Rodriguez-Rivera v. USA

Filing 11

OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 05-321). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, we summarily DISMISS this petition, because it is plain from the record that Petitioner is entitled to no relief. Signed by Chief Judge Jose A Fuste on 12/4/09.(mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO L U IS A. RODRÍGUEZ-RIVERA, P eti tio n er , v. U N IT E D STATES OF AMERICA, R es p o n d en t.

C iv il No. 09-1034 (JAF) (Crim. No. 05-321)

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O P I N I O N AND ORDER P etitio n er, Luis A. Rodríguez-Rivera, brings this pro-se petition for relief from a federal co u r t conviction pursuant to 28 U.S.C. § 2255. (Docket No. 1.) Respondent, the United States o f America, opposes (Docket No. 4), and Petitioner replies (Docket No. 5). I. F a ctu a l and Procedural History O n September 28, 2005, a federal grand jury indicted Petitioner on charges of conspiring to accept bribe payments in violation of 18 U.S.C. § 371, and accepting bribe payments in v io latio n of 18 U.S.C. § 201(b)(2)(A). (Docket No. 1.) On August 22, 2006, a jury acquitted P etition er on the charge of conspiracy but found him guilty on the charge of accepting bribe p aymen ts. (Id.) We sentenced Petitioner to forty-eight months in prison. (Id.) Petitioner ap p ea led , and on September 28, 2007, the First Circuit affirmed his sentence. United States v. R o d ríg u ez -R iv er a, No. 07-1041 (1st Cir. Sept. 28, 2007). P etitio n er claims that, during his trial, he sought to advance a defense theory based on 5 C .F .R . § 2635.204(b), which permits a public employee to accept a gift if it is "given under

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circu ms tan ces which make it clear that the gift is motivated by a family relationship or personal frien d sh ip rather than the position of the employee." (See, e.g., Docket No. 1-2 at 2.) The trial co u rt refused to admit the regulation into evidence, however, deciding that it did not apply to P etitio n er's case. (Id. at 5-6.) Petitioner faults his trial and appellate counsel for not pressing that defense and not disputing the erroneous exclusion of the regulation. (See, e.g., id. at 5.) F u r th er, according to Petitioner, evidence submitted by the Government during trial, including an exhibit (id. at 10-12) and testimony by two witnesses (id. at 12-14), was both inaccurate and c r u c ial to the Government's case. Petitioner also alleges that his appellate counsel, who was co u rt appointed (Docket No. 1 at 13), neglected to obtain a transcript of the trial. (See Docket N o . 1-2 at 9.) P etitio n er moved for § 2255 relief on December 15, 2008. (Docket No. 1.) Respondent o p p o s ed on February 27, 2009 (Docket No. 4), and Petitioner replied on March 16, 2009 (D o ck et No. 5). II. S t a n d a r d for Relief Under 28 U.S.C. § 2255 A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner m ay challenge his or her sentence on the ground that, inter alia, it "was imposed in violation of th e Constitution or laws of the United States." Id. The petitioner is entitled to an evidentiary h earing unless the "allegations, accepted as true, would not entitle the petitioner to relief, or . . .`are contradicted by the record, inherently incredible, or conclusions rather than statements o f fact.'" United States v. Rodríguez Rodríguez, 929 F.2d 747, 749-50 (1st Cir. 1991) (quoting D ziu rg o t v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)); see 28 U.S.C. § 2255(b).

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B ecau se Petitioner appears pro se, we construe his pleadings more favorably than we w o u ld those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

N e v erth eles s , Petitioner's pro-se status does not excuse him from complying with procedural and s u b s tan tiv e law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). P etitio n er asserts that his conviction is unconstitutional because (1) his trial and appellate co u n s e l were ineffective, for reasons enumerated below; (2) Prosecutor obtained Petitioner's co n v ict io n through the knowing use of false evidence; and (3) Petitioner is actually innocent. (D o ck et No. 1.) We address each assertion in turn. A. In ef f ectiv e Assistance of Counsel P etitio n er asserts ineffective assistance in that (1) trial counsel did not request jury in stru ctio n s on Petitioner's defense theory based on 5 C.F.R. § 2635.204(b) (Docket No. 1-2 at 2 ); (2) trial counsel did not object to the trial court's failure to give jury instructions on P etitio n er's theory (id. at 3); (3) appellate counsel did not appeal said failure (id. at 4); (4) trial co u n s el did not object to Prosecutor's invalid objection to, and trial court's erroneous exclusion o f, material, admissible evidence (id. at 5); (5) appellate counsel did not appeal said erroneous e x c l u s i o n (id. at 8); (6) appellate counsel did not obtain a full transcript (id.); (7) appellate co u n s el did not "raise a meaningful appeal" (id. at 9); (8) appellate counsel did not make an actu a l innocence appeal based on 5 C.F.R. § 2635.204(b) (id.); (9) trial counsel did not i n v e s tig ate evidence (id. at 10); and (10) trial counsel neither interviewed nor presented tes tim o n y of a witness requested by Petitioner (id. at 12).

