                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                           F I L E D
                                                                                           August 24, 2005
                                                   In the
                         United States Court of Appeals                               Charles R. Fulbruge III
                                                                                              Clerk
                                        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,                     for relief under 28 U.S.C. § 2255. In March
  Circuit Judges.                                       2003, after a two-day evidentiary hearing, a
                                                        magistrate judge recommended that relief be
JERRY E. SMITH, Circuit Judge:                          granted on the ground that Molina-Uribe’s
                                                        trial counsel was ineffective. The district court
    Felipe Molina-Uribe was convicted of first          adopted that recommendation and vacated the
degree murder of a DEA agent and sentenced              conviction.
to life imprisonment in 1987.1 In 1997 he filed

   1                                                        1
    That life sentence is being served concurrently          (...continued)
with a cumulative sentence of thirty years that the     district court imposed for drug trafficking and
                                      (continued...)    firearm convictions.
   Although Molina Uribe’s trial defense was           shortly thereafter in a van loaded with large
at least arguably of questionable quality, we          plastic bags containing the marihuana. Ortiz
and the district court must nonetheless observe        and Rodriguez-Ramirez went to Molina-Uri-
the standards for evaluating tactical decisions        be’s van to inspect the marihuana, then all
as set forth in § 2255 and the associated case-        three men walked to the undercover vehicle
law. Under those standards, we reverse the             where Ramos was waiting in the driver’s seat.2
order granting § 2255 relief and remand for            Molina-Uribe entered the rear seat of the car.
further proceedings.                                   The plan was for Ramos and Molina-Uribe to
                                                       swap vehicles and later to re-exchange them
                      I.                               after Molina-Uribe had removed the money
                      A.                               from Ramos’s car and Ramos the marihuana
   This case arises from the killing of DEA            from Molina-Uribe’s van.
Special Agent William Ramos by a drug traf-
ficker during an undercover drug deal. Some-              After a brief conversation about the money,
time before 3:00 p.m. on December 31, 1986,            Ortiz and Rodriguez-Ramirez walked to the
in McAllen, Texas, Molina-Uribe and his                rear of Ramos’s car to get the money from the
co-defendant, Jesus Garcia Nieto, were look-           trunk so Molina-Uribe could inspect it. By
ing for a buyer for over 300 pounds of mari-           pre-arrangement, the lifting of the trunk lid
huana. They met the other co-defendant,                was the signal for a number of DEA agents to
Benito Cavazos-Lamas, in McAllen. Cavazos-             converge o n Ramos’s vehicle. As the lid was
Lamas indicated that he knew a buyer. Mo-              opened, Ortiz observed through the car’s rear
lina-Uribe, without knowing that Roberto               window that Ramos had turned in his seat,
“Raul” Ortiz was a paid undercover DEA in-             drawn his revolver, and pointed it at Molina-
formant, arranged a meeting for Molina-Uribe,          Uribe, whereupon Molina-Uribe grabbed Ram-
Garcia Nieto, and Ortiz, who was accompa-              os and the revolver and attempted to wrest it
nied to the meeting by Ernesto Rodri-                  from Ramos. With the car shaking from the
guez-Ramirez, another paid undercover DEA              struggle and Ramos calling for help, Ortiz and
informer.                                              Rodriguez-Ramirez sprang to assist Ramos.

   Ortiz, at various times between the first              Ortiz entered the car to help Ramos while
contact by Cavazos-Lamas and completion of             yelling they were federal drug agents, ordering
the sale arrangements, communicated with the           Molina-Uribe to release the gun and admon-
DEA agents to obtain instructions as the ne-           ishing him that he could get into serious prob-
gotiations progressed. The parties ultimately          lems if he failed to act as ordered. Rodriguez-
arranged that Ramos, working undercover but            Ramirez remained outside on the right side of
representing himself to be a New York drug
dealer, would be the buyer of the marihuana
                                                          2
and of a quantity of illegal pills. Delivery and            The car was a government vehicle assigned to
payment were to be made at 7:00 p.m. in the            DEA Special Agent Alvarez. The revolver that
parking lot of a supermarket.                          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
   Ramos, Ortiz, and Rodriguez-Ramirez ar-
                                                       his car. The revolver discharged four rounds
rived at the parking lot in an undercover vehi-        during the incident. Ramos was also carrying a
cle at about 7:00 p.m. Molina-Uribe arrived            revolver, issued to him, but he did not discharge it.

