United States v. Molina-Uribe

United States Court of Appeals
Fifth Circuit
F I L E D
August 24, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
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
______________________________
Before GARWOOD, SMITH, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Felipe Molina-Uribe was convicted of first
degree murder of a DEA agent and sentenced
to life imprisonment in 1987.1 In 1997 he filed
for relief under 28 U.S.C. § 2255. In March
2003, after a two-day evidentiary hearing, a
magistrate judge recommended that relief be
granted on the ground that Molina-Uribe’s
trial counsel was ineffective. The district court
adopted that recommendation and vacated the
conviction.
1 That life sentence is being served concurrently
with a cumulative sentence of thirty years that the
(continued...)
1(...continued)
district court imposed for drug trafficking and
firearm convictions.

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2
Although Molina Uribe’s trial defense was
at least arguably of questionable quality, we
and the district court must nonetheless observe
the standards for evaluating tactical decisions
as set forth in § 2255 and the associated case-
law. Under those standards, we reverse the
order granting § 2255 relief and remand for
further proceedings.
I.
A.
This case arises from the killing of DEA
Special Agent William Ramos by a drug traf-
ficker during an undercover drug deal. Some-
time before 3:00 p.m. on December 31, 1986,
in McAllen, Texas, Molina-Uribe and his
co-defendant, Jesus Garcia Nieto, were look-
ing for a buyer for over 300 pounds of mari-
huana. They met the other co-defendant,
Benito Cavazos-Lamas, in McAllen. Cavazos-
Lamas indicated that he knew a buyer. Mo-
lina-Uribe, without knowing that Roberto
“Raul” Ortiz was a paid undercover DEA in-
formant, arranged a meeting for Molina-Uribe,
Garcia Nieto, and Ortiz, who was accompa-
nied to the meeting by Ernesto Rodri-
guez-Ramirez, another paid undercover DEA
informer.
Ortiz, at various times between the first
contact by Cavazos-Lamas and completion of
the sale arrangements, communicated with the
DEA agents to obtain instructions as the ne-
gotiations progressed. The parties ultimately
arranged that Ramos, working undercover but
representing himself to be a New York drug
dealer, would be the buyer of the marihuana
and of a quantity of illegal pills. Delivery and
payment were to be made at 7:00 p.m. in the
parking lot of a supermarket.
Ramos, Ortiz, and Rodriguez-Ramirez ar-
rived at the parking lot in an undercover vehi-
cle at about 7:00 p.m. Molina-Uribe arrived
shortly thereafter in a van loaded with large
plastic bags containing the marihuana. Ortiz
and Rodriguez-Ramirez went to Molina-Uri-
be’s van to inspect the marihuana, then all
three men walked to the undercover vehicle
where Ramos was waiting in the driver’s seat.2
Molina-Uribe entered the rear seat of the car.
The plan was for Ramos and Molina-Uribe to
swap vehicles and later to re-exchange them
after Molina-Uribe had removed the money
from Ramos’s car and Ramos the marihuana
from Molina-Uribe’s van.
After a brief conversation about the money,
Ortiz and Rodriguez-Ramirez walked to the
rear of Ramos’s car to get the money from the
trunk so Molina-Uribe could inspect it. By
pre-arrangement, the lifting of the trunk lid
was the signal for a number of DEA agents to
converge o n Ramos’s vehicle. As the lid was
opened, Ortiz observed through the car’s rear
window that Ramos had turned in his seat,
drawn his revolver, and pointed it at Molina-
Uribe, whereupon Molina-Uribe grabbed Ram-
os and the revolver and attempted to wrest it
from Ramos. With the car shaking from the
struggle and Ramos calling for help, Ortiz and
Rodriguez-Ramirez sprang to assist Ramos.
Ortiz entered the car to help Ramos while
yelling they were federal drug agents, ordering
Molina-Uribe to release the gun and admon-
ishing him that he could get into serious prob-
lems if he failed to act as ordered. Rodriguez-
Ramirez remained outside on the right side of
2 The car was a government vehicle assigned to
DEA Special Agent Alvarez. The revolver that
Ramos used and with which he was ultimately shot
was issued to Alvarez; it was a second gun that
Alvarez kept on the door side of the driver’s seat of
his car. The revolver discharged four rounds
during the incident. Ramos was also carrying a
revolver, issued to him, but he did not discharge it.

