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United States v. Caballero-Perez

United States District Court, D. Nevada

May 17, 2017

The United States of America, Plaintiff
v.
Marco Antonio Caballero-Perez, Defendant

          AMENDED [1] ORDER DENYING MOTION TO VACATE SENTENCE [ECF NO. 155]

          Jennifer A. Dorsey United States District Judge.

         Marco Antonio Caballero-Perez moves to vacate his sentence under 28 U.S.C. § 2255. He contends that his counsel was constitutionally ineffective because (1) he failed to request a speedy trial, (2) he failed to provide Caballero-Perez with discovery materials; (3) he failed to provide a Spanish interpreter; and (4) he failed to arrange for the probation officer to interview Caballero-Perez, which resulted in the presentence investigation report being inaccurate.

         There is no merit to any of these arguments. Caballero-Perez has not shown that his counsel was ineffective. And even if he had, he has not shown that anything his counsel did prejudiced him. I thus deny his motion.

         Discussion

         To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and prejudice.[2] I “must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance, ” and a defendant must show that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.”[3] “[T]he standard for judging counsel's representation is a most deferential one” because “the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.”[4] “A reasonable tactical choice based on an adequate inquiry is immune from attack.”[5]

         All of Caballero-Perez's arguments fail on both the performance and prejudice prong: he has not shown that his counsel was deficient, and he has not shown that any deficiency prejudiced his case.[6]

         A. Failing to request a speedier trial

         Defendants have a right to a speedy trial.[7] In deciding whether a defendant's trial has been unduly delayed, I consider the “[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice.”[8]

         First, Caballero-Perez experienced little delay before his trial. He was indicted in November 2013 and his trial began a little under five months later. Second, the reason for the delay was mostly his own doing: he requested multiple continuances.[9] Finally, Caballero-Perez provides no evidence that he was prejudiced by this modest delay. Counsel was thus not ineffective for failing to make a speedy trial challenge.

         B. Failing to provide discovery materials

         Caballero-Perez next alleges that his counsel failed to share discovery materials from the case with him. But he offers no evidence to support this contention. He does not explain what materials were withheld, or how not having these materials prejudiced him. I thus cannot determine that his counsel was ineffective for failing to provide him with anything.

         C. Failing to provide an interpreter

         Caballero-Perez claims that the lack of an interpreter for meetings with his counsel prevented him from knowing “what did happen during and after trial, or during and after the appeal.”[10]But he knew what happened: a court-appointed interpreter was there for all of his court appearances, and the relevant documents were translated for him.[11] And once again, he fails to explain how not having an interpreter prejudiced him. He does not suggest, for example, that had he known about some information earlier, he would have raised a different argument to the court.

         D. Failing to request an interview with the ...


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