                                                   2
the car but leaned into it and began pulling on         ary 21, 1987.4 Count 3, brought under 18
Molina-Uribe’s boots. About then, the revolv-           U.S.C. §§ 1111 and 1114, charged that Mo-
er discharged; the shot struck Rodriguez-Ram-           lina-Uribe, having been placed under arrest by
irez in the hand, and he quickly retreated in           Ramos and while attempting to escape, mur-
pain. Ortiz then repeated his order to Molina-          dered Ramos, while Ramos was in the perfor-
Uribe and told him that Ramos was a federal             mance of his official duties, by shooting him
agent. Ramos then said, “I already told him             with the agent’s revolver. Count 4 alleged
that he is arrested and he does not want to pay         that during and in relation to the crime of vio-
attention.”3                                            lence described in count 3, Molina-Uribe used
                                                        the firearm described in that count in violation
    As the struggle for the gun continued, the          of 18 U.S.C. § 924(c). Molina-Uribe pleaded
revolver discharged two more rounds. Again              guilty to counts 1 and 2, and the jury convict-
Ortiz admonished Molina-Uribe to release the            ed him on counts 3 and 4.
gun and told him they were federal agents.
Ortiz said Molina-Uribe then made a statement                                 C.
in Spanish indicating that he thought Ramos                Molina-Uribe testified that he conveyed his
and Ortiz were about to steal the marihuana             version of the incident to his attorneys, Ram-
and hurt him. Finally, with Molina-Uribe in             irez and Connors,5 explaining the struggle be-
possession of the gun and while Ramos had a             tween himself and the agents. The district
hand on Molina-Uribe’s wrist trying to push             court appointed Ramirez to represent Molina
the gun hand to the side, Molina-Uribe forced           a week after the grand jury returned the indict-
the gun downward toward Ramos’s chest and               ment. During pretrial motions Ramirez argued
fired the fourth shot into his chest, fatally           that the case was complex, and he made a
wounding him.
                                                           4
    DEA Agents Watkins and Alvarez arrived                   Count 1, pursuant to 21 U.S.C. § 846, alleged
at Ramos’s car almost immediately following             the co-defendants conspired to possess with intent
the final shot. Watkins entered the car and put         to distribute in excess of 100 kilograms of mari-
                                                        huana, a Schedule I controlled substance, in vio-
his revolver to Molina-Uribe’s head. Alvarez
                                                        lation of 21 U.S.C. § 841(a)(1). In count 2, the
removed Ramos’s gun from Molina-Uribe’s                 three were charged with the substantive offense.
left hand, and the agents took him into cus-
tody.                                                      5
                                                             Molina-Uribe testified, at the evidentiary hear-
                                                        ing before the magistrate judge, that he arrived at
                      B.                                the location of the sting to complete a drug transac-
   Molina-Uribe, Cavazos-Lamas, and Garcia              tion with Ramos. Molina-Uribe testified that he
Nieto were jointly charged in counts 1 and 2 of         thought Ramos and the other agents were drug
a superseding indictment returned on Febru-             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
   3
     Rodriguez was unable to testify concerning         construed the drawn weapon as a violent threat to
Ortiz’s statements to Molina-Uribe or to Ramos’s        shoot him and take the drugs. Throughout the
statement to Molina-Uribe, as testified by Ortiz,       struggle he could not ascertain who had control of
because he was paying attention only to what he         the gun during each discharge, but instead he was
was doing at the time.                                  focused on avoiding the bullets.