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3
the car but leaned into it and began pulling on
Molina-Uribe’s boots. About then, the revolv-
er discharged; the shot struck Rodriguez-Ram-
irez in the hand, and he quickly retreated in
pain. Ortiz then repeated his order to Molina-
Uribe and told him that Ramos was a federal
agent. Ramos then said, “I already told him
that he is arrested and he does not want to pay
attention.”3
As the struggle for the gun continued, the
revolver discharged two more rounds. Again
Ortiz admonished Molina-Uribe to release the
gun and told him they were federal agents.
Ortiz said Molina-Uribe then made a statement
in Spanish indicating that he thought Ramos
and Ortiz were about to steal the marihuana
and hurt him. Finally, with Molina-Uribe in
possession of the gun and while Ramos had a
hand on Molina-Uribe’s wrist trying to push
the gun hand to the side, Molina-Uribe forced
the gun downward toward Ramos’s chest and
fired the fourth shot into his chest, fatally
wounding him.
DEA Agents Watkins and Alvarez arrived
at Ramos’s car almost immediately following
the final shot. Watkins entered the car and put
his revolver to Molina-Uribe’s head. Alvarez
removed Ramos’s gun from Molina-Uribe’s
left hand, and the agents took him into cus-
tody.
B.
Molina-Uribe, Cavazos-Lamas, and Garcia
Nieto were jointly charged in counts 1 and 2 of
a superseding indictment returned on Febru-
ary 21, 1987.4 Count 3, brought under 18
U.S.C. §§ 1111 and 1114, charged that Mo-
lina-Uribe, having been placed under arrest by
Ramos and while attempting to escape, mur-
dered Ramos, while Ramos was in the perfor-
mance of his official duties, by shooting him
with the agent’s revolver. Count 4 alleged
that during and in relation to the crime of vio-
lence described in count 3, Molina-Uribe used
the firearm described in that count in violation
of 18 U.S.C. § 924(c). Molina-Uribe pleaded
guilty to counts 1 and 2, and the jury convict-
ed him on counts 3 and 4.
C.
Molina-Uribe testified that he conveyed his
version of the incident to his attorneys, Ram-
irez and Connors,5 explaining the struggle be-
tween himself and the agents. The district
court appointed Ramirez to represent Molina
a week after the grand jury returned the indict-
ment. During pretrial motions Ramirez argued
that the case was complex, and he made a
3 Rodriguez was unable to testify concerning
Ortiz’s statements to Molina-Uribe or to Ramos’s
statement to Molina-Uribe, as testified by Ortiz,
because he was paying attention only to what he
was doing at the time.
4 Count 1, pursuant to 21 U.S.C. § 846, alleged
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-
lation of 21 U.S.C. § 841(a)(1). In count 2, the
three were charged with the substantive offense.
5 Molina-Uribe testified, at the evidentiary hear-
ing before the magistrate judge, that he arrived at
the location of the sting to complete a drug transac-
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
construed the drawn weapon as a violent threat to
shoot him and take the drugs. Throughout the
struggle he could not ascertain who had control of
the gun during each discharge, but instead he was
focused on avoiding the bullets.

