USA v. Gamboa et al

1 All citations to the record are to the criminal docket,
case no. 3:02-cr-47-01.
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
Michael Gerald Gamboa, 	)
)
Petitioner, 	)
) 	Criminal No. 3:02-cr-47-01
vs. 	) 	Civil No. 3:07-cv-100
)
United States of America, 	)
)
Respondent. 	)
Memorandum Opinion and Order
Before the Court is a motion by petitioner, Michael Gerald
Gamboa (“Gamboa”), pro se, pursuant to 28 U.S.C. § 2255 (doc.
#436). 1 	Gamboa filed his petition on November 13, 2007 (doc.
#436), but the Court declined review pending his appeal with the
Eighth Circuit Court of Appeals. 	The Eighth Circuit has now
ruled on the appeal, and accordingly the Court may now rule on
the petition. 	For reasons set forth below, the § 2255 motion is
DENIED.
Gamboa has also filed a number of motions related to the §
2255 motion that the Court will address now. 	The Court first
notes that it is well-informed of the issues in this case due to
its extensive involvement over the past six and a half years. 	In
addition, the Court has considered Gamboa’s proposed expanded
record in its ruling, as well as his later filed supplements, and
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thus his Motion Seeking Leave to Expand the Record (doc. #440) is
GRANTED to that extent. 	However, Gamboa’s further briefing of
the issues is unnecessary. 	The § 2255 motion, along with the
files and records of the case, conclusively show that the
petitioner is entitled to no relief. 	See 28 U.S.C. § 2255(b).
Thus, Gamboa’s Motion for an Evidentiary Hearing (doc. #441) and
his Motion for an Oral Argument Hearing (doc. #443) are DENIED.
Necessarily, his Motion to Appoint Counsel (doc. #438) to
represent him in these hearings is also DENIED.
The Court finds that the issues are well-developed in
Gamboa’s § 2255 motion and further discovery is unwarranted.
Therefore, Gamboa’s Motion for Discovery (doc. #445) and Second
Motion for Discovery (doc. #454) are DENIED. 	In conjunction with
this ruling, Gamboa’s Motion for Transcripts of Proceedings (doc.
#442) and Motion to Compel Production of Records (doc. #444) are
also DENIED. 	Finally, Gamboa’s Motion Seeking Leave to Amend
(doc. #446) is DENIED. 	The Court has a sufficient basis in
Gamboa’s fifty-six page § 2255 motion, along with subsequently
filed supplements and the record before it, to fairly and
adequately address the issues below.
I. 	BACKGROUND
On September 13, 2002, the Government filed a superseding
indictment charging Gamboa with eight counts (doc. #62). 	Three
counts charged violations of Title 21 of the United States Code
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for controlled substance offenses. 	Four counts charged
violations of Title 18 of the United States Code for possession
of firearms and ammunition. 	The last count involved criminal
forfeiture under Title 21 of the United States Code.
The jury found Gamboa guilty on all counts on January 9,
2003 (doc. #226). 	Gamboa was sentenced to Life on Counts One and
Two, ninety days on Count Three, thirty years on Count Four, Life
on Count Five, and ten years on Counts Six and Seven. 	The
imprisonment on Counts One, Two, Three, Six, and Seven was set to
run concurrently, while the imprisonment on Count Four was set to
run consecutively to these counts. 	The Court also ordered that
Count Five would run consecutively to Count Four. 	Count Seven
was later vacated by the Eighth Circuit Court of Appeals.
II. 	INEFFECTIVE ASSISTANCE OF COUNSEL
The motion asserts forty-seven grounds for relief, although
in large part the arguments collectively charge ineffective
assistance of counsel. 	“A defendant faces a heavy burden to
establish ineffective assistance of counsel pursuant to section
2255.” 	United States v. DeRoo, 223 F.3d 919, 925 (8th Cir.
