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Garcia v. United States

April 20, 2010

JOSE ERNESTO GARCIA, PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1

OPINION& ORDER

On October 14, 2005, I sentenced petitioner Jose Ernesto Garcia ("Garcia"), following his conviction by a jury verdict, to 151 months' imprisonment. On April 18, 2008, Garcia filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Garcia seeks to vacate his sentence on the ground that his attorney rendered ineffective assistance of counsel. For the reasons below, Garcia's petition is DENIED.

I. BACKGROUND

A. Underlying Facts of Garcia's Conviction

1. Procedural Background

In a superseding indictment filed on March 29, 2005, Garcia was charged under 21 U.S.C. § 846 with one count of conspiring to distribute and to possess with intent to distribute five kilograms or more of cocaine. A jury trial began on April 13, 2005, and lasted until May 2, culminating in a guilty verdict. In an opinion dated August 18, 2005, this Court rejected Garcia's motion for a new trial, United States v. Garcia, 423 F.Supp.2d 101 (S.D.N.Y. 2005), and on October 14, 2005, sentenced him to 151 months' imprisonment followed by three years of supervised release. Garcia filed a timely appeal, in which he argued that he was prejudiced by this Court's suppression of impeachment material, that the Government did not properly obtain wiretap evidence, and that this Court abused its discretion in deciding to give an "Allen charge" to the jury.*fn2 In a summary order filed on April 18, 2007, the Second Circuit affirmed the judgment of this Court and sustained Garcia's conviction. United States v. Vazquez, 223 Fed. Appx. 43, 44 (2d Cir. 2007). This Petition followed.

2. Testimony of Jesus Dominguez, the Government's cooperating witness*fn3

At trial, the Government's proof established the existence of a triangular cocaine distribution enterprise: the drugs originated in Mexico, entered this country through the border to Southern California, and made their way to the Northeast United States, where they were delivered for distribution. A Government witness, Jesus Dominguez ("Dominguez"), provided many details of the fundamental elements of this operation. Dominguez made his living as a truck driver. In December of 2002, Dominguez was approached by Juan Garcia,*fn4 who asked if Dominguez had any interest in being a partner in a trucking business. Dominguez agreed and was soon hauling loads of machinery and building materials. Dominguez testified, however, that by January of 2003, Juan Garcia offered to pay Dominguez more money if he transported packages of cocaine in a hidden compartment in the truck. Dominguez said that, before his arrest, he made a total of between twelve and fifteen cocaine runs for Juan Garcia, transporting over 1,000 kilograms of cocaine to the East Coast, and between $10 million and $12 million in currency back to the West Coast.

After Dominguez was arrested on his last cross-country trip, he spoke with police and federal agents, pled guilty to transporting cocaine, forfeited a large sum of money to the United States, and signed a cooperation agreement with the Government. In this agreement, Dominguez agreed to testify against Garcia and others in the hope that such assistance might enable him to qualify for a lower sentence pursuant to United States Sentencing Guideline ("U.S.S.G.") 5K1.1.

Dominguez testified that he picked up the drugs for the last seven to ten trips from a house in Rancho Cucamonga, California. Dominguez first met Petitioner, Ernesto Garcia, at this "stash house." According to Dominguez, the house was sparsely furnished with only a sofa downstairs and possibly a radio boom box. Dominguez testified that, at first, the cocaine was packaged in "bricks" and was sitting in duffel bags in the stash house living room. Dominguez said that he counted the bricks of cocaine to make sure he knew how many to take and that Garcia was standing next to him as he did so. According to the testimony, Garcia then helped Dominguez carry the duffel bags out to a waiting van. The second time Dominguez returned to the stash house, Dominguez said that the drugs were in a living room closet. He also testified that there "was never anybody else besides me and him [Garcia]" present at the house.

On subsequent trips to the stash house, Dominguez learned that the cocaine was kept under the stairwell. The compartment under the stairwell contained up to 250-300 bricks of cocaine, stacked four or five high. During the trips to the stash house, Garcia, having loosened the floorboards to obtain access to the stairwell, would pass bricks of cocaine to Dominguez, who placed them in a duffel bag. Garcia would mark the bricks with numbers in order to keep track of how many packages remained in the house. Both Garcia and Dominguez wore gloves to avoid leaving any fingerprints. Garcia and Dominguez performed this ritual five or six times and Dominguez left each time with about 100 kilograms of cocaine.*fn5

Dominguez also testified that he delivered money to Garcia at his trailer on four or five occasions-a couple hundred dollars each time-but did not ask about its purpose. According to Dominguez, Juan Garcia said Garcia received the money to take care of the stash house so as not to "arouse attention" from the neighbors.

3. Testimony of Farhad Omidvar, the stash house landlord

Farhad Omidvar, the landlord of the property used to stash the cocaine, testified that he rented a single-family dwelling to Garcia in June, 2003. At that time, Garcia signed a year-long lease agreement. During the rental process, Garcia provided various personal data to Omidvar, including his social security number, telephone numbers, and employment information. Omidvar also ran a credit check on Garcia before renting to him and said that Garcia always paid his rent on time. Some time before the lease expired, Garcia sent a fax to Omidvar mentioning Garcia's wish to break the lease because he and his family were leaving the state. When Omidvar returned to the property to inspect it for damage, he said it appeared "untouched," that is, in the same condition in which it was rented. Omidvar noticed only some marks on the first floor carpet where a sofa had been, but ...


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