Ineffective Counsel Assistance Good for Resentencing Only

without question, the prosecutor stressed the mailing label in closing argument. but "the wide range of reasonable professional assistance" in failing to present this theory: district court's grant of a new trial. as the government does not challenge the district navarrete for comparison to the label. i. the trial weaker? the label still would provide another, albeit differentlink between navarrete � 2255 relief be warranted on that basis. a claim of ineffective assistance based on but the court did not base its deficient performance conclusion on that, nor would neither constitutionally deficient nor prejudicial to rodela. therefore, we vacate the -13- form. for example, a postal clerk might complete the english language form for a label . . . the most important piece of evidence presented to the jury tying rodela to inspector britain testified that the sender does not always fill out the express mail role reduction. the district court appointed counsel and ordered a hearing to consider q: so i could walk into the post office right now, fill out an express mail at trial. we agree. therefore, we reverse the grant of a new trial and remand for -10- ___________ second, the court concluded that ms. nouri was ineffective for failing to call refused to answer all questions, including whether he had signed the affidavit filed by states v. castro-gaxiola, 479 f.3d 579 (8th cir.), cert. denied, 552 u.s. 971 (2007). * could reasonably conclude that persuading the jury navarrete mailed the temporary navarrete invoked his fifth amendment privilege. after declining to compel him to rodela's defense counsel might have pursued, but on this record it is too speculative transactions recorded in a notebook seized from navarrete; and (v) rodela was with ___________ system for express mail packages enabled him to find the mailing label that was filled resentencing. distributing one-half pound as reported by the informant. rodela accompanied this up in dollar bills as tips. here and that would get sent? a strong presumption that counsel's conduct falls within the wide range of reasonable castro as the addressee. the delivery copy of the label showed that castro signed for new trial or, alternatively, resentencing. the government appeals, conceding mexican drug dealers negotiate and do deals . . . . i just decided it was aguilar (rodela), joel castro-gaxiola (castro), and reyes martinez-ruiz (martinez) show strickland prejudice with regard to either issue. we review ineffective- navarrete signatures clearly matched the label? handwriting expert at the � 2255 hearing, it was not possible to establish strickland 1191-92 (8th cir. 1991). nor did rodela establish that the decision not to call medina the temporary car tag to california, would have changed the jury's verdict to not the hearing then took a dramatic turn when navarrete, subpoenaed to testify, defense strategy, or triggered objections by defense counsel for castro or martinez? frequent drug dealing at their restaurants, including rodela receiving cocaine rolled course, an additional way to analyze handwriting is to consult a handwriting expert. the district court concluded that ms. nouri's performance was deficient "in loken, chief judge. label? did she check whether there were other documents in the discovery record handwriting expert would have affected trial outcome) (unpublished). -9- after we affirmed his conviction, rodela filed a pro se motion for relief under failing to analyze the handwriting on the mailing label." as the above-quoted in a large pvc pipe under rodela's bed in the basement bedroom; 334 grams and a counsel provided constitutionally ineffective assistance. after a hearing, the district government witness. he testified that, when ms. nouri inquired whether navarrete virtually unchallengeable decision of trial strategy," in part because "there is released. on march 8, responding to a tip from the informant that navarrete was a: that's correct. "outside the wide range of competent assistance," because rodela's conduct, unlike significant drug activity occurred the afternoon of march 1, and proving his absence were arrested. police seized a cell phone from navarrete that listed rodela's e-mail professional assistance." strickland, 466 u.s. at 689. fifth" if called to testify. with navarrete. after arresting rodela as an illegal alien, police found a dollar bill handwriting on the express mail label with examples of rodela's and navarrete's can of worms to cross-examination. before loken, chief judge, arnold and benton, circuit judges. label, using rodela's name and a return address where they had lived a few months after the link between rodela and the temporary tag was properly attacked." though filed: march 4, 2010 (corrected 3/05/10) vehicle tag to castro? if not, did she have any other reason to suspect he had not done - did she have any basis to suspect navarrete instead completed the label? to warrant � 2255 relief. on the issue of deficient performance, ms. nouri was not postal inspector richard britain. britain explained how the postal service tracking rodela's attorney had presented the handwriting of rodela and envelope. the mailing label identified rodela as the sender and listed his prior and rodela. and the other evidence linking the two remained -- the drugs and scales of conspiring to distribute, and aiding/abetting possession with intent to distribute, staples, 410 f.3d 484, 488 (8th cir. 2005) (quotation omitted). a court "must indulge folded around a small quantity of cocaine in his pocket. whether navarrete would testify favorably to rodela. both times, the attorney said - and most important of all, why did she not pursue this tactic? scales were found in rodela's basement bedroom, consistent with the informant's scales, and a monthly bill for two telephone lines addressed to rodela elsewhere in signed . . . . and you can see how he does a lot of those capital letters. properly applying the standards of strickland v. washington, 466 u.s. 668, paid cash under the table, one of his tips included a rolled up dollar bill sanchez, 219 fed. app'x 796, 798 (10th cir. 2007) (no evidence presented that role adjustment at sentencing because it would have been inconsistent with rodela's the government did not contend that rodela was at the fremont residence when containing navarrete's signature? if so, did she find, as the court did, that all not rodela's, and that ms. nouri should have put a sample of navarrete's handwriting or omissions "outside the wide range of professionally competent assistance" -- and rodela's handwriting to the jury, clarifying that, on a miranda waiver form, rodela's could take any one of your names . . . go on a break to the downtown after reviewing rodela's handwriting on the miranda waiver form and objectively competent manner in failing to analyze the handwriting on the mailing ___________ combined with the jury's likely conclusion that rodela was not the person that mailed employers as witnesses: a detective testified that rodela was a musician who played thing from rich britain to anybody in california and use a local address amount of cocaine in his pocket when arrested with navarrete on march 8. defense se pleading, rodela claimed that trial counsel lisa nouri failed to prepare a proper basement of a residence on fremont street, removed a "bazooka case" from under a the second conversation, at the time navarrete pleaded guilty, counsel added that, if by a handwriting or fingerprint expert. she explained that she did not urge a minor mail may or may not be the actual person, in fact? so? analysis of whether to call employer medina is not the test in applying the deferential 410 f.3d at 488-89, and cases cited. strickland teaches that "strategic choices made after thorough investigation of order dated january 8, 2009, and remand for resentencing. * western district of missouri. benefit analysis. she concluded that the potential benefits of calling medina were week before trial but did not testify) and rodela's employers, who would have court's conclusion that ms. nouri provided ineffective assistance at sentencing in matches navarrete's. even without expert testimony, a comparison no. 09-1555 their march 1 arrest when rodela, if in fact innocent, should have been doing warrant. navarrete, castro, martinez, and navarrete's brother left in two vehicles and ms. nouri further testified that she contacted navarrete's attorney twice about bed, and showed them three pounds of methamphetamine inside. police obtained a respondent - appellant. * - did rodela tell her he did not fill out the label and express mail the temporary in mid-february 2005, a reliable confidential informant told kansas city police by the subject who is mailing it." ms. nouri followed up during cross exam: denial of participation in the conspiracy. the district court properly considered the combined prejudicial impact of the two rodela was unaware of these activities and "is totally innocent of the charges," and sentencingerrorbutarguingthatcounseldidnotproviderodelaineffectiveassistance rodela's cell phone, and recent calls on that phone were linked to apparent drug for the eighth circuit rodela. after a recess during which navarrete conferred with his trial counsel, sought to minimize the significance of the mailing label: avoid suggesting a connection with a potential witness that would be damaging). the district court based its conclusion of deficient performance and strickland would have stated" at trial in order to establish strickland prejudice. day v. a: that's correct. the government's remaining witnesses were law enforcement officers who handwriting on the mailing label does not match rodela's, but rather, united states, 162 f.3d 981, 983 (8th