United States v. Guerrero
Opinion of the Court
MEMORANDUM
James Leon Guerrero appeals the district court’s denial of his 28 U.S.C. § 2255 motion. Guerrero was indicted on four counts in connection with the armed robbery of the Bank of Guam. At trial, the jury returned verdicts of acquittal on three of the counts and was hung on the count for conspiracy to commit armed bank robbery. At the subsequent trial for the conspiracy count, the jury returned a verdict of guilty, and Guerrero was sentenced to
Following the hearing, the district court again denied Guerrero’s claim and he appealed. We consider Guerrero’s claim under the two-part standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Guerrero identifies three aspects of trial counsel’s representation as ■ deficient. First, Guerrero argues that defense counsel’s strategy was deficient because the two central components of the defense were inconsistent, and thus not credible, and were prejudicial to the jury. We are not persuaded that trial counsel’s strategy falls outside the wide range of professionally competent assistance.
Guerrero also argues that counsel’s representation was deficient because he was unaware of the safety-valve provision in 18 U.S.C. § 3559(c) that would have allowed Guerrero to avoid a life sentence. At the second trial the parties stipulated that the bank robbery had involved firearms and the use of violence. The government introduced substantial evidence of violence and the use of a gun as part of the conspiracy. Even if not precluded outright, Guerrero would have borne the burden of qualifying for the safety-valve. In the face of the stipulation and evidence, he does not explain how he would have met this burden.
Finally, Guerrero argues that counsel’s advice not to testify was deficient because it was based on a flawed understanding of the rule of collateral estoppel. Counsel advised Guerrero not to testify, in part, to avoid opening the door to impeachment with prejudicial evidence that had been previously suppressed. Guerrero argues that this advice was flawed because evidence barred under collateral estoppel would not have come in even had he testified. This analysis is incorrect. Evidence of prior acquitted conduct is admissible in a subsequent action under certain circumstances. Dowling v. United States, 493 U.S. 342, 348-49, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Thus, trial counsel’s advice not to testify was not deficient in this respect. Significantly, uncontroverted evidence supports the fact that Guerrero participated closely in preparing for his trial, was well aware of issues surrounding the decision not to testify, and was not prevented from testifying by counsel.
Even assuming that trial counsel’s representation had been deficient, in order
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Guerrero cites Bland v. California Dept., of Corr., 20 F.3d 1469 (9th Cir. 1994) for the proposition that “when ... inconsistencies also arise from the defense's own camp” the prejudice prong of Strickland is met. Id. at 1479. However, in Bland the inconsistent defense theories were evidence of other deficiencies, namely that defense counsel failed to appear on several occasions, was held in contempt and disbarred, failed to communicate entirely with his client, and was unaware of the substance of the central evidence in the case. Id. at 1474-75, 1479 n. 10.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff—Appellee v. James N. Leon GUERRERO, Defendant—Appellant
- Cited By
- 2 cases
- Status
- Published