2000). 	First, the petitioner must show his attorney’s
representation was deficient and, second, he must show that the
attorney’s deficient performance prejudiced his case. 	Id. 	The
reasonableness of counsel’s conduct is judged at the time of the
challenged conduct. 	Strickland v. Washington, 466 U.S. 668, 690
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(1984). 	“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable . . . .” 	Id. 	In this case, Gamboa claims
numerous grounds of ineffective assistance of counsel. 	As
discussed below, the Court does not find Gamboa’s counsel was
deficient, but even if counsel was deficient, Gamboa suffered no
prejudice as a result of that deficiency.
A. 	Counsel’s Inadequacy or Failure to Move
Gamboa asserts multiple grounds of ineffective assistance
based upon his counsel’s allegedly inadequate motions, or the
absence of any motion at all. 	Mere errors of judgment or
mistaken choices of strategy by an attorney is not sufficient to
warrant a finding of ineffective assistance of counsel. 	U.S. v.
Meyer, 417 F.2d 1020, 1023 (8th Cir. 1969). 	In Meyer, the court
held that “the failure to move for suppression of the evidence is
a common trial tactic and was certainly reasonable.” 	Similarly,
Gamboa’s first three grounds, asserting that his counsel
inadequately moved to suppress evidence, do not warrant a finding
of ineffective assistance because they focus on his attorney’s
strategic choices in his trial. 	Motions to suppress are often
unsuccessful, and Gamboa provides no evidence to support a
contrary holding in this matter.
Gamboa also asserts his counsel provided ineffective
assistance by not moving to dismiss the indictment or seek other
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relief in relation to an alleged Sixth Amendment violation of the
Government. 	In a separate ground, he claims counsel failed by
not moving to dismiss the fugitive from justice count from the
indictment. 	Prejudice resulting from counsel’s failure to file a
motion occurs only if the motion would have been successful.
United States v. Johnson, 707 F.2d 317, 320 (8th Cir. 1983). 	The
indictment here was sufficient and thus Gamboa cannot show that a
motion to dismiss on these grounds would have been successful.
The same result is true of Gamboa’s claim that counsel
failed to move to dismiss charges against him on grounds of
outrageous Government conduct. 	Contrary to this assertion, there
is no evidence that the Government acted outrageously in pursuing
the charges, and any motion by counsel would have been denied.
Another ground states counsel was ineffective for failing to move
to dismiss the charges on the grounds that Government agents
destroyed exculpatory evidence. 	Gamboa cannot demonstrate any
prejudice based upon counsel’s failure to move for dismissal
because he cannot show the motion would have been granted. 	Id.
In ground six, Gamboa claims that his attorney failed to
file a motion to recuse the judge based on the security measures
taken in the trial. 	Recusal is required if the judge has a
personal bias against or in favor of a party, or if the judge’s
impartiality might be questioned. 	United States v. Martinez, 446
F.3d 878, 883 (8th Cir. 2006). 	In this case, the Court’s
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opinions were objectively based on facts introduced during the
proceedings, and thus recusal would not have been justified
because no deep-seated favoritism or antagonism was shown.
United States V. Sypolt, 346 F.3d 838, 839 (8th Cir. 2003).
Furthermore, Gamboa’s claim that counsel should have moved to
exclude co-conspirator testimony bearing on alleged threats made
against the Court fails because he cannot show that any proffered
motion would have succeeded.
B. 	Failing to Request and Object
Similar to his failure-to-move arguments above, Gamboa
argues his counsel was ineffective by failing to request or
object to certain issues. 	First, he claims counsel should have
requested a continuance to secure the presence of witnesses.
However, Gamboa fails to identify if these unnamed witnesses were
available to testify at trial, what specific information each
would provide, or how this information would change the outcome
of the case. 	Barnett v. Roper, 541 F.3d 804, 809 (8th Cir.
2008). 	Thus, no prejudice has been shown.
