The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
On October 6, 2005, I sentenced petitioner Juan Nicolas Ordenes ("Ordenes") to 151 months imprisonment. On October 18, 2005, Ordenes filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Ordenes seeks to vacate his sentence on the ground that his retained attorney rendered to him ineffective assistance of counsel.
For the following reasons, Ordenes' petition is DENIED.*fn1
A. Underlying Facts of Ordenes' Conviction
On May 2, 2005, a jury convicted Juan Nicolas Ordenes ("Ordenes") of conspiring to distribute and possessing with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 812, 841, 846. See generally 11/29/06 Government's Post-Hearing Memorandum in Opposition to Habeas Petition of Juan Nicolas Ordenes ("Gov't Mem.") at 2. At trial, much of the evidence came from the testimony of Jesus Dominguez, who chose to cooperate with the U.S. Attorney.
The Government established that Juan Garcia, the leader of an international narcotics trafficking organization, approached Jesus Dominguez to form a trucking company called "J&M Express." Tr. 744-46.*fn2 Petitioner Ordenes, on behalf of his own trucking company, "Debee Do Trucking," subcontracted with Dominguez to find loads for Dominguez to drive using a Freightliner owned by J&M Express. Tr. 748-51, 1457. In early 2003, Dominguez began to participate in accordance with the agreement. Tr. 752-53.
In January 2003, Garcia offered Dominguez the opportunity to earn more money by transporting kilograms of cocaine. Tr. 753. The truck was equipped with a hidden compartment for cocaine storage, designed to remain undetected by routine Department of Transportation inspections. Tr. 753-55. Between January and December 2003, Dominguez transported over 1,000 kilograms of cocaine and ten to twelve million dollars across the country for Garcia. Tr. 756-58.
Dominguez, at Garcia's behest, received the cocaine from a variety of sources, including some from two girls he met at a restaurant who gave him duffel bags of cocaine, see Tr. 771-73; some from a home in Rancho Cucamonga, California, see Tr. 784-85; and some from a van loaded with cocaine to which Juan Garcia gave him the keys. Tr. 784-85. Dominguez would then load the cocaine into the truck with the secret compartment. Tr. 776-77.
Generally, after loading the truck with cocaine, Dominguez would call Ordenes to arrange a pickup of legitimate items (such as wood or jacuzzis) for delivery to the East Coast. Tr. 776-77. Dominguez would typically deposit the cocaine in New York or New Jersey. If Ordenes gave Dominguez a shipment for delivery to the South or the Midwest, Dominguez would request a delivery location closer to New York. Tr. 777-78.
Dominguez made his first trip with cocaine in January 2003. Tr. 770-71. Once Dominguez arrived in New York, he met with a man named "Cali" and exchanged the cocaine for one million dollars. Tr. 778-80. Dominguez placed the money in the hidden trap and returned to California with a cargo of cars, which he dropped off at a lot owned by Petitioner Ordenes. Tr. 780-81.
On December 9, 2003, while on one of these trips, Dominguez was arrested in Illinois. Tr. 731.
On January 26, 2004, another truck driver, Cleofas Contreras Vazquez, transported cocaine for Garcia. See Government's Trial Exhibits ("GX") 41, GX 42, GX 45, GX 46. On February 2, 2004, Garcia, in several wiretapped telephone conversations, described how Vazquez was to pick up a Mitsubishi Montero. GX 46-50. During this time, Garcia and Petitioner Ordenes were taped having a conversation about Vazquez's pickup of the Mitsubishi. GX 51, GX 53. Garcia was also overheard during this time having conversations with an associate, Jose Fernando Salinas Garcia, regarding the quality of a previous cocaine shipment and the drug money that Vazquez was on his way to retrieve from the East Coast. GX 56; Tr. 814-15.
On February 4, 2004, New Jersey State Police Detective Robert Gaugler and two other detectives stopped Vazquez while he was driving a tractor-trailer with the Mitsubishi Montero loaded onto it. Tr. 106-08, 113-14. The detectives found $985,000 in cash inside the Mitsubishi. Tr. 139.
Petitioner Ordenes called Garcia the next morning, February 5, 2004, and asked Garcia to call him back from a different phone. GX 58. In the next 20 minutes, Garcia paged Jose Fernando Salinas Garcia twice. When Jose Fernando Salinas Garcia called Garcia back, Garcia told him "they got that guy with the money." GX 59-GX 61.
