United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, Magistrate Judge.
Petitioner Elda Lopez, a federal prison inmate represented by counsel, has filed a timely motion to vacate, set aside, or correct her sentence, and memorandum in support, pursuant to 28 U.S.C. § 2255 (Docs. 204, 209). The United States has filed a response in opposition (Doc. 215). And the petitioner has replied ( see Doc. 216.) After an evidentiary hearing, conducted April 1, 2014, at which the petitioner and her trial counsel, Robert F. Clark, testified ( see Docs. 227, 235, 247, 255), this action is now before the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 8(b) of the Rules Governing Section 2255 Proceedings, and Local Rule 72.2(c)(4). For the reasons explained herein, it is RECOMMENDED that Elda Lopez's § 2255 petition be DENIED and that the Court find that she is not entitled to a certificate of appealability and is therefore not entitled to appeal in forma pauperis. 
I. Underlying Criminal Case and Direct Appeal
A. Procedural Background
On April 25, 2008, Elda was indicted by a superseding indictment for violating 21 U.S.C. § 846, conspiracy to possess with intent to distribute approximately 315 kilograms of cocaine (Count One); for violating 18 U.S.C. § 1956(a)(1)(B)(I), conspiracy to commit money laundering (Count Two); and for violating 18 U.S.C. § 1956(h), money laundering (Counts Ten and Nineteen) (Doc. 95-5 (redacted superseding indictment)). On January 5, 2009, trial commenced against Elda and two codefendants, her mother Aracely and Ramon Garza, Jr. Elda was represented at trial by Robert F. Clark. After five days of trial, Elda was found guilty on all counts. ( See Docs. 91, 94.) At the conclusion of Elda's sentencing hearing, which was conducted on April 16, 2009, Judge Granade sentenced her to 144 months in prison. ( See Doc. 157.) Judgment was so entered the same day. ( Id. )
On April 23, 2009, Elda's appellate counsel, James Stafford, filed a Notice of Appeal on her behalf (Doc. 150). On appeal, Elda argued that that the evidence was insufficient on each of the counts against her. See United States v. Lopez, 403 Fed.App'x 362, 372 (11th Cir. Nov. 12, 2010) (per curiam). She also challenged the reasonableness of her sentence. See id. at 380. The Eleventh Circuit, however, affirmed Elda's sentence, finding no merit to her claims. See id. at 381.
B. Pertinent Factual Background
Having reviewed the entire trial transcript, the undersigned sets forth the facts relevant to a determination of the pending petition:
The investigation of a cocaine distribution cell led police to Alvin Knox, a major cocaine distributor in Alabama. Knox was arrested and, pursuant to a plea agreement, pleaded guilty and agreed to provide assistance to the Government in exchange for the Government's promise to make his cooperation known to the Court at sentencing. Alvin Knox's cooperation ultimately led law enforcement to the defendants in this action: Ramon Garza, Aracely Lopez, and her daughters Elda and Belinda Lopez.
Alvin testified that his father, Benjamin, introduced him to the drug distribution business in 1999 and supplied him with drugs. Benjamin, in turn, originally received his drugs from a man named Paul Harris. But Benjamin and Harris parted ways, and that is when, according to Alvin, the defendants entered the picture. During this period, Alvin and Benjamin were running two family businesses-their lucrative drug distribution business and a car lot and towing service, known as Premier Auto Sales. Premier Auto was owned by Alvin. By Alvin's own admission, that business served as a front to "cover up" and "legitimize" his drug money. (Doc. 168 at 121.)
Three convicted drug distributors who purchased cocaine and marijuana from Alvin and Benjamin testified at trial. Tony Preston testified that during one period he was selling ten kilograms of cocaine obtained from Alvin every week. Derrick Coston received a kilogram of powder cocaine from Alvin each week from 1999 to 2003. Kerry Coston testified that he received ten kilograms of cocaine per month from Alvin from 1999 until 2003. Alvin also provided Eric White and Gerard Terrell with ten kilograms of cocaine every month during that period.
Alvin testified that he first met Garza and Aracely in late 2000, but that his father had met Garza earlier. Aracely was Garza's wife. Alvin first met Aracely's daughters, including Elda, sometime during 2000 or 2001. Alvin's initial meeting with Garza and Aracely occurred in a hotel room in a Texas town near the Mexican border. Benjamin was also at that meeting. The next day, Benjamin and Alvin visited Garza and Aracely's residence before traveling with Garza to a trailer. At the trailer, Garza had some money that had been matted together sitting in a pot of water. Benjamin and Garza discussed how to separate the money, and Garza gave the money to Benjamin to see if Benjamin could separate it. Federal agents recovered that money when they executed a search warrant at one of Alvin's two houses in Tuskegee, Alabama, in March of 2001.
Alvin testified that a business relationship developed out of Benjamin and Alvin's initial meeting with Garza and Aracely. In early 2001, Benjamin began making trips to Texas every few weeks to pick up drugs. Aracely's brother was reportedly the source of the cocaine. Benjamin would drive to Texas in different Lincoln Town Cars. Cash would be hidden in secret compartments behind the dash. Garza would tell Benjamin where the delivery would occur, and Benjamin would pick up approximately eight to eleven kilograms of cocaine on every trip. He would return to Alabama with the cocaine hidden in the secret compartments, and Benjamin and Alvin would then distribute the cocaine to their crew for sale.
On February 20, 2001, Alvin was arrested in the Atlanta airport after authorities discovered approximately $80, 000 in cash strapped around his waist and his girlfriend's waist. He was flying to Texas to deliver that money to Benjamin, who had already driven there. Alvin and Benjamin had planned to give the money to Garza as a payment for drugs.
In 2002, Alvin purchased a Chevy Tahoe from an auto dealer in Montgomery, Alabama, and had it registered in Benjamin's name. At trial, Alvin testified that Garza had installed hidden compartments in the Tahoe. Garza and Aracely then traveled to Alabama to pick up the Tahoe, which they drove to New York. Once the Tahoe arrived in New York, it was to be loaded with fifty or more kilograms of cocaine. The plan was for Garza and Aracely to retrieve the Tahoe after it had been loaded with cocaine and return it to Benjamin. Things did not go as planned.
Former New York City police officer Edgardo Torres testified that on the afternoon of April 4, 2002, he was flagged down by a shop owner who said that someone in the building across the street had a gun' The building across the street was a large garage. Inside the garage, Torres observed three men standing over people on the ground and striking them. When Torres and his partner drew their weapons, the attackers fled. The police cornered and captured one of the attackers before returning to check on the victims, who turned out to be Garza and Aracely. They explained to the police that they were in the garage to pick up a vehicle and that the attackers had intended to rob them. The vehicle was the same Chevy Tahoe that Alvin had purchased and registered in Benjamin's name. Garza and Aracely said it belonged to a friend.
The police took Garza and Aracely to a hospital. The two were being treated as victims at that point so the police did not watch them closely. Garza and Aracely left the hospital. Meanwhile, back at the precinct, the attacker who was arrested explained that he was there to rob Aracely and Garza because there were drugs in the vehicle. Because the garage was about to close for the evening, the owner moved the Tahoe to a parking garage across the street so that Garza could retrieve it. The police returned to the area near the garage, where they waited for the couple to return to pick up the Tahoe. Garza and Aracely arrived in separate vehicles. Aracely departed unimpeded, but when Garza tried to drive the Tahoe out of the parking garage, the police arrested him. Garza consented to a search of the vehicle, and the search turned up eleven kilograms of cocaine hidden in a secret compartment underneath the rear window. Alvin testified that Garza told him that not all of the cocaine was discovered; some of it remained hidden in the vehicle after the initial police search.
Garza was incarcerated after his arrest, and the Tahoe and drugs were confiscated. Alvin testified that, after Garza's incarceration, Alvin and Benjamin did business with Aracely directly. Because Aracely had difficulty speaking English, Benjamin and Alvin communicated with her through her daughters, Elda and Belinda Lopez. Alvin testified that his first conversation with Elda occurred about two to six months after Garza was incarcerated. Alvin spoke to Aracely through Elda over the telephone and in person. On at least one occasion, Elda flew to Mobile, Alabama, to interpret discussions between Aracely and Alvin. Alvin testified that, based on the nature of the conversations he had with Aracely that were interpreted by Elda, there was no way that Elda did not know that the conversations concerned drug deals.
Alvin also testified that, as a result of the conversations he had with Aracely through Elda, he arranged two cocaine deals. The sales occurred during 2002. The first deal involved 102 kilograms of cocaine, and the second involved 109 kilograms. The cocaine was delivered to Premier Auto in two shipments by an eighteen-wheeler. Alvin and Benjamin arranged to pay Aracely for the cocaine at a later date. They successfully paid Aracely $1.2 million in cash for the cocaine, but they ran into trouble attempting to deliver the rest of the payment.
Evidence at trial showed that Aracely and her daughter Belinda flew from Harlingen, Texas to New Orleans on December 16, 2002 and returned from New Orleans to Harlingen on December 18, 2002. FBI Special Agent Ruth Kroona testified that phone records from phone numbers registered to Elda Lopez or Irasema Lopez revealed that numerous phone calls were made between those phones and Alvin's phone on December 17, 2002, and that the phone records showed that the Lopez phone was roaming in Mobile ...