The same is true of grounds nine and forty-six, in which
Gamboa challenges the failure to call Steven Light as a witness
and the relationship of counsel to Mr. Light. 	While Gamboa
alleges that Light would testify to the fugitive from justice
count, he again neglects to mention how this information would
change the outcome of the case. 	Id. 	Consequently, there is no
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suggestion of prejudice by counsel’s failure to call Mr. Light or
the relationship between the two.
Ground twenty-five, which claims that the Court violated
Gamboa’s rights by excluding the testimony of Jim Becker, also
fails. 	Gamboa loosely frames this as an ineffective assistance
claim, despite its focus on the Court’s actions. 	Regardless of
this discrepancy, counsel was not ineffective for not challenging
the Court’s holding because Gamboa cannot show this would have
been successful or changed the outcome in any way.
In grounds seventeen and eighteen, Gamboa states that he
received ineffective assistance by counsel’s failure to
challenge, at sentencing, the validity of his prior convictions.
If “a prior conviction used to enhance a federal sentence is no
longer open to direct or collateral attack in its own right
because the defendant failed to pursue those remedies while they
were available (or because the defendant did so unsuccessfully),
then . . . the defendant may not collaterally attack his prior
conviction through a motion under § 2255.” 	Daniels v. United
States, 532 U.S. 374, 382 (2001). 	Clearly, under Daniels, Gamboa
may not now challenge the validity of his prior convictions
because the presumption of validity that attached is conclusive.
In grounds twenty, twenty-one, and twenty-four, Gamboa
challenges his counsel’s action or inaction related to Government
Exhibit 42, which he asserts was prejudicial. 	The exhibit dealt
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2 	See grounds five, twenty-six, twenty-eight, twenty-nine,
thirty, thirty-one, thirty-five, thirty-nine, and forty.
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with a warrant that was issued for a probation violation.
Contrary to Gamboa’s assertions, counsel did not fail to exercise
reasonable diligence and skill by failing to object to this
exhibit. 	The evidence under Exhibit 42 was relevant and
admissible pursuant to Federal Rule of Evidence 402, and it
should not have been excluded.
Finally, Gamboa claims his counsel was ineffective on oral
arguments on appeal for failing to correctly answer questions
regarding service of a warrant, and for failing to request a new
trial. 	Gamboa invokes a “retroactive misjoinder” argument, by
which he must demonstrate that he was subject to clear prejudice.
United States v. Aldrich, 169 F.3d 526, 528 (8th Cir. 1999). 	As
stated above, the matter before the Court is whether counsel was
deficient and whether Gamboa suffered prejudice as a result, and
once again, he cannot show counsel’s motion for a new trial, if
made, would have been granted. 	See Id. (holding that a new trial
is necessary to avoid a miscarriage of justice).
C. 	Theory of the Defense
Gamboa’s multiple grounds discussed above relate to alleged
inaction on the part of counsel in advocating his case. 	On the
other hand, Gamboa challenges the defense theory tactics that
were provided by counsel. 2 	Each of these grounds concern an
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3 	See grounds eight, eleven, twelve, thirteen, fourteen,
sixteen, nineteen, and forty-seven.
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aspect of the defense theory that Gamboa now finds insufficient.
Gamboa’s complaints in themselves are not adequate, however,
because he must show that counsel’s representation fell below an
objective standard of reasonableness. 	Strickland, 455 U.S. at
687. 	This is a tough burden to meet because counsel’s
performance is presumably within a wide range of reasonable
assistance, particularly when analyzing issues regarding trial
strategy, which are “virtually unchallengable.” 	Id. at 690.
Here, counsel fulfilled its advocacy role by its choice and
pursuit of an appropriate theory of defense. 	Despite Gamboa’s
second-guessing at this time, counsel’s choices were a matter of
discretion that will not be criticized by the Court after the
fact. 	To the contrary, the Court notes that Gamboa’s attorneys
were competent, able, and effective in presenting a defense.
Accordingly, Gamboa’s defense theory grounds must fail.
