kidnapping.

In rare cases, an attorney’s failure to investigate or to present certain evidence can
constitute ineffective assistance of counsel. See Sullivan v. Fairman, 819 F.2d 1382, 1390 (7th
Cir. 1987). However, in general, an attorney’s decision not to present certain evidence “is a
tactical decision not subject to review.” Barnhill v, Flannigan, 42 F.3d 1074, 1078 (7th Cir.
1994). The court is reluctant to engage in second guessing, or “Monday moming
quarterbacking,” regarding counsel’s strategic decisions in this case. See Harris v. Reed, 894
F.2d 871, 877 (7th Cir. 1990). These documents do not provide obvious exculpatory evidence
for Varela. In fact, one of the documents refers to a “full size blue and white van” that was
parked outside the residence where Jamie’s kidnapping was planned. Am. Mot. to Vacate, App.
2. Varela’s fingerprints were found inside a blue and white van that was used in the
kidnappings. Varela’s attorney may well have determined that these documents did not, in fact,
exculpate Varela, and that to present this evidence at trial would be a bad tactical decision.
Whatever the reason for the attorney’s decision not to investigate or present this evidence, the
court finds that this decision was a tactical one “not subject to review.” See Barnhill, 42 F.3d at

1078; Harris, 894 F.2d at 877.

Finally, the court notes that Varela admits that his attorney “provided exemplary
representation.” Am. Mot. to Vacate, 14. Rarely does a Defendant acknowledge that his
counsel was “exemplary,” and then, in the same breath, assert that counsel was ineffective.
Varela has not shown that his attorney made “errors so serious that counsel was not functioning

as ‘counsel’ guaranteed [to him] by the Sixth Amendment ....” See Holman, 314 F.3d at 839

(quoting Strickland, 466 U.S. at 687). For the above reasons, the court determines that Varela’s

14


Varela appealed, but the Seventh Circuit affirmed his conviction and sentence. Torres,
191 F.3d at 799. Varela then petitioned the Supreme Court for a writ of certiorari; this petition
was denied. Torres v. United States, 528 U.S. 1180 (2000). Finally, Varela filed his Amended
Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 on July 9,
2002. Varela’s Motion is fully briefed and before the court.

II. DISCUSSION

A. Standard of Decision

Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct
his sentence. This relief is available only in limited circumstances, such as where an error is
jurisdictional, of Constitutional magnitude, or there has been a “complete miscarriage of justice.”
See Harris y. United States, 366 F.3d 593, 594 (7th Cir. 2004). This statute states:

A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside, or correct the
sentence.

28 U.S.C. § 2255 41. If the court determines that any of these grounds exists, it “shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255 2. In making that
determination, the court must review the evidence and draw all reasonable inferences from it in a
light most favorable to the government. See United States v. Galati, 230 F.3d 254, 258 (7th Cir.

2000); Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).

Section 2255 petitions are subject to various bars, including that of procedural default.


in a kidnapping scheme with Varela and the other Defendants, that the Defendants were taking
orders from individuals in El Paso, and that the Defendants had shot Estrada. This testimony was
admitted pursuant to Federal Rule of Evidence 804(b)(3) as a hearsay exception, a statement
against interest. Varela now asserts that these statements violated the hearsay rule, and the

Confrontation Clause of the Constitution.
Rule 804(b)(3) states, in part, that:

The following are not excluded by the hearsay rule if the declarant is unavailable
as a witness: . . . (3) A statement which was at the time of its making . . . so far
tended to subject the declarant to civil or criminal liability . . . that a reasonable
person in the declarant’s position would not have made the statement without
believing it to be true.

In order for this hearsay exception to apply, (1) the declarant must be unavailable to testify at
trial, (2) the statement must be against the declarant’s penal interest, (3) and corroborating
circumstances must exist which indicate that the statement(s) are trustworthy and reliable.
United States v. Shukri, 207 F.3d 412, 416 (7th Cir. 2000); American Auto. Accessories, Inc. v.
Fishman, 175 F.3d 534, 540 (7th Cir. 1999).