cir. 1998). that is a fatal omission here. postal all of the discovery" in rodela's case but never had the express mail label examined participated in unloading the methamphetamine to the basement bedroom and then -12- anybody can go in and put anybody's name on [the mailing label]. i at the hearing, two employer witnesses first testified that rodela worked out at a kansas city post office showing rodela as the sender, a return address, and temporary missouri license tag that had been mailed to castro in an express mail was: (i) they lived together; (ii) the mailing label; (iii) methamphetamine and digital 1 his signature admitted into evidence with this document have compromised her upwelloncross-examination,thejurorsmightdrawunfavorableinferences." staples, slight because a government witness established that rodela worked as a musician, passages make clear, ms. nouri clearly did "analyze the handwriting" by comparing -3- methamphetamine. we affirmed, rejecting claims of insufficient evidence. united asked at the hearing many questions crucial to establish that her conduct fell outside that, if called, navarrete would invoke his fifth amendment right not to testify. in on direct examination that the express mail label "is usually but not always prepared iv. discussion navarrete delivered a half pound of methamphetamine to her boyfriend. police musician who played at a particular mexican restaurant and asked the witness to that doesn't make it so. . . . there is a miranda waiver that mr. rodela calls to drug customers, and rodela apparently helping navarrete flee a week after b. failure to call medina. the district court further concluded that ms. nouri jury would probably have drawn the same conclusion as the court if "and certainly to less than the 151 months rodela received." describe his investigative activity in or near that restaurant. when defense counsel v. * district court for the was ineffective in failing to call employer medina as a defense witness because his the package in san diego. the three defendants presented no evidence. the jury on appeal. did she compare the signature on navarrete's plea agreement with the -8- employer medina as a witness. "while the court agrees that rodela could have been the first reason was an issue noted in rodela's pleading but not noted in the circumstances as they must have appeared to counsel at the time." united states v. probability the result of the proceeding would have been different had the jury been medina; and failure to urge a minor role adjustment at sentencing. attorney nouri's performance was deficient in handling the express mail label issue issues, we disagree with its conclusion that rodela established deficient performance guilty." the court rejected the claim that ms. nouri's performance was deficient for aclaimof ineffective-assistance,rodela must show both deficient performance -- acts failing to interview navarrete and subpoena him for trial, nor could prejudice be if the trial record had included evidence strongly suggesting that navarrete filled out to avoid potentially opening up through defense witnesses. court's order granting an evidentiary hearing -- that ms. nouri "did not act in an during her cross-examination of detective brian wilson, ms. nouri highlighted government's case-in-chief, the prosecutor elicited testimony that rodela was a the conspiracy offense in great detail, declaring that he would have testified that the label, would the government's case against rodela have been significantly reasonably decide not to urge the jury to find that navarrete filled out the mailing failing to urge a minor role adjustment, we reverse the district court's opinion and answer, the court accepted the affidavit into the hearing record but later ruled it "has answered the door and let them in but did not take part in the subsequent conversation navarrete was about to leave kansas city. defending this case, a competent attorney stating that he wrote rodela's name on the express mail label without rodela's reduction and likely sentenced rodela to the bottom of the revised advisory range residence to report that she heard men talking in spanish in the basement and then rodela next called trial counsel nouri, who explained why she did not call these persuaded that navarrete filled out the express mail label. compare united states v. narcotics were being sold." the trial court sustained the objection, but the risk of at these restaurants; absence from the fremont residence on march 1 would not probably best not to have those two owners come in and open that whole filled out the mailing label -- was more consistent with her overall defense strategy. fennel and navarrete pleaded guilty. at trial, fennel testified for the basement, in the kitchen, and in an upstairs bedroom. navarrete and rodela were later whether as a matter of hindsight we agree with attorney nouri's cost-benefit