D. 	924(c) Issues
A major issue in Gamboa’s case is the application of 18
U.S.C. § 924(c), which provides for an enhanced sentence for
using or carrying a firearm during a drug trafficking crime, or
possessing a firearm in furtherance of such crime. 	Gamboa
challenges several aspects related to section 924(c). 3 	These
challenges are misguided, however, because even if counsel had
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taken Gamboa’s proposed measures, the result would not have
changed. 	The jury was properly instructed on the “use” and
“possession” elements of the offense, and the Court properly
applied subsection (c)(1)(D)(ii), which provides that “no term of
imprisonment imposed on a person under this subsection shall run
concurrently with any other term of imprisonment imposed on the
person, including any term of imprisonment imposed for the crime
of violence or drug trafficking crime during which the firearm
was used, carried, or possessed.” 	This is precisely what the
Court did in Gamboa’s sentencing.
This is also an area, like many others in Gamboa’s § 2255
motion, where the underlying issue was affirmed on appeal by the
Eighth Circuit Court of Appeals in United States v. Gamboa, 439
F.3d 796 (8th Cir. 2006). 	Gamboa attempts to circumvent many of
his claims which have been decided on appeal by labeling them as
ineffective assistance of counsel claims. 	See Dall v. United
States, 957 F.2d 571, 572 (8th Cir. 1992) (“Claims which were
raised and decided on direct appeal cannot be relitigated on a
motion to vacate pursuant to 28 U.S.C. § 2255"). 	While the Court
will regard these 924(c) claims as ineffective assistance of
counsel claims, as Gamboa alleges, they still must fail because
Gamboa cannot meet his heavy burden of showing that counsel’s
performance was deficient and that it prejudiced his case.
DeRoo, 223 F.3d at 925. 	Both the Court and the Eighth Circuit
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ruled in favor of presenting the 924(c) claims to the jury in the
way that was conducted. 	Thus, because the claims were correct as
a matter of law, counsel would not have succeeded in challenging
the claims as Gamboa suggests.
E. 	Security Measures
Gamboa’s seventh ground relies on the “extra visible
security measures” which he claims deprived him of a fair trial.
While the Court believes this ground, similar to many others
Gamboa asserts, is questionably disguised as an ineffective
assistance claim, the end result remains the same. 	“When defense
counsel vigorously represents his client’s interests and the
trial judge assiduously works to impress jurors with the need to
presume the defendant’s innocence, we have trusted that a fair
result can be obtained.” 	Holbrook v. Flynn, 475 U.S. 560, 567
(1986). 	Gamboa mistakenly presumes that he was prejudiced
because of the security measures taken during his trial. 	He has
shown no resulting prejudice, however, particularly from an
ineffective assistance standpoint, because his attorneys
continually advocated for his innocence and his best interests
throughout trial.
F. 	Plea Advice
In grounds thirty-eight and forty-four, Gamboa insists that
counsel was ineffective for failing to provide proper advice
during plea negotiations. 	The Supreme Court established that
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where “a defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice was
within the range of competence demanded of attorneys in criminal
cases.” 	Hill v. Lockhart, 474 U.S. 52, 56 (1985). 	The analysis
does not turn upon a court’s retrospective consideration of
whether counsel’s advice was right or wrong. 	McMann v.
Richardson, 397 U.S. 759, 770-71 (1970). 	In this case, the Court
cannot find that counsel’s advice was outside the range of
competence that is demanded. 	Gamboa even admits that counsel
held question and answer sessions “informing me of the pros and
cons of pleading guilty.” 	This is also confirmed by a letter
included in Gamboa’s proposed expanded record from counsel to
Gamboa, which describes the efforts of counsel to review the
Government’s offer and Gamboa’s subsequent rejection.
Furthermore, Gamboa’s ultimate decision to plead not guilty,
rather than guilty, ensured that he did not forego his right to
trial or other associated rights. 	While it is convenient to now
say that he received improper plea advice because of the results
of the trial, it does not rebut the presumption that counsel are
presumed to be competent. 	Counsel exercised this competence by
advising the petitioner of the pros and cons of a guilty plea,
and thus Gamboa fails to meet the first prong under Strickland.
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4 	See grounds twenty-three, twenty-seven, thirty-two,
thirty-four, forty-one, forty-two, and forty-three.
13
G. 	Issues Directed Toward the Court
Finally, several grounds appear directed at the Court’s
alleged improprieties in handling the case. 4 	Once again, Gamboa
claims these matters were not raised on direct appeal because
they involve ineffective assistance of counsel. 	See Swedzinkski
v. United States, 160 F.3d 498, 500 (8th Cir. 1998) (“Because
[the petitioner] did not raise [his] claim at trial or on direct
appeal, the issue is procedurally defaulted”). 	To the extent
these claims do involve ineffective assistance of counsel, they
fail to meet the burden established in Strickland.
First, Gamboa challenges counsel’s failure to object to
select jury instructions provided by the Court. 	The Court has
broad discretion when it instructs the jury, and its instructions
must fairly and adequately submit the issues to the jury. 	United
States v. Garcia-Gonon, 433 F.3d 587, 591 (8th Cir. 2006). 	The
Court’s usual practice is to solicit proposed jury instructions
from counsel, although it maintains its discretion to ultimately
decide the substance and format of final jury instructions. 	In
this case, the Court fairly and adequately submitted instructions
to the jury regarding entrapment and public authority. 	See
United States v. Mason, 902 F.2d 1434, 1440-41 (9 th Cir. 1990);
United States v. Achter, 52 F.3d 753, 755 (8 th Cir. 1995); United
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States v. Parker, 267 F.3d 839, 843-44 (8 th Cir. 2001); Manual of
Model Criminal Jury Instructions for the District Courts of the
Eighth Circuit § 9.01 (2000). 	Therefore, Gamboa cannot show he
was prejudiced by any failure to object because the instructions
were lawfully presented to the jury and there is no suggestion
that the Court would have ruled in favor of an objection.
Gamboa’s other grounds directed at the Court concern further
matters involving discretion, including the Court’s procedures
regarding jury questioning, juror dismissal, and discovery
management. 	The Eighth Circuit has made clear that “[t]he
administration of discovery rules and court procedures are left
to the discretion of the trial court.” 	United States v. Banks,
494 F.3d 681, 685 (8th Cir. 2007). 	Pursuant to this discretion,
the Court conducted its trial procedure in a manner it saw fit
for proper adjudication of the case. 	Thus, yet again, Gamboa
cannot show that counsel was deficient by not objecting to these
procedures, or that any deficiency in objecting would have
yielded a different result. 	The Court is well-experienced in
trial matters similar to those confronted by Gamboa, and it is
clear that no prejudice has resulted from its rulings.
III. CONCLUSION
Gamboa’s grounds for relief fail to meet Strickland’s two-
pronged approach establishing ineffective assistance of counsel.
Counsel was competent and able in advocating on behalf of the
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petitioner and any alleged deficiencies in performance failed to
establish prejudice.
It is ordered that judgment is entered for the United States
of America and against Michael Gerald Gamboa and his motion
pursuant to 28 U.S.C. § 2255 be dismissed with prejudice. 	In
addition, the Court certifies that an appeal from the denial of
this motion may not be taken in forma pauperis because such an
appeal would be frivolous and cannot be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 444-445 (1962). 	Based
upon the entire record before the Court, dismissal of the motion
is not debatable, reasonably subject to a different outcome on
appeal, or otherwise deserving of further proceedings. 	Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983). 	Therefore, a
certificate of appealability will not be issued by this Court.
If Petitioner desires further review of his Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, he
may request the issuance of a certificate of appealability by a
circuit judge of the Court of Appeals for the Eighth Circuit in
accordance with Tiedeman v. Benson, 122 F.3d 518, 520-522 (8th
Cir. 1997).
IT IS SO ORDERED.
Dated this 12th day of December, 2008.
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