Varela attacks the third prong of the Shukri/American Auto. test, asserting that
Sanchez’s statements implicating Varela should not have been admitted because these
statements did not contain sufficient corroborating indicia of their trustworthiness and
reliability, as Sanchez had motive to shift blame and divert attention to others. First, the court
notes that Sanchez’s statements naming the other Defendants, and indicating that he was
involved with them in the kidnappings, “demonstrated [his] inside knowledge of yet another
detail of the planned crime.” See United States v. York, 933 F.2d 1343, 1360-61 (7th Cir. 1991)
(statements that demonstrate “inside knowledge of a crime,” and that “tend to implicate the

10


Varela now raises the following issues in his § 2255 motion: whether his Confrontation
Clause rights, and the hearsay rule, were violated by trial testimony regarding the incriminating
statements of a codefendant, whether his counsel was Constitutionally ineffective, and whether
his sentence violates the holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and United
States v. Booker, 125 S. Ct. 738 (2005). Before inquiring into the merits of these issues, the
court first considers whether any of these issues are procedurally barred in § 2255 motions.

The first issue Varela raises is whether his Confrontation Clause rights were violated by
admitting into evidence testimony regarding statements of codefendants which incriminated him.
Varela raised this issue on direct appeal, asserting, inter alia, that these statements were
inadmissible hearsay. Joint Consolidated Br. and Required Short App. for the Defs.-Appellants,
46-59. Because Varela raised this issue on direct appeal, and has made no showing of changed
circumstances, he is procedurally barred from bringing this issue in his § 2255 motion. See

Belford, 975 F.2d at 313; McCleese, 75 F.3d at 1177-78. The exceptions to the procedural

default rule do not apply to Varela, as he has made no showing of actual innocence. See Belford,
975 F.2d at 313; McCleese, 75 F.3d at 1177-78.

The second issue Varela raises is whether his counsel was Constitutionally effective. See
Strickland v. Washington, 466 U.S. 668, 685-86 (1984) (“The Sixth Amendment recognizes the
right to the assistance of counsel because it envisions counsel’s playing a role that is critical to
the ability of the adversarial system to produce just results... [T]he right to counsel is the right
to effective assistance of counsel.”) (internal quotation marks and citations omitted). Varela
failed to raise this issue on direct appeal, and does not meet the requirements for the exceptions

to the procedural default rule. However, the Supreme Court has recognized that an ineffective


Section 2255 petitions are “‘neither a recapitulation of nor a substitute for a direct appeal.””
McCleese v. United States, 75 F. 3d 1174, 1177 (7th Cir. 1996) (citations omitted). Therefore, a
§ 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a
showing of changed circumstances; (2) non-Constitutional issues that could have been raised on
direct appeal, but were not; and (3) Constitutional issues that were not raised on direct appeal.
See Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)).

There are two exceptions to the procedural default rule: (1) if the movant demonstrates
cause for failing to raise the issue and actual prejudice resulting therefrom; or (2) the court’s
refusal to consider the Constitutional issue would result in a fundamental miscarriage of justice,

which requires a showing of actual innocence. See Belford, 975 F.2d at 313 (collecting

authority); see also McCleese, 75 F.3d at 1177-78 (discussing fundamental miscarriage of
justice). In light of these principles, the court examines Varela’s motion.
B. Procedural Default

According to the Seventh Circuit, Varela raised three issues on appeal that were worthy
of discussion: whether the government failed to establish a legitimate “pattern of racketeering
and a RICO enterprise,” whether this court’s decision not to question potential jurors regarding
“biases toward illegal Mexican aliens” denied Varela his Sixth Amendment right to an impartial
jury, and whether this court improperly denied Varela “an evidentiary hearing regarding the

admissibility of the identification testimony elicited during trial.” Torres, 191 F.3d at 804.

Varela also raised, inter alia, the issue of whether a co-defendant’s statements implicating Varela

in these crimes were properly admitted into evidence at trial.

6


claim is therefore procedurally barred under the rules explained in Curtis, 294 F.3d at 844 and

McReynolds, 397 F.3d at 480.

