Andujar-Basco v. USA

Filing 13

OPINION AND ORDER. DENIED 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 04-375.) MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 04-375.) filed by Jose R. Andujar-Basco. Signed by Judge Salvador E Casellas on 8/4/2010.(LB)

Andujar-Basco v. USA

Doc. 13

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO J O S E R. ANDÚJAR-BASCO Petitioner v. U N IT E D STATES OF AMERICA R espondent C iv il No. 08-1785 (SEC)

OPINION AND ORDER P e n d in g before this Court is Petitioner Jose R. Andújar-Basco's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, seeking for the Court to grant an evidentiary hearing, and upon proof of Petitioner's allegations of ineffective counsel a s sis ta n c e , vacate Petitioner's conviction. See Docket # 5. The Government opposed. See D o c k e t # 8. D E N IE D . Factual and Procedural Background O n December 16, 2005, a grand jury charged Petitioner with conspiracy to possess with in te n t to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) a n d 846, (Count One); and for aiding and abetting in the possession with intent to distribute five (5 ) or more kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 , (Count Two). Crim. No. 04-0375 (SEC), Docket # 44. Following a five-day jury trial, P e titio n e r was found guilty on both counts. Crim. No. 04-0375 (SEC), Docket #124. This C o u rt sentenced Petitioner to one hundred twenty-one (121) months in prison as to Counts One a n d Two, to be served concurrently with each other. Crim. No. 04-0375 (SEC), Docket # 155. The following facts gave rise to Petitioner's conviction. The Drug Enforcement Agency (D E A ) paid a confidential informant to make a purchase of ten (10) kilograms of cocaine from After reviewing the filings, and the applicable law, Petitioner's motion is

Dockets.Justia.com

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F re d d y Cancel-Camacho, who was indicted with Petitioner. See United States v. AndújarB a s c o , 488 F.3d 549, 551 (1st Cir.2007). Cancel and the informant met on multiple occasions a n d had several telephone conversations, many of which were recorded by the DEA and played f o r the jury at trial. Id. C a n c e l told the informant that the only person who could acquire ten kilograms of c o c a in e was Petitioner. Id. During negotiations, the informant went to Cancel's house to d isc u s s the transaction and spoke to Petitioner on the phone. Id. Petitioner confirmed that he w o u ld sell cocaine to the informant, but lowered the quantity of cocaine to five kilograms and s e t the purchase price at $85,000. Id. Although Petitioner, Cancel, and the informant had a g re e d to meet the next day to complete the transaction, Petitioner and Cancel did not show up. Id. Consequently, the informant left, and while on his way back home received a call from Cancel. Id. At one point in the conversation, Petitioner "took the phone from Cancel and told th e informant that he had the five kilograms and was ready to go forward with the deal." Id. It was agreed that Petitioner would give Cancel the cocaine, who would then give it to the in f o rm a n t. Id. at 552. Cancel would thereafter pay Petitioner. Id. C a n c e l was arrested at his house after completing the sale of the five grams of cocaine. Id. Cancel subsequently agreed to call Petitioner to arrange a meeting for Petitioner's payment a t a shopping center. Id. Petitioner was arrested at the shopping center parking lot after being id e n tif ie d by Cancel. Id. A hundred-ten individually wrapped clear plastic bags, which later a forensic chemist testified were approximately seventy grams of cocaine, were found under the d riv e r' seat of the car Petitioner drove to the shopping center. Id. On appeal, Petitioner requested a new trial alleging that (1) "the government [had] in f rin g e d his Fifth Amendment privilege against self-incrimination by eliciting testimony c o n c e rn in g his election to remain silent while being questioned..."; and (2) that his right to fair

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tria l was further violated when the prosecutor made improper closing arguments to the jury. Id. a t 552-53. The Court held that, although there were plain errors with respect to both allegations, s e e id. at 558 and 561, Petitioner had failed to establish prejudice since "the record, viewed in th e aggregate, present[ed] overwhelming evidence establishing Andújar's guilt." Id. at 561. T h u s his conviction was affirmed by the First Circuit on June 6 th , 2007. Andújar-Basco, 488 F .3 d at 561. On July 17, 2008, Petitioner filed a pro se motion under 28 U.S.C. § 2255 alleging trial c o u n s e l: (1) failed to allow Petitioner to testify on his own behalf during trial; (2) failed to raise o b je c tio n s during improper closing arguments; and (3) cumulative effect of errors. See Docket # 5. In opposition, the Government contends that (1) counsel was not ineffective and instead are c o n s is te n t with a sound trial strategy, (2) the issue of improper closing arguments was already d e c id e d on direct appeal and may not be litigated on a collateral challenge, and (3) the errors, e v e n when aggregated, fail to establish prejudice. Docket # 8. Standard of Review S e c tio n 2255 provides that a prisoner may vacate his sentence when the sentence was im p o se d in violation for the Constitution or laws of the United States, among others. 28 U.S.C. § 2255. A district court must grant an evidentiary hearing on Petitioner's claims unless "the m o tio n and the files and record of the case conclusively show that the prisoner is entitled to no re lie f ." Id. A district court may forego an evidentiary hearing when "the movant's allegations, e v e n if true, do not entitle him to relief, or [when] the movant's allegations `need not be a c c e p te d as true because they state conclusions instead of facts, contradict the record, or are in h e re n tly incredible.' " David v. United States, 134 F.3d 470, 477 (1 s t Cir. 1998) (quoting U n ite d States v. McGill, 11 F.3d 223, 225-26 (1 st Cir. 1993)).

