1 – OPINION & ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

 Plaintiff, No. 3:14-cr-00386-HZ-1 

 No. 3:20-cv-02014-HZ

 

 v. OPINION & ORDER 

LEONEL MARIN-TORRES, 

 Defendant. 

Gregory R. Nyhus 

United States Attorney’s Office 

1000 SW Third Avenue, Suite 600 

Portland, OR 97204 

 Attorneys for Plaintiff 

 

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2 – OPINION & ORDER 

Leonel Marin-Torres 

36048-086 

USP FLORENCE - HIGH 

US Penitentiary 

Inmate Mail/Parcels 

P.O. Box 7000 

Florence, CO 81226 

Pro se Defendant 

HERNÁNDEZ, District Judge: 

 Defendant Leonel M filed an amended motion for relief from his judgment of conviction 

under 28 U.S.C. § 2255. The Court denies Defendant’s motion. 

BACKGROUND 

A grand jury indicted Defendant for Assault of Officer in September 2014. Indictment 1, 

ECF 1.1

 The grand jury found that Defendant pushed, shoved, struck, and scratched a Columbia 

County Deputy Sheriff who was assisting under contract with the United States Marshal to 

perform the Marshal’s duties as custodian of federal prisoners. Id. Defendant pleaded not guilty 

and proceeded to trial. On the first day of trial, Defendant represented himself and was 

accompanied by standby counsel David Audet, investigator Courtney Withycombe, and two 

interpreters. Trial Tr. 2, ECF 116. Before the jury venire was brought to the courtroom, the Court 

went on the record with the parties. The Court observed that Defendant was dressed in clothing 

provided by the jail. Id. at 5. When Defendant conveyed that he did not wish to wear jail clothing 

for his trial, the Court advised that it would get Defendant different clothes. Id. 

Immediately, Defendant began to interrupt the proceedings and speak in profane and 

vulgar terms. While discussing motions that he had filed in the case, one of which was a motion 

1

 Citations to ECF numbers in this Opinion refer to ECF numbers in Case No. 3:14-cr-00386-

HZ. 

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to continue the trial, Defendant asserted that appointing standby counsel to assist him amounted 

to “rape” of his constitutional rights, complained that Multnomah County jail took his legal 

paperwork from him, and complained that Multnomah County jail would not allow him to make 

copies. Id. at 5–10. He began to yell at the Court and called the officer he was accused of 

assaulting a criminal. Id. at 11. Several times, the Court directed Defendant to stop yelling, 

interrupting, and being disrespectful. Id. at 11–12. 

The Court then explained that the request to continue the trial was denied and warned 

Defendant that if he continued to interrupt the Court and yell at the Court and others in the 

courtroom, then the Court would assume that Defendant was waiving his right to be present at 

his trial. Id. at 15. Defendant interrupted, yelling again and stating that he wanted to be present 

for his entire trial. Id. Once more, the Court warned Defendant that if he continued to yell and 

interrupt the proceedings, he would be removed from the courtroom and permitted to watch the 

proceedings from another room. Id. at 16. The Court advised that if at any time he wanted to 

return and behave appropriately, he could return to the courtroom. Id. The Court again offered 

Defendant a chance to change into street clothing before trial began. Id. Defendant told the Court 

that the Court does not care that transcripts were taken from him, that he has evidence, or that the 

Court blocked him from making copies at the jail. Defendant then accused the Court of violating 

his constitutional rights by telling him to sit down and stop yelling. Id. at 18–19. 

When the Court announced that the trial would begin and asked the courtroom deputy to 

bring the jury in, Defendant said, “Don’t bring me here anymore. Okay, do the trial. Okay. Do it. 

Do it.” Id. at 19. When the Court inquired whether Defendant was voluntarily giving up his right 

to be present at his trial, Defendant replied, “You have no shame, buddy. You’ve got no shame.” 

