USA v. Arandas et al

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
GABRIEL MARTINEZ,
Defendant.
CRIMINAL CASE NO. 3:06-CR-14-17
CIVIL CASE NO. 3:14-CV-46
ORDER
INTRODUCTION
On April 24, 2014, defendant Gabriel Martinez filed a motion to vacate, set
aside, or correct a sentence by a person in federal custody pursuant to 28 U.S.C.
§ 2255 (“2255 petition”). 	(Docket 1411). 1 	On November 3, 2014, Chief Judge
Ralph R. Erickson entered a memorandum opinion and order. 	(Docket 1424).
Judge Erickson’s order denied Mr. Martinez’s 2255 petition with prejudice except
for two claims. 	Id. at p. 26. 	An evidentiary hearing was scheduled to address
the following: “(1) whether counsel forced Martinez to plead guilty; and
(2) whether counsel adequately prepared for trial.” 	Id. 	On May 7, 2015, Judge
Erickson filed an order of recusal. 	(Docket 1442). 	The case was assigned to
Chief Judge Jeffrey L. Viken of the United States District Court for the District of
South Dakota. 	Id. 	A hearing was held on Mr. Martinez’s 2255 petition on
1 All citations to the record will be to the criminal case, United States v.
Martinez, CR. 3:06-CR-14-17.
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October 14, 2015.2 	Post-hearing briefing was ordered and filed. 	For the
reasons stated below, Mr. Martinez’s 2255 petition is denied.
ANALYSIS
On December 6, 2007, defendant Gabriel Martinez and 27 co-defendants
were indicted in a multi-count fifth superseding indictment. 	(Docket 829). 	The
47-page indictment charged Mr. Martinez with the following offenses:
Count 1: 	Conspiracy to possess with intent to distribute and
distribution of methamphetamine;
Count 10: 	Possession with intent to distribute methamphetamine;
Count 15: 	Death caused by use of a firearm during a crime of
violence;
Count 16: 	Murder in furtherance of a continuing criminal
enterprise;
Count 18: 	Attempted escape from custody;
Count 21: 	Conspiracy to escape from custody; and
Count 25: 	Obstruction of justice.
Id.
2 At the beginning of the 2255 hearing, the court notified the parties that
Judge Viken had previously been the Federal Public Defender for the District of
North Dakota, that one of the Assistant Federal Defenders during that time
period represented a co-defendant in this case and that there were e-mail
exchanges between Mr. Viken and that staff attorney, as well as exchanges with
Attorney Thomas Dickson. 	Judge Viken had no independent recollection of his
limited involvement in the case. 	(Docket 1467 at pp. 6:22-9:6). 	After
consultation with counsel, Mr. Martinez waived any objection to Judge Viken
handling the 2255 proceeding. 	Id. at pp. 10:3-11:6.
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A jury trial began on April 7, 2008, for Mr. Martinez and two co-defendants
with Judge Erickson presiding. 	(Docket 985). 	Mr. Martinez was represented
by Attorneys Thomas Dickson and Daniel Gast. 	Id. 	During the course of the
third day of jury selection all three defendants decided to enter guilty pleas.
(Docket 987). 	Mr. Martinez expressed his intention to plead guilty without a
formal plea agreement with the government. 	Id. 	The trial court was advised
the government intended to argue in Mr. Martinez’s case for a life sentence and
Mr. Dickson would argue for a 30-year sentence. 	Id. at p. 1. 	The jury was
released at 9:35 a.m. and the change of plea hearing for Mr. Martinez was
scheduled for 11 a.m. that morning. 	Id. at p. 2. 	The details of the change of
plea hearing will be discussed later in this order. 	At sentencing, Judge Erickson
sentenced Mr. Martinez to life imprisonment on counts 1, 10, 15 and 16;
60 months on counts 18 and 21; and 120 months on count 25 with “all
sentences to run concurrently to the life sentence.” 	(Docket 1218 at p. 86:14-
19; see also Docket 1195 at p. 3).3
In his 2255 petition, Mr. Martinez asserts two principal claims of
ineffective assistance of counsel:
1. “[He] was improperly coerced into changing his plea[s] to guilty;”
3On February 5, 2010, the Eighth Circuit affirmed the judgment of the
district court in an unpublished per curiam opinion. 	United States v. Martinez,
364 Fed. Appx. 305 (8th Cir. 2010). 	On April 20, 2010, Mr. Martinez filed a
petition for a writ of certiorari in the United States Supreme Court. 	The
Supreme Court denied Mr. Martinez’s petition. 	Martinez v. United States,
560 U.S. 946 (June 1, 2010).
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and
2. “[His attorneys were not] adequately prepared for trial.”
(Docket 1485 at p. 2). 	He claims his attorneys were “ineffective because they
improperly coerced [him] to change his plea to guilty. 	[And they] continued to
provide ineffective assistance as they failed to adequately prepare for trial.” 	Id.
at p. 3. 	Mr. Martinez asserts that but for their ineffective assistance, he “almost
certainly [would] have elected to continue with trial.” 	Id. 	The government
opposes Mr. Martinez’s petition.4 	(Docket 1501).
BURDEN OF PROOF
The Sixth Amendment to the Constitution affords a criminal defendant the
right to assistance of counsel. 	The Supreme Court “recognize[s] that the right to
counsel is the right to effective assistance of counsel.” 	Strickland v.
Washington, 466 U.S. 668, 686 (1984) (internal quotation marks and citation
omitted). 	“When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation fell
below an objective standard of reasonableness.” 	Id. at 687-88. 	The defendant
must also show that counsel’s deficiencies prejudiced the defendant and affected
the judgment. 	Id. at 691. 	Stickland established a two-prong test to judge an
ineffective assistance of counsel claim:
4 The government asks the court to reverse Judge Erickson’s ruling that
after application of the equitable tolling principle Mr. Martinez’s 2255 petition
was timely filed. 	(Docket 1501 at pp. 17-21). 	This court finds no justification
for disturbing Judge Erickson’s reasoned opinion on timeliness.
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First, the defendant must show that counsel’s performance was
deficient. 	This 	requires 	showing 	that 	counsel 	made 	errors 	so
serious 	that 	counsel 	was 	not 	functioning 	as 	the 	‘counsel’
guaranteed the defendant by the Sixth Amendment. 	Second, the
defendant must show that the deficient performance prejudiced the
defense. 	This 	requires 	showing 	that 	counsel’s 	errors 	were 	so
serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. 	Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
Id. at 687.
“There is a presumption that any challenged action was sound trial
strategy and that counsel rendered adequate assistance and made all significant
decisions in the exercise of professional judgment.” 	Hall v. Luebbers, 296 F.3d
685, 692 (8th Cir. 2002). 	See also Delgado v. United States, 162 F.3d 981, 982
(8th Cir. 1998) (The burden of establishing ineffective assistance of counsel is on
the defendant, who must “overcom[e] the strong presumption that defense
counsel’s representation fell ‘within the wide range of reasonable professional
assistance.’ ”) (citing Strickland, 466 U.S. at 689). 	It is the petitioner’s burden
to overcome this presumption, and a “petitioner cannot build a showing of
prejudice on a series of errors, none of which would by itself meet the prejudice
test.” 	Hall, 296 F.3d at 692.
“Judicial scrutiny of counsel’s performance must be highly deferential.”
Strickland, 466 U.S. at 689. 	“Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
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challenged action ‘might be considered sound trial strategy.’ ” 	Id. (internal
citation omitted).
“[T]he two-part Strickland v. Washington test applies to challenges to
guilty pleas based on ineffective assistance of counsel.” 	Hill v. Lockhart,
474 U.S. 52, 58, (1985). 	“[I]n order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” 	Id. at 59. 	“[T]he determination whether the error ‘prejudiced’
the defendant by causing him to plead guilty rather than go to trial will depend
on the likelihood that discovery of the evidence would have led counsel to change
his recommendation as to the plea. 	This assessment, in turn, will depend in
large part on a prediction whether the evidence likely would have changed the
outcome of a trial.” 	Id. 	“Similarly, where the alleged error of counsel is a
failure to advise the defendant of a potential affirmative defense to the crime
charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether
the affirmative defense likely would have succeeded at trial.” 	Id. 	“[T]hese
predictions of the outcome at a possible trial, where necessary, should be made
objectively, without regard for the ‘idiosyncrasies of the particular
decisionmaker.’ ” Id. at 59-60 (citing Strickland, 466 U.S. at 695).
A 2255 petitioner “faces a heavy burden to establish ineffective assistance
of counsel . . . .” 	DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000).
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A. 	INEFFECTIVE ASSISTANCE-CHANGE OF PLEA
Five witnesses testified at the 2255 hearing: 	Ralph R. Erickson, Chief
Judge for the District of North Dakota; Thomas Dickson, Mr. Martinez’s lead trial
counsel; Daniel Gast, Mr. Martinez’s trial counsel; Mr. Martinez; and Attorney
Ross Brandborg. 	Mr. Martinez claims his testimony at the hearing supports his
allegations his attorneys were ineffective because they (1) represented that guilty
pleas would ensure less than a life sentence; (2) advised that if he did not plead
guilty, they would withdraw from his case; and (3) suggested that if he did not
plead guilty his brother, Alejandro Martinez, would be indicted. 	(Docket 1485 at
p. 3). 	The court will separately address each of Mr. Martinez’s claims.
1. 	PLEAS OF GUILTY WOULD RESULT IN A 30-YEAR SENTENCE
Mr. Martinez alleges he changed his pleas “only after considerable
encouragement from his counsel . . . in order to receive a sentence of thirty
years.” 	Id. at p. 4 (referencing Docket 1467 at p. 191). 	The essence of this
argument is that his attorneys told him there was no way the case could be won
at trial and if Mr. Martinez pled guilty, he at least had the potential to receive a
30-year sentence. 	Id. 	Mr. Martinez alleges his attorneys’ testimony “shows
counsel had no intention of putting forth a full and complete case, but also that
counsel encouraged [him] to enter an open plea of guilty in a case punishable by
life in prison.” 	Id. 	Mr. Martinez asserts because he was not “learned in the law
or fully appreciative of the trial process . . . [he] was not aware of the risks
associated with entering an open plea of guilty.” 	Id. 	He claims “he did not have
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a full appreciation that the prosecution was able to recommend a life sentence.”
Id. at pp. 4-5. 	Mr. Martinez argues his attorneys should have done more to
impress upon him the risks of a potential life sentence if he pled guilty. 	Id. at
p. 5. 	He claims that had he “known he would be solely at the mercy of the
Court, he would not have elected to plead guilty.” 	Id. at p. 5.
Mr. Dickson testified he had a good relationship with Mr. Martinez. 	“I
actually liked him very much. 	I enjoyed him. 	He was smart. 	He was
charming. . . . I liked him, in all honesty, I really liked him very much.” 	(Docket
1467 at p. 134:3-9). 	Mr. Dickson testified Mr. Martinez was never promised a
30-year sentence. 	Id. at pp. 69:24-70:2. 	Mr. Dickson insists he told Mr.
Martinez they were “hopeful, but not confident” he would get less than a life
sentence. 	Id. at pp. 70:23-71:2.
Mr. Gast met with Mr. Martinez frequently, especially after the authorities
moved him from Jamestown to Fargo where Mr. Gast practiced. 	Id. at
p. 147:12-18. 	He testified neither of the attorneys ever guaranteed Mr. Martinez
less than a life sentence. 	Id. at p. 150:19-24. 	Mr. Gast insists that neither of
them ever guaranteed Mr. Martinez any specific sentence. 	Id. 	Mr. Gast
adamantly declared “[a]solutely not” when asked if defense counsel guaranteed
Mr. Martinez a 30-year sentence. 	Id. at p. 246:1-3; see also id. at p. 151:5-8.
Mr. Dickson testified that had Mr. Martinez continued through trial he
would have gotten “life for sure.” 	Id. at p. 72:9-10. 	According to Mr. Dickson,
pleading guilty provided his client a “chance that he didn’t get life. 	That’s what
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the decision was about.” 	Id. at p. 72:10-12. 	Mr. Dickson testified Mr.
Martinez’s goal was to get something less than a life sentence. 	Id. at p. 73:2-4.
As Mr. Dickson put it:
What did he have to lose [by going to trial]? 	He had a chance, when
he changed his plea, to get less than life. 	If you go through a trial—
there were two young children in that mobile home that night, that
was part of the horror of this case, and they were going to be part of
the trial of that. 	That horror of these children and the photographs,
it was all going to be played out, and I didn’t think he had a chance
with the jury. 	I thought by the end of the trial the judge would be
where the jury would be. 	That was my opinion.
Id. at p. 129:7-16.
During the course of jury selection the defense team was notified that
co-defendant Alan Wessels had decided to enter into a plea agreement with the
government. 	Id. at p. 158:6-20. 	Mr. Gast went to the jail that evening and gave
the news to Mr. Martinez. 	Id. at pp. 158:24-159:3. 	“[I]t was at that point that
Mr. Martinez agreed to change his plea.” 	Id. at p. 159:3-4. 	As Mr. Dickson
explained the change of plea scenario:
It was his decision. 	I would—I’ve done this a long—I know lawyers,
defense 	lawyers, 	do 	it 	different. 	I 	don’t 	twist 	their 	arms. 	It’s
ultimately their life, it’s their choice. 	I give my opinion as to what I
think the outcome might be. 	I leave it up to them. 	And I support—
I didn’t twist his arm. 	It was his call. 	Nobody is going to coerce
Gabriel Martinez into doing anything he doesn’t want to do, not you,
not me, not anybody. 	That’s just the way he is.
Id. at pp. 76:22–77:5. 	Both Mr. Dickson and Mr. Gast forcefully deny Mr.
Martinez’s allegation that they promised him a 30-year sentence. 	Id. at
pp. 237:1-6 and 246:1-3.
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Mr. Dickson testified he never suggested his relationship with Judge
Erickson could ensure less than a life sentence. 	Id. at p. 66:24-67:15. 	Judge
Erickson described his limited social relationship with Mr. Dickson from several
years earlier and denied they had any relationship in which discussing
sentencing of Mr. Martinez off-the-record would be appropriate. 	Id. at pp.
31:5-34:22.
On April 9, 2008, at the beginning of the change of plea hearing, Mr.
Martinez was advised of the maximum sentences which could be imposed on
each of the seven counts. 	(Docket 1234 at pp. 3:18-5:17). 	That advisement is
summarized as follows:
Count 1: 	Conspiracy to possess with intent to distribute and
distribution of methamphetamine had a “maximum
term of imprisonment of life, [and] a mandatory
minimum 10-year term of imprisonment.” 	Id. at
p. 3:18-23;
Count 10: 	Possession with intent to distribute methamphetamine
had “a maximum term of imprisonment of life. . . .[and]
a mandatory minimum 10-year term of imprisonment.”
Id. at p. 4:3-8;
Count 15: 	Death caused by use of a firearm during a crime of
violence had “a maximum term of imprisonment of life
. . . . [and] a mandatory 10-year consecutive term to the
underlying conviction.” 	Id. at p. 4:10-15;
Count 16: 	Murder in furtherance of a continuing criminal
enterprise had “a maximum term of imprisonment of
life, [and] a minimum mandatory 20-year term of
imprisonment.” 	Id. at p. 4:18-23;
Count 18: 	Attempted escape from custody had “a maximum term of
imprisonment of five years.” 	Id. at p. 5:1-5;
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Count 21: 	Conspiracy to escape from custody had “a maximum
term of imprisonment of five years.” 	Id. at p. 5:8-11;
and
Count 25: 	Obstruction of justice had “a maximum term of
imprisonment of 10 years.” 	Id. at p. 5:14-17.
Because of the requirement for consecutive sentences, Mr. Martinez was advised
he faced a maximum sentence of life and a mandatory minimum sentence of
30 years. 	Id. at p. 5:21-23. 	Mr. Martinez acknowledged he understood the
maximum sentences and the mandatory minimum sentences which could be
imposed. 	Id. at p. 6:7-12.
The court advised Mr. Martinez of his constitutional rights. 	Id. at
pp. 11:11-19:14. 	Mr. Martinez acknowledged understanding his constitutional
rights as they were explained by the court. 	Id. at pp. 19:21-20-1. 	Mr. Martinez
was then placed under oath. 	Id. at p. 20:2-11. 	Mr. Martinez acknowledged
being able to read and write, that he had gone to college for a couple of years and
suffered from no learning disability. 	Id. at p. 20:12-23. 	He stated he had never
been treated or hospitalized for any mental illness, had not been treated for
chemical dependency, alcoholism, obsessive-compulsive disorder or depression
and was not having any difficulties understanding the hearing up to that point.
Id. at p. 21:5-15. 	Mr. Martinez told the court that he had no “difficulty
understanding or communicating with [his] lawyers.” 	Id. at p. 21:16-18.
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Judge Erickson addressed the present status of the case with
Mr. Martinez.
THE COURT: 	Obviously we got to the point where we’re in the
middle of trying to pick a jury and try this case so
I assume that you’ve had a chance to discuss this
case with your lawyer and that you’ve had a
chance to discuss the charges against you; is that
true?
DEFENDANT MARTINEZ: 	Yes, Your Honor.
THE COURT: 	Did 	he 	explain 	to 	you 	the 	Fifth 	Superseding
Indictment 	and 	the 	penalties 	that 	you 	faced
under that Indictment?
DEFENDANT MARTINEZ: 	Yes, he did, Your Honor.
THE COURT: 	Did he answer all of your questions about those
matters?
DEFENDANT MARTINEZ: 	Yes.
THE COURT: 	And do you feel like you understand what you’re
charged with and what the penalties are that you
face?
DEFENDANT MARTINEZ: 	Yes, Your Honor.
THE COURT: 	At some point did you give Mr. Dickson authority
to talk to the United States about—well, let’s step
back. 	You’re 	aware 	that 	there 	have 	been
ongoing discussions between your lawyer, Mr.
Dickson, and Mr. Myers on behalf of the United
States.
DEFENDANT MARTINEZ: 	Yes, Your Honor.
THE COURT: 	And 	I’ve 	been 	informed 	that 	there 	is 	no
arrangement or plea bargain that was ever made
in this case, Plea Agreement that was ever made
in this case, that this is a truly open plea; is that
true?
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DEFENDANT MARTINEZ: 	That’s correct, Your Honor.
THE COURT: 	You 	understand 	that 	the 	parameters 	of 	the
sentence, the range that we’re going to be talking
about at sentencing, is some period of years from
30 years to life and that that’s the sentencing
discretion that the Court will have on this open
plea. 	Do you understand that?
DEFENDANT MARTINEZ: 	Yes, Your Honor.
THE COURT: 	Now 	that 	means 	that 	under 	no 	circumstance
could 	I 	ever 	impose 	a 	sentence 	of 	less 	than
30 years. 	You understand that?
DEFENDANT MARTINEZ: 	Yes, Your Honor.
THE COURT: 	All right. 	And the guideline range in this case
may very well be a life sentence and in order for
me to go—while that’s simply advisory, I’ll have to
look at a bunch of facts and the statutes in order
to go anything less than that life sentence if that’s
what the guidelines say. 	You understand that?
DEFENDANT MARTINEZ: 	Yes, Your Honor.
THE COURT: 	And so that means that—and that’s not to say I
don’t have discretion. 	I want you to understand
that 	I 	understand 	that 	I 	know 	under 	United
States 	v. 	Gall 5 	I 	have 	discretion 	to 	impose 	a
reasonable sentence that is not less than the
mandatory 	minimum, 	which 	in 	this 	case 	is
30 more than the maximum sentence which is
life, okay? 	But by entering up this plea you
understand that you do face the possibility that I
could sentence you to life in prison and if that
happens 	that’s 	life 	without 	the 	possibility 	of
parole.
DEFENDANT MARTINEZ: 	Yes, Your Honor.
5 552 U.S. 38 (2007).
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THE COURT: 	Okay. 	Did you have a chance to discuss the
entry of this plea with your lawyer?
DEFENDANT MARTINEZ: 	Yes, Your Honor.
Id. at pp. 22:2-24:14. 	The court next addressed Mr. Martinez’s attorney, Mr.
Dickson, who stated that Mr. Martinez’s decision to enter guilty pleas was not
against counsel’s advice. 	Id. at p. 24:15-20.
As the court read each of the seven counts of the fifth superseding
indictment, Mr. Martinez entered guilty pleas. 	Id. at pp. 25:8-30:22. 	Mr.
Martinez reaffirmed his waiver of his rights to trial and the other constitutional
rights given up by his guilty pleas. 	Id. at pp. 30:23-32:3. 	Mr. Martinez
affirmed no one made any promises to get him to enter his guilty pleas and those
pleas were of his own free will. 	Id. at p. 32:4-10. 	Based on Mr. Martinez’s
statements under oath, the court made a finding that the changes of plea were
freely and voluntarily made. 	Id. at p. 32:11-16. 	A detailed factual basis for the
guilty pleas was provided by the government and Mr. Martinez acknowledged the
factual basis statement was accurate. 	Id. at pp. 32:17-38:4. 	The court found a
factual basis existed to support each of Mr. Martinez’s guilty pleas. 	Id. at p.
38:5-6.
Sentencing occurred on December 12, 2008. 	(Docket 1218). 	The
government called as a witness Detective Bradley Berg, a former member of the
area drug enforcement task force. 	Detective Berg provided a detailed summary
of Mr. Martinez’s drug activities within the time frame of the counts of conviction,
Mr. Martinez’s involvement in the shooting death of Mr. Avila including disposal
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of the murder weapon, and other evidence about the crimes. 	The agent testified
about Mr. Martinez’s attempted escape from the Cass County, North Dakota, jail.
Id. at 	pp. 9:13-37:13.
During the sentencing hearing, Mr. Martinez personally addressed the
court.
Your 	Honor, 	my 	name’s 	Gabriel 	Martinez, 	and 	I’m 	here 	today
because of the crimes I’ve committed, the mistakes I made in the
past, mistakes that I take full responsibility for. 	I took a man’s life,
and it’s something no man has a right to do. 	I don’t think there’s
anything 	today 	I 	could 	say 	or 	do 	to 	justify 	Mr. 	Avila’s 	death,
although I’d like to offer my sincere apology to his family that’s here
today and to the children. 	I’m sorry for not only taking the father, a
son and a brother. 	I couldn’t imagine losing a brother. 	I have
three of them and I couldn’t. 	I couldn’t imagine. 	I’m deeply sorry
for the two children that had to witness it. 	I really am. 	Like I said,
there’s nothing I can say or do to bring Mr. Avila back. 	I’m truly
sorry for their loss.
I’d also like to take the chance to apologize to the individuals that
were drug into this case later on, the escape attempt, to their
children and family, too. 	I have two kids, too, that will grow up
without me, and that kills me every day that I’m not with them.
I’d also like to apologize to my family and friends. 	I’m sorry I put
them through this mess.
Your Honor, I made—I made a lot of mistakes in my life, little
mistakes, big mistakes I could easily mend with a gift or flowers or
let 	time 	erase 	them, 	but 	unfortunately 	taking 	someone’s 	life,
irreplaceable, and all I ask is that I get out one day, if not for my
children, for my grandchildren.
That’s all, Your Honor. 	Thank you.
(Docket 1218 at pp. 76:13–77:16) (some capitalization omitted).
“Solemn declarations in open court carry a strong presumption of verity.
The subsequent presentation of conclusory allegations unsupported by specifics
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is subject to summary dismissal, as are contentions that in the face of the record
are wholly incredible.” 	Blackledge v. Allison, 431 U.S. 63, 74 (1977). 	A
“defendant’s representations during the plea-taking carry a strong presumption
of verity and pose a formidable barrier in any subsequent collateral proceedings.”
Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (internal citation
omitted). 	Allegations in the 2255 petition and Mr. Martinez’s testimony
contradicting his statements at the change of plea hearing and at sentencing are
“inherently unreliable.” 	United States v. Harris-Thompson, 751 F.3d 590, 603
(8th Cir. 2014). 	Mr. Martinez’s “failure to assert objections to counsel’s
performance at the change-of-plea hearing refutes any claim of ineffective
assistance of counsel as a basis for withdrawing the plea.” 	United States v.
Trevino, 829 F.3d 668, 672 (8th Cir. 2016).
The court finds no improper out-of-court or social relationship existed
between Judge Erickson and Mr. Dickson and that they never discussed Mr.
Martinez’s plea options outside of the record. 	The court further finds neither
defense attorney made any promises or guarantees that Mr. Martinez would
receive a 30-year sentence by pleading guilty.
The colloquy with Judge Erickson at the change of plea hearing discloses
Mr. Martinez knowingly, freely and voluntarily pled guilty to seven counts of the
indictment. 	Guilty pleas are valid if the court record affirmatively discloses the
plea was both voluntary and intelligent. 	Boykin v. Alabama, 395 U.S. 238, 242
(1969).
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Mr. Martinez’s “allegations that he was coerced to plead guilty by false
promises by his counsel fail[] to overcome the ‘strong presumption of verity’ that
attached to statements made in ‘open court.’ ” 	Nguyen, 114 F.3d at 704 (citing
Blackledge, 431 U.S. at 74). 	The court finds Mr. Martinez’s claims are “plainly
contradicted by the Rule 11 colloquy at [the] change-of-plea hearing.” 	Trevino,
829 F.3d at 672. 	See also United States v. Cruz, 643 F.3d 639, 643 (8th Cir.
2011) (“Many defendants face difficult choices about whether to plead guilty or
proceed to trial, and the potential consequences of the different options are
relevant to making that choice. 	An attorney’s assessment of the likely outcome
at a trial is one significant factor in a defendant’s informed decisionmaking
process. 	It does not amount to coercion that renders a plea involuntary.”).
The court finds Mr. Martinez’s testimony not credible in light of his sworn
change of plea statements and his allocution at the time of sentencing. 	The
court further finds the testimony of Judge Erickson, Mr. Dickson and Mr. Gast
credible and supported by the record. 	Mr. Martinez knowingly, voluntary and
intelligently pled guilty to all seven charges. 	Boykin, 395 U.S. at 242.
The court denies Mr. Martinez’s 2255 petition on this issue.
2. 	IF MR. MARTINEZ DID NOT PLEAD GUILTY, HIS ATTORNEYS WOULD
WITHDRAW AS TRIAL COUNSEL
Mr. Martinez alleges that from the moment Mr. Dickson took on the case
he was unprepared and unable to assist Mr. Martinez at trial. 	(Docket 1485 at
p. 5). 	He claims this is most evident by Mr. Dickon’s testimony that “from day
one when [Judge Erickson] started calling me I said I couldn’t do it by myself . . .
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That never changed.” 	Id. (referencing Docket 1467 at p. 92:14-17). 	When
coupled with his attorneys “urging . . . to plead guilty,” he argues Mr. Dickson’s
actions were “an indication he would withdraw representation should Mr.
Martinez proceed with trial.” 	Id. 	Mr. Martinez asserts these two factors gave
him “little faith that his counsel was fully invested in putting forth an adequate
defense at trial which was a substantial factor in his decision to change his plea
to guilty.” 	Id.
Mr. Martinez claims Mr. Dickson threatened to withdraw but could not
provide any specific details of how or when his attorney made that declaration.
(Docket 1467 at pp. 186:1-187:15). 	Mr. Dickson did file a motion to withdraw
on December 11, 2007. 	Id. at p. 94; see also Docket 827. 	He testified the
motion was filed to get Judge Erickson to appoint co-counsel, not with an
intention of withdrawing from the case.6 	(Docket 1467 at pp. 92:1-94:24 and
105:5-14). 	Mr. Dickson insists he never threatened to withdraw during trial to
force Mr. Martinez to plead guilty and Mr. Martinez’s statement to that effect “is
absolutely false.” 	Id. at pp. 105:17-20 and 237:7-17.
The court finds the testimony of Mr. Martinez not credible and Mr.
Dickson’s testimony credible on this issue. 	The court finds no threat was made
by Mr. Dickson to induce the changes of plea. 	The court denies Mr. Martinez’s
2255 petition on this issue.
6 Judge Erickson appointed Attorney Brandborg, but an associate in his
firm, Mr. Gast was co-counsel during pretrial discovery and at trial. 	(Docket
1467 at pp. 94:12-95:6; see also Docket 841.
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3. 	ALEJANDRO MARTINEZ WOULD BE INDICTED
Mr. Martinez claims he feared that his brother Alejandro would be indicted
if he did not plead guilty. 	He asserts this “was also an influential factor” in his
decision to change his pleas. 	(Docket 1485 at p. 6) (referencing Docket 1467 at
p. 185:20- 25). 	He claims his attorneys were ineffective because they did not tell
him whether there was any evidence to implicate Alejandro or how his brother
could be indicted. 	Id. 	He argues the attorneys’ silence on the matter permitted
his fear of Alejandro’s potential indictment “to fester.” 	Id. 	Because he feared
his brother’s indictment and his attorneys’ failed to communicate with him about
this concern, Mr. Martinez claims he chose to plead guilty. 	Id.
Mr. Martinez testified he had heard a drug conspiracy member, Martin
Carrillo, accused Alejandro of threating him, so when his brother’s name
appeared on the government’s witness list, Mr. Martinez thought his brother
might be in trouble. 	(Docket 1467 at p. 203:1-17). 	Mr. Martinez claims he pled
guilty to protect his brother. 	Id. at pp. 203:18-23.
Mr. Gast testified counsel told Mr. Martinez they assumed Alejandro was
on the government’s witness list because he visited Mr. Martinez in jail. 	Id. at
p. 165:3-10. 	Mr. Dickson testified Mr. Martinez’s statement was “false” that the
attorneys said things would “go bad” for Alejandro if Mr. Martinez did not plead
guilty. 	Id. at pp. 106:12-16 and 238:1-5.
The court finds the testimony of Mr. Martinez not credible and the
testimony of Mr. Dickson and Mr. Gast credible on this issue. 	The court finds
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Mr. Martinez’s desire to protect his brother was never conveyed to his attorneys.
His assertion that his attorneys failed to properly advise him on this issue, before
he entered the guilty pleas, is not credible. 	The court denies Mr. Martinez’s
2255 petition on this issue.
B. 	INEFFECTIVE ASSISTANCE-ATTORNEYS WERE NOT
PREPARED FOR TRIAL
1. 	FAILURE TO SUBPOENA EXCULPATORY WITNESSES FOR TRIAL
Mr. Martinez claims his attorneys failed to interview any witnesses and did
not issue trial subpoenas even though he “suggested at least three witnesses
which could provide helpful testimony.” 	(Docket 1485 at p. 7). 	According to
Mr. Martinez those witnesses included “a video of a young girl, who was witness
to the homicide,” but could not identify him “as the shooter”; a Cass County Jail
inmate whose statement identified “Mike Petzold, who was present at the scene
[and] claimed to be the shooter”; and a neighbor’s statement suggesting “that a
woman, not Alan Wessels, . . . was driving the vehicle after the homicide . . . .”
Id. 	Mr. Martinez argues these witnesses would cast doubt on his role as the
shooter in Mr. Avila’s murder. 	Id.
Presented as a sealed exhibit during the 2255 hearing was the forensic
interview of a then four-year-old female witness to the homicide. 	(Hearing
Exhibit 2). 	The child never identified the individual who entered the trailer and
shot Mr. Avila. 	Id.; see also Docket 1467 at p. 122:2-7. 	Mr. Dickson testified
the children present in the trailer could not identify the shooter and questioning
law enforcement officers about this matter would not have been helpful to his
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client’s case. 	(Docket 1467 at pp. 86:7-9 and 121:23-123:1). 	Mr. Martinez’s
allegation that this video supports his claim that his attorneys failed to properly
investigate this line of defense is without merit.
Mr. Gast investigated the jailhouse rumor that Mr. Petzold was the shooter
and concluded the rumor was without merit. 	“I remember looking at it and
finding out that there was really nothing in that. 	If anything, it was just
someone trying to be macho.” 	Id. at p. 243:16-25. 	Similarly, Mr. Dickson
testified that “if there was any plausible way of pointing the finger at somebody
else, we would have done that [accused someone else of the murder].” 	Id. at
p. 239:7-9. 	Mr. Martinez’s allegation his attorneys failed to properly investigate
this line of defense is without merit.
Mr. Gast testified about the possibility the getaway driver was a woman.
And I remember . . . some people said that they saw a woman driving
a car, and my recollection is that there was also another potential
car in the trailer park that night that people had said—I think a
different color car. 	They were in a black car and this was a white
car, vice versa. 	And as a brand-new attorney, I sunk my teeth into
that, and I had charts . . . we’re going to find out it’s this guy, and it’s
going to be one of those TV moments, and so it was a couple days
. . . [but] it just didn’t materialize. 	The other car was nothing, and
everything pointed back [at Alan Wessels]. 	And more interviews
kind of cleared up—the people who said they thought it was a
woman were [asked] “Well, are you sure?” [and they responded] “No,
of course we’re not sure.” 	It was very shaky ground. . . . I remember
the disappointment when I realized that that wasn’t a viable line to
bring to the trial.
Id. at pp. 244:14–245:7. 	Mr. Dickson testified Mr. Gast thoroughly investigated
the neighbor’s statement that the getaway driver was a woman, but the
statement “wasn’t credible. . . . It was clear Alan Wessels was the driver.” 	Id. at
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p. 239:17-24. 	Mr. Martinez’s allegation that his attorneys failed to properly
investigate and assert this line of defense is without merit.
The attorneys properly investigated all three witnesses offered by Mr.
Martinez and their strategic decisions not to pursue these lines of inquiry at trial
do not constitute ineffective assistance of counsel. 	Strickland, 466 U.S. at 689.
Beyond these three unhelpful witnesses, Mr. Martinez “makes no substantial
argument that a more diligent investigation by his attorney[s] would have
provided any information beneficial to [his] case.” 	Benson v. United States, 552
F.2d 223, 225 (8th Cir. 1977).
The court denies Mr. Martinez’s 2255 petition on this issue.
2. 	COUNSEL WERE NOT ZEALOUS ADVOCATES
Mr. Martinez argues because Mr. Dickson did not want to take the criminal
case appointment, particularly without co-counsel, this was evidence of a lack of
zealousness. 	(Docket 1485 at p. 8). 	Because his case involved “over 47,000
pages” of documents, together with “numerous video and audio recordings,” Mr.
Martinez claims Mr. Dickson “was overwhelmed” and this “affected his ability to
adequately represent” him at trial. 	Id. 	Mr. Martinez claims Mr. Dickson’s
sense of being overwhelmed continued even after co-counsel was appointed. 	Id.
According to Mr. Martinez, the ultimate effect of Mr. Dickson being overwhelmed
was to pressure him to plead guilty. 	Id.
Mr. Dickson practiced criminal law for over 30 years in both federal and
state courts in North Dakota. 	(Docket 1467 at p. 127:5-14). 	His practice
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included a significant number of complex criminal cases, many being jury trials
which resulted in acquittals. 	Id. at pp. 127:24-128:4. 	His trial experience
included defending defendants in murder cases in state and federal court. 	Id. at
p. 81:3-5.
Judge Erickson testified as to why he appointed Mr. Dickson to represent
Mr. Martinez: 	“I needed to find a senior lawyer who had done extensive criminal
practice, and someone who understood federal criminal law.” 	Id. at p. 26:8-11.
The judge was aware of Mr. Dickson’s busy trial practice, but was confident he
had the ability to adequately represent Mr. Martinez. 	Id. at pp. 28:14-29:1.
Mr. Gast was a recent law school graduate, but spent time as a law clerk
for a well-respected North Dakota criminal defense attorney. 	Id. at pp. 145:16-
146:3. 	Mr. Dickson testified the experience Mr. Gast brought to the defense
team fit his role as the second-chair attorney in Mr. Martinez’s case. 	Id. at
p. 60:6-15. 	Mr. Dickson testified Mr. Gast “did a lot, he really did a lot of work
on the case, did a lot of good work.” 	Id. at p. 61:3-4.
Mr. Dickson testified he reviewed all of the discovery as it came into his
office. 	Id. at p. 82:1-5. 	“My strongest point is probably my work ethic, in my
opinion. 	It’s not my charm or my voice or my perception, it’s―I’m a farm kid,
and I grind it out the hard way. I looked at everything, as far as I know.” 	Id. at
p. 131:7-11. 	Mr. Dickson testified he sought out exculpatory evidence from the
discovery but “there was no exculpatory information to review.” 	Id. at p. 96:3-4.
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Mr. Gast was not able to find any exculpatory evidence in any of the discovery he
reviewed. 	Id. at pp. 154:24-155:4.
The record discloses Mr. Dickson engaged in appropriately aggressive
pretrial motion practice and was fully prepared to defend Mr. Martinez at trial.
Among the pretrial filings were the following:
1. 	Motion to sever the attempted escape charge from the drug
conspiracy charges.7 	(Docket 785);
2. 	Motion to sever from co-defendant Wessels. 	(Docket 788);
3. 	Motion to compel disclose of government witnesses. 	(Docket
792);
4. 	Motion for immediate disclosure of Jencks Act8 statements
and other statements.9 	(Docket 795);
5. 	Motion for change of venue on the murder charge. 10 	(Docket
799);
7 Mr. Dickson felt the attempted escape charge was “horribly damning” to
his client because Mr. Martinez “literally sawed through some of the bars” and
compromised the integrity of two female correctional officers at the jail as part of
his plan to escape. 	(Docket 1467 at p. 88:5-16).
8 18 U.S.C. § 3500. 	“[A] defendant on trial in a criminal prosecution is
entitled to relevant and competent reports and statements in possession of the
Government touching the events and activities as to which a Government
witness has testified at the trial.” 	Goldberg v. United States, 425 U.S. 94, 104
(1976) (internal citation omitted).
9 Mr. Dickson testified he filed these discovery requests in an effort to get
the government to narrow the issues for the trial and to permit him to prepare
more efficiently for trial. 	(Docket 1467 at pp. 89:24-91:6).
10 Because the alleged murder occurred in East Grand Forks, Minnesota,
Mr. Dickson felt venue was proper in the District of Minnesota and his client
would “get a more diverse jury pool.” 	(Docket 1467 at p. 90:5-21).
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6. 	Motion to dismiss counts 15 and 16, which related to the
murder charge. 	(Docket 801);
7. 	Motion for bill of particulars. 	(Docket 803);
8. 	Motion to withdraw as counsel.11 	(Docket 827); and
9. 	Motion to produce jury pool materials. 	(Docket 896).
Mr. Dickson testified he prepared the case with a strategy of impeaching
the cooperating witnesses based on their criminal histories and cooperation
agreements. 	(Docket 1467 at pp. 65:14-66:3; 87:3-6; and 234:18-235:13). 	He
felt it was important to discredit Mr. Petzold and Mr. Carrillo. 	Both were
involved in the murder in East Grand Forks. 	Id. at p. 85:6-21. 	Mr. Dickson
believed he was fully prepared to try the case to verdict. 	Id. at p. 134:12-16.
Based on his professional experience, Mr. Dickson testified he was “ready to try
the case, without question.” 	Id. at 131:17-18.
Judge Erickson testified the case “was hotly contested. . . . It was litigated
pretty fiercely. 	And it’s what I would expect in a case of this type.” 	Id. at
p. 40:15-22. 	The judge believed the defense attorneys were making good
tactical decisions with their pretrial motions practice. 	Id. at p. 41:20-22 (“I felt
like I understood exactly tactically where the defense lawyers were going at every
stage of these proceedings.”).
A portion of Mr. Dickson’s correspondence file was copied at the request of
Mr. Martinez’s habeas attorney and received as exhibit TAD00001-TAD00172 at
11 As mentioned earlier in this order, Mr. Dickson testified this motion was
a tactical filing in order to get Judge Erickson to appoint co-counsel. 	(Docket
1467 at pp. 92:1-94:24).
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the 2255 hearing. 	Id. at p. 82:6-20. 	In this correspondence are a number of
letters Mr. Dickson sent to Mr. Martinez prior to trial. 	Summaries of those
letters are as follows:
February 9, 2007 	Report of meeting with Martinez yesterday.
Martinez does not want to engage in plea
negotiations with government. 	Dickson
planning to travel to D.C. for a meeting with
Department of Justice to resolve the pending
death penalty claim. TAD00170;
April 10, 2007 	Status hearing on pending discovery
scheduled and asking Martinez to sign a
waiver of his right to attend the hearing.
TAD00165-66;
May 30, 2007 	Telephone conference with client of yesterday
and Dickson will report back after the DC
meeting on death penalty issue. 	Reminded
client to not speak to anyone about his case.
TAD 00164;
July 3, 2007 	Asking Martinez to sign a waiver of
appearance for status conference.
TAD00160-61;
July 13, 2007 	Dickson found book requested by Martinez.
Will send to him as soon as it arrives.
TAD00158;
July 23, 2007 	Providing Martinez with a copy of motion for
continuance. 	TAD00152-57;
September 5, 2007 	Co-defendant Arandes entered plea agreement
with two consecutive life sentences. 	If he
meets all the conditions, Arandes has a
chance to get out in 40 years plus possible
good time. 	Dickson inquiring as to whether
this changes Martinez’s mind about entering
into a plea agreement. 	TAD00151;
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December 4, 2007 	Providing Martinez with copies of pretrial
briefs. 	TAD00143; and
December 14, 2007 	Included report of law clerk e-mail to counsel
about problems viewing government CDs and
video files and asking Martinez to check if his
laptop at jail will allow viewing of this
discovery. 	TAD00138.
Mr. Martinez’s letters to Mr. Dickson before trial, while generally expressing
concern the trial is coming too quickly, included the following declarations or
summaries:
July 5, 2007 	Martinez had some further questions for
Dickson since their last meeting and was
looking forward to their next meeting.
TAD00159;
October 23, 2007 	“You are by far one of the best attorneys and
are familiar with murder cases, but as we both
know funds are limited, I just want my right to
a fair trial Tom. . . . I’ve never questioned your
ability to this case.” 	TAD00149-50; and
December 3, 2007 	Martinez acknowledged the government
wanted a life sentence. 	Asks Dickson to get
some new discovery to Martinez and file
discovery motions and a motion for
continuance. 	TAD00144-46.
Mr. Dickson’s correspondence with Mr. Martinez continued after the April 9,
2008, change of plea hearing. 	Those letters are summarized as follows:
August 11, 2008 	Providing Martinez with a copy of the
presentence report.12 	TAD00089-128;
12 The presentence report, dated August 6, 2008, was admitted as an
exhibit at the 2255 hearing. 	TAD00090-128. 	The report determined that with
“a criminal history of VI and a calculated offense level of 46,” the “result[ing]
guideline sentence [is] life.” 	TAD00126.
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August 21, 2008 	Asking Martinez to undergo a complete
medical and psychological evaluation
before sentencing. 	TAD00088;
September 22, 2008 	Providing Martinez with the initial and
revised presentence reports and the
government sentencing brief. 	TAD00086;
and
April 21, 2009 	Providing Martinez with copy of the change
of plea transcript. 	TAD00032;
Mr. Martinez’s letter to Mr. Dickson on June 23, 2008, asked his attorney to try
to arrange a visit with Mr. Martinez’s two young children at the Cass County jail
before the sentencing hearing. 	TAD00129. 	This letter makes no mention of a
guaranteed 30-year sentence. 	Id.
The court finds the testimony of Mr. Martinez not credible and the
testimony of Judge Erickson, Mr. Dickson and Mr. Gast credible and consistent
with the record on this issue. 	Mr. Martinez’s allegations that his attorneys were
not properly prepared for trial or did not zealously defend him are without merit.