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T h e standard of review for Petitioner's claim of ineffective assistance of counsel is a " v e ry forgiving" one. See U.S. v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (citing Delgado v . Lewis, 223 F.3d 976, 981 (9th Cir. 2000)). The Sixth Amendment to the Constitution of the U n ite d States provides in part that: "[i]n all criminal prosecutions, the accused shall enjoy the rig h t to [...] have the Assistance of Counsel for his defence (sic)." U.S. CONST. amend. VI. The le g a l assistance envisioned by the Amendment, which protects the fundamental right to a fair t r i a l , is not satisfied by merely having a lawyer present alongside the defendant during trial. Strickland v. Washington, 466 U.S. 668, 684-685 (1984). In order to comply with the Sixth A m e n d m e n t guarantee, counsel must provide "effective assistance." Id. at 686 (1984). A convicted defendant who questions the validity of the criminal proceeding against him b y way of claiming ineffective assistance of counsel must meet the two-part test established by th e U.S. Supreme Court in Strickland. This requires the criminal defendant to first "establish th a t (1) `counsel's representation fell below an objective standard of reasonableness', and (2) `a reasonable probability that, but for counsel's unprofessional errors, the result of the p ro c e e d in g would have been different.'" Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (c itin g Smiley v. Maloney, 422 F.3d 17, 20 (1st Cir. 2005) (quoting Strickland, 466 U.S. at 6 8 4 )). In relation to the first part of the test, the U.S. Supreme Court has stated that there is "a s tro n g presumption that counsel's conduct falls within the wide range of reasonable professional a s sis ta n c e ." Strickland, 466 U.S. at 700. Even if a criminal defendant overcomes this rather formidable obstacle, his ineffective a s sis ta n c e claim will not prosper unless he can also establish the second prong of the test. See id . Strickland's holding also requires a showing that counsel's deficient performance prejudiced th e defendant. Id. at 694. That does not mean, however, that the court must address the two p ro n g s of the test in the order above, or even analyze both. If the court is satisfied that the

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d e f e n d a n t cannot establish either that Counsel was deficient, or that such deficiency prejudiced th e defendant, it may dispose of the claim without further ado. See id. at 697. Finally, the court's evaluation of Counsel's performance must be highly deferential. Id. a t 691. The Supreme Court held that "[i]t is all too tempting for a defendant to second-guess c o u n s e l's assistance after conviction or adverse sentence, and it is all too easy for a court, e x a m in in g counsel's defense after it has proved unsuccessful, to conclude that a particular act o r omission of counsel was unreasonable." Id. Therefore, to make a fair assessment of an a tto rn e y's performance, the court should attempt to eliminate the distorting effects of hindsight. Id. Applicable Law and Analysis Fifth Amendment Right to Testify Petitioner's main contention is that counsel violated his Fifth Amendment right to testify in his own defense during the criminal trial. See Docket # 5. Attached to Petitioner's § 2255 m o tio n is a sworn affidavit where Petitioner states that he never waived his right to testify, nor a d v ise d his attorney that he would not testify during the trial. Docket # 5-2. Petitioner further avers that throughout the trial he was under the impression that he would testify, and that if he f a ile d to do so, it was because his attorney disregarded his explicit requests. Id. Petitioner c la im s that if allowed to testify, he would have explained to the jury his non-involvement in the c rim in a l case and would have attempted to discredit the testimony of the government witness. Id. This Court first reviews whether counsel's performance fell bellow an objective standard o f reasonableness. Strickland, 466 U.S. at 684. Petitioner claims counsel's aid was deficient s in c e he disregarded Petitioner's wishes to testify in the criminal trial, violating his c o n s titu tio n a l right. Docket # 5. This right is protected by the Fourteenth Amendment's due p ro c e ss guarantee, the Sixth Amendment's right to call witnesses in one's favor, and the Fifth