The court therefore finds that the first issue Varela raises, whether testimony regarding
the incriminating statements of a codefendant violated Varela’s Confrontation Clause rights and
the hearsay rule, and the third issue Varela raises, whether his sentence violates the holdings in
Apprendi v. New Jersey, 530 U.S. 466 (2000) and United States v. Booker, 125 S. Ct. 738
(2005), are procedurally barred. However, the court finds that the second issue Varela brings,
whether his counsel was Constitutionally ineffective, is not procedurally barred.

C. The Merits of Varela’s Claims

Although the court has determined that only the issue of whether Varela’s counsel was
Constitutionally effective survives procedural default, with an abundance of caution, the court
will also address the merits of the first issue Varela raises: whether adverse witness testimony at
trial violated the Confrontation Clause and the hearsay rule. The court will not addresses the
merits of Varela’s final assertion, that his sentence violated the holdings of Apprendi and
Booker, because of the Seventh Circuit’s recent and exceedingly clear holdings that Apprendi

and Booker are not applicable retroactively. See Curtis, 294 F.3d at 844; see also Lambert, 365

F.3d at 562 ; McReynolds, 397 F.3d at 480.
1, The Incriminating Statements of a Codefendant

At trial, two relatives of nontestifying Defendant Sanchez were allowed to testify as to
various incriminating statements made by Sanchez. These relatives, Cosme Duarte and Evaristo

Ramirez, testified that, inter alia, Sanchez had come to them and explained that he was involved


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SALOME VARELA, )
)

Movant, ) No. 02 C 1945
)

v. ) .

) Honorable Charles R. Norgle

UNITED STATES OF AMERICA, )
)
Respondent. )

OPINION AND ORDER

CHARLES R. NORGLE, District Judge

Before the court is Salome Varela’s amended motion to vacate, set aside, or correct his
sentence brought pursuant to 28 U.S.C. § 2255. Movant, Salome Varela (“Varela”) challenges
his sentence for participating in a RICO conspiracy, kidnapping, violating the Hostage Act,
assaulting a federal officer, and using a firearm during a crime of violence. For the reasons stated
below, the motion is denied.

I. BACKGROUND!

A. Facts

Varela, along with Defendants Miguel Torres (“Torres”), Jose de la Paz Sanchez
(“Sanchez”), and Jesus Ruiz (“Ruiz”), acted as an enforcer for a cocaine trafficking operation
located in El Paso, Texas. In order to enforce the payment of drug debts, the Defendants

kidnapped four individuals. The Defendants believed that these individuals either owed, or were

' The facts of this case are recited in United States v. Torres, 191 F.3d 799 (7th Cir.
1999), The court takes additional details from the Government’s Response to Defendant’s
Amended Motion to Vacate Sentence.


In determining whether an out-of-court statement violates the Confrontation Clause,
courts must determine whether the statements meet a minimum level of trustworthiness. United
States v. Robbins, 197 F.3d 829, 837 (7th Cir. 1999); see also Webb v. Lane, 922 F.2d 390, 393
(7th Cir. 1991) (“The use of hearsay testimony does not violate the confrontation clause if the
prosecutor can demonstrate (1) the unavailability of the declarant and (2) that the declarant’s
statement bears adequate indicia of reliability.”) (internal quotation marks and citations

omitted).

In this case Sanchez, the declarant, was unavailable, as he was a nontestifying
codefendant. See Morrison v. Duckworth, 929 F.2d 1180, 1182 n.2 (7th Cir. 1991)
(unavailability includes a declarant’s refusal to testify on Fifth Amendment grounds); see also
United States v. Pizarro, 756 F.2d 579, 582-83 (7th Cir. 1985) (codefendant’s refusal to testify
at trial “rendered him unavailable”). The challenged statements were clearly self-inculpatory,
and were made to relatives in a non-custodial setting. These statements were thus sufficiently

trustworthy or reliable to pass muster under the Confrontation Clause. See Robbins, 197 F.3d at

837; Webb, 922 F.2d at 393. The admission of these statements at trial therefore did not violate

