IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Ramon Garza, Jr., :

Petitioner/Defendant, : Civil Action No. 12-33-CG

v. : Criminal No. 7-349-CG-C

United States of America, :

Respondent. :

REPORT AND RECOMMENDATION

Petitioner Ramon Garza, Jr., a federal prison inmate proceeding pro se, filed a 

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 

201) and a motion to extend the deadline for filing his memorandum in support (Doc. 

202) on January 11, 2012; the Court received his memorandum in support (Doc. 211) on 

February 29, 2012.1 The United States filed its opposition (Doc. 219) on April 24, 2012, 

and Garza filed his reply (Doc. 222) on July 23, 2012.

This action has been referred to the undersigned for entry of a report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). And it is RECOMMENDED that 

Garza’s § 2255 motion be DENIED and that the Court find that Garza is not entitled to a 

certificate of appealability and is therefore not entitled to appeal in forma pauperis.

 1 As explained when taking the § 2255 petition under submission (see Doc. 214),

[t]he petitioner’s motion was timely filed, and because the memorandum of law 

“concerns precisely the same claims as are set forth in the § 2255 Motion[,]” the 

issues raised in the memorandum of law “do not raise new grounds and, even if 

they did, obviously do relate back to the original, timely § 2255 Motion.” United 

States v. Westry, Civil Action No. 07-0425-WS; Criminal No. 05-0206-WS, 2007 WL 

2051264, at *2 (S.D. Ala. July 16, 2007) (denying the Government’s motion to 

strike untimely filed memorandum of law; relying on amended § 2255 petition 

“relation back” principles as provided in Davenport v. United States, 217 F.3d 1341 

(11th Cir. 2000), and its progeny, and in Mayle v. Felix, 545 U.S. 644, 650 (2005)).

(Id. at 1-2.)

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I. The Underlying Criminal Case

A twenty-four (24) count superseding indictment (Doc. 10) was returned against 

Garza and two codefendants in April 2008. The indictment contained one count of 

conspiracy to possess with the intent to distribute approximately 315 kilograms of 

cocaine, in violation of 21 U.S.C. § 846 (Count 1); one count of conspiracy to commit 

money laundering, in violation of 18 U.S.C. § 1956(h) (Count 2); twenty (20) counts of 

substantive money laundering, in violation of 18 U.S.C. § 1956(a)(B)(i)2; one count of 

possession with intent to distribute 280 pounds of marijuana, in violation of 21 U.S.C. § 

841(a)(1) (against Garza) (Count 23); and one forfeiture allegation (Count 24). In June 

2008, Garza was arrested and arraigned (see Docs. 15, 19, 33, and 36), and Jan Jones, a 

member of the Court’s Criminal Justice Act (CJA) Panel, was appointed to represent 

Garza in this Court (see Docs. 34, 35, and 39).

In January 2009, following a five-day trial before Judge Granade, all defendants 

were convicted on all counts. (See Docs. 89, 96, and 171 at 113-117 [905:12-909:21]) and 

were ordered to forfeit $6 million (see Docs. 92, 96, 109, and 171 at 134-136 [926:11-

928:8]). On April 22, 2009, after the Court denied his motion for a new trial (see Docs. 

113, 134, 141, 142, 154, and 223), Garza received concurrent sentences of life 

imprisonment as to Count 1; 240 months as to Counts 2, 3, and 4; and 120 months as to 

Count 23.

Garza and his codefendants appealed to the Eleventh Circuit, arguing that there 

was insufficient evidence to support their convictions. (See generally Doc. 189; United 

States v. Lopez, 403 Fed. App’x 362 (11th Cir. Nov. 12, 2010) (per curiam).) Attorney 

 2 Garza was charged in two (Counts 3 and 4).

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Greg Hughes was appointed to represent Garza post-trial. (See Docs. 97, 101, and 103.) 

And the Eleventh Circuit affirmed all three defendants’ convictions and sentences. See 

Lopez, 403 Fed. App’x at 381.

II. Collateral Attack

Garza’s petition presents claims based on the alleged ineffectiveness of his trial 

counsel (Ms. Jones) and his appellate counsel (Mr. Hughes). Ineffectiveness claims, 

regardless whether asserted against trial or appellate counsel, “are governed by the 

same standards applied . . . under Strickland.” Dell v. United States, 710 F.3d 1267, 1273

(11th Cir. 2013) (quoting Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009)).

To establish a claim of ineffective assistance of counsel, Garza is required to 

show (1) that his attorney’s representation fell below “an objective standard of 

reasonableness” and (2) that a reasonable probability exists that but for counsel’s 

unprofessional conduct, the result of the proceeding would have been different. See 

generally Strickland v. Washington, 466 U.S. 668 (1984). He “bears the burden of proof on 

the ‘performance’ prong as well as the ‘prejudice’ prong of a Strickland claim, and both 

prongs must be proved to prevail.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 

2001), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926 (2002); accord Cooper v. Secretary, 

Dep’t of Corrs., 646 F.3d 1328, 1351 (11th Cir. 2011).

To succeed on such a claim, Garza “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.” 

Strickland, 466 U.S. at 687. And “[w]hen analyzing ineffective-assistance claims, 

reviewing courts must indulge a strong presumption that counsel’s conduct fell within 

the wide range of reasonably professional assistance.” Smith v. Singletary, 170 F.3d 1051, 

1053 (11th Cir. 1999) (citations omitted). As the Supreme Court recently explained,

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“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. 

Kentucky, 559 U.S. ----, ----, 130 S. Ct. 1473, 1485 (2010). An ineffectiveassistance claim can function as a way to escape rules of waiver and 

forfeiture and raise issues not presented at trial, and so the Strickland

standard must be applied with scrupulous care, lest “intrusive post-trial 

inquiry” threaten the integrity of the very adversary process the right to 

counsel is meant to serve. Strickland, 466 U.S. at 689–90. Even under de 

novo review, the standard for judging counsel’s representation is a most 

deferential one. Unlike a later reviewing court, the attorney observed the 

relevant proceedings, knew of materials outside the record, and interacted 

with the client, with opposing counsel, and with the judge. It is “all too 

tempting” to “second-guess counsel’s assistance after conviction or 

adverse sentence.” Id. at 689. The question is whether an attorney’s 

representation amounted to incompetence under “prevailing professional 

norms,” not whether it deviated from best practices or most common 

custom. Id. at 690. 

Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 788 (2011) (some internal citations 

modified or omitted).

When applying the Strickland standard, it is clear, moreover, that courts “are free 

to dispose of ineffectiveness claims on either of its two grounds.” Oats v. Singletary, 141 

F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied sub nom. Oats v. Moore, 527 

U.S. 1008 (1999); see also Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) 

(“[O]nce a court decides that one of the requisite showings has not been made it need 

not decide whether the other one has been.”).

A. Ground One: Ineffectiveness of trial counsel based on her 

“unreasonable failure to object to evidentiary errors that cumulatively 

denied Petitioner of Due Process.”

Garza first attacks his sentence by attacking the constitutional effectiveness of his 

trial counsel with regard to the testimony of three witnesses presented by the United 

States. The undersigned will address Garza’s various theories witness-by-witness.

1. Agent Kroona

i. Bolstering/Vouching

As to FBI Special Agent Ruth Kroona, the case agent, Garza first asserts, “Case 

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Agent Kroona managed to violate prohibitions against both vouching and bolstering.

Much of her testimony was prefaced with phrases, such as “I obtained 

information” or “We received information[”] or “Our investigation has 

shown[,]” that clearly communicated to the jury her unfettered access to 

extrinsic sources of information. The predicate statements employed to 

complete those phrases compounded the error by implying that she was 

able through those unidentified, extraneous sources to confirm her

opinion of Garza’s guilt. Thus, the jurors were informed that her 

investigation showed Garza went to Alabama “to obtain the Tahoe to take 

it to New York to obtain cocaine” and that “Ramon Garza delivered 280 

pounds of marijuana to the Knoxes in Alabama[.]”

(Doc. 211 at 27.) According to Garza, the manner in which Agent Kroona testified 

“suggested both directly and indirectly to the jury that an experienced and highly 

trained FBI agent had determined that [he] was guilty of the charged crimes.” (Id.) 

Further, according to Garza, Agent Kroona was allowed to “blatantly vouch[ ] for the 

credibility of the principal witness, [unindicted co-conspirator] Alvin Knox, by 

informing the jury that she obtained information from [him] and corroborated it from

police reports.” (Id. at 28.)

Claims of bolstering/vouching typically occur in the context of a prosecutor 

allegedly bolstering (or vouching for) the testimony of government witnesses, such as 

FBI agents, as was at issue in United States v. Bernal-Benitez, 594 F.3d 1303 (11th Cir.), 

cert. denied, 130 S. Ct. 2123 (2010), in which in Eleventh Circuit explained:

A defendant is denied a fair trial if the prosecutor’s remarks were (1) 

improper and (2) prejudicially affected the defendant’s substantial rights. 

United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “A defendant’s 

substantial rights are prejudicially affected when a reasonable probability 

arises that, but for the remarks, the outcome of the trial would have been 

different.” Id. In assessing whether the remarks were prejudicial, “[a 

reviewing court] must evaluate them in the context of the trial as a whole 

and assess their probable impact on the jury.” United States v. Hernandez, 

145 F.3d 1433, 1438 (11th Cir. 1998).

. . .

Ordinarily, it is improper for a prosecutor to bolster a witness’s testimony 

by vouching for that witness’s credibility. United States v. Hands, 184 F.3d 

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1322, 1334 (11th Cir. 1999). Bolstering occurs when “‘the jury could 

reasonably believe that the prosecutor was indicating a personal belief in 

the witness’ credibility.’” United States v. Knowles, 66 F.3d 1146, 1161 (11th 

Cir. 1995) (quoting United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983)). 

A prosecutor’s comments can fail this test in two ways: (1) by placing the 

prestige of the government behind the witness, or (2) by indicating that 

information not before the jury supports the witness’s credibility. Id. The 

rule against bolstering does not, however, prevent the prosecutor from 

commenting on a witness’s credibility, which can be central to the 

government’s case. United States v. Hernandez, 921 F.2d 1569, 1573 (11th

Cir. 1991).

Id. at 1313-14; accord United States v. Arias–Izquierdo, 449 F.3d 1168, 1177–78 (11th Cir.

2006); see also United States v. Acosta, 323 Fed. App’x 751, 760 (11th Cir. Apr. 16, 2009) 

(per curiam) (“Acosta first asserts that the prosecutor improperly bolstered the 

credibility of Maestrey by asking whether Maestrey struck the jury as the type of person 

who was telling the truth. This comment, however, did no more than invite the jury to 

make a credibility determination, which the district court subsequently instructed the 

jury to do.”).

Garza has failed to provide the Court any authority to support his theory, which 

appears to be that FBI Special Agent Kroona—not the prosecutor—bolstered/vouched 

for the testimony of an ostensibly less credible witness, Alvin Knox. This is not 

surprising since it appears that, albeit in an unpublished opinion, the Eleventh Circuit 

has rejected this theory. See United States v. Platten, 448 Fed. App’x 873, 879 (11th Cir. 

Sept. 12, 2011) (per curiam) (“To the extent that [IRS Special Agent] McCord lent 

credence to [co-conspirator] Goldshor’s testimony, there was no error, let alone plain 

error, because existing caselaw only prohibits the prosecutor from vouching for the 

credibility of witnesses, and does not forbid a witness from corroborating another’s 

testimony. Further, in the same vein, any error stemming from the alleged vouching by 

McCord is not plain because Platten points to no precedent from this Court or the 

Supreme Court that supports his contention.”) (citing Arias–Izquierdo, 449 F.3d at 1177–

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78); compare United States v. Torres, 53 F.3d 1129, 1141 (10th Cir. 1995) (“While the line 

between corroborative testimony and testimony that constitutes impermissible 

credibility-bolstering may not always be clear, we believe the balance of Agent Hoke’s 

testimony served a legitimate corroborative function.”), with cf. United States v. Cruz, 981 

F.2d 659, 664 (2d Cir. 1992) (“[E]xpert testimony cannot be used solely to bolster the 

credibility of the government’s fact-witnesses by mirroring their version of events.”) 

(emphasis added).

Regardless, a review of Agent Kroona’s testimony (see Doc. 170 at 119-226 

[680:18-787:7]) reveals that she neither bolstered nor vouched for other witnesses. She

testified regarding the mechanics of the investigation, and her testimony also “served a 

legitimate corroborative function.” Torres, 53 F.3d at 1141. Thus, Garza cannot claim 

his trial counsel was constitutionally ineffective for failing to object to Agent Kroona’s 

testimony as bolstering/vouching for other government witnesses. See, e.g., Alba v. 