Garcia and Vazquez spoke on the phone approximately 10 times on February 9, 2004, each conversation regarding the police stop in New Jersey and the search of the Mitsubishi. GX 64-73. Ultimately, the two agreed that when Vazquez returned, they would have to meet with Garcia's associates to explain what happened at the police stop. GX 71; Tr. 815-17.
On February 9, 2004, Vazquez also telephoned Ordenes regarding the police stop in New Jersey. GX 75. Vazquez detailed the events of the police stop and the conversations that had gone on earlier that day between Vazquez and Garcia. Id. Ordenes expressed an interest in going to the meeting with Garcia's associates and Vazquez replied that it was not necessary because Ordenes had nothing to do with it. Id. Ordenes disagreed with Vazquez and stated that he was the first to notify Garcia about Vazquez being stopped. Id. Vazquez told Ordenes that the money in his truck was not found and that he was not sure if Garcia would make him return the money. Id.
Beginning on May 16, 2004, Garcia and Jose Fernando Salinas Garcia had conversations regarding the use of Ordenes as a driver for the organization. GX 78-80, GX 83. On June 4, 2004, Garcia asked Ordenes to transport loads for him. Ordenes told Garcia that he did not want to leave until the Department of Transportation stopped conducting random inspections that were occurring at that time. GX 84. On June 15, 2004, Ordenes and Garcia discussed whether Ordenes was being surveilled. GX 85-87. Ordenes told Garcia that he wanted to work again, and that he did not want any mistakes like there had previously been. GX 88. On June 17, 2004, Garcia told Ordenes about a Hummer truck that had to be picked up from someone who owed them a debt. GX 89. Several conversations over the next few days laid out Ordenes's trip to get the Hummer in Chicago. GX 91-93, GX 95-97. Ordenes met with a man named El Viejo on June 29, 2004, in Chicago, and picked up the Hummer. Id. A Hummer was later found near Garcia's house in a parking lot. Tr. 527, 555-56; GX 37.
B. Counsel's Pre-Trial Representation of Petitioner
Counsel David Elden ("Elden") represented Petitioner Ordenes throughout Ordenes' trial. Elden was introduced to Ordenes by Garcia's counsel, David Arrendondo. Hrg. 7-8, 75.*fn3 According to Elden, he happened to meet Arrendondo because both were in magistrate court on the same day. Hrg. 80. Arrendondo briefly described the nature of the case to Elden and explained that the case involved wiretaps. Hrg. 80. Ordenes, for his part, alleged that Arrendondo simply told him, Elden "will represent you." Ordenes Aff. ¶2.
It is undisputed that Elden is an experienced criminal defense lawyer. Elden testified that all of his cases are criminal, approximately 65% of which have been in the federal system. Hrg. 73. Elden testified that he had been the lead defense attorney in approximately 70 trials -- 25% of those federal criminal trials, and most of those involving narcotics conspiracies. Hrg. 6-7. Elden is currently a member of the board of directors for the National Association of Criminal Defense Lawyers, has lectured on the federal sentencing guidelines, and was a past president of the Criminal Courts Bar for Los Angeles. Hrg. 72-73. Elden was exonerated in the only ineffective assistance of counsel petition in which he was named. Hrg. 74. By his own admission, however, Elden is not experienced in Second Circuit caselaw. 12/13/05 Aff. of David A. Elden, ("Elden Aff.") ¶1.
Elden, Ordenes, and Ordenes' wife Debee Ordenes provide vastly conflicting accounts of Elden's pre-trial representation of Ordenes.
According to Elden, he first substantively met with Ordenes in the San Bernardino jail, outside of the presence of any others. Hrg. 78-79, 184-85.*fn4 At this meeting, Elden claims that he discussed with Ordenes, among other things, the indictment, the necessity for a wiretap suppression motion, and issues related to sentencing such as the possibility of a ten-year mandatory minimum sentence, the "safety valve" (i.e. the only way that Ordenes could receive less than the mandatory minimum),*fn5 downward departures, and that sentencing ranges were ultimately at the Judge's discretion based on evidence put forth at trial. Elden Aff. ¶2, 12. Elden, according to him, also explained to Ordenes conspiracy law, including the different methods of proving that one is a member of a conspiracy. Id. at ¶11.*fn6 Elden testified that he and Ordenes discussed the method for calculating the quantity of narcotics for which Ordenes could be held accountable for. Hrg. 15-16. They discussed Elden's $10,000 fee for representation at the bail hearing, which was the only thing Elden was retained for at the time. Hrg. 79-81. Ordenes, according to Elden, told Elden about his criminal history and work background in preparation for the bail hearing. Hrg. 82.
