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Fuertes v. United States

United States District Court, D. Maryland

June 7, 2017

KEVIN G. FUERTES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. RDB-10-0770

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge

         Following a nearly three-week trial, a jury convicted the pro se Petitioner Kevin Garcia Fuertes (“Petitioner” or “Fuertes”) of conspiracy to transport an individual in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 371 (Count One) and sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a) (Count Six), in connection with an interstate prostitution ring that Fuertes operated with co-defendant German de Jesus Ventura (“Ventura”). See United States v. Fuertes, 805 F.3d 485, 493 (4th Cir. 2015); Jury Verdict, ECF No. 193. Judge Quarles of this Court[1] sentenced Fuertes to 235 months imprisonment. Fuertes, 805 F.3d at 493. Fuertes subsequently appealed his conviction to the United States Court of Appeals for the Fourth Circuit, but the Fourth Circuit affirmed this Court's Judgement with respect to Fuertes.[2] Fuertes, 805 F.3d at 501-502.

         Currently pending before this Court is Fuertes' pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 364), in which he alleges ineffective assistance of both his trial and appellate counsel, in violation of his rights under the Sixth Amendment to the United States Constitution.[3] Having reviewed the parties' submissions, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Fuertes' Motion to Vacate, Set Aside or Correct Sentence (ECF No. 364) is DENIED.[4]

         BACKGROUND

         By early 2008, German de Jesus Ventura (“Ventura”) had established several brothels in Annapolis, Maryland. Fuertes, 805 F.3d at 490. Fuertes assisted Ventura by operating the brothels, advertising them, and threatening competing “pimps.” Id. In March of 2008, Ventura spoke with Alberto Hernandez Campos about issues he was having with Ricardo Humberto “el Pelon” Rivas Ramirez (“Ramirez”)-a rival pimp also operating in the Annapolis area. Id. at 491. During this encounter, Fuertes brandished a handgun to emphasize the seriousness of his threat. Id.

         On September 13, 2008, Ramirez was murdered. Investigators discovered that he had previously received two threatening phone calls from telephone numbers ending in 5015 and 1397. Id. Less than two weeks later, police arrested Fuertes for an unrelated traffic violation, during which Fuertes provided the police with his phone number, which matched the 5015 number used to threaten Ramirez. Id. Subsequently, police found in Fuertes' possession a cellphone with a number ending in 5015 and business cards advertising Ventura's brothel. Id.

         Following Fuertes' arrest, the police searched his home and found evidence that his home was used as a brothel, including a cellphone used by the prostitutes. Id. The cellphone's contact list included two phone numbers assigned to the name “Pancho”, ending in 0903 and 1397. Id. The 1397 phone number matched the second phone number used to threaten Ramirez. Id. Witnesses later confirmed that “Pancho” was an alias used by Ventura, and investigators determined that Ventura was the subscriber for the phone number ending in 0903. Id. Investigators continued to monitor Fuertes and Ventura, believing they were involved in the murder of Ramirez.[5] Id. During this time, investigators discovered that Ventura maintained brothels not only in Annapolis, Maryland, but also in Easton, Maryland and Portsmouth, Virginia. Id. They further discovered that Ventura routinely arranged for prostitutes to meet him, or one of his employees, in Washington, D.C. before transporting them to one of the brothels. Rebeca Duenas Franco (“Duenas”), a prostitute employed by Ventura testified that she had seen Ventura and Fuertes celebrate the murder of Ramirez and that Fuertes was present when Ventura beat her. Id. at 491-92.

         On March 25, 2009, police arrested Fuertes at his home in Annapolis. Id. at 492. In Fuertes' home, police found additional evidence that the apartment was being used as a brothel. Id. Specifically, police found two women, including Duenas, hiding in the closet, as well as six-hundred ninety-six dollars ($696) in cash, a cellphone, and a wallet containing a piece of paper with the 0903 telephone number written on it. Id.

         On November 29, 2011, a federal grand jury issued a Superseding Indictment (ECF No. 51) charging Fuertes and Ventura with conspiracy to transport any individual in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 371 (Count One); transportation of individuals in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421 (Count Two); and sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a) (Count Six). Id. at 493. Additionally, Ventura was individually charged with coercing or enticing any individual to travel in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2422(a) (Count Three); transportation of individuals in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421 (Counts Four and Five); and possession and use of a firearm in relation to a crime of violence-specifically, sex trafficking by force, fraud, or coercion-in violation of 18 U.S.C. § 924(c) (Count Seven). Id.

         Following an almost three-week trial, a jury found Ventura guilty on all counts and Fuertes guilty of Count One and the part of Count Six “based on events occurring subsequent to December 24, 2008.” Id. at 493. This Court denied Fuertes' post trial motions for judgement of acquittal and new trial. At sentencing, this Court calculated that Fuertes' advisory sentencing guideline range was 235 to 293 months imprisonment. See Sent. Tr. Sept. 10, 2013, p. 45, ECF No. 309. This Court sentenced Fuertes to a total of 235 months imprisonment. Id. at 46. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed this Court's Judgment as to Fuertes, but vacated Ventura's conviction on Count Seven. Id. at 490. Subsequently, Fuertes filed the pending Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 364).

         STANDARD OF REVIEW

         In order to state a claim for relief under 28 U.S.C. § 2255 based on a Sixth Amendment claim for ineffective assistance of counsel, Petitioner must prove both elements of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, Petitioner must show that counsel's performance was so deficient as to fall below an “objective standard of reasonableness.” Id. at 688. In assessing whether counsel's performance was unconstitutionally deficient, courts adopt a “strong presumption” that counsel's actions fall within the “wide range of reasonable professional assistance.” Id. at 689. Second, Petitioner must show that counsel's performance was so prejudicial as to “deprive the defendant of a fair trial.” Id. at 687. In order to establish this level of prejudice, Petitioner must demonstrate a “reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Satisfying either of the two parts of the test alone is not sufficient; rather, the petitioner must meet both prongs of the Strickland test in order to be entitled to relief. See Id. at 687.

         ANALYSIS

         Fuertes objects that both his trial and appellate counsel failed to challenge the racial composition of the jury and failed to call a woman named “Marin-Ayala” as a witness. He further objects that his appellate counsel failed to challenge his “vulnerable victims” and “role” sentencing enhancements on appeal. ...


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