the form was "not his handwriting." then, during closing argument, ms. nouri the hearing concluded with testimony by navarrete's trial counsel, called as a quarterman, 566 f.3d 527, 538 (5th cir. 2009) (citation omitted); accord delgado v. - the order and opinion stated that the district court compared the mailing petitioner - appellee, * castro's girlfriend, angela fennel, left san diego for kansas city in a car bearing a rodela then filed this 28 u.s.c. � 2255 motion for post-conviction relief, alleging trial prejudice on its finding that the express mail label was in navarrete's handwriting, earlier. the government's case hinged on linking rodela to navarrete, the primary conducted the investigation, surveillance, arrests, questioning, and searches, and ___________ considerable risk inherent in calling any witness because if the witness does not hold -11- error. see united states v. white, 341 f.3d 673, 677 (8th cir. 2003), cert. denied, 541 label issue we have previously discussed. united states court of appeals in rodela's bedroom, his cell phone in navarrete's possession containing evidence of during which the informant reported drug distribution at the fremont residence. i was concerned if those people came in, that they would be cross- r. . . . the postal receipt didn't [prove] mr. rodela was the sender. could enter. in executing the warrant, police found 307 grams of methamphetamine navarrete testified, it would not help rodela. ms. nouri testified that she "reviewed prejudice based upon failure to call an expert. compare united states v. arnulfo- after two conspirators pleaded guilty, a jury convicted armando rodela- testified that rodela was at work the afternoon of march 1 and thus could not have resulted in strickland prejudice, whether viewed in isolation or along with the mailing tag to castro using rodela's name and a prior common address would play into the -6- found them guilty of all charges. the pleadings he has signed in this action, the court finds that the we also conclude that rodela failed to prove strickland prejudice on this issue. methamphetamine before packing the car in san diego for their trip to kansas city. result of the proceeding would have been different." the court granted � 2255 relief, * appeal from the united states prejudice -- "a reasonable probability that, but for counsel's unprofessional errors, the robinson, 301 f.3d 923, 925 (8th cir. 2002), cert. denied, 537 u.s. 1238 (2003). a: that's correct. q: there's no identification required for that? the bedroom. they found other evidence of drug trafficking in another area of the nouri he wanted his employers and navarrete to testify at trial, and that he was at iii. the district court's ruling government that she saw martinez cutting or packaging a large quantity of q: now, you said that the section that described the person sending the -7- could have been made by the jury, see fed. r. evid. 901(b)(3), and the create a "perception that you could not frequent that location and not know that work the afternoon of march 1. he was not questioned about the express mail label. time later. fennel stayed in the motel when castro left the next morning. about to leave kansas city from another location, police went there and found rodela handwriting without the assistance of a handwriting expert witness. see united states we agree with the district court that the jury could have compared the that arturo navarrete-silva (navarrete) took the informant and her boyfriend to the kansas city residence as the return address. signature was in the middle of the page whereas the listing of his name on the top of government's attempt to link her client to navarrete. compare sanders v. trickey, drugs." the court explained that, if urged, it would have applied a three-level in the record and urged the jury to make the same finding.1 appeal, that ms. nouri's failure to pursue a minor role reduction at sentencing fell ii. the � 2255 hearing ___________ united states of america, * regularly as a musician at their mexican restaurants. one, peter medina, testified that, u.s. 955 (2004). "when assessing attorney performance, courts should avoid the this is a plausible tactic -2- the label to rodela's signature and arguing to the jury the two did not match. of -5- 28 u.s.c. � 2255 alleging ineffective assistance of counsel. as clarified in a later pro presumption mandated by strickland. see, e.g. wing v. sargent, 940 f.2d 1189, description of two visits to the fremont residence; (iv) navarrete was arrested with especially he likes that capital a on the end. he likes the capital n and the failure to consult and call an expert requires "evidence of what a scientific expert and in failing to call employer medina as a defense witness, and that rodela failed to rigorous standard. on this barren record, we conclude there is not a reasonable between navarrete, castro, and martinez. fennel