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4
number of discovery requests. He sought the
appointment of Connors as additional counsel.
The court granted the requests.
The record indicates that Ramirez pursued
an unusual defense theory to which the various
litigators referred as the “conspiracy theory,”
the gist of which was that Ramos’s colleagues
disliked Ramos for a variety of reasons and
orchestrated the sting operation to assassinate
him. It is uncertain whether the theory
involved the agents’ shooting Ramos directly
or planting the gun hoping that Molina-Uribe
would kill Ramos with Alvarez’s revolver.
Counsel introduced little or no direct evidence
to support this theory.
Molina-Uribe testified that he did not un-
derstand his attorneys’ pursuit of this defense
in light of the absence of evidence to support
it. He also stated that he requested that his
attorney cease pursuing that theory and instead
advance a self-defense or accident theory, a
story conforming far better to the evidence and
his own testimony. He did not insist on
testifying.6
The district court’s instructions to the jury
included the issues of self-defense, accident,
and heat of passion. These matters were also
argued, albeit only quite briefly, by Connors in
closing argument.
II.
The Sixth Amendment guarantees criminal
defendants the effective assistance of counsel.
See Yarborough v. Gentry, 540 U.S. 1, 5
(2003). Section 2255 provides that a
prisoner in custody under sentence of a
court established by Act of Congress claim-
ing the right to be released upon the ground
that the sentence was imposed in violation
of the Constitution or laws of the United
States, . . . may move the court which im-
posed the sentence to vacate, set aside or
correct the sentence.
Molina-Uribe argues that his trial counsel’s
assistance was ineffective because they pur-
sued a far-fetched theory. To make a substan-
tial showing of the denial of his Sixth Amend-
ment right to reasonably effective assistance of
counsel, Molina-Uribe must satisfy the stan-
dard set forth in Strickland v. Washington, 466
U.S. 668, 686 (1984). He must therefore
demonstrate “that counsel’s performance was
deficient,” id. at 687, and that “the deficient
performance prejudiced [his] defense.” Id.7
To establish deficient performance, Molina-
Uribe “must show that counsel’s represen-
tation fell below an objective standard of rea-
sonableness.” Id. at 687-88. Our scrutiny of
counsel’s performance must be “highly defer-
ential.” Id. at 689. We must make every ef-
fort “to eliminate the distorting effects of hind-
sight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the
time.” Id. There is a “strong presumption that
counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id.
6 The magistrate judge’s report that the district
court adopted states that “[t]he Government points
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
exercise this right.” It appears that although Moli-
na-Uribe wanted to testify, he deferred to the ex-
pertise of his attorneys.
7 Because counsel’s performance was not con-
stitutionally deficient, we do not reach the prejudice
prong.

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The degree of deference we are to afford to
Molina-Uribe’s trial counsel obviously drives
the outcome of our deliberations. To prevail
on an ineffective assistance claim Molina-Uribe
must argue more than mere sub-optimal trial
tactics. Our role under § 2255 is not to audit
decisions that are within the bounds of pro-
fessional prudence.
A.
We “review a district court’s conclusions
with regard to a petitioner’s § 2255 claim of
ineffective assistance of counsel de novo.”8
We review § 2255 findings of fact for clear
error. United States v. Faubion, 19 F.3d 226,
228 (5th Cir. 1994). Any subsidiary findings
of basic, historical fact made by the district
court after a § 2255 evidentiary hearing are
subject to review under the clearly erroneous
standard of Federal Rule of Criminal Proce-
dure 52(a).9 In determining whether Molina-
Uribe received effective assistance of counsel,
we thus make an independent evaluation based
on the district court’s subsidiary findings. See
United States v. Rusmisel, 716 F.2d 301, 305
(5th Cir. 1983).
B.
Washington, 466 U.S. at 689-91, requires
us to assess the tactics of the attorneys against
what courts would expect from an attorney of
average competence. Alternately phrased, the
proper measure of attorney performance is
reasonableness under prevailing professional
norms. See Lyons v. McCotter, 770 F.2d 529,
533 (5th Cir. 1985). Although we give strong
deference to trial counsel’s tactical decisions,
see Washington, 466 U.S. at 689-91, those de-
cisions must stem from “reasoned strategic
judgment.” See Wiggins v. Smith, 539 U.S.
510, 534 (2003).
The record suggests that the district judge
held Ramirez and Connors in high regard. The
judge recognized Ramirez to be a very com-
petent, experienced, and well respected crim-
inal defense attorney. The judge chose Con-
nors as an additional counsel because he
viewed Connors as experienced in both crim-
inal trials and appeals.
We view counsel’s performance in light of
the fact that the case was very difficult to de-
fend. Trial counsel had to consider a number
of variables in the course of developing Mol-
ina-Uribe’s defense, not the least of which was
the potential sanctions associated with sub-
orning perjury. Counsel performed all nec-
essary investigation and discovery. Most of
the time, viable ineffective assistance claims
arise from some failure to pursue certain types
of evidence during discovery with sufficient
vigor.10
Molina-Uribe, however, does not question
the fervor with which trial counsel acquired
evidence; he instead doubts the theory pro-
pounded at trial, given the admissible evidence
8 United States v. Conley, 349 F.3d 837, 839
(5th Cir.2003) (citing United States v. Bass, 310
F.3d 321, 325 (5th Cir.2002); United States v.
Faubion, 19 F.3d 226, 228 (5th Cir.1994)).
9 These are facts “in the sense of a recital of
external events and the credibility of their narra-
tors.” Washington v. Watkins, 655 F.2d 1346,
1351 (5th Cir. Unit A Sept.1981).
10 See, e.g., United States v. Lampazianie, 251
F.3d 519, 527 (5th Cir. 2001) (discussing in dic-
tum, the viability of a § 2255 claim, the substance
of which involved how fervently the defendant’s
attorney sought information during discovery);
Matthew v. Johnson, 201 F.3d 353, 363 n.14 (5th
Cir. 2000). We, however, do not mean to imply
this is the only context in which such claims can or
do arise.