Varela’s Confrontation Clause rights.
2. Ineffective Assistance of Counsel

In order to establish that his counsel was ineffective, Varela must “show that [his]
counsel’s performance was deficient, and that the deficiency prejudiced [his] defense.” See

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). An attorney’s performance is deficient if it falls “below an objective standard of

reasonableness.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). Prejudice is

12


declarant in a conspiracy” are thought to be sufficiently reliable to fall within the 804(b)(3)
exception). Second, these statements were made to relatives in a non-custodial setting. There is
no significant incentive to shift blame in such a setting, as there might be in, for instance, a
custodial police interview. See United States v. Moses, 148 F.3d 277, 280-81 (3rd Cir. 1998)
(finding that where declarant made his statements to a friend during a lunch conversation, there
was no reason to believe that the declarant was attempting to avoid criminal liability) (citing
Williamson v. United States, 512 U.S. 594, 603-04 (1994)). Although the court did not make a
specific finding of trustworthiness as to the challenged statements at trial, the above
considerations indicate that these statements were sufficiently trustworthy to be admitted under
Rule 804(b)(3).

Although the question of whether these statements violated the Confrontation Clause is
related to the question of whether these statements violated the hearsay rule, these are separate
issues. See United States v. Vretta, 790 F.2d 651, 660 (7th Cir. 1986) (“the hearsay rules and
the Confrontation Clause of the Sixth Amendment stem from the same root, but the two are not

equivalent”); see also United States v. Centracchio, 265 F.3d 518, 527 (7th Cir. 2001) (“The

Confrontation Clause of the Sixth Amendment guarantees the accused the right ‘to be
confronted with the witnesses against him”); Flewallen v. Faulkner, 677 F.2d 610, 612 (7th Cir.
1982) (the Confrontation Clause is generally utilized to assure that a defendant has a right to
cross examine adverse witnesses, but may be used to bar the prosecution’s use of hearsay
testimony). “[E]vidence that is admissible under a hearsay exception may be barred if it violates

the defendant’s Sixth Amendment right to confront witnesses against him.” Vretta, 790 F.2d at

660.

11



assistance of counsel claim may be brought in a § 2255 motion, regardless of whether the claim
was raised on appeal. Massaro y. United States, 538 U.S. 500, 504 (2003). Varela’s ineffective
assistance of counsel claim therefore survives procedural default.

The third and final issue Varela raises in this motion, whether his sentence violates the
holdings in Apprendi and Booker, is a Constitutional issue as well. See Booker, 125 S. Ct. at
756 (affirming the holding in Apprendi, 530 U.S, at 466, and holding that the Sixth Amendment
right to trial by jury requires that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a plea of guilty
or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.”). Varela failed to raise this issue on direct appeal, but he could not have done so, as
Apprendi was decided June 26, 2000, and Booker was decided January 12, 2005. Varela’s
appeal was decided September 15, 1999. Varela is therefore not procedurally barred from
bringing this issue in his § 2255 motion under the rules laid down in Belford, 975 F.2d at 313
and McCleese, 75 F.3d at 1177-78.

However, the Seventh Circuit has held that Apprendi “does not disturb sentences that
became final before June 26, 2000, the date of its release.” United States v. Curtis, 294 F.3d 841,

844 (7th Cir. 2002); see also Lambert v. McBride, 365 F.3d 557, 562 (7th Cir. 2004). The

Seventh Circuit has also held that Booker “does not apply retroactively to criminal cases that
became final before its release on January 12, 2005.” McReynolds v. United States, 397 F.3d

479, 480 (7th Cir. 2005); see also United States v. Paladino, — F.3d — (7th Cir. 2005). Varela’s

conviction became final February 22, 2000, the date the Supreme Court denied his petition for

writ of certiorari. Torres v. United States, 528 U.S. 1180 (2000). Varela’s Apprendi/Booker


Expressway. After an agent rammed the Defendants’ car, the Defendants were apprehended.
(Sanchez was apprehended separately.)