United States, Nos. 09–CV–1789 W; 01–CR–3177 W, 2012 WL 460322, at *3 (S.D. Cal. Feb. 

13, 2012) (where habeas petitioner asserted that his counsel was ineffective for not 

objecting to the corroboration of a witness’s testimony by DEA Special Agent Coffey, 

the court noted, “Coffey was a highly trained DEA agent who observed video footage 

of Alba, Hernandez and Chavez going in and out of a clandestine lab carrying objects 

Coffey knew were consistent with an ongoing cook. Given these circumstances and the 

other evidence against Petitioner, counsel’s strategic decision not to challenge Coffey’s 

testimony was not objectively unreasonable.”); see also Ellis v. United States, Nos. 6:06–

cr–00037; 6:10–cv–00041, 2011 WL 7163114, at *4-5 (S.D. W. Va. Jan. 4, 2011) (rejecting 

argument that counsel was ineffective for failing “to object to prejudicial hearsay 

offered by case agent regarding interviews with key witnesses” because case agent 

simply “explained to the jury how ATF traces firearms and how the investigation was 

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conducted. . . . Agent Price did not repeat [witness’s] testimony; he simply related the 

steps of the investigation. There was nothing objectionable about his testimony.”), 

report & recommendation adopted, 2012 WL 386738 (S.D. W. Va. Feb. 6, 2012), appeal 

dismissed, United States v. Ellis, No. 12–7599, 2013 WL 732769, at *1 (4th Cir. Feb. 28, 

2013) (per curiam).

ii. Lay v. Expert Witness Testimony

Garza next asserts that Agent Kroona, in effect, offered expert testimony, 

asserting that, because her “[t]estimony [ ] function[ed] to answer the same question 

that the trier[s] of fact [are] to consider in [their] deliberations[, her testimony] 

constitute[d] impermissible lay opinion within the meaning of Fed. R. Evid. 701[.]” 

(Doc. 211 at 27.) Relatedly, he also asserts that Agent Kroona was impermissibly 

allowed to testify “as an ‘expert summary witness‘ [and] was allowed to casually 

disregard every safeguard against prejudicial summary witness testimony. She alleged 

facts in her testimony as if they had already been proved; she repeatedly converted 

otherwise inadmissible references to police reports, witness interviews and other 

investigative documents into corroborative testimony[

3

]; and spiked her testimony with

conclusory comments.” (Id. at 29-30; see also id. at 31 (“By [testifying] that the 

information obtained in the investigation corroborated statements of witnesses who 

accused the defendant,” Agent Kroona, according to Garza, “obscured the important 

distinction between argument and evidence, in effect giving the jury a summation 

argument in the guise of testimony.”).)

First, as stated above, and contrary to Garza’s belief, an agent’s testimony may 

“serve[ ] a legitimate corroborative function.” Torres, 53 F.d at 1141. Next,

 3 This accusation also implicates the Confrontation Clause and hearsay; those 

concerns will be addressed below.

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Rule 701 of the Federal Rules of Evidence permits opinion testimony by 

lay witnesses. To qualify, a witness’ opinion is limited “to those opinions 

and inferences which are (a) rationally based on the perception of the 

witness, (b) helpful to a clear understanding of the witness’ testimony or 

the determination of a fact in issue, and (c) not based on scientific, 

technical, or other specialized knowledge within the scope of Rule 702.”

United States v. LeCroy, 441 F.3d 914, 927 (11th Cir. 2006) (quoting FED. R. EVID. 701).

Importantly, “[j]ust because [a government agent’s] position and experience 

could have qualified him for expert witness status does not mean that any testimony he 

gives at trial is considered ‘expert testimony.’” Id.; see also United States v. Flores-DeJesus, 569 F.3d 8, 22 n.5 (1st Cir. 2009).4

 If a government agent’s testimony represents 

“his opinion about matters with which he had meaningful experience, [is] based on 

personal knowledge derived from his investigation . . . [, is] based upon facts that [are] 

readily apparent . . . , and his opinions [are] consistent with those that a normal person 

easily could form from reviewing the same information[,]” such testimony is 

“admissible as lay witness testimony under Fed. R. Evid. 701.” United States v. Yager, 

No. 08-40081, 2008 WL 4948608, at *1 (5th Cir. Nov. 20, 2008) (per curiam); compare id., 

with United States v. Rollins, 544 F.3d 820, 832 (7th Cir. 2008) (“[DEA Case] Agent 

McGarry’s impressions testimony was not based on any specialized knowledge gained 

from his law enforcement training and experience in narcotics trafficking generally. 

 4 There, the First Circuit noted,

While Agent Toro was qualified as an expert on the typical operation of drug 

conspiracies, see United States v. Garcia-Morales, 382 F.3d 12, 18-19 (1st Cir. 2004), 

we are not suggesting that only an expert could properly provide similar 

testimony. See, e.g., United States v. Santiago, 560 F.3d 62, 66 (1st Cir. 2009) 

(observing that testimony about coded language in drug transactions may be 

admissible as either lay or expert testimony); United States v. Pinillos-Prieto, 419 

F.3d 61, 71 (1st Cir. 2005) (holding that case agent’s testimony regarding his 

experience with general operation of drug conspiracies was permissible lay 

opinion testimony under Rule 701).

Id. (initial internal citation modified).

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Rather, his understanding of [certain] conversations came only as a result of the 

particular things he perceived from monitoring intercepted calls, observing drug 

transactions of these conspirators, and talking with the cooperating conspirators about 

this drug operation as the investigation rolled into the trial preparation phase. He had 

become intimately familiar with each voice on the calls, particular mannerisms of the 

speakers and the habits of the conspirators.”).

A review of Agent Kroona’s testimony reveals that her testimony was based on 

knowledge she gained as the case agent and not on her “law enforcement training and 

experience[.]” Rollins, 544 F.3d at 832. As such, her testimony was “admissible as lay 

witness testimony under Fed. R. Evid. 701.” Yager, 2008 WL 4948608, at *1. And 

Garza’s claim that his trial counsel was constitutionally ineffective because she failed to 

object to Agent Kroona’s testimony as improper expert testimony (or that Agent Kroona 

was an impermissible “expert summary witness”) must also be rejected. Cf. Johnson v. 

