Munyenyezi v. USA
Filing
12
/// ORDER denying 1 MOTION to Vacate Sentence under 28 USC 2255. The Court declines to issue a certificate of appealability. So Ordered by Judge Steven J. McAuliffe.(jbw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Beatrice Munyenyezi,
Petitioner
v.
Case No. 16-cv-402-SM
Opinion No. 2017 DNH 171
United States of America,
Respondent
O R D E R
Petitioner, Beatrice Munyenyezi, seeks relief from her
conviction and sentence under the provisions of 28 U.S.C.
§ 2255.
Petitioner was convicted by a jury of unlawfully
procuring citizenship or naturalization (18 U.S.C. §§ (a) and
(b)).
Petitioner says her appointed defense counsel provided
constitutionally deficient representation; that prosecutorial
misconduct occurred in that the government failed to disclose
exculpatory evidence prior to trial and that she is entitled to
sentence relief under Johnson v. United States, 135 S. Ct. 2551
(2015).
None of her claims have merit.
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Ineffective Assistance
Defense counsel, as noted by the court of Appeals on direct
appeal, provided a thorough, zealous and informed defense.
See
United States v. Munyenyezi, 781 F.3d 532 (1st Cir. 2015).
They
poured over records; reviewed the history of Rwanda’s genocide;
researched the aftermath and current posture of the Rwandan
government toward those who perpetrated atrocities during the
months of genocide; traveled to Rwanda twice to identify and
interview potential defense witnesses and arranged their travel
to testify in the United States; retained an academic expert to
support a defense of Rwandan governmental manipulation of the
prosecution’s witnesses; and presented witnesses and vigorous
argument in support of defenses ranging from complete innocence
to mistakes in translation with respect to the pertinent
documents.
Nevertheless, says petitioner, counsel should have moved
for a change of venue.
But venue was proper in this district,
and such motion would not have been granted.
While petitioner
thinks that pretrial publicity counseled in favor of a change in
venue, the jury panel voir dire and individual juror voir dire
at side bar disclosed no basis to conclude that the empaneled
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jury was influenced by any negative publicity.
Certainly
petitioner has not shown that prejudice existed against her that
was so great that she could not obtain a fair trial.
States v. Dougar, 748 F.2d 8, 29 (1st Cir. 1984).
v. Gullion, 575, F.2d 26, 28 (1st Cir. 1978).
United
United States
What publicity
occurred before and during the trial was generally factual, nonhysterical, not overblown, nor so pervasive and biased as to
raise any concerns regarding the ability to empanel a fair and
impartial jury, and the jury was fair and impartial.
It was
well within defense counsel’s discretion not to seek a change in
venue.
It was hardly error not to do so.
And, failure to seek
a venue change did not prejudice respondent in any way.
Next petitioner claims that counsel did not adequately
prepare for trial.
The record completely belies the claim.
Counsel went well beyond the call of duty in providing an
exceptional defense effort in this case.
Petitioner points to
nothing left undone that would have made any material difference
in the outcome, and nothing that would remotely qualify as
deficient performance, or that might have been materially
prejudicial.
There are no perfect trials of course; to obtain
relief on grounds of ineffective assistance petitioner must do
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more than second guess counsel’s performance, she must show that
their performance was so deficient that they were not
functioning as the counsel guaranteed by the Sixth Amendment and
that the deficient performance prejudiced her defense.
Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner
cannot begin to make such a showing on this record.
Petitioner asserts that counsel should have renewed
objections previously made to questions related to petitioner’s
sister’s relationship with the alleged head of the Rwandan
secret police.
Again, petitioner can show no prejudice —
counsel did object, and the jury understood the point (facts
assumed in questions are not in evidence and the question itself
is not evidence of the assumed fact).
The jury was repeatedly
instructed on the point and fully understood it.
Even if
additional objections were called for, there was no prejudicial
effect given those instructions and the jury’s clear
comprehension, as well as the fact that the evidence of
petitioner’s guilt was overwhelming — the outcome would hardly
have been different had counsel interposed an additional
identical objection to the government’s questions.
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Finally, petitioner criticizes counsels’ handling of the
sentencing phase of trial.
complaint.
There can be no legitimate
Counsel argued vigorously and as effectively as the
record evidence and prevailing circumstances would permit.
Counsel challenged the proposed departure from the facially
applicable Guideline Sentencing Range, argued for leniency in
light of respondent’s new life and family responsibilities,
reiterated defense themes related to mitigation, including
argument about the lack of certainty in the verdict as to the
nature of the misrepresentations underlying the counts of
conviction.
Counsel’s representation was not only not deficient, it was
commendable.
See Munyenyezi, supra.
The sentence was not unreasonable for the reasons fully
discussed on the record at sentencing.
Id.
The Johnson Claim
The holding in Johnson v. United States, 135 S. Ct. 2551
(2015) does not apply to this case.
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Petitioner was not
sentenced under the Armed Career Criminal Act, and her crimes of
conviction do not qualify as violent felonies.
Failure to Disclose Exculpatory Evidence
This claim, too, is without merit.
While it is not
entirely clear what petitioner is asserting, she seems to say
that Defense Department satellite photographs exist that would
have clearly shown the roadblock over which petitioner was
alleged to have presided in April of 1994.
Those photographs,
she says, would establish that she was not present.
is no evidence that such photographs exist.
But there
To the contrary,
the government’s satellite photograph expert testified that all
relevant photographs had been located and had been provided to
the defense.
The government’s expert denied that any other
photographs existed beyond what was disclosed, and the
prosecution says they do not exist and so were not withheld from
the defense.
Petitioner refers to a possible Brady violation,
Brady v. Maryland, 373 U.S. 83 (1963), but there is no evidence
presented showing that at any time prior to or during trial the
government was aware of any such photographs, or had custody or
control of such evidence, yet failed to disclose it.
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Accordingly, the Brady rule is not triggered here.
See United
States v. Maldonado-Rivera, 489 F.3d 60, 67 (1st Cir. 2007).
Conclusion
As the files and records of this case conclusively show
that the petitioner is entitled to no relief, the motion is
denied.
Petitioner has not made a substantial showing of the denial
of a constitutional right.
The court, therefore, declines to
issue a certificate of appealability.
28 U.S.C. §
2253(c)(2)(1); Rule 11, Rules Governing Section 2255
Proceedings.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
August 30, 2017
cc:
Beatrice Munyenyezi, pro se
John A. Capin, AUSA
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