The following morning, Jamie was located at a used car lot on the west side of Chicago.
In addition to his gunshot wound (a one and one half inch wide wound to his abdomen), Jamie
had been handcuffed and beaten. After thirty days in the hospital, Jamie succumbed to his
injuries. The coroner determined that Jamie died from the gunshot wound, and a thirty hour
delay in receiving medical treatment.

B. Procedural History

Varela was charged with participating in a RICO conspiracy (18 U.S.C. § 1962(d)), four
counts of violating the Hostage Act (18 U.S.C. § 1201(c)), one count of conspiracy to commit
kidnapping (18 U.S.C. § 1201(c)), one count of kidnapping (18 U.S.C. § 1201(a)), one count of
assault on a federal officer (18 U.S.C. § 111), and three counts of using a firearm during a crime
of violence (18 U.S.C. § 924(c)).

The following is a sampling of the evidence presented against Varela at his jury trial:
recorded telephone conversations in which Varela instructed Jamie’s family to deliver ransom,
the loaded 9-millimeter Beretta pistol Varela pointed at a federal officer during the high speed
chase, Varela’s fingerprints on titles to cars delivered by Avila’s family, Varela’s fingerprints
inside the blue and white van used to abduct the victims, Varela’s fingerprints in both the
Newland Avenue house and the Moody Avenue apartment, Jamie’s blood stains on a couch in
the Moody apartment, and the testimony of numerous witnesses implicating Varela in these
crimes. The jury convicted Varela on all counts. The court then sentenced Varela to a term of

life imprisonment, plus a term of forty-five years imprisonment, to be served consecutively.


counsel was not Constitutionally ineffective.
D. Varela’s Request for an Evidentiary Hearing

Varela requests an evidentiary hearing in this matter, but he does not explain what issues
would be inquired into during this hearing, nor does he explain why an evidentiary hearing is
necessary. Am. Mot. to Vacate, 18. This alone is sufficient reason to deny Varela’s request.
See United States v. Jones, 224 F.3d 621, 626 (7th Cir. 2000) (noting that an undeveloped
argument speaks to its paucity, and that courts are not required to consider such arguments).
Evidentiary hearings are not required if the § 2255 “motion and the files and the records of the
case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255 4 2; see also
Bruce y. United States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d
290, 293 (7th Cir 1995). In this case, two of Varela’s claims are barred on procedural grounds.
His Confrontation Clause/hearsay claim fails on the merits. His ineffective assistance of
counsel claim falls well short of the Strickland standard. The record thus conclusively shows
that Varela is entitled to no relief under § 2255. Varela’s request for an evidentiary hearing is
therefore denied.

III. CONCLUSION

For the foregoing reasons, Salome Varela’s amended motion to vacate, set aside, or
correct his sentence brought pursuant to 28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.
ENTER:

Mba pele)

CHARLES RONALD NOR! , Judge
United States District Court

saree O5~

15


medication. Fortunately for Flores and Martinez, they were able to escape while being led out of
the Newland Avenue house at gunpoint.

These events culminated with the kidnapping and murder of seventeen year old Jaime
Estrada (“Jamie”). The Defendants abducted Jamie, a high school student, on June 27, 1998.
Jamie was held in an apartment on Moody Avenue in Chicago, blindfolded and tied to a chair.
The evening of the 27th, one of the Defendants called Jamie’s brother Alex and indicated that if
ransom was not paid, Jamie would be killed, and the Defendants would cut off Jamie’s ears and
skin and mail them to Alex. One of the Defendants later shot Jamie in the abdomen. Jamie was
then locked alone in a bathroom, bleeding and vomiting. The next morning, one of the
Defendants called Jamie’s brother Miguel and informed Miguel that they had shot Jamie, and
directed Miguel to deliver $30,000 and a car to a specific Chicago location. The Estrada family
then contacted law enforcement officials.