United States, Civil No. 08–00749–CV–W–GAF–P; Crim. No. 04–00276–01–CR–W–GAF, 

2009 WL 3855723, at *3 (W.D. Mo. Nov. 18, 2009) (“Johnson has not provided any case 

law that suggests it is improper for a case agent to testify as an expert witness when he 

or she possesses the requisite knowledge. To the contrary, it is rather commonplace. 

Therefore, Johnson has not met his burden of proving ineffective assistance of counsel . . 

. .”); Jordan v. United States, Civil Action No. 7:06cv00381, 2007 WL 2693294, at *5 (W.D. 

Va. Sept. 13, 2007).

5

 5 There, the habeas petitioner argued that his

counsel should have objected because Investigator Wilson performed “dual 

roles” for the prosecution, “as case agent and expert witness.” This essentially 

argues that a law enforcement officer active in a criminal case is limited at trial to 

testifying as a lay witness. In effect, [habeas petitioner] claims that Federal Rule 

of Evidence 702 (which states that any witness [emphasis added] may be 

“qualified as an expert by knowledge, skill, experience, training, or education,” 

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iii. Confrontation Clause and Hearsay

Finally as to Agent Kroona’s testimony, Garza contends that her “testimony 

included Crawford and hearsay violations. She readily admitted that some of her 

conclusions were derived from police reports and witness interviews, primary sources 

of testimonial hearsay.” (Doc. 211 at 36.)

The Confrontation Clause of the Sixth Amendment prohibits the 

introduction of out-of-court statements that are “testimonial,” unless the 

declarant is unavailable and the defendant had a prior opportunity to 

cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68

(2004). However, “the Confrontation Clause prohibits only statements 

that constitute impermissible hearsay.” United States v. Jiminez, 564 F.3d 

1280, 1286 (11th Cir. 2009). The Clause “does not bar the use of 

testimonial statements for purposes other than establishing the truth of 

the matter asserted.” Id. at 1286–87 (quotation omitted). Thus, statements 

by out-of-court witnesses to law enforcement officials “may be admitted 

as non-hearsay if they are relevant to explain the course of the officials’

subsequent investigative actions, and the probative value of the evidence’s 

non-hearsay purpose is not substantially outweighed by the danger of 

unfair prejudice caused by the impermissible hearsay use of the 

statement.” Id. at 1288 (quotation omitted).

United States v. Churchwell, 465 Fed. App’x 864, 865-66 (per curiam) (internal citation 

modified).6

Garza has failed to show which testimony given by Kroona violated Crawford, 

and he has not shown, moreover, that any of the police reports or witness interviews 

relied on by Agent Kroona were not “relevant to explain the course of [her] subsequent 

 and “may testify thereto in the form of an opinion”) somehow excludes police 

officers. The lack of merit to this argument is evidenced both by a plain reading 

of the rule and by innumerable cases in which police officers properly testified in 

an expert capacity.

Id. (collecting cases).

6 Moreover, at least the Tenth Circuit “ha[s] observed that ‘not every statement 

made in response to [police] interrogation is testimonial’ for purposes of confrontation clause 

analysis[.]” Gregor v. Franklin, 466 Fed. App’x 709, 711 (10th Cir. Mar. 7, 2012) (§ 2254) (quoting 

United States v. Smalls, 605 F.3d 765, 779 (10th Cir. 2010)). “[T]he emphasis must be on the 

responses generated.” Id. (citing Davis v. Washington, 547 U.S. 813, 822 n.1 (2006)).

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investigative actions[.]” Id. at 865; see id. at 865-66 (“The introduction of out-of-court 

statements by Government witnesses did not violate Churchwell’s Confrontation 

Clause rights. Although the district court did not make any evidentiary rulings on the 

statements or give a limiting instruction sua sponte, it appears the out-of-court 

statements were introduced for non-hearsay purposes—to explain how investigators 

got involved in the case and why they sought search warrants for Churchwell’s storage 

unit and his current residence. The statements helped explain the course of the 

investigators’ subsequent investigative actions, and were not plainly offered for the 

truth of the matter asserted.”) (citing Jiminez, 564 F.3d at 1288). Accordingly, Garza’s 

trial counsel also was not constitutionally ineffective because she failed to object to

Agent Kroona’s testimony on Confrontation Clause grounds. Cf. Maxwell v. United 

States, No. 1:06CV00029-ERW, 2007 WL 1847182, at *3 (E.D. Mo. June 25, 2007) 

(“Movant’s argument that Mr. Cohen failed to object, on the basis of hearsay, to the 

statements by the two female witnesses, testified to by Detective Gary Pride, is without 

merit. Detective Pride testified that the two female witnesses denied ownership of the 

firearm, and denied firing the firearm. The trial transcript shows that Mr. Cohen did 

object on the grounds of hearsay to the statements made by the two female witnesses. 

[However, t]he statements of the two female witnesses were not testimonial. The two 

unidentified women were not accusers of movant. Additionally, their statements were 

not hearsay. They were offered to show what the officers did in their investigation, not 

for the truth of the matter asserted. . . . Therefore, Movant’s first basis for his ineffective 

assistance claim is refuted by the record.”) (citing Crawford, 541 U.S. at 51).

2. Agent Lopez

ICE Agent Julio C. Lopez was called by the Government to testify regarding an 

investigation into a load of marijuana negotiated by Garza in Texas in 2007 that was 

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ultimately seized. (See generally Doc. 168 at 179-192 [492:24-505:19].) An unidentified 

confidential informant tipped Agent Lopez off to Garza’s involvement (See id. at 181 

[494:7-14] (“On August 30th of 2007, one of my informants called me and indicated that 

an individual by the name of Ramon Garza, Jr., was looking to transport -- looking for 

somebody to transport a load of narcotics from McAllen, Texas, to Houston. Q. And as 

a result of that information, did you initiate an investigation? A. Yes, ma’am. A faceto-face meeting between Mr. Garza and my informant was set up for September 1st of 

2007.”).)

i. Trial Counsel Attempted, Unsuccessfully, to Exclude 

Agent Lopez’s Testimony

Garza’s trial counsel vigorously contested the admission of this testimony. But, 

contrary to reality, Garza asserts, “Agent Lopez’s testimony reveals so many comments 

and assertions directly and indirectly attributable to the non-testifying informant that 

the failure of trial and/or appellate counsel to recognize it as an issue should constitute 

per se deficient performance under the first Strickland prong.” (Doc. 211 at 35 

(emphasis added).)

After the Government filed a notice of intention to offer Rule 404(b) evidence 

(Doc. 58), identifying Garza’s scheme in Texas to deliver a large quantity of marijuana 

(see id., ¶ 1), trial counsel—evidently recognizing that Agent Lopez was “an issue” for 

Garza’s defense—filed a motion in limine to exclude this evidence (Doc. 62). And after 

the Court denied the motion (Doc. 68), allowing admission of the evidence, trial counsel 

requested and received a limiting instruction. (See Doc. 211 at 113-115 [426:9-428:17], 

197-198 [510:20-511:16].) The record therefore belies Garza’s complaints concerning his 

trial counsel’s performance with respect to this witness.

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ii. Confrontation Clause and Hearsay

With regard to Agent Lopez’s testimony, trial counsel’s actions clearly 

demonstrate her performance was not constitutionally ineffective; however, it should be 

noted that the use of a confidential informant’s out-of-court statements does not 

necessarily implicate Crawford. For example, here, Agent Lopez testified that the 

confidential informant’s identification of Garza merely set in motion the investigation. 

(See Doc. 168 at 181 [494:7-14].) Similarly, in United States v. Gaines, 358 Fed. App’x 34 

(10th Cir. Dec. 22, 2009), the Tenth Circuit affirmed the trial court’s conclusion that,

[u]nlike the facts in Crawford, the officers in [that] case used the 

name provided by the confidential informant solely to obtain 

further information about the defendant, including a known 

photograph of the defendant. Thereafter, the agents were able to 

identify the defendant based upon their personal observations of 

the defendant during the drug transaction.

United States v. Gaines, Nos. 05–CR–132–JHP; 08–CV–699–JHP, 2009 WL 

1457713, at *4 (N.D. Okla. May 22, 2009). The court concluded that “the 

information obtained by the government agents was used solely to 

facilitate their investigation into the identity of Petitioner as opposed to 

supplying ‘testimonial’ evidence at trial against Petitioner. . . .” Id. at *5. 

We agree. The CI’s identification of Mr. Gaines’s voice in the January 5 

phone call was not admitted at trial to prove the truth of that 

identification but only to establish the background for Agent 

Rosebrough’s ultimate identification of Mr. Gaines as the participant in 

the January 9 drug sale for which he was convicted. As such, admission of 

the CI’s identification of Mr. Gaines constituted neither a Crawford nor a 

Confrontation Clause violation.

Id. at 37 (internal citation modified); compare id., with, e.g., Doc. 169 at 181-185 [494:7-

498:21] (like in Gaines, the confidential informant’s identification of Garza was not 

admitted at trial to prove the truth of the matter asserted but to provide background for 

how Agent Lopez’s investigation of Garza began; Agent Lopez ultimately identified 

Garza from his own surveillance).

And, accordingly, like in Gaines, once it is determined that a confidential 

informant’s identification of the defendant is non-testimonial, “it follows that neither 

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trial nor appellate counsel were deficient for neglecting to raise Crawford.” 358 Fed. 

App’x at 37.

3. Officer Torres

Edgardo Torres, a former New York City police officer, testified regarding a 2002 

incident that lead to the arrest of Garza and Codefendant Arcely Lopez. While this 

testimony will be discussed more fully below, Garza has asserted that, like Agent 

Kroona, Officer Torres’s testimony impermissibly vouched for/bolstered the testimony 

of Alvin Knox. (See Doc. 211 at 38-39.) This argument is due to be rejected for the same 

reasons given above, as to Agent Kroona. See supra, § II.A.1.i.

B. Ground Two: Ineffectiveness of trial counsel based on her “failure to 

exclude evidence and testimony derived from an illegal search and 

seizure.”

Garza’s second attack as to the constitutional effectiveness of his trial counsel is 

centered on her alleged failure to exclude evidence that had previously been 

suppressed by a New York state court—

Defense Counsel’s laxity enabled the prosecution to introduce inculpatory

evidence obtained as a result of an illegal search and seizure in New York 

City. The evidence was a direct and vital link connecting Garza to 

distribution of the narcotics charged in Count One of the indictment, and 

had a substantial adverse impact on the defense. Yet counsel, though 

aware of a prior state court ruling suppressing the evidence, inexplicably 

did nothing to oppose testimony derived from the illegal seizure. She 

made no pre-trial motion to exclude testimony as violative of the Fourth 

Amendment. She did not use the state hearing to impeach Officer Torres. 

Nor did she object to impermissible statements by Officer Torres or Agent 

Kroona regarding the state case.

(Doc. 211 at 39.)

“[T]he failure to file a suppression motion does not constitute per se ineffective 

assistance of counsel.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). But counsel’s 

failure “to file a motion to suppress that is based on a lack of knowledge of the state of 

the evidence due to counsel’s misunderstanding or ignorance of the law or failure to 

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conduct adequate investigations can satisfy Strickland’s deficiency prong.” Green v. 

Nelson, 595 F.3d 1245, 1249 (11th Cir. 2010) (§ 2254) (citing Kimmelman, 477 U.S. at 383-

87).7

Of course, even if Strickland deficiency is proven, “to establish prejudice, a 

defendant must prove ‘a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.’” Id. (quoting Strickland, 

466 U.S. at 694); see, e.g., Emanuel v. United States, Nos. 6:12–cv–1482–Orl–31GJK; 6:09–

cr–223–Orl–31GJK, 2013 WL 935767, at *4 (M.D. Fla. Mar. 11, 2013) (“To show actual 

prejudice in this context, Petitioner must show a meritorious Fourth Amendment 

violation and ‘that there is a reasonable probability that the verdict would have been 

different absent the excludable evidence.’”) (quoting Kimmelman, 477 U.S. at 375).

1. Background

On April 14, 2002, a business owner flagged down New York City police officers 

on patrol in the south Bronx to alert them that someone was across the street from his 

business with a gun. The officers entered the business, observed the silhouette of three 

men standing over two people on the ground, drew their weapons, and yelled for 

 7 “The decision not to suppress evidence[, moreover, can be] a strategic choice.” 

Williams v. Smith, No. 5:06-cv-171, 2010 WL 565130, at *9 (W.D. Mich. Feb. 10, 2010) (citing 

Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008)). And “[a] strategic decision 

cannot be the basis for a claim of ineffective assistance unless counsel’s decision is shown to be 

so ill-chosen that it permeates the entire trial with obvious unfairness.” Rockwell, 559 F. Supp. 