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T h e Sixth Amendment "right to counsel is the right to the effective assistance of counsel." S trick lan d v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks omitted); see U.S. C o n st. amend. VI. To establish ineffective assistance, a petitioner must show both that his co u n s el' s performance was deficient and that he suffered prejudice as a result of the deficiency. S trick lan d , 466 U.S. at 686-96. To show deficient performance, a petitioner must "establish that co u n s el was not acting within the broad norms of professional competence." Owens v. United S tates , 483 F.3d 48, 57 (1st Cir. 2007) (citing Strickland, 466 U.S. at 687-91). To show p re ju d i ce, a petitioner must demonstrate that "there is a reasonable probability that, but for cou n sel's unprofessional error, the result of the proceedings would have been different." S trick lan d , 466 U.S. at 694. P etitio n er' s trial counsel explicitly requested judicial notice of the regulation, and the co u rt refused. (Docket No. 1-2 at 5-6.) Thus, the regulation was not in evidence, and trial co u n s el could not have requested jury instructions based on it. See United States v. McGill, 953 F .2 d 10, 12 (1st Cir. 1992) ("[A]n accused is entitled to an instruction on his theory of defense s o long as . . . there is evidence in the record to support it." (emphasis added) (quoting United S tates v. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988))). Therefore, claims (1)-(3) of the instant p etition demonstrate no deficiency on the part of Petitioner's counsel and fail as grounds for in effec tiv e assistance of counsel. C laim (4) similarly fails because Petitioner's trial counsel, who had explicitly offered the reg u latio n into evidence, had no obligation to object to the trial court's subsequent decision ex clu d in g it. See Fed. R. Evid. 103(a) ("Once the court makes a definitive ruling on the record admitti n g or excluding evidence, either at or before trial, a party need not renew an objection or o ffer of proof to preserve a claim of error for appeal.").

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C laim (5) fails as well. In order for Petitioner to show that appellate counsel provided in e ffectiv e assistance in failing to object to the trial court's exclusion of the regulation, he needs to show both deficiency and prejudice. See Strickland, 466 U.S. at 686-96. The regulation, in fact, could not have provided a basis for Petitioner's defense. The exceptions enumerated under 5 C.F.R. § 2635.204 provide no defense for a violation of 18 U.S.C. § 201(b). See 5 C.F.R. § 2635.202(c)(4)(i). Because a defense theory based on the regulation would have been m eritles s , appellate counsel had no obligation to pursue the issue on appeal. See Acha v. United S tates , 910 F.2d 28, 32 (1st Cir. 1990) ("[Counsel is] under no obligation to raise meritless claims. Failure to do so does not constitute ineffective assistance of counsel."). The same re as o n in g eviscerates Petitioner's claim (8). A s to claim (6), Petitioner asserts appellate counsel's ineffective assistance for failure to o b tain a trial transcript. (Docket No. 1-2 at 8-9.) Though this alleged conduct may constitute a deficiency on counsel's part, the deficiency alone cannot amount to ineffective assistance; P etitio n er was required to show how the failure prejudiced his case. Because Petitioner asserts n o facts that show prejudice due to the alleged failure to obtain a trial transcript (see id.), we re jec t this as grounds for ineffective assistance. C l aim (7) fails as an independent ground for ineffective assistance, as it merely reiterates factu al claims (3), (5), (6), and (8). (See id. at 9.) C laim s (9) and (10) allege that trial counsel was ineffective for failure to investigate and d is p u te the accuracy of evidence submitted by the Government. (Id. at 10-14.) Here, we find n eith er deficiency nor prejudice. The trial record indicates that Petitioner was aware of, and

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testified regarding, this evidence by the Government. (See Trial Tr. 22-33, 42, Aug. 21, 2006.1) T h u s , the alleged failure of Petitioner's trial counsel to investigate and dispute the evidence is illu s iv e. B. P ro secu to r's Knowing Use of False Evidence P etitio n er alleges that the Government relied on evidence that it knew or should have k n o w n was false and that this evidence was material to his conviction. (Docket No. 1-2 at 141 5 .) In a federal criminal trial, the prosecutor violates the accused's Fifth Amendment right to due process if the prosecutor knowingly allows the factfinder to be misled by false evidence fro m the prosecutor's witnesses. See Giglio v. United States, 405 U.S. 150 (1972); Mooney v. H o lo h an , 294 U.S. 103 (1935). But "[w]hen the defendant knows about the false testimony and fails to bring it to the jury or the court's attention, the assumption is that he did so for strategic reaso n s." United States v. Mangual-Garcia, 505 F.3d 1, 10-11 (1st Cir. 2007). Under those cir cu m s tan ce s , the accused may not later challenge the prosecutor's behavior. See id. T h e allegedly false evidence pertains to Petitioner's claims (9)-(10). We have already d eterm in ed that Petitioner knew about, and testified regarding the veracity of, the allegedly-false ev id en ce. Thus, even assuming arguendo the evidence was false, and that the prosecutor so k n ew , Petitioner has failed to articulate a constitutional violation that undermines our confidence in his conviction.

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A copy of the referenced trial transcript is available at Crim. No. 05-cr-00321 Docket No. 88.

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P etitio n er alleges that, due to its reliance on false evidence and on the erroneous ex c lu s io n of 5 C.F.R. § 2635.204(b), and due to exculpatory testimony by the Government's m ain witness, the Government failed to adduce evidence sufficient to support his conviction. (D o cke t No. 1-2 at 15-16.) Petitioner invites us to consider his sufficiency of the evidence claim, despite his not having raised it on direct appeal, due to his actual innocence.2 (Id.) S u fficie n cy of the evidence is a federal constitutional claim; the evidence in support of a conviction must be sufficient to have led a rational trier of fact to find guilt beyond a re as o n ab le doubt. See Jackson v. Virginia, 443 U.S. 307, 317, 320-21 (1979). Generally, s u fficien cy of the evidence must be raised on direct appeal; if it is not, a § 2255 petitioner may n o t raise it unless extraordinary circumstances compel waiver of this procedural bar. See Awon v . United States, 308 F.3d 133, 142-43 (1st Cir. 2002). Such extraordinary circumstances inclu d e actual innocence, but the "actual innocence exception is quite narrow and seldom used." Id. at 143 (citing Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir. 1999); see also id. ("[The actu al innocence exception] is reserved for the extraordinary cases of `fundamentally unjust in ca rc er atio n .'" (quoting Schlup v. Delo, 513 U.S. 298, 320-21 (1995))). T h e claim of actual innocence must set forth factual innocence, not mere legal insu fficien cy. See id. (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). To demonstrate actu al innocence, a petitioner "must establish that, in light of new evidence, it is more likely than

Though Petitioner's claim is entitled "actual innocence," we construe it as a claim for insufficiency of the evidence, as Petitioner may not obtain relief under § 2255 via a bare claim of actual innocence. See 28 U.S.C. § 2255; cf. Herrera v. Collins, 506 U.S. 390 (1993) ("[A] claim of `actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.").

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n o t that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." B a rr eto - B a r r e t o v. United States, 551 F.3d 95, 102 (1st Cir. 2008) (internal quotation marks o m itte d ) (quoting House v. Bell, 547 U.S. 518, 536-37 (2006)). In this case, Petitioner argues that the the purported 5 C.F.R. § 2635.204(b) exception to criminal liability renders him actually innocent. In addition, he maintains that evidence that w o u ld have controverted the Government's false evidence, along with an exculpatory statement b y the Government's main witness, demonstrate his factual innocence. As to the regulation, we h ave already found that it cannot provide a basis for Petitioner's actual innocence. See supra P art III.A. As to the remaining evidence to which Petitioner points, we find that neither testimo n y from Petitioner's trial nor arguments Petitioner reiterates from his trial defense co n s titu tes new evidence. As Petitioner failed to demonstrate actual innocence, we decline to co n s id er his defaulted insufficiency-of-the-evidence claim. IV . C o n clu s io n F o r the foregoing reasons, we hereby DENY Petitioner's § 2255 motion (Docket No. 1). P u rs u an t to Rule 4(b) of the Rules Governing § 2255 Proceedings, we summarily DISMISS this p eti tio n , because it is plain from the record that Petitioner is entitled to no relief. I T IS SO ORDERED. S an Juan, Puerto Rico, this 4 th day of December, 2009. S / J o s é Antonio Fusté J O S E ANTONIO FUSTE Chief U.S. District Judge