                                                    3
number of discovery requests. He sought the                 defendants the effective assistance of counsel.
appointment of Connors as additional counsel.               See Yarborough v. Gentry, 540 U.S. 1, 5
The court granted the requests.                             (2003). Section 2255 provides that a

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

                                                        4
   The degree of deference we are to afford to            norms. See Lyons v. McCotter, 770 F.2d 529,
Molina-Uribe’s trial counsel obviously drives             533 (5th Cir. 1985). Although we give strong
the outcome of our deliberations. To prevail              deference to trial counsel’s tactical decisions,
on an ineffective assistance claim Molina-Uribe           see Washington, 466 U.S. at 689-91, those de-
must argue more than mere sub-optimal trial               cisions must stem from “reasoned strategic
tactics. Our role under § 2255 is not to audit            judgment.” See Wiggins v. Smith, 539 U.S.
decisions that are within the bounds of pro-              510, 534 (2003).
fessional prudence.
                                                             The record suggests that the district judge
                       A.                                 held Ramirez and Connors in high regard. The
   We “review a district court’s conclusions              judge recognized Ramirez to be a very com-
with regard to a petitioner’s § 2255 claim of             petent, experienced, and well respected crim-
ineffective assistance of counsel de novo.”8              inal defense attorney. The judge chose Con-
We review § 2255 findings of fact for clear               nors as an additional counsel because he
error. United States v. Faubion, 19 F.3d 226,             viewed Connors as experienced in both crim-
228 (5th Cir. 1994). Any subsidiary findings              inal trials and appeals.
of basic, historical fact made by the district
court after a § 2255 evidentiary hearing are                 We view counsel’s performance in light of
subject to review under the clearly erroneous             the fact that the case was very difficult to de-
standard of Federal Rule of Criminal Proce-               fend. Trial counsel had to consider a number
dure 52(a).9 In determining whether Molina-               of variables in the course of developing Mol-
Uribe received effective assistance of counsel,           ina-Uribe’s defense, not the least of which was
we thus make an independent evaluation based              the potential sanctions associated with sub-
on the district court’s subsidiary findings. See          orning perjury. Counsel performed all nec-
United States v. Rusmisel, 716 F.2d 301, 305              essary investigation and discovery. Most of
(5th Cir. 1983).                                          the time, viable ineffective assistance claims
                                                          arise from some failure to pursue certain types
                        B.                                of evidence during discovery with sufficient
   Washington, 466 U.S. at 689-91, requires               vigor.10
us to assess the tactics of the attorneys against
what courts would expect from an attorney of                 Molina-Uribe, however, does not question
average competence. Alternately phrased, the              the fervor with which trial counsel acquired
proper measure of attorney performance is                 evidence; he instead doubts the theory pro-
reasonableness under prevailing professional              pounded at trial, given the admissible evidence


   8                                                         10
     United States v. Conley, 349 F.3d 837, 839                  See, e.g., United States v. Lampazianie, 251
(5th Cir.2003) (citing United States v. Bass, 310         F.3d 519, 527 (5th Cir. 2001) (discussing in dic-
F.3d 321, 325 (5th Cir.2002); United States v.            tum, the viability of a § 2255 claim, the substance
Faubion, 19 F.3d 226, 228 (5th Cir.1994)).                of which involved how fervently the defendant’s
                                                          attorney sought information during discovery);
   9
     These are facts “in the sense of a recital of        Matthew v. Johnson, 201 F.3d 353, 363 n.14 (5th
external events and the credibility of their narra-       Cir. 2000). We, however, do not mean to imply
tors.” Washington v. Watkins, 655 F.2d 1346,              this is the only context in which such claims can or
1351 (5th Cir. Unit A Sept.1981).                         do arise.

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

                                                       6
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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