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A m e n d m e n t's guarantee against compelled testimony. See Owens v. United States, 483 F.3d 4 8 , 58 (1st Cir. 2007) ("defendant has a `fundamental constitutional' right to testify in his own d e f e n s e ..." ) (quoting Rock v. Arkansas, 483 U.S. 44, 51-53 (1987)). Only the defendant can w a iv e his or her right to testify since it is guaranteed by the Constitution. Owens, 483 F.3d at 5 8 ("The right to testify may not be waived by counsel acting alone.") (citing United States v. M u llin s , 315 F.3d 449, 454 (5th Cir.2002)). Counsel plays a fundamental role in advising the c lie n t in this respect, since the court "is not required to apprise a defendant of his right to testify o r inquire whether he has waived it." Id. While failing to inform the client of his right to testify could be prejudicial and a v io la tio n of his constitutional rights, Owens, 483 F.3d at 58, from the evidence before this C o u rt, this is not Petitioner's case. Rather, counsel's decision not to put Petitioner on the stand

12 is consistent with a sound trial strategy. Strickland, 466 U.S. at 689 ("the defendant must 13 14 15 16 17 18 19 20 21 22 23 24 a n d already suppressed evidence, this Court does not find counsel's strategy unreasonable. In 25 a n ineffective assistance of counsel claim, the main inquiry in evaluating counsel's performance 26 o v e rc o m e the presumption that, under the circumstances, the challenged action `might be c o n s id e re d sound trial strategy'") (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also P in a v. Maloney, 565 F.3d 48, 55 (1st Cir.2009). The Government alleges that the decision for P e titio n e r not to testify was part of a sound trial strategy, given the overwhelming amount of e v id e n c e against him and the suppression of co-defendant Cancel's statements. Docket # 8. Thus they argue that Petitioner did not testify because it would have contradicted counsels' e f f o rts and success in suppressing incriminating evidence. Id. If Petitioner testified, his own te s tim o n y could have been used in rebuttal and could have adversely affected Petitioner's case. Id. As discussed before, it is not this Court's role to second guess informed decisions, or s tra te g ic choices of counsel as long as reached after careful consideration and are the product o f an attorney's professional judgment. Strickland, 466 U.S. at 681. Given the tough decision f a c e d by counsel between putting Petitioner on the stand, or re-admitting possibly detrimental

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is "whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. Taking in consideration the facts of the case and the available evidence, Petitioner's counsel's a c tio n s were not unreasonable. Moreover, Petitioner's silence and failure to protest when it was apparent that counsel w o u ld not call him to the stand can be seen as Petitioner's acquiescence to counsel's strategy a n d constitutes a waiver of this right to testify. See Winfiedl v. Roper, 460 F.3d 1026, 1035 (8 th C ir.2 0 0 6 ) (holding that waiver of that right [to testify] is properly found where... defendant did n o t object when his counsel rested without calling him to testify.")(citing United States v. B e rn lo e h r, 833 F.2d 749, 751 (8th Cir.1987)). Although Petitioner claims that counsel,

d isre g a rd in g his explicit wishes, failed to put him on the stand, it is uncontested that he was p re s e n t during trial and he was conscious of how the case was proceeding. See Docket # 5. Therefore, Petitioner had ample opportunity to protest his lawyer's actions at trial. His failure to speak up against counsel's decision, when it became apparent that his attorney would rest w ith o u t putting him on the stand, shows that Petitioner acquiesced to counsel's strategic d e c is io n s . Since the decision not to testify seems to stem from counsel's trial strategy and P e titio n e r failed to contest this decision at an appropriate moment during trial, this Court is not p e rs u a d e d by Petitioner's arguments. Additionally, even if this Court were to find that counsel was deficient in its p e rf o rm a n c e , the record indicates that Petitioner suffered no prejudice from counsel's defense. In Andújar-Basco, 488 F.3d 549, the First Circuit examined the evidence presented at trial, and s u b s e q uen tly held that "[g]iven the overwhelming strength of the government's case," Petitioner d id not suffer prejudice from the errors committed, and discussed in detail the strength of the e v id e n c e available to sustain Petitioner's conviction. Id. at 558. In short, the Court found that th e testimony of the confidential informant, supported by the recorded conversations, and the te s tim o n y of several officers established a strong enough case against Petitioner that such that

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" A n d ú ja r... failed to establish that the error[s] `had [a] prejudicial impact on the jury's d e lib e ra tio n s ." Id. at 559 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Similarly, we find no prejudice in that Petitioner did not testify. Petitioner avers that he w o u ld have explained his non-involvement in the case and that he would have attempted to d isc re d it the testimony of the government's witness. Docket # 5-2. However, the recorded c o n v e rs a tio n s, the available testimonies, already found credible by a jury, contradict a possible te s tim o n y of non-involvement from Petitioner. In addition, had Petitioner testified, already s u p p re s s e d evidence could have been introduced, increasing the chances of a conviction. See B u c u v a la s v. United States, 98 F.3d 652, 658-59 (1st Cir. 1996) (holding that had defendant te s tif ie d "the likelihood of a conviction would have been increased by the introduction of the p rio r conviction and by ... inevitable admissions"); see also Winfield, 460 F.3d at 1035 (holding th a t defendant had suffered no prejudice despite counsel's failure to call him at trial). C o n s id e rin g the First Circuit's holding in Andújar-Basco, and the overwhelming evidence a g a in st Petitioner, this Court fails to see how Petitioner was prejudiced by the errors he claims c o u n s e l committed. Given that Petitioner has neither established prejudice nor defective p e rf o rm a n c e by counsel, Petitioner's claim of ineffective assistance lacks merit. Improper Closing Arguments P e t i t i o n e r also argues that counsel's failure to object during the government's closing a r g u m e n t adversely affected the outcome of the case, and the appellate review. Docket # 5. However, this claim fails for two reasons: (1) it was already decided on direct appeal by the F irs t Circuit and (2) Petitioner fails to establish he suffered prejudice from these remarks. The First Circuit has consistently held that "[i]ssues disposed of in a prior appeal will not b e reviewed again by way of a 28 U.S.C. § 2255 motion." Singleton v. U.S., 26 F.3d 233, 240 (1st Cir. 1994) (citing Dirring v. U.S., 370 F.2d 862, 864 (1st Cir. 1967)). Thus, any issue seen

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o n direct appeal by the First Circuit, relating to Crim. No. 04-0375 (SEC), is precluded from b e in g considered by this Court through the use of a 28 U.S.C. § 2255 motion. In Andújar-Basco, the First Circuit found that although the remarks made by the g o v e rn m e n t were improper, Petitioner was unsuccessful in proving prejudice. On this point, th e appellate court held that "it is not reasonably likely [that] these isolated remarks affected the o u tc o m e of the trial" since "the record, viewed in the aggregate presents overwhelming e v id e n c e establishing Andujar's guilt." Id. at 561. Since this claim was settled on direct

a p p e a l, Petitioner is foreclosed from making this claim in the collateral challenge. Berthoff v. U n ite d States, 308 F.3d 124, 127-28 (1 st Cir.2002). C u m u la tiv e Effect of Errors P e titio n e r claims that the errors committed by counsel had a cumulative effect, which r e q u i r e vacating his conviction, or at least granting him an evidentiary hearing. The First C irc u it has held that, under limited circumstances, the cumulative effect of several errors may p re ju d ic e a defendant to the extent that his conviction must be overturned. In U.S. v.

S e p u lv e d a , 15 F.3d 1161 (1st Cir. 1993), the Court held that "individual errors insufficient of th e m se lv e s to necessitate a new trial may in the aggregate have a more debilitating effect." Id. a t 1195-96. However, in this case, there is no single constitutional error, and nothing can a c c u m u la te to the level of a constitutional violation. In his motion, Petitioner simply states that the errors committed by counsel, evident and in te rre la te d had a "devastating effect on the Petitioner's right to due process and a clear v io la tio n of his Sixth Amendment right to effective assistance of counsel." Docket # 5. Unfortunately, the alleged errors are not sufficient to warrant an evidentiary hearing. As p re v io u s ly stated, the appeals court reviewed the evidentiary sufficiency of the case, and c o n c lu d e d that there was overwhelming evidence to sustain a conviction and sentence.

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A n d ú ja r-B a sc o , 488 F.3d at 561. Moreover, Petitioner failed to establish that counsel was in e f f e c tiv e in its assistance. Accordingly, there is no cumulative effect of errors which warrants a n evidentiary hearing. U.S. v. Flemmi, 402 F. 3d 79, 95 n.23 (1st Cir. 2005) (finding that " b e c a u s e we have found that none of [the defendant's] individual complaints resulted in p re ju d ic e , and that most are completely without merit, we reject the final contention that his c o n v ic tio n was tainted by cumulative error.") (quoting U.S. v. DeMasi, 40 F.3d 1306, 1322 (1st C ir. 1994)). C o n c lu s io n B a s e d on the foregoing, Petitioner's petition under Section 2255 is hereby DENIED, and th e instant case is DISMISSED with prejudice. IT IS SO ORDERED. In San Juan, Puerto Rico, this 4th day of August, 2010. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge