     Case: 17-40956      Document: 00515004399        Page: 1     Date Filed: 06/20/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                   No. 17-40956                           FILED
                                 Summary Calendar                     June 20, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

REYNA OSORIO MARTINEZ, Also Known as Reyna Osorio De Vasquez,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  No. 1:14-CV-89




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

      Reyna Osorio Martinez, federal prisoner #89290-279, was convicted of



      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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                                  No. 17-40956

conspiracy to possess with intent to distribute more than 50 grams of metham-
phetamine, possession with intent to distribute more than 50 grams of meth-
amphetamine, conspiracy to import more than 50 grams of methamphetamine,
and importation of more than 50 grams of methamphetamine. She filed a
28 U.S.C. § 2255 motion alleging that trial counsel was ineffective in various
respects. The district court denied that motion on the merits. This court
granted a certificate of appealability on whether trial counsel was ineffective
for failing to interview Osorio Martinez’s children and call them as witnesses.

      For claims of ineffective assistance of counsel, we review the district
court’s mixed factual and legal conclusions de novo and its factual findings for
clear error. United States v. Scribner, 832 F.3d 252, 257 (5th Cir. 2016). To
establish ineffective assistance, Osorio Martinez must show that counsel per-
formed deficiently and that she was prejudiced. Strickland v. Washington,
466 U.S. 668, 687 (1984). Prejudice requires a showing of “a reasonable proba-
bility that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. To prevail on her claim that counsel
was ineffective for failure to call a witness, Osorio Martinez “must name the
witness, demonstrate that the witness was available to testify and would have
done so, set out the content of the witness’s proposed testimony, and show that
the testimony would have been favorable to a particular defense.” United
States v. Fields, 761 F.3d 443, 461 (5th Cir. 2014) (internal quotation marks
and citation omitted).

      In the district court, Osorio Martinez failed to establish that two of her
daughters were available and willing to testify, see Gray v. Epps, 616 F.3d 436,
443 (5th Cir. 2010), or that her children’s testimony would have been favorable
to her defense. See Fields, 761 F.3d at 461. Their testimony lacked specificity
and detail regarding Osorio Martinez’s past visits to the United States and at


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                                 No. 17-40956

most established that she made brief, sporadic, and unannounced visits to her
children, which does not contradict the government’s evidence that she did not
spend much time with her family on these trips.

      It is not evident that showing that the driver of the vehicle, who testified
for the government, was lying about one of Osorio Martinez’s daughter’s com-
ing to pick her up would have measurably affected the driver’s credibility,
given the other evidence of the driver’s inconsistent statements and attempted
escape from jail. Other portions of Osorio Martinez’s children’s testimony
tended to support, rather than undermine, the government’s case, including
the facts that her son Pedro would pick her up after she crossed the border and
that he drove an older pickup truck.

      Because Osorio Martinez does not show a reasonable probability that the
result of her trial would have been different if her children’s testimony had
been introduced, she cannot demonstrate that trial counsel provided ineffective
assistance by failing to call them as witnesses. See Washington, 466 U.S.
at 694; Fields, 761 F.3d at 461. The judgment is AFFIRMED.




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