradford was not credible. Finally, on direct appeal, counsel argued that the district court erred in applying the § 2D1.1(b)(1) enhancement because Bennett and Bradford were not credible and the Sig was not mentioned in the presentence report. Blake-Saldivar, 505 F. App'x at 408. Reasonable jurists could not disagree with the district court's conclusion that Huerta “presented no basis for the Court to find his counsel was deficient under Strickland, as counsel did everything that Huerta claims that he should have.”

For these reasons, the COA application is DENIED and the IFP motion is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk