United States Court of Appeals
Fifth Circuit
F I L E D
August 24, 2005
In the
United States Court of Appeals Charles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 04-40534
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
FELIPE MOLINA-URIBE,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 1:87-CR-1-ALL
______________________________
Before GARWOOD, SMITH, and CLEMENT, degree murder of a DEA agent and sentenced
Circuit Judges. to life imprisonment in 1987.1 In 1997 he filed
for relief under 28 U.S.C. § 2255. In March
JERRY E. SMITH, Circuit Judge:* 2003, after a two-day evidentiary hearing, a
magistrate judge recommended that relief be
Felipe Molina-Uribe was convicted of first granted on the ground that Molina-Uribe’s
* 1
Pursuant to 5TH CIR. R. 47.5, the court has de- That life sentence is being served concurrently
termined that this opinion should not be published with a cumulative sentence of thirty years that the
and is not precedent except under the limited cir- district court imposed for drug trafficking and
cumstances set forth in 5TH CIR. R. 47.5.4. firearm convictions.
trial counsel was ineffective. The district court Ramos, Ortiz, and Rodriguez-Ramirez ar-
adopted that recommendation and vacated the rived at the parking lot in an undercover vehi-
conviction. cle at about 7:00 p.m. Molina-Uribe arrived
shortly thereafter in a van loaded with large
Although Molina Uribe’s trial defense was plastic bags containing the marihuana. Ortiz
at least arguably of questionable quality, we and Rodriguez-Ramirez went to Molina-Uri-
and the district court must nonetheless observe be’s van to inspect the marihuana, then all
the standards for evaluating tactical decisions three men walked to the undercover vehicle
as set forth in § 2255 and the associated case- where Ramos was waiting in the driver’s seat.2
law. Under those standards, we reverse the Molina-Uribe entered the rear seat of the car.
order granting § 2255 relief and remand for The plan was for Ramos and Molina-Uribe to
further proceedings. swap vehicles and later to re-exchange them
after Molina-Uribe had removed the money
I. from Ramos’s car and Ramos the marihuana
A. from Molina-Uribe’s van.
This case arises from the killing of DEA
Special Agent William Ramos by a drug traf- After a brief conversation about the money,
ficker during an undercover drug deal. Some- Ortiz and Rodriguez-Ramirez walked to the
time before 3:00 p.m. on December 31, 1986, rear of Ramos’s car to get the money from the
in McAllen, Texas, Molina-Uribe and his trunk so Molina-Uribe could inspect it. By
co-defendant, Jesus Garcia Nieto, were look- pre-arrangement, the lifting of the trunk lid
ing for a buyer for over 300 pounds of mari- was the signal for a number of DEA agents to
huana. They met the other co-defendant, converge on Ramos’s vehicle. As the lid was
Benito Cavazos-Lamas, in McAllen. Cavazos- opened, Ortiz observed through the car’s rear
Lamas indicated that he knew a buyer. Mo- window that Ramos had turned in his seat,
lina-Uribe, without knowing that Roberto drawn his revolver, and pointed it at Molina-
“Raul” Ortiz was a paid undercover DEA in- Uribe, whereupon Molina-Uribe grabbed Ram-
formant, arranged a meeting for Molina-Uribe, os and the revolver and attempted to wrest it
Garcia Nieto, and Ortiz, who was accompa- from Ramos. With the car shaking from the
nied to the meeting by Ernesto Rodri- struggle and Ramos calling for help, Ortiz and
guez-Ramirez, another paid undercover DEA Rodriguez-Ramirez sprang to assist Ramos.
informer.
Ortiz entered the car to help Ramos while
Ortiz, at various times between the first yelling they were federal drug agents, ordering
contact by Cavazos-Lamas and completion of Molina-Uribe to release the gun and admon-
the sale arrangements, communicated with the
DEA agents to obtain instructions as the ne-
2
gotiations progressed. The parties ultimately The car was a government vehicle assigned to
arranged that Ramos, working undercover but DEA Special Agent Alvarez. The revolver that
representing himself to be a New York drug Ramos used and with which he was ultimately shot
was issued to Alvarez; it was a second gun that
dealer, would be the buyer of the marihuana
Alvarez kept on the door side of the driver’s seat of
and of a quantity of illegal pills. Delivery and
his car. The revolver discharged four rounds
payment were t o be made at 7:00 p.m. in the during the incident. Ramos was also carrying a
parking lot of a supermarket. revolver, issued to him, but he did not discharge it.
2
ishing him that he could get into serious prob- B.
lems if he failed to act as ordered. Rodriguez- Molina-Uribe, Cavazos-Lamas, and Garcia
Ramirez remained outside on the right side of Nieto were jointly charged in counts 1 and 2 of
the car but leaned into it and began pulling on a superseding indictment returned on Febru-
Molina-Uribe’s boots. About then, the revolv- ary 21, 1987.4 Count 3, brought under 18
er discharged; the shot struck Rodriguez-Ram- U.S.C. §§ 1111 and 1114, charged that Mo-
irez in the hand, and he quickly retreated in lina-Uribe, having been placed under arrest by
pain. Ortiz then repeated his order to Molina- Ramos and while attempting to escape, mur-
Uribe and told him that Ramos was a federal dered Ramos, while Ramos was in the perfor-
agent. Ramos then said, “I already told him mance of his official duties, by shooting him
that he is arrested and he does not want to pay with the agent’s revolver. Count 4 alleged
attention.”3 that during and in relation to the crime of vio-
lence described in count 3, Molina-Uribe used
As the struggle for the gun continued, the the firearm described in that count in violation
revolver discharged two more rounds. Again of 18 U.S.C. § 924(c). Molina-Uribe pleaded
Ortiz admonished Molina-Uribe to release the guilty to counts 1 and 2, and the jury convict-
gun and told him they were federal agents. ed him on counts 3 and 4.
Ortiz said Molina-Uribe then made a statement
in Spanish indicating that he thought Ramos C.
and Ortiz were about to steal the marihuana Molina-Uribe testified that he conveyed his
and hurt him. Finally, with Molina-Uribe in version of the incident to his attorneys, Ram-
possession of the gun and while Ramos had a irez and Connors,5 explaining the struggle be-
hand on Molina-Uribe’s wrist trying to push tween himself and the agents. The district
the gun hand to the side, Molina-Uribe forced
the gun downward toward Ramos’s chest and
4
fired the fourth shot into his chest, fatally Count 1, pursuant to 21 U.S.C. § 846, alleged
wounding him. the co-defendants conspired to possess with intent
to distribute in excess of 100 kilograms of mari-
huana, a Schedule I controlled substance, in vio-
DEA Agents Watkins and Alvarez arrived
lation of 21 U.S.C. § 841(a)(1). In count 2, the
at Ramos’s car almost immediately following three were charged with the substantive offense.
the final shot. Watkins entered the car and put
his revolver to Molina-Uribe’s head. Alvarez 5
Molina-Uribe testified, at the evidentiary hear-
removed Ramos’s gun from Molina-Uribe’s ing before the magistrate judge, that he arrived at
left hand, and the agents took him into cus- the location of the sting to complete a drug transac-
tody. tion with Ramos. Molina-Uribe testified that he
thought Ramos and the other agents were drug
dealers. Molina-Uribe did not take a gun to the
scene but noticed one in the car’s side pocket;
Ramos then turned with his gun drawn and, believ-
ing the men to be drug dealers, Molina-Uribe
3
Rodriguez was unable to testify concerning construed the drawn weapon as a violent threat to
Ortiz’s statements to Molina-Uribe or to Ramos’s shoot him and take the drugs. Throughout the
statement to Molina-Uribe, as testified by Ortiz, struggle he could not ascertain who had control of
because he was paying attention only to what he the gun during each discharge, but instead he was
was doing at the time. focused on avoiding the bullets.
3
court appointed Ramirez to represent Molina closing argument.
a week after the grand jury returned the indict-
ment. During pretrial motions Ramirez argued II.
that the case was complex, and he made a The Sixth Amendment guarantees criminal
number of discovery requests. He sought the defendants the effective assistance of counsel.
appointment of Connors as additional counsel. See Yarborough v. Gentry, 540 U.S. 1, 5
The court granted the requests. (2003). Section 2255 provides that a
The record indicates that Ramirez pursued prisoner in custody under sentence of a
an unusual defense theory to which the various court established by Act of Congress claim-
litigators referred as the “conspiracy theory,” ing the right to be released upon the ground
the gist of which was that Ramos’s colleagues that the sentence was imposed in violation
disliked Ramos for a variety of reasons and of the Constitution or laws of the United
orchestrated the sting operation to assassinate States, . . . may move the court which im-
him. It is uncertain whether the theory posed the sentence to vacate, set aside or
involved the agents’ shooting Ramos directly correct the sentence.
or planting the gun hoping that Molina-Uribe
would kill Ramos with Alvarez’s revolver. Molina-Uribe argues that his trial counsel’s
Counsel introduced little or no direct evidence assistance was ineffective because they pur-
to support this theory. sued a far-fetched theory. To make a substan-
tial showing of the denial of his Sixth Amend-
Molina-Uribe testified that he did not un- ment right to reasonably effective assistance of
derstand his attorneys’ pursuit of this defense counsel, Molina-Uribe must satisfy the stan-
in light of the absence of evidence to support dard set forth in Strickland v. Washington, 466
it. He also stated that he requested that his U.S. 668, 686 (1984). He must therefore
attorney cease pursuing that theory and instead demonstrate “that counsel’s performance was
advance a self-defense or accident theory, a deficient,” id. at 687, and that “the deficient
story conforming far better to the evidence and performance prejudiced [his] defense.” Id.7
his own testimony. He did not insist on
testifying.6 To establish deficient performance, Molina-
Uribe “must show that counsel’s represen-
The district court’s instructions to the jury tation fell below an objective standard of rea-
included the issues of self-defense, accident, sonableness.” Id. at 687-88. Our scrutiny of
and heat of passion. These matters were also counsel’s performance must be “highly defer-
argued, albeit only quite briefly, by Connors in ential.” Id. at 689. We must make every ef-
fort “to eliminate the distorting effects of hind-
sight, to reconstruct the circumstances of
6
The magistrate judge’s report that the district counsel’s challenged conduct, and to evaluate
court adopted states that “[t]he Government points the conduct from counsel’s perspective at the
to the record of the pre-trial suppression hearing,
which shows that Molina was aware of his right to
testify and upon advice of counsel, decided not to
7
exercise this right.” It appears that although Moli- Because counsel’s performance was not con-
na-Uribe wanted to testify, he deferred to the ex- stitutionally deficient, we do not reach the prejudice
pertise of his attorneys. prong.
4
time.” Id. There is a “strong presumption that what courts would expect from an attorney of
counsel’s conduct falls within the wide range average competence. Alternately phrased, the
of reasonable professional assistance.” Id. proper measure of attorney performance is
reasonableness under prevailing professional
The degree of deference we are to afford to norms. See Lyons v. McCotter, 770 F.2d 529,
Molina-Uribe’s trial counsel obviously drives 533 (5th Cir. 1985). Although we give strong
the outcome of our deliberations. To prevail deference to trial counsel’s tactical decisions,
on an ineffective assistance claim Molina-Uribe see Washington, 466 U.S. at 689-91, those de-
must argue more than mere sub-optimal trial cisions must stem from “reasoned strategic
tactics. Our role under § 2255 is not to audit judgment.” See Wiggins v. Smith, 539 U.S.
decisions that are within the bounds of pro- 510, 534 (2003).
fessional prudence.
The record suggests that the district judge
A. held Ramirez and Connors in high regard. The
We “review a district court’s conclusions judge recognized Ramirez to be a very com-
with regard to a petitioner’s § 2255 claim of petent, experienced, and well respected crim-
ineffective assistance of counsel de novo.”8 inal defense attorney. The judge chose Con-
We review § 2255 findings of fact for clear nors as an additional counsel because he
error. United States v. Faubion, 19 F.3d 226, viewed Connors as experienced in both crim-
228 (5th Cir. 1994). Any subsidiary findings inal trials and appeals.
of basic, historical fact made by the district
court after a § 2255 evidentiary hearing are We view counsel’s performance in light of
subject to review under the clearly erroneous the fact that the case was very difficult to de-
standard of Federal Rule of Criminal Proce- fend. Trial counsel had to consider a number
dure 52(a).9 In determining whether Molina- of variables in the course of developing Mol-
Uribe received effective assistance of counsel, ina-Uribe’s defense, not the least of which was
we thus make an independent evaluation based the potential sanctions associated with sub-
on the district court’s subsidiary findings. See orning perjury. Counsel performed all nec-
United States v. Rusmisel, 716 F.2d 301, 305 essary investigation and discovery. Most of
(5th Cir. 1983). the time, viable ineffective assistance claims
arise from some failure to pursue certain types
B. of evidence during discovery with sufficient
Washington, 466 U.S. at 689-91, requires vigor.10
us to assess the tactics of the attorneys against
8 10
United States v. Conley, 349 F.3d 837, 839 See, e.g., United States v. Lampazianie, 251
(5th Cir.2003) (citing United States v. Bass, 310 F.3d 519, 527 (5th Cir. 2001) (discussing in dic-
F.3d 321, 325 (5th Cir.2002); United States v. tum, the viability of a § 2255 claim, the substance
Faubion, 19 F.3d 226, 228 (5th Cir.1994)). of which involved how fervently the defendant’s
attorney sought information during discovery);
9
These are facts “in the sense of a recital of Matthew v. Johnson, 201 F.3d 353, 363 n.14 (5th
external events and the credibility of their narra- Cir. 2000). We, however, do not mean to imply
tors.” Washington v. Watkins, 655 F.2d 1346, this is the only context in which such claims can or
1351 (5th Cir. Unit A Sept.1981). do arise.
5
Molina-Uribe, however, does not question fenses: Pursuing more conventional ones
the fervor with which trial counsel acquired would require putting Molina-Uribe on the
evidence; he instead doubts the theory pro- stand. Counsel’s concern about this was
pounded at trial, given the admissible evidence acute, because Molina-Uribe had been tested
his counsel collected. Various courts, at by a polygraph examiner, and his answers were
different stages of this case, have remarked deceptive, suggesting any testimony based on
that there was no admissible evidence support- self-defense or any other customary theory
ing the conspiracy theory.11 The magistrate would constitute perjury.
judge’s report explains this:
Now, in pursuit of § 2255 relief, Molina-
In this case, there was no apparently sound Uribe places great significance on the follow-
reason for counsel to predicate his client’s ing passage from the prosecution’s closing
entire defense on a theory that is not only argument:
bizarre, but devoid of evidentiary underpin-
nings. This was not merely a flawed trial I am not sure that I was in the same court-
tactic or a below par strategy. In essence, room with J.M. Ramirez when I was listen-
there was no strategy when a completely ing to his arguments here a moment ago.
idiosyncratic theory of defense was used in What horse is the defense riding in this
place of a viable and supportable theory. case? According to Mr. Ramirez, Felipe
Molina didn’t even have the gun. He didn’t
These assertions, however, miss the point. shoot [Ramos]. According to Mr. Con-
The soundness of the defense cannot be evalu- nors, maybe it was an accident. Maybe it
ated in the relative vacuum of an appeal. Trial was self-defense. Maybe it was voluntary
counsel obviously had alternatives available to manslaughter . . . . What horse are they
them, and it seems they chose this particular going to ride, folks[?] . . . Why would J.M.
defense strategy because those alternatives ex- Ramirez say that Felipe Molina didn’t shoot
posed Molina-Uribe and his attorneys to other [Agent Ramos] when the evidence clearly
legal risks. showed he did? . . . [W]hy would Mr.
Connors argue for self-defense or accident,
Thus, Molina-Uribe’s counsel had a per- so find him not guilty, if he didn’t shoot the
fectly legitimate reason to pursue unusual de- gun? Because they don’t care how they get
that verdict.
11
See, e.g., United States v. Molina-Uribe, 853 We are puzzled by the repeated invocation of
F.2d 1193, 1200 (5th Cir. 1988) (“There was not this passage throughout the § 2255 litigation.
a scintilla of evidence to support this theory.”). At least insofar as it bears on the ineffective
The government argues that trial counsel gathered assistance claim, those comments help us very
some information suggesting that an extramarital little. Of course the prosecution is going to
affair and a pending case against the United States characterize the defendant’s trial arguments as
Attorney General could furnish a motive for the incoherent—that is the government’s job. If
alleged DEA conspirators. The district court cor-
anything, the statement serves as an inadver-
rectly excluded this evidence as irrelevant, so it
tent testimonial to the presentation of self-de-
could not have formed the evidentiary basis for
counsel’s tactical decision to propound the conspir-
fense and accident theories—theories that
acy theory. Molina-Uribe now insinuates were not argued.
6
The district court characterized Molina-
Uribe’s defense theory as “bizarre” and “de-
void of evidentiary underpinnings.” The court
stated, “In essence, there was no strategy
when a completely idiosyncratic theory of
defense was used in place of a viable and
supportable theory.” Although we appreciate
the court’s consternation, its denunciation of
Molina-Uribe’s defense is largely rhetorical
and, to the extent that it is not, it is factually
inaccurate.
There is no complaint or finding that de-
fense counsel wrongfully failed to discover or
present any evidence favorable to Molina-Uri-
be; or wrongfully failed to have excluded any
evidence harmful to him; or wrongfully con-
ceded any fact or point of law harmful to him;
or that the jury was not adequately instructed
on all elements of the offense and all available
defenses, including accident, self-defense, and
heat of passion. The entire essence of the
complaint of counsel’s performance is that
counsel only briefly argued accident, self-de-
fense, and heat of passion and instead over-
whelmingly emphasized the bizarre conspiracy
theory.
The district court asserts that there were
other “viable” and “supportable” theories but
ignores the fact that those theories would have
arguably required Molina-Uribe’s counsel to
suborn perjury. For us to grant Molina-Uri-
be’s petition on the ground that his attorneys’
tactical decisions were utterly without reason
at the time they were made would constitute
Monday-morning quarterbacking on a Thurs-
day.
The order granting § 2255 relief is
REVERSED, and this matter is REMANDED
for further proceedings as appropriate.
7