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his counsel collected. Various courts, at
different stages of this case, have remarked
that there was no admissible evidence support-
ing the conspiracy theory.11 The magistrate
judge’s report explains this:
In this case, there was no apparently sound
reason for counsel to predicate his client’s
entire defense on a theory that is not only
bizarre, but devoid of evidentiary underpin-
nings. This was not merely a flawed trial
tactic or a below par strategy. In essence,
there was no strategy when a completely
idiosyncratic theory of defense was used in
place of a viable and supportable theory.
These assertions, however, miss the point.
The soundness of the defense cannot be evalu-
ated in the relative vacuum of an appeal. Trial
counsel obviously had alternatives available to
them, and it seems they chose this particular
defense strategy because those alternatives ex-
posed Molina-Uribe and his attorneys to other
legal risks.
Thus, Molina-Uribe’s counsel had a per-
fectly legitimate reason to pursue unusual de-
fenses: Pursuing more conventional ones
would require putting Molina-Uribe on the
stand. Counsel’s concern about this was
acute, because Molina-Uribe had been tested
by a polygraph examiner, and his answers were
deceptive, suggesting any testimony based on
self-defense or any other customary theory
would constitute perjury.
Now, in pursuit of § 2255 relief, Molina-
Uribe places great significance on the follow-
ing passage from the prosecution’s closing
argument:
I am not sure that I was in the same court-
room with J.M. Ramirez when I was listen-
ing to his arguments here a moment ago.
What horse is the defense riding in this
case? According to Mr. Ramirez, Felipe
Molina didn’t even have the gun. He didn’t
shoot [Ramos]. According to Mr. Con-
nors, maybe it was an accident. Maybe it
was self-defense. Maybe it was voluntary
manslaughter . . . . What horse are they
going to ride, folks[?] . . . Why would J.M.
Ramirez say that Felipe Molina didn’t shoot
[Agent Ramos] when the evidence clearly
showed he did? . . . [W]hy would Mr.
Connors argue for self-defense or accident,
so find him not guilty, if he didn’t shoot the
gun? Because they don’t care how they get
that verdict.
We are puzzled by the repeated invocation of
this passage throughout the § 2255 litigation.
At least insofar as it bears on the ineffective
assistance claim, those comments help us very
little. Of course the prosecution is going to
characterize the defendant’s trial arguments as
incoherent—that is the government’s job. If
anything, the statement serves as an inadver-
tent testimonial to the presentation of self-de-
fense and accident theories—theories that
Molina-Uribe now insinuates were not argued.
The district court characterized Molina-
Uribe’s defense theory as “bizarre” and “de-
void of evidentiary underpinnings.” The court
11 See, e.g., United States v. Molina-Uribe, 853
F.2d 1193, 1200 (5th Cir. 1988) (“There was not
a scintilla of evidence to support this theory.”).
The government argues that trial counsel gathered
some information suggesting that an extramarital
affair and a pending case against the United States
Attorney General could furnish a motive for the
alleged DEA conspirators. The district court cor-
rectly excluded this evidence as irrelevant, so it
could not have formed the evidentiary basis for
counsel’s tactical decision to propound the conspir-
acy theory.

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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.

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