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Id. at 20. Defendant then left the courtroom. Id. After Defendant left the courtroom, the Court 

described Defendant’s demeanor for the record: 

The record should reflect Mr. Marin-Torres has been removed from the 

courtroom. He was yelling, agitated, shaking. The marshals were concerned. I was 

concerned. I told him that we would continue and proceed in the trial without him, 

that he could watch the trial from another room; and when he was ready to 

participate, if he wanted to participate, he could return to the courtroom at any time, 

but he needed to behave himself. 

He has chosen, in my opinion, to be completely agitated. He is out of 

control. He’s yelling at the Court. He is completely disrespectful. And he has 

chosen to absent himself from the proceeding. 

Id. The Court took a recess and set up an empty courtroom for Defendant to view the 

proceedings from. Id. at 21. The Court instructed the interpreter to join Defendant in the empty 

courtroom and instructed Mr. Audet, Defendant’s standby counsel, to deliver whatever materials 

he had to Defendant. Id. The Assistant United States Attorney provided a copy of the grand jury 

transcript to Defendant’s standby counsel to provide to Defendant. Id. 

After the recess, Defendant returned to the trial courtroom in jail clothing. Id. at 22. The 

jurors were not present. Defendant said he did not want to proceed in jail clothing and that he did 

not bring any documents to prepare for cross-examinations. Id. He said he was prepared to argue 

motions, not to conduct trial, and asked that the trial be continued until the following day. Id.

Defendant said that the Court had not called Multnomah County yet and conveyed his belief that 

wrongdoing was occurring. Id. at 23. He then described the evidence that he needed for 

impeachment purposes but did not bring with him. Id. Next, he complained that he was unable to 

take notes when his standby counsel brought discovery documents for him to review and that he 

did not want standby counsel or the investigator to help him. Id. at 25–26. The Court told 

Defendant that other clothing had been made available for him to wear, and Defendant said that 

it was not the clothing he wanted. Id. at 24. Over Defendant’s continued interruptions, the Court 

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5 – OPINION & ORDER 

admonished Defendant again that if he continued to yell and be disrespectful, then the Court 

would remove him from the courtroom and find that he waived his right to self-representation 

and to be present at trial. Id. at 26–27. Defendant continued to interrupt, argue with the Court, 

and describe difficulties he experienced with reviewing evidence subject to a protective order. Id. 

at 30–32. 

Defendant continued to argue with the Court until the jury began to enter the room. When 

the jury had entered, Defendant began to object and argue that the Court had prejudiced the jury 

against him by allowing the jury to see Defendant in jail clothing. Id. at 34. The Court instructed 

him to stop speaking and Defendant continued, accusing the Court of raping his constitutional 

rights. Id. at 35. The Court asked the courtroom deputy to remove the jury venire from the 

courtroom and warned Defendant again that he would be removed from the courtroom if he 

continued. Id. Defendant called the Court corrupt as the jury venire left the courtroom. Id. 

Defendant continued to interrupt and yell at the Court. Id. at 37–38. The jury venire returned to 

the courtroom to begin jury selection. As the Court gave the jury venire an introduction to the 

proceedings, Defendant interrupted to object that the venire did not include any African 

American prospective jurors, accused the Court of using a jury that “has been here other times” 

and raping the constitution, and called the Court a traitor. Id. at 40–41. 

The Court then removed Defendant from the courtroom and instructed Defendant’s 

standby counsel to represent Defendant throughout the remainder of the trial. Id. at 41, 44. After 

jury selection was completed, the Court returned Defendant to the courtroom to ask whether he 

wanted to testify on his own behalf. Id. at 95. Defendant responded that if the Court would not 

permit him to represent himself, he did not want to attend and would prefer to return to the jail. 

Id. He said that he did not want to testify, he did not want to watch the proceedings from another 

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6 – OPINION & ORDER 

location, and he wanted to return to the jail. Id. at 95–96. He said he did not feel well because he 

was on a hunger strike. Id. at 95. The Court returned Defendant to the Multnomah County jail 

and proceeded with trial. On the second day of trial, the Court confirmed with the United States 

Marshal’s office that Defendant told the Marshal that he did not want to return to the Court on 

the second day of trial to participate in his case. Trial Tr. 23, ECF 117. The Marshal brought 

Defendant to the Court and held him at the Court in case he changed his mind and decided to 

view or participate in the trial. Id. He did not participate. Id. 

The jury found Defendant guilty of assaulting an officer. Jury Verdict, ECF 93. 

Defendant appealed his conviction, arguing that his Sixth Amendment confrontation rights and 

right to self-representation were violated. The Ninth Circuit affirmed Defendant’s judgment of 

conviction and sentence. United States v. Marin-Torres, 702 F. App’x 634–35 (9th Cir. 2017)

(mem.). The Ninth Circuit held that “[t]he district court’s protective order regarding discovery 

properly protected sensitive personnel information while giving the defense ample access to the 

necessary information” and that Defendant’s “disruptive behavior justified the district court in 

revoking his self-representation and providing for representation by standby counsel.” Id. at 634. 

Defendant filed a petition for writ of certiorari in the United States Supreme Court, and the 

Supreme Court denied certiorari. Marin-Torres v. United States, 138 S. Ct. 2588 (2018) (mem.). 

On November 4, 2019, Defendant filed a motion for an extension of time to file a motion 

under 28 U.S.C. § 2255 for relief from his judgment of conviction. Def. Mot. Ext. Time, ECF 

128. The Court construed the motion as a first motion for relief from his judgment of conviction 

under § 2255, found it timely, and allowed Defendant one year from November 4, 2019, to 

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7 – OPINION & ORDER 

withdraw or amend his § 2255 motion. Op. & Order 11, ECF 133. Defendant filed a new § 2255 

motion on November 19, 2020.2 The Court denies Defendant’s motion. 

STANDARDS 

Section 2255 permits “[a] prisoner in custody under sentence of a court established by 

Act of Congress” to move the sentencing court to vacate, set aside, or correct the sentence on the 

basis that:

[T]he 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[.] 

28 U.S.C. § 2255(a). To warrant relief, a defendant must demonstrate that an error of 

constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or 

the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. 

Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht’s harmless error 

standard applies to habeas cases under section 2255, just as it does to those under section 

2254.”). 

Under § 2255, “a district court must grant a hearing to determine the validity of a petition 

brought under that section, ‘[u]nless the motions and the files and records of the 

case conclusively show that the prisoner is entitled to no relief.’” United States v. Blaylock, 20 

F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in original) (quoting 28 U.S.C. § 2255). 

 In determining whether a § 2255 motion requires a hearing, “[t]he standard essentially is 

whether the movant has made specific factual allegations that, if true, state a claim on which 

2

 The Certificate of Service Defendant filed with the motion is dated October 26, 2020. The 

Government does not argue that the motion is untimely. Gov’t Opp’n 2–3, ECF 138. As a result, 

the Court assumes, without finding, that Defendant’s motion is timely. 

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8 – OPINION & ORDER 

relief could be granted.” United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011)

(alteration in original) (quotation marks omitted). A district court may dismiss a § 2255 motion 

based on a facial review of the record “only if the allegations in the motion, when viewed against 

the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.’ 

” Id. at 1062–63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 

1984)); see United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). Conclusory statements 

in a § 2255 motion are insufficient to require a hearing. Hearst, 638 F.2d at 1194. 

DISCUSSION 

Defendant argues that his Fifth, Sixth, and Fourteenth Amendment rights were violated 

when he was removed from the courtroom during his trial and was not permitted to represent 

himself. The Government argues that these issues were litigated on direct appeal and cannot be 

re-raised in this collateral attack. On the merits, the Government argues that under the 

circumstances the Court’s removal of Defendant from the courtroom and order that standby 

counsel represent Defendant throughout the remainder of the trial did not violate Defendant’s 

constitutional rights and that the remainder of Defendant’s claims are frivolous. 