Ordenes, on his part, contends generally that these topics were not discussed at this meeting, nor at any subsequent pre-trial meetings. Ordenes Aff. ¶10.*fn7 Debee Ordenes generally agreed. Hrg. 151, 166.*fn8 Ordenes also claims that Elden never explained federal narcotics conspiracy law; his options to cooperate or plead guilty, nor the likelihood that the government would want to use a cooperating witness; nor the pros and cons of the option to testify on his own behalf, including that by virtue of his testimony, he could be found to have obstructed justice, which could result in an enhanced offense level.*fn9 Ordenes Aff. ¶10. Ordenes and his wife also claim that the "safety-valve" option was never explained to him at this time, and rather, was first discussed the weekend before the verdict in his case. Ordenes Aff. ¶10; Hrg. 164.
Elden hired John Brown & Associates, a private investigation firm, to assist in preparation for the bail hearing. Elden Aff. ¶2. According to Debee Ordenes, around this time, Elden called her to set up a meeting to discuss the bail proceedings. Hrg. 144. During this meeting, according to Debee, she gave investigators background information about herself, her husband, and her family. Hrg. 145. After the investigators concluded their questioning, Elden took her into another room to collect his agreed-upon $10,000 fee. Id.
Elden filed a motion for bail and represented Ordenes at a contested detention hearing. Hrg. 82-84. According to Elden, Ordenes did not testify at this hearing, and a bail package was set. Hrg. 83.
Elden remembered three separate meetings with Ordenes in his office between the time of Ordenes' release on bail, and Elden's departure for the suppression hearing in New York.*fn10 Hrg. 88-89.
Shortly after the bail hearing, Ordenes and his wife met with Elden to discuss whether or not Elden would represent Ordenes going forward.*fn11 Hrg. 84-85. As was his usual practice, Elden claimed that during this meeting, he discussed substantive areas of the case as well as his fee. Hrg. 19, 85, 97, 119. Elden claimed that he reiterated topics discussed at their earlier meeting, including the indictment, conspiracy law, Ordenes' options, and the Sentencing Guidelines. Hrg. 19, 85. Elden did not remember specifically discussing the constitutional right not to testify. However, Elden averred that it has always been his practice to do so with all clients. Elden Aff. ¶14. Elden claimed that during this meeting, Ordenes maintained his innocence, and told him he would not plead guilty to something he did not do. Id. at ¶3.*fn12 Ordenes alleges this meeting lasted only a half-hour and they only discussed Elden's fee. Ordenes Aff. ¶5. Debee Ordenes generally supports her husband's account. Hrg. 148.*fn13
During the time following this meeting, Elden was preparing a motion to suppress the wiretaps. Hrg. 86-87. At some point during this time, the Ordenes' received a phone call from Elden alerting them that the CD recordings of the wiretaps were ready to be picked up. When they picked up the CDs, according to Ordenes and Debee, Elden told them to review the CDs against the transcripts for any discrepancies in the translations. Ordenes Aff. ¶ 6-7; Hrg. 156, 159.*fn14 Ordenes and his wife believed that this meeting lasted only twenty minutes. Ordenes Aff. ¶7; Hrg. 156. Debee Ordenes recalled that at this meeting, Elden requested more money for costs. Hrg. 156.
According to Elden, at his next meeting with Ordenes, he explained the suppression motion he had drafted to Ordenes, and Ordenes signed an accompanying affidavit in support. Hrg. 88-89.*fn15 Elden then traveled to New York to argue the wiretap suppression motion, which he lost. Ordenes did not attend. Hrg. 91.
Ordenes alleged, and Debee Ordenes agreed, that he only had one other meeting with Elden in Los Angeles, on the Saturday prior to the trial in New York, totaling four meetings post-bond. Ordenes Aff. ¶8; Hrg. 147. Ordenes claimed that at this meeting, he again reviewed the CDs and transcripts with an investigator for five to six hours ...