The court denies Mr. Martinez’s 2255 petition on this issue.
C. 	BUT FOR THE INEFFECTIVE ASSISTANCE OF COUNSEL,
MR. MARTINEZ WOULD HAVE PERSISTED IN GOING TO
TRIAL
In the analysis above, the court found that Attorneys Dickson and Gast
provided effective assistance of counsel to Mr. Martinez, so an examination of
this section of Mr. Martinez’s claim is not necessary. 	However, the court will
conduct that analysis for the record.
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Mr. Martinez insists that but for his attorneys’ ineffective assistance, he
would have persisted in going to trial. 	(Docket 1485 at p. 9). 	He claims that
had the trial continued, “the evidence with exculpatory characteristics may have
cast reasonable doubt among the jurors.” 	Id. 	He submits that even if he had
been convicted at trial, there may have been evidence which would have
“persuaded the Court to pass a sentence of less than life . . . .” 	Id.
During the 2255 hearing, Judge Erickson explained his decision to impose
a life sentence.
Here’s the thing. As I saw the driver in this case, when it came to
sentencing it was a pretty straightforward case from my point of
view.
1) This was a murder for money. 	There’s nothing else about it. 	It’s
about money and about somebody insulting someone else, all right?
2) It was a murder that took place in the victim’s home.
3) It took place in the victim’s home with the victim’s child there and
a neighbor child there, and the people who pulled the trigger knew
that. 	Those kids, to get out of that house, had to walk around the
bleeding, dying, father figure and neighbor figure in their lives. 	A
man that could do that is dangerous, and a man who would do that
should 	be 	in 	prison, 	in 	my 	world. 	I 	don’t 	care 	whether 	he’s
convicted after a trial, I don’t care if he pleads guilty, someone who
will kill another man for money is always dangerous because there’s
always money on the table somewhere again.
(Docket 1467 at pp. 43:10-44:4). 	Mr. Dickson believed Mr. Martinez would have
been convicted on all seven counts had he completed his jury trial. 	Id. at p.
128:18-24).
Mr. Martinez was warned during the change of plea hearing that a life
sentence was a possibility. 	Mr. Martinez understood the presentence report
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recommended a life sentence. 	Throughout the plea and sentencing phases Mr.
Martinez did not claim his attorneys guaranteed a 30-year sentence. 	Even after
Judge Erickson announced the life sentence, Mr. Martinez did not object on the
basis there was an agreement for a 30-year sentence and he took no steps to
withdraw his plea.
Before trial, Mr. Martinez wrote of his confidence in Mr. Dickson. 	“You
are by far one of the best attorneys and are familiar with murder cases . . . . I’ve
never questioned your ability to this case.” 	TAD00149-50. 	At the change of
plea hearing after the government provided a detailed factual basis for the guilty
pleas, Mr. Martinez acknowledged the factual basis statement was true.
(Docket 1234 at pp. 32:17-38:4). 	Then at sentencing, Mr. Martinez confirmed
his unwavering responsibility for the crimes to which he pled guilty.
I’m here today because of the crimes I’ve committed, the mistakes I
made in the past, mistakes that I take full responsibility for. 	I took
a man’s life, and it’s something no man has a right to do. 	I don’t
think there’s anything today I could say or do to justify Mr. Avila’s
death . . . . I’m deeply sorry for the two children that had to witness
it. 	I really am. 	Like I said, there’s nothing I can say or do to bring
Mr. Avila back. 	I’m truly sorry for their loss. . . . Your Honor, I
made—I made a lot of mistakes in my life, little mistakes, big
mistakes . . . but unfortunately taking someone’s life, irreplaceable
. . . .”
(Docket 1218 at pp. 76:14-77:13) (some capitalization omitted).
Mr. Martinez’s 2255 hearing testimony which contradicts his sworn
statements at the change of plea hearing and his allocution at the sentencing
hearing is “inherently unreliable.” 	Harris-Thompson, 751 F.3d at 603. 	Mr.
Martinez “has not shown that he ‘would not have [pled] guilty and would have
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insisted on going to trial’ absent his attorney’s [claimed ineffective assistance.]”
Tinajero-Ortiz v. United States, 635 F.3d 1100, 1104 (8th Cir. 2011) (citing Hill,
474 U.S. at 59).
Mr. Martinez “presented no convincing evidence to establish that his prior
admissions of guilt were untrue.” 	Cruz, 643 F.3d at 643. 	He cannot establish
prejudice as required under Strickland. 	Tinajero-Ortiz, 635 F.3d at 1103–05.
The court denies Mr. Martinez’s 2255 petition on this issue.
CONCLUSION
Mr. Martinez has not carried his “heavy burden to establish ineffective
assistance of counsel . . . .” 	DeRoo, 223 F.3d at 925. 	Mr. Martinez failed to
overcome the “strong presumption that [his] counsel[s’] conduct [fell] within the
wide range of reasonable professional assistance.” 	Strickland, 466 U.S. at 689.
The effective assistance of counsel afforded Mr. Martinez by Attorneys Dickson
and Gast guaranteed his rights under the Sixth Amendment. 	Id. at 687. 	Mr.
Martinez was not prejudiced by the professional performance of his attorneys.
Id.
ORDER
Based on the above analysis, it is
ORDERED that defendant’s 2255 petition (Docket 1411) is dismissed with
prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c) and
Rule 11 of the Rules Governing Section 2255 Cases in the United States District
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32
Courts, the court declines to issue a certificate of appealability. 	A certificate
may issue “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 	28 U.S.C. § 2253(c)(2) (emphasis added). 	A
“substantial showing” under this section is a showing that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
or wrong.” 	Slack v. McDaniel, 529 U.S. 473, 484 (2000). 	In other words, a
“substantial showing” is made if a “court could resolve the issues differently, or
the issues deserve further proceedings.” 	Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). 	Mr. Martinez has not made a substantial showing of the denial of a
constitutional right.
Although the court declines to issue a certificate of appealability, Mr.
Martinez may timely seek a certificate of appealability from the United States
Court of Appeals for the Eighth Circuit under Fed. R. App. P. 22. 	See Rule 11(a)
of the Rules Governing Section 2255 Cases in the United States District Courts
and Fed. R. App. P. 22.
Dated March 8, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
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