2d at 834 (quoting Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001)). Furthermore, “[a] 

particular strategy need not be one most lawyers would adopt, ‘but it must be within the range 

of logical choices an ordinarily competent attorney . . . would assess as reasonable to achieve a 

specific goal.’” Id. at 834-35 (quoting Cone v. Bell, 243 F.3d 961, 978 (6th Cir. 2001)); see, e.g., Ball 

v. United States, 271 Fed. App’x 880, 885 (11th Cir. Mar. 28, 2008) (per curiam) (“Under the 

circumstances, competent counsel could have concluded that, rather than telegraph his 

impeachment strategy as to Styron[, a bank robbery identification witness,] in a possibly 

unsuccessful motion to suppress, he would save it in hopes that his cross-examination would be 

more effective. Thus, we cannot say no reasonable attorney would have opted to risk Styron 

identifying Ball in court and then used the damaging information challenging the reliability of 

her identification to discredit her. We certainly cannot say that trial counsel’s choice in Ball’s 

case caused the adversarial testing process not to work, which is our ultimate concern.”).

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everyone to stop. The three men standing ran, but the officers were able to apprehend 

one. The two people on the ground were Garza and Aracely Lopez, who informed the 

officers that they were there to pick up a 1997 Chevrolet Tahoe and were about to be 

robbed by the men. Garza and Lopez were taken to the police precinct and then to the 

hospital to have their injuries examined, and, once there, they slipped away from the 

police.

The robbery suspect who failed to escape informed the police that they were 

there to rob Garza and Lopez because the Tahoe contained narcotics. The police then 

convinced the owner of the garage where the Tahoe was located to contact Garza. And 

when Garza arrived to retrieve the Tahoe, the police were waiting for him and stopped 

him before he could exit the garage in the Tahoe. Garza gave them consent to search

the Tahoe, and the police observed, “the only telltale sign that appeared not normal . . . 

was that the rear window to the Tahoe would not go down.” Garza and Lopez were 

taken into custody and brought to the police precinct. The police eventually discovered 

11 kilograms of cocaine hidden in a hollowed out compartment, which made the rear 

window inoperable. Garza provided a statement to the police in which he indicated 

that he was from Texas and in New York for a drug run.8

2. Reach of the New York Suppression Order

Exhibit A to Garza’s memorandum in support of his petition is a November 12, 

2003 decision and order from the Supreme Court of the State of New York, County of 

The Bronx, in The People of New York v. Ramon Garza, Indictment No. 3532/02 (Doc. 211 

at 51-59.) That decision concludes:

This decision was not an easy one to arrive at due to the large quantity of 

 8 The source of this information is the testimony of Officer Torres. (See Doc. 168 at 

145-155 [214:19-224:17].)

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narcotics involved. In the Court’s opinion, the defendant is involved in 

the trafficking of narcotics, however, the Court is compelled to sustain the 

motion to suppress the drugs and the statements as the defendant was 

arrested without probable cause and everything that follows an invalid 

arrest must be suppressed.

(Id. at 58-59.)

The undersigned initially notes that Garza is mistaken regarding the significance 

of this suppression order to his trial in this Court. Garza contends that, because the 

New York court found that the warrantless search and seizure in question was not 

justified by a recognized exception, “the evidence seized and all testimony derived 

therefrom were subject to suppression in the Alabama trial.” (Doc. 211 at 41.) That

conclusion, however, is not a given.

In Douglas v. United States, Nos. 2:05-CR-07; 2:06-CV-236, 2009 WL 2043882 (E.D.

Tenn. July 2, 2009), the habeas petitioner’s ineffectiveness claim was “that his trial 

counsel failed to inform him of, and failed to file, a meritorious motion to suppress 

what he claims was ‘illegally seized evidence.’” Id. at *5. The petitioner there, like 

Garza,

essentially assert[ed] that there can be “no doubt” of the merit of his claim 

for suppression because “[a] state court had ordered the evidence 

suppressed,” and the evidence thus would have been inadmissible in 

federal court, relying on the Supreme Court’s decision in Elkins v. United 

States, 364 U.S. 206 (1960) as authority to support his argument. 

Id. (citation modified).

As pointed out by the court in Douglas, Elkins does not stand for the proposition 

that a federal court is bound by the suppression decision of a state court. Instead, in 

rejecting the “silver platter” doctrine, the Supreme Court, in Elkins, held

that evidence obtained by state officers during a search which, if 

conducted by federal officers, would have violated the defendant's 

immunity from unreasonable searches and seizures under the Fourth 

Amendment is inadmissible over the defendant’s timely objection in a 

federal criminal trial. In determining whether there has been an 

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unreasonable search and seizure by state officers, a federal court must 

make an independent inquiry, whether or not there has been such an 

inquiry by a state court, and irrespective of how such inquiry may have 

turned out. The test is one of federal law, neither enlarged by what one 

state court may have countenanced, nor diminished by what another may 

have colorably suppressed.

364 U.S. at 223-24 (emphasis added); compare id., with Douglas, 2009 WL 2043882, at *6 

(“It is clear, therefore, that petitioner’s argument that evidence seized by state officers 

on May 10, 2002, was automatically to be excluded in this federal prosecution cannot be 

supported by Elkins. If a motion to suppress the evidence seized had been filed in his 

federal prosecution, the federal court would have made an independent inquiry 

without regard to the holding of the state court on the issue, even if the seizure of the 

evidence violated state law.”).

Thus, to show that his trial counsel was constitutionally ineffective for not 

moving to suppress the evidence the New York state court previously suppressed and

that he was prejudiced by this, Garza must show that this Court would have reached 

the same conclusion as the New York state court and suppressed the evidence. See id.

(“Although Douglas argues no basis for suppression of the evidence seized from his 

person on May 10, 2002, except for his erroneous contention that suppression by the 

state court required suppression in the federal court, the Court nevertheless needs to 

consider the question: ‘Did Douglas have a meritorious basis for a suppression of the 

evidence seized?’ The question must necessarily be considered before the court 

considers whether counsel’s advice to Douglas to give up the right to file pretrial 

motions as part of a plea agreement to avoid the mandatory term of life imprisonment 

was constitutionally lacking.”).