and castro went to a motel a short three issues: failure to investigate and call navarrete; failure to investigate and call 3:30 and 4:00 p.m. on march 1 and did not leave until 9:00 or 9:30 p.m., the period activities were taking place, the court concludes that mr. medina's testimony, only remaining shred of evidence remaining [was the express mail] tag court granted the motion on three grounds, one related to sentencing, and ordered a sender, like rodela, who is not fluent in english. without specific testimony by a immediately established surveillance and alerted a tactical team to execute the itself, a simple handwriting analysis would have negated its value. objected, the prosecutor stated in a side-bar conference he had evidence that would - if navarrete's plea agreement was the only sample available, would getting address as the provider's contact. establish rodela's non-involvement in the conspiracy; and: fund v. thummel, 738 f.2d 926, 928 (8th cir. 1984). on appeal, the government argues the district court erred in concluding that navarrete when they were arrested on march 8 after the informant told police -4- parked in the driveway, went to the front door with a key, and was arrested before he the trial record establishes that these were not imaginary concerns. during the conspirator in kansas city. the evidence linking rodela to navarrete's conspiracy with cocaine in it [and] their establishments are known businesses where 875 f.2d 205, 208 (8th cir.), cert. denied, 493 u.s. 898 (1989) (valid trial strategy to ______________________________ law and facts relevant to plausible options are virtually unchallengeable." 466 u.s. testimony by another officer that rodela had a dollar bill folded around a small would testify at rodela's trial, he told her he would advise navarrete to "take the if called at trial, he would have testified that rodela arrived at his restaurant between assistance issues de novo and the district court's findings of predicate facts for clear the other conspirators, "did not include transporting, handling, and distributing the knowledge. based on this additional evidence, rodela concluded: label with navarrete's signature on his plea agreement, a document not in the record post office [and] mail something to timbuktu with your name as sender. armando rodela-aguilar, * counsel succeeded in limiting that to rule 404(b) evidence, but again it was a subject nouri saw significant risk that calling the restaurant owners would open up issues of shotgun in a closet near rodela's bed; and shotgun shells, a heat sealer, two digital opening up that line of inquiry of course remained. the prosecutor later presented if counsel had spoken with [employer] peter medina and realized the pleading with an affidavit purportedly signed by navarrete (now in prison) describing as police approached the fremont residence to execute the warrant, rodela in the early evening of march 1, the informant called police from the fremont submitted: december 16, 2009 distorting effects of hindsight and try to evaluate counsel's conduct by looking at the concluding that attorney ms. nouri's assistance was ineffective for three reasons. the conspiracy." turning to the issue of strickland prejudice, the court stated: 690, 694 (1984), the district court's order and opinion explained that, to prevail on v. tarricone, 21 f.3d 474, 476 (2d. cir. 1993); greater kansas city laborers pension a member of the conspiracy even if he was not present while some conspiratorial for these reasons, we conclude that attorney nouri's performance at trial was defense because she did not contact co-defendant navarrete (who pleaded guilty one examined about the fact that [rodela was] an illegal alien, he was getting thus, the tactic ms. nouri in fact pursued -- simply raising doubt whether rodela no evidentiary value." rodela then testified that he was innocent, that he told ms. warrant to search the fremont residence. in late february, castro, martinez, and the trio arrived at the fremont residence at about 2:00 a.m. on march 1. rodela at that time would not establish that he was not a conspirator. on the other hand, ms. testimony "would have further removed [rodela] from the conspiracy, particularly * regarding the last question, it is not difficult to posit why ms. nouri might by ms. nouri in not calling medina. rodela further argued that counsel was ineffective at sentencing in not urging a minor a. the express mail label issue. at trial, postal inspector britain testified at 690. we have consistently held that a reasoned decision not to call a witness "is a everything possible to distance himself from navarrete. strickland prejudice is a shown because navarrete refused to testify at the � 2255 hearing. third, the court concluded, in a ruling the government does not challenge on in this case, ms. nouri testified that she employed precisely this sort of cost-