I. Defendant’s First § 2255 Motion 

Defendant’s first § 2255 motion3

 alleges various acts of corruption, discrimination, and 

dishonesty of the Court and prosecutor during his first trial.4

 Def. Mot. Ext. Time (“First § 2255 

3

 References throughout this Opinion to Defendant’s first § 2255 motion refer to Defendant’s 

motion for a one-year extension of time to file a motion under § 2255. Def. Mot. Ext. Time, ECF 

128. 

4

 Defendant’s motion seeks relief under § 2255 from his judgment of conviction in this case but 

references a number of constitutional violations that he believes occurred in another case, United 

States v. Marin-Torres, No. 3:14-cr-00038, 2014 WL 7405653, at *2 (D. Or. Dec. 30, 2014). He 

refers to the trials in these cases as his first trial and his second trial. First § 2255 Mot. 3, 7. This 

Opinion addresses only the constitutional violations he alleges occurred in this case. 

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Mot.”) 2. It also alleges that his conviction following his first trial represents “tyranny” in order 

to generate profit for the private prison industry. Id. Defendant alleges that this Court and the 

Ninth Circuit used Plaintiff’s English language limitations as an excuse to deny him his right to 

self-representation under Faretta v. California, 422 U.S. 806 (1975). Id. at 3. Defendant also 

claims that he lacked access to discovery in violation of McKaskle v. Wiggins, 465 U.S. 168 

(1984), and argues that he was denied access to gang experts during his “first trial.” First § 2255 

Mot. 3. Defendant argues that he was denied access to discovery because of his race. Id. at 4. 

Defendant argues that he did not know that his standby counsel spoke Spanish. Id. at 5. He also 

argues that he was unaware that the victim in his first trial had cooperated with the government. 

Id. at 6. In Defendant’s first § 2255 motion, those arguments appear before the heading “In the 

Second Trial.” Id. at 1–7. Thus, it appears that those arguments relate to his trial in Case No. 

3:14-cr-00038-HZ, and not his trial in this case. 

In the trial in this case, Defendant argues that the Court violated his Fifth, Sixth, and 

Fourteenth Amendment rights generally and his right to be present in the courtroom and to selfrepresentation during his second trial. Id. at 7. Defendant argues that the Government relied on 

the testimony of an officer who Defendant had filed grievances against, was fired for making a 

false statement, and who had harassed Defendant. Id. at 8. Defendant referenced material 

evidence demonstrating that the officer Defendant was accused of assaulting had been fired for 

making false statements to the officer’s supervisor. Id. at 7–8. Defendant also claims that the 

officer Defendant was accused of assaulting was later assaulted by an African American inmate 

because the officer had used racial slurs to address the inmate. Id. at 8. Defendant argues that the 

Court inappropriately excluded witnesses that Defendant intended to call at trial and makes 

blanket allegations of prosecutorial misconduct during sentencing. Id. at 8. He also argues that 

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10 – OPINION & ORDER 

the judge and prosecutor lied and that his sentence in this case represents an attempt to generate 

profit for the private prison industry. Id. 

II. Defendant’s Amended § 2255 Motion 

Defendant’s amended § 2255 motion presents similar claims. The motion seeks an order 

vacating the conviction due to “prosecutorial misconduct corruption crimes from the judge and 

prosecutor who traitor [their] oath to offices and the constitution of the United States of 

America.” Am. § 2255 Mot. 1, ECF 135. The motion argues that the Court racially discriminated 

against Defendant, who identifies as Afro Cuban, on the basis of his race and that the Court 

“rape[d]” Defendant’s Fifth, Sixth, and Fourteenth Amendment rights to be present in the 

courtroom and to represent himself under Faretta v. California. Id. at 3. Defendant argues that 

those violations occurred when the Court excluded Defendant from the courtroom, refused to 

allow him to present impeachment evidence showing that the officer he was accused of 

assaulting had been fired for giving a false statement to his supervisor, and that Defendant and 

another inmate had made complaints against the officer for harassment and racial discrimination. 

