United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
WILLIAM L. OSTEEN, Jr., District Judge.
On July 5, 2012, Petitioner Salvador Santana Cabrera, a federal prisoner, filed a motion, and a supporting memorandum, seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in case number 1:09CR323-1. (Docs. 54, 55.) The Government has filed a Response (Doc. 64), and Petitioner has filed a Reply (Doc. 69). Petitioner has also filed a Motion for Leave to Exceed Page Limit (Doc. 68). The matter is now before the court for a ruling. See Rule 8, Rules Governing § 2255 Proceedings.
On September 28, 2009, Petitioner was indicted by a grand jury in the Middle District of North Carolina and charged in Count One with knowingly and falsely using a social security number not assigned to him in violation of 42 U.S.C. § 408(a)(7)(B) and in Count Two with aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). (Doc. 1.) Attorney George Crump ("Crump) was appointed to represent Petitioner. (Doc. 5.) After a three-day trial, Petitioner was found guilty on both counts. (12/17/09 Minute Entry; Doc. 27.) Sentencing was set and the case was subsequently reassigned to another judge of this court for sentencing. (2/26/10 Minute Entry.)
Petitioner was sentenced on May 18, 2010, in this case (1:09CR323-1) and another unrelated criminal matter (1:09CR122-1) in which Petitioner pled guilty to possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime. Consequently, Petitioner was sentenced to a total term of 171 months of imprisonment. (Doc. 37.) On June 9, 2010, Petitioner appealed. (Doc. 33.) Mr. Crump also represented Petitioner on appeal. On May 2, 2011, the United States Court of Appeals for the Fourth Circuit affirmed his judgment and sentence. (Docs. 49, 50.) United States v. Cabrera, 426 Fed.App'x 204 (4th Cir. 2011).
In summary, this case arises from Petitioner's misuse of a social security number. "Under the Government's theory of the case, [Petitioner] represented himself at a bank as Miguel Santiago, applied for a loan naming Santiago as the personal guarantor, and furnished Santiago's social security number in conjunction with the application. Thus, [Petitioner], with the intent to deceive the bank, falsely represented that the social security number was assigned to him (that is, his physical person), when in fact it was assigned to Santiago, in order to obtain a loan." Id. at 205-06.
Petitioner raises five claims in his section 2255 motion. First, in Ground One, Petitioner alleges "[c]ounsel was ineffective at trial for not asking for a mistrial and for appropriate curative instructions when a [Government] witness gave unsolicited, highly prejudicial testimony regarding Defendant's previous incarceration on unrelated charges." (Motion to Vacate (Doc. 54) at 4.) Second, in Ground Two, Petitioner contends "[c]ounsel was ineffective during the direct appeal phase for not challenging on appeal the [Government's] misconduct and the district court's errors regarding the improper testimony of the [Government's] witness concerning Defendant's incarceration." (Id. at 5.)
In Ground Three, Petitioner alleges that counsel was ineffective "before and during trial for failure to investigate, develop and present available evidence that persons other than the Defendant were responsible for the misuse of the social security number at issue." (Id. at 7.) In Ground Four, he alleges a Brady violation. (Id. at 8.) Last, Petitioner alleges that the prosecutor "knew or should have known that William Galipeau testified falsely regarding Galipeau's efforts to identify the Suntrust Bank employee that filled out and submitted the loan application." (Id. at 22.) The Government, in turn, denies each of these claims.
The first three claims, and part of the fourth claim, are based on alleged ineffective assistance of counsel during trial and appeal. To prove ineffective assistance of counsel generally, a petitioner must establish: (1) that his attorney's performance fell below a reasonable standard for defense attorneys, and (2) that he was prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). With respect to the first prong, the petitioner bears the burden of affirmatively showing that his counsel's performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688-89; Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). With respect to the second prong, the petitioner must show that prejudice resulted from the deficient performance, that is, that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability is one "sufficient to undermine confidence in the outcome." Spencer, 18 F.3d at 233 (citing Strickland, 466 U.S. at 694). To obtain a hearing or any form of relief, a habeas petitioner must come forward with some evidence that the claim might have merit. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrog'n on other grounds recog'd, Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999).
Claims of ineffective assistance of counsel on appeal are also judged using the Strickland test. See Lawrence v. Branker, 517 F.3d 700, 708-09 (4th Cir. 2008). Appellate counsel need not raise on appeal every non-frivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 752-53 (1983); see also Evans v. Thompson, 881 F.2d 117, 124 (4th Cir. 1989). Ineffective assistance of appellate counsel can be shown by demonstrating that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Bell v. Jarvis, 236 F.3d 149, 180 (4th Cir. 2000) (citation omitted).
Ground One - Ineffective Assistance at Trial
Petitioner contends counsel was ineffective for failing to request a mistrial and for curative instructions when a Government witness gave "unsolicited, highly prejudicial testimony regarding Defendant's previous incarceration on unrelated charges." (Motion to Vacate (Doc. 54) at 4.) For the reasons set forth below, this argument has no merit.
At trial, the Government called Miguel Santiago to testify. (Trial Tr., Dec. 15, 2009 (Doc. 41) at 95.) Santiago testified that he was Petitioner's barber, that he had known Petitioner for seven or eight years, and that he was godfather to the oldest child. (Id. at 99-100.) Sometime during 2006, Petitioner asked Santiago to go into business with him in remodeling and building houses. Santiago invested $200, 000 in the business. (Id. at 101-03.) Santiago gave a power of attorney to Petitioner; that power of attorney was apparently limited after November 30, 2006. (Id. at 105-07.) Santiago also reviewed a SunTrust loan document on which he (Santiago) was listed by name and social security number as a guarantor. (Id. at 107-08, 114-16.) Santiago testified that he did not give Petitioner authority to take out the loan or use him (Santiago) as a guarantor. (Id.) During Santiago's testimony, the following exchange occurred:
MR. CHUT: Now, after this document was executed, at some point did SunTrust Bank contact you?
SANTIAGO: After Mr. Santana went to prison -
MR. CRUMP: Object, Your Honor, move to strike.
THE COURT: It will be stricken. Disregard the statement.
MR. CHUT: Did you receive a letter from SunTrust Bank at some point?
SANTIAGO: After Mr. Santana went to jail -
MR. CRUMP: Object, Your Honor, move ...