At this point, Miguel agreed to participate in a series of recorded telephone conversations
with the Defendants. During these calls, Varela and another individual (the fugitive Luis Alberto
Carreno) were recorded demanding ransom from Estrada’s family, and issuing instructions for
the delivery of the ransom. Federal Bureau of Investigation (“FBI”) agents then set up a
controlled ransom delivery during which FBI agents would apprehend whichever Defendants
appeared. Defendants Varela, Ruiz, and Torres drove to the delivery site. Ruiz then attempted to
gain entry to car in which the ransom had been placed. FBI agents spotted Ruiz, and moved to
apprehend him. The Defendants fled, with Varela pointing a 9-millimeter Beretta pistol at an
agent. The Defendants then led the agents on a high-speed car chase during which the

Defendants ran red lights, and reached speeds of nearly 100 miles per hour on the Stevenson


related to someone who owed, money to individuals in El Paso. After kidnapping the victims,
the Defendants contacted the victims’ families and demanded ransom. The victims were held in
two separate locations in Chicago, Illinois. As will be explained in greater detail below, this
scheme ultimately resulted in the murder of one victim, and ended only after a high-speed car
chase during which Varela pointed a gun at a federal agent.

One of the victims, Jesus Avila (“Avila”), was abducted by Defendants Ruiz, Torres, and
Sanchez, and taken away by a blue and white van to a house on Newland Avenue in Chicago.
During the abduction, all three Defendants were armed; Torres was armed with a machine gun.
Avila was bound with duct tape and handcuffed to a post in the basement of the Newland
Avenue house, where the Defendants beat him, and threatened his life. At one point, Ruiz
pointed a gun towards Avila’s head and cocked the trigger. The Defendants then placed ransom
calls to Avila’s sister and wife, telling them that Avila would be killed and dumped into a
garbage can if sufficient ransom was not paid. Avila’s sister and wife then paid the Defendants
$10,000, and delivered three cars to the Defendants. Avila ultimately was able to escape from
the Newland Avenue house after fifteen days of captivity.

Two other victims, Jesus Flores (“Flores”) and Rafael Martinez (“Martinez”), were also
abducted into the blue and white van by the Defendants, and handcuffed to poles in the Newland
Avenue house. Flores was abducted because his son owed drug debts. Martinez was abducted
because of his own drug debts. Like Avila, both Flores and Martinez were threatened with
physical harm if the debts were not paid. The Defendants made ransom calls to Flores’ wife, at
which time Mrs. Flores advised the Defendants that Flores suffered from diabetes, and required

daily medication. The Defendants ignored Flores’ diabetes, holding him for nine days without


established by showing that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Benefiel v.
Davis, 357 F.3d 655, 662 (7th Cir. 2004) (quoting Strickland, 466 U.S. at 694). An ineffective
assistance of counsel claim may be brought in a § 2255 motion, regardless of whether the claim

was raised on appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).

When a court reviews an ineffective assistance of counsel claim, the court’s review is
“highly deferential” to the attorney, “with the underlying assumption that ‘counsel’s conduct
falls within the wide range of reasonable professional assistance.’” United States v. Holman,
314 F.3d 837, 840 (7th Cir. 2002) (quoting Strickland, 466 U.S. at 689). There is therefore a
strong presumption that Varela’s attorney performed reasonably. See Strickland, 466 U.S. at
690; see also Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004). To succeed in his
claim, Varela must show “errors so serious that counsel was not functioning as ‘counsel’
guaranteed [to him] by the Sixth Amendment... .” See Holman, 314 F.3d at 839 (quoting

Strickland, 466 U.S. at 687).

Varela asserts that his counsel was inefficient, as he failed to investigate certain evidence
Varela asserts was exculpatory, and he failed to present that evidence at trial. Specifically,
Varela asserts that he gave his attorney documents that explained the “cause of the kidnapping
of Jamie Estrada,” that his attorney failed to investigate this allegedly exculpating evidence, and
that his attorney did not present this evidence to the jury at trial. Am. Mot. to Vacate, 13. These
failures, Varela asserts, amount to Constitutionally ineffective assistance of counsel. Varela
asserts that the documents he points to, summarizations of interviews done by FBI agents during

the course of the investigation of the kidnappings, indicate that he was not involved in Jamie’s

13