Id. Defendant argues that it was the Court’s plan from the start to exclude Defendant from the 

trial and let his standby counsel represent him during the trial. Id. at 31. His motion presents the 

facts as he views them and argues that his treatment was similar to the treatment of African 

Americans that sparked the racial protests in Portland, Oregon. Id. at 4–5. Defendant argues that 

the Court system in Portland is corrupt, committed crimes against him, and sold its soul to the 

devil. Id. at 5–6. 

Defendant also argues that his prosecution was unfair because another inmate spit on the 

same officer and the other inmate was not charged with assault. Id. at 8. He argues that if the 

other inmate had been allowed to testify during Defendant’s trial, the outcome of Defendant’s 

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trial would have been different. Id. Defendant also argues that his right to access discovery was 

violated when a protective order precluded Defendant from having copies of the officer’s 

personnel records in jail with him but allowed him to view the discovery with his standby 

counsel or investigator. Id. at 11.5 Defendant argues that his Sixth Amendment rights were 

violated when the jury venire saw him in jail clothing before jury selection began. Def. Reply 43, 

ECF 142. He also argues that the Court ordered the U.S. Marshal to beat him. Reply 52. 

III. Analysis 

Defendant’s allegations of constitutional violations stem from his arguments that the 

Court violated his right to be present during the proceedings and his right to self-representation. 

Specifically, Defendant argues that the Court violated those rights by ordering Defendant’s 

standby counsel to represent Defendant when Defendant was removed from the courtroom after 

he engaged in a series of repeated outbursts that disrupted the proceedings. The Court finds that 

Defendant’s motion, when read against the record, raises no right to relief under § 2255. 

A. Procedural Bar 

The Government argues that the constitutional violations Defendant alleges were raised 

on direct appeal and are not cognizable in a § 2255 motion. The Government is correct. Issues 

raised and previously litigated on direct appeal are barred from re-litigation under the law of the 

case doctrine. United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (“A collateral attack is 

the ‘same case’ as the direct appeal proceedings for purposes of the law of the case doctrine.”); 

5

 Defendant’s amended § 2255 motion and reply also contain Defendant’s grievances about his 

treatment during his incarceration and constitutional violations he alleges occurred during the 

course of his trial in No. 3:14-cr-00038-HZ. See, e.g., Am. § 2255 Mot. 23–24, 30; Reply 34–37, 

42. Because those arguments are irrelevant to the Court’s determination of whether Defendant’s 

self-representation and confrontation rights were violated in this case, the Court omits those 

arguments from its discussion. 

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12 – OPINION & ORDER 

United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) (holding that “[i]t is the law of this 

case that the government did not violate its Brady obligation” when Brady claims had been 

raised and rejected on direct appeal). 

The Ninth Circuit’s memorandum decision in this case demonstrates that the court 

considered and rejected Defendant’s arguments. First, the court held that the protective order 

concerning discovery “properly protected sensitive personnel information while giving the 

defense ample access to the necessary information.” Marin-Torres, 702 F. App’x at 634. Second, 

the circuit court considered and rejected Defendant’s argument that his Sixth Amendment 

confrontation rights were violated when the Court removed him from the courtroom during jury 

selection. Id. And finally, the court rejected Defendant’s argument that this Court violated his 

right to self-representation when the Court ordered Defendant’s standby counsel to conduct the 

trial in Defendant’s absence. Id. Because those arguments were litigated on direct appeal, they 

are barred from consideration in this § 2255 proceeding. Thus, the Court only considers 

Defendant’s remaining arguments. 

B. Hearing 

Defendant’s motion indicates that he does not want a hearing on this motion. Am. § 2255 

Mot. 33. A defendant may waive their right to a hearing under § 2255. See Sanders v. United 

States, 373 U.S. 1, 18 (1963) (holding that by withholding a ground for relief under § 2255, a 

prisoner may waive their right to a hearing on that ground in a second application under § 2255); 

United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993)

(holding that a defendant may waive their right to file a § 2255 motion challenging their 

sentence). Because Defendant waived a hearing on his motion, and the Court can decide the 

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13 – OPINION & ORDER 

motion on the record, the Court finds that a hearing is unnecessary to resolve Defendant’s 

claims. 