3. Impact of Not Moving to Suppress Here

Here, however, the undersigned need not conduct an independent inquiry into 

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the suppression issue because, had trial counsel moved to suppress the same evidence 

suppressed by the New York state court, and assuming this Court would have granted 

the suppression motion and Garza could have kept out the testimony of Officer Torres, 

the same information was (and would have been) admitted through the testimony of 

Garza’s co-conspirator Alvin Knox pursuant to Fed. R. Evid. 801(d)(2)(E).

9

 Garza, 

himself, provided Knox with the specifics concerning Garza’s arrest in New York. (See

Doc. 168 at 187-192 [256:13-261:4], 212 [281:16-20], 213 [282:1-16].)10 And Agent 

Kroona’s testimony concerning the New York incident was based on—and merely 

 9 “Generally, hearsay evidence is inadmissible. FED. R. EVID. 802. But an out-ofcourt statement offered against an opposing party that ‘was made by the party’s coconspirator 

during and in furtherance of the conspiracy’ is not hearsay. United States v. Castillo-Gamez, 466 

Fed. App’x 859, 864 (11th Cir. Apr. 24, 2012) (per curiam) (quoting FED. R. EVID. 801(d)(2)(E)); 

see id. at 862 (“Velasquez–Santizo[, who pleaded guilty to conspiracy and testified for the 

United States,] testified that Marcelino asked him to transport illegal aliens and that he had 

hired a man named Norberto to drive the van. Castillo–Gamez objected to Velasquez–Santizo’s 

testimony on hearsay grounds, but the court admitted the statement as a co-conspirator’s 

statement under Federal Rule of Evidence 801(d)(2)(E).”).

10 Alvin Knox’s testimony, for example, included the following:

Q. And what did Sonny [Garza’s nickname] tell you?

A. That the -- that they had -- someone had tried to rob them and that the robbery had 

went bad and the police ended up coming and the guys were arrested and taken to the police 

station and once the guys were at the police station, that they revealed that they were trying to 

rob them, because he had said there were drugs in there. And at that time the police came back 

and the vehicle was -- Sonny was arrested and Mrs. Aracely and the vehicle was taken into 

custody, searched.

Q. Did Sonny tell you anything about the amount of cocaine that was recovered from 

the vehicle?

A. That all of the cocaine was not discovered.

Q. So some of it remained hidden in the Tahoe?

A. Yes, ma’am.

Q. Do you know whatever happened to the Tahoe?

A. No, ma’am.

(Doc. 168 at 212 [281:16-20], 213 [282:1-16].)

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offered to corroborate—the testimony of Knox.

Therefore, had trial counsel successfully moved to suppress the same evidence 

suppressed by the New York state court, Garza still cannot make the requisite Strickland

showing that the result of the underlying proceeding would have been different in light 

of what he said to Alvin Knox. Accordingly, the undersigned cannot say that, even 

assuming trial counsel was deficient for not moving to suppress, but see Rupe v. Wood, 93 

F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take futile action can never be deficient 

performance[.]”), Garza was prejudiced by counsel’s deficiency. See, e.g., Premo v. 

Moore, --- U.S. ----, 131 S. Ct. 733, 740-41 (2011) (§ 2254) (“Counsel gave this explanation 

for his decision to discuss the plea bargain without first challenging Moore’s confession 

to the police: that suppression would serve little purpose in light of Moore’s other full 

and admissible confession, to which both his brother and his accomplice’s girlfriend 

could testify. The state court would not have been unreasonable to accept this 

explanation. . . . [This] explanation—that suppression would have been futile—confirms 

that his representation was adequate under Strickland, or at least that it would have 

been reasonable for the state court to reach that conclusion.”); Houston v. Foltz, 850 F.2d 

692, 1988 WL 71195, at *2 (6th Cir. July 11, 1988) (table) (§ 2254) (“Petitioner’s ineffective 

assistance of counsel argument relates solely to the contention that his trial counsel

should have moved to suppress evidence of Houston’s previous extensive criminal 

record prior to advising him not to testify. Although it appears that if such a motion 

had been made one of the prior convictions might have been suppressed, the others 

would have been admissible. The Supreme Court’s decision in Strickland . . . makes it 

clear that this is the kind of strategy decision by counsel that should not be second 

guessed by appellate courts. . . .”); cf. United States v. McDonald, 61 F.3d 248, 254 (4th Cir. 

1995) (“Because there is an independent basis for admitting the other evidence, we need 

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not address whether the initial search of Apartment 11 falls within the exigent 

circumstances or hot pursuit exceptions to the Fourth Amendment’s warrant 

requirement.”), overruled on other grounds by United States v. Wilson, 205 F.3d 720 (4th Cir. 

2000) (en banc).

C. Ground Three: Ineffectiveness of appellate counsel based on his failure 

to raise Ground One and Ground Two, above, on direct appeal.

Garza’s final ground—that he was prejudiced by his appellate counsel’s failure 

to raise on direct appeal the “plain errors described in grounds one and two” (Doc. 211 

at 43) above—also fails.

The Supreme Court has held a criminal defendant’s appellate counsel is 

not required to raise all nonfrivolous issues on appeal. Jones v. Barnes, 463 

U.S. 745, 751-54 (1983). In so holding, the Court noted, “[e]xperienced 

advocates since time beyond memory have emphasized the importance of 

winnowing out weaker arguments on appeal and focusing on one central 

issue if possible, or at most on a few key issues.” Id. at 751-52. Therefore, 

it is difficult for a defendant to show his counsel was ineffective for failing 

to raise certain issues on appeal, particularly if counsel did present other 

strong issues. Smith v. Robbins, 528 U.S. 259, 287-88 (2000).

Payne v. United States, 566 F.3d 1276, 1277 (11th Cir. 2009); see also Pollard v. White, 119 

F.3d 1430, 1435 (9th Cir. 1997) (“A hallmark of effective appellate counsel is the ability 

to weed out claims that have no likelihood of success, instead of throwing in a kitchen 

sink full of arguments with the hope that some argument will persuade the court.”) 

(citing Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989)). “Counsel’s performance will 

be deemed prejudicial if [a court] find[s] that ‘the neglected claim would have [had] a 

reasonable probability of success on appeal.’” Philmore, 575 F.3d at 1265 (quoting Heath 

v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991)).

Here, Garza’s appellate counsel ably represented him before the Eleventh 

Circuit, and the result was a lengthy decision, albeit one affirming the convictions. 