C. Appearance Before Jury in Jail Uniform 

Defendant argues that the Court violated his constitutional rights when it allowed him to 

appear before the jury in his jail uniform instead of street clothing. “A defendant ‘may not be 

compelled to be tried before a jury in identifiable prison clothes.’” Villafuerte v. Stewart, 111 

F.3d 616, 627–28 (9th Cir. 1997) (quoting United States v. Rogers, 769 F.2d 1418, 1420 (9th Cir. 

1985)). However, when a defendant refuses to wear the civilian clothing provided, the defendant 

cannot establish that he was compelled to appear in jail clothing. Id. at 628. 

Defendant appeared to in jail clothing during the hearing held on the first morning of his 

trial. Although he expressed his desire not to appear before the jury in jail clothing, when 

Defendant received civilian clothing to change into, he refused. Trial Tr. 22–24. Thus, he was 

not compelled to appear before the jury in jail clothing and his right to due process was not 

violated when he did so. Villafuerte, 111 F.3d at 628. 

D. Fourteenth Amendment Violation 

Defendant argues non-specifically that his Fourteenth Amendment rights were violated 

during his federal prosecution. The Fourteenth Amendment does not apply to actions by the 

federal government. District of Columbia v. Carter, 409 U.S. 418, 424 (1973). As a result, there 

is no legal basis for his claim of a Fourteenth Amendment violation. 

E. Other Allegations 

The remainder of Defendant’s allegations are unsupported in fact or law. Defendant 

claims that the prosecutor engaged in prosecutorial misconduct, that the court lied, that the court 

and prosecutor engaged in tyranny, that the court discriminated against him on the basis of his 

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14 – OPINION & ORDER 

race, that the Court told the U.S. Marshals to assault Defendant, and that the Court and 

prosecutor conspired to unlawfully convict him of assaulting an officer in order to incarcerate 

him and generate profit for the private prison industry.6 Defendant alleges no facts to support 

those claims. And, to the extent that Defendant failed to raise those claims on direct appeal, they 

are procedurally barred. See Massaro v. United States, 538 U.S. 500, 504, 506 (2003) (describing 

the general rule that claims not raised on direct appeal are barred by procedural default unless the 

defendant demonstrates good cause and prejudice and creating an exception for claims for 

ineffective assistance of counsel). As a result, Defendant has no cognizable § 2255 claim based 

on those allegations. 

IV. Certificate of Appealability 

If a court denies a habeas petition, the court may issue a certificate of appealability if 

“jurists of reason could disagree with the district court’s resolution of [the petitioner’s] 

constitutional claims or that jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003); see 28 

U.S.C. § 2253(c)(1). Although the petitioner is not required to prove the merits of his case, they 

must demonstrate “something more than the absence of frivolity or the existence of mere good 

faith on his or her part.” Miller–El, 537 U.S. at 338 (quotation marks omitted). Defendant has 

failed to demonstrate even the absence of frivolity of his claims. As a result, the Court declines 

to issue a certificate of appealability.

6

 The Government argues that Defendant appears to raise an ineffective assistance of counsel 

claim by complaining about his standby counsel and investigator. Gov’t Opp’n 5–7. The Court 

disagrees. Defendant’s motion challenges only the Court’s appointment of standby counsel and 

its removal of Defendant from the Courtroom. Defendant’s motion contains no argument that his 

standby counsel’s performance was deficient under Strickland v. Washington. As a result, the 

Court need not address whether Defendant’s standby counsel’s performance was deficient. 

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CONCLUSION 

Defendant’s motion for extension of time to file a motion for relief from his judgment of 

conviction [128], which the Court previously construed as a first motion for relief from his 

judgment of conviction under § 2255, and his amended motion for relief under § 2255 [135] are 

DENIED. The Court declines to issue a Certificate of Appealability. 

 IT IS SO ORDERED. 

 DATED: . 

 

 

MARCO A. HERNÁNDEZ 

United States District Judge 

September 23, 2021

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