Further, as discussed fully above, Garza has not demonstrated that the claims he asserts

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in his § 2255 petition—the “neglected claims” had any reasonable probability of success 

on direct appeal.

11

D. Certificate of Appealability.

Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the 

undersigned recommends that a certificate of appealability in this case be denied. 28 

U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant.”). The habeas corpus 

statute makes clear that an applicant is entitled to appeal a district court’s denial of his 

 11 Garza’s opening brief includes a separately numbered section (VIII) that appears 

to assert a separate claim for cumulative error. (See, e.g., Doc. 211 at 47 (“The cumulative error 

doctrine recognizes that an aggregation of non-reversible errors . . . can yield a denial of the 

constitutional right to a fair trial, which calls for reversal”) (citation omitted).) But cumulative 

error is not a ground listed in his habeas petition.

The petition was timely filed, but the memorandum was not. (See generally Doc. 214). 

The Court nevertheless accepted the memorandum because, at least initially, it appeared it 

“‘concern[ed] precisely the same claims as are set forth in the § 2255 Motion[,]’ the issues raised 

in the memorandum of law ‘do not raise new grounds and, even if they did, obviously do relate 

back to the original, timely § 2255 Motion.’ (Id. at 1-2 (citation omitted).) For the sake of 

argument, the undersigned will address the cumulative error allegation, assuming it at least 

“relates back” to the timely § 2255 petition.

Any claim for cumulative error can be quickly dispatched here. Having found, above, 

that Garza has failed to state meritorious ineffectiveness claims, any “claim of cumulative error 

must also fail.” United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992) (“Because we find no 

merit to any of Moye’s arguments of error, his claim of cumulative error must also fail.”); see 

also Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir. 2000) (§ 2254) (“Miller further argues that the 

‘cumulative effect of numerous errors of counsel rendered counsel's performance inadequate.’ 

As set forth above, Miller has not demonstrated error by trial counsel; thus, by definition, Miller 

has not demonstrated that cumulative error of counsel deprived him of a fair trial. See Yohey v. 

Collins, 985 F.2d 222, 229 (5th Cir. 1993) (explaining that because certain errors were not of 

constitutional dimension and others were meritless, petitioner “has presented nothing to 

cumulate”)); Johnston v. Tucker, No. 3:10cv538/LAC/MD, 2011 WL 5008355 (N.D. Fla. Sept. 16, 

2011) (§ 2254) (“Mr. Johnston raised his cumulative error argument in his motion for postconviction relief. The state court correctly concluded that the individual claims did not show 

ineffective assistance of counsel; therefore, there is no error upon which to base a cumulative 

error claim . . . . See Parker v. State of Florida, 904 So.2d 370, 380 (2005) (“where the individual 

claims of error alleged are either procedurally barred or without merit, the claim of cumulative 

error also necessarily fails”)), report & recommendation adopted, 2011 WL 5008364 (N.D. Fla. Oct. 

20, 2011).

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habeas corpus petition only where a circuit justice or judge issues a certificate of 

appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where 

“the applicant has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2243(c)(2).

The petitioner is not entitled to a certificate of appealability on his ineffectiveassistance-of-counsel claims. When, as is the case here, a habeas petition is being 

denied entirely on the merits of an underlying constitutional claim, a COA should issue 

only when the petitioner demonstrates “that reasonable jurists would find the district 

court’s assessment of the constitutional claims debatable or wrong[,]” Slack, 529 U.S. at 

484; see also id. at 483–84 (“To obtain a COA under § 2253(c), a habeas prisoner must 

make a substantial showing of the denial of a constitutional right, a demonstration that, 

under Barefoot, includes showing that reasonable jurists could debate whether (or, for 

that matter, agree that) the petition should have been resolved in a different manner or 

that the issues presented were ‘adequate to deserve encouragement to proceed 

further.’”). With respect to the petitioner’s ineffective-assistance-of-counsel claims, the 

undersigned recommends that the Court find that reasonable jurists could not debate 

whether his § 2255 motion to vacate should be resolved in a different manner or that 

any of the remaining issue presented is adequate to deserve encouragement to proceed 

further. Accordingly, petitioner is not entitled to a certificate of appealability as to this 

claim.

For the reasons stated above, the petitioner is also not entitled to a certificate of 

appealability on any (possible) cumulative error claim. E.g., United States v. Hall, 455 

F.3d 508, 520-21 (5th Cir. 2006) (“Hall also claims that he is entitled to a COA on his 

ineffective assistance of counsel claim because of the cumulative effect of the various 

errors he alleges. Our clear precedent indicates that ineffective assistance of counsel 

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25

cannot be created from the accumulation of acceptable decisions and actions. 

Accordingly, no reasonable jurist could debate the district court’s conclusion that the 

cumulative effect of the alleged errors did not constitute ineffective assistance of 

counsel, and Hall is not entitled to a COA on this issue.”) (internal citations omitted).

Rule 11(a) further provides: “Before entering the final order, the court may direct 

the parties to submit arguments on whether a certificate should issue.” If there is an 

objection to this recommendation, the objecting party may bring this argument to the 

attention of the district judge in the objections permitted to this report and 

recommendation. See, e.g., Brightwell v. Patterson, No. CA 11–0165–WS–C, 2011 WL 

1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation adopted, 2011 WL 

1930662 (S.D. Ala. May 19, 2011) (the Eleventh Circuit (Hull, J.) subsequently denied the 

petitioner’s motion for certificate of appealability on October 11, 2011 (see Doc. 14 in CA 

11–0165–WS–C)); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 WL 3943702, at *4 

(N.D. Fla. Sep. 20, 2010) (providing for same procedure), report & recommendation adopted 

sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D. Fla. Oct. 5, 2010).

III. Conclusion

Because the Magistrate Judge is of the opinion that (1) as to the ineffectiveassistance-of-counsel claims, Garza has not shown that his rights were violated; and (2) 

any claim of cumulative error similarly fails, it is RECOMMENDED that the motion be 

DENIED. The Magistrate Judge FURTHER RECOMMENDS that the Court find that 

the petitioner is not entitled to a certificate of appealability and is therefore not entitled 

to appeal in forma pauperis.

IV. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything 

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in it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P.

72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for the objection, 

and specify the place in the Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely incorporates by reference or 

refers to the briefing before the Magistrate Judge is not specific.

DONE this the 10th day of June, 2013.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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