Garcia-Alvarez v. USA

Filing 18

OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), 2 Motion for an evidentiary hearing, and 11 , 16 , 17 motions to appoint counsel, filed by Angel Garcia-Alvarez. Petitioner's motion to strike the United States' response (Docket No. 10 ) is DENIED AS MOOT. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief in this court. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Judgment shall be entered accordingly. Signed by Chief Judge Jose A Fuste on 12/13/2010.(mrj)

Garcia-Alvarez v. USA

Doc. 18

1 2 3 4 5 6 7

U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO Á N G E L GARCÍA-ÁLVAREZ, P e titio n e r , v. U N IT E D STATES OF AMERICA, R e s p o n d e n t.

C iv il No. 09-1067 (JAF) (C rim . No. 06-198)

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

O P I N I O N AND ORDER P e titio n e r, Ángel García-Álvarez, brings this pro-se petition under 28 U.S.C. § 2255 for r e l ie f from sentencing by a federal court, alleging that the sentence was imposed in violation o f his rights under federal law, and requests an evidentiary hearing. (Docket Nos. 1; 2.) R e s p o n d e n t opposes (Docket No. 8), and Petitioner replies (Docket No. 10). Petitioner also m o v e s for appointment of counsel. (Docket Nos. 11; 16; 17.) I. F a c tu a l and Procedural History W e derive the following summary from the trial record (Crim. No. 06-198, Docket N o s . 66­69) unless otherwise noted. On June 21, 2006, Petitioner was indicted on charges of c a rja c k in g , 18 U.S.C. § 2119, and the use, or possession of, a firearm in a crime of violence, 18 U .S .C . § 924(c). (Crim. No. 06-198, Docket No. 10.) The charges arose from an armed

ro b b e ry, home invasion, and carjacking perpetrated against Federico López-Villafañe on the m o rn in g of April 12, 2006, at his apartment building in the Condado neighborhood of San Juan. A t around 9:30 that morning, López-Villafañe's condominium maintenance worker, William

Dockets.Justia.com

Civil No. 09-1067 (JAF)

-2 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

R a m íre z -R e s te s, was ambushed and assaulted by several people as he entered the basement of th e building. The assailants blindfolded and interrogated Ramírez-Restes, leaving him tied up in the basement. At about 10:38 a.m., four individuals assaulted López-Villafañe as he was le a v in g his apartment, forcing him to the basement, where he was bound and blindfolded with ta p e . The assailants, in possession of López-Villafañe's keys, stole various valuables from his a p a rtm e n t-- a s sa u ltin g López-Villafañe's maid, Clemencia Lewis, in the process--before s te a lin g his car. López-Villafañe eventually freed himself and called police. P e titio n e r's trial began on August 14, 2006. The Government's case relied on lineup and p h o to -a rra y identifications made by López-Villafañe and Lewis. Petitioner raised an alibi d e f e n s e , claiming that he was delivering furniture in Carolina--a city adjacent to San Juan--at th e same time the crime was taking place in Condado. In order to establish this alibi, Petitioner p re s e n te d the testimony of Juan Espaillat-Díaz, an employee of Petitioner's furniture delivery b u s in e s s , and of José Rivera and Olga Carrasquillo-Marques, the homeowners to whom P e titio n e r delivered furniture shortly after 11 a.m. on April 12, 2006. Espaillat-Díaz testified th a t he met Petitioner at the American Furniture warehouse at 9 a.m. on April 12 and was given th e delivery invoice for the day. Petitioner told him that he should load the delivery truck while P e titio n e r left to pay his cell phone bill. Espaillat-Díaz finished loading the truck at 10:30 and s e t out to make his first delivery to the home of Rivera and Carrasquillo-Marques. At 10:35, E s p a illa t-D ía z drove by American Furniture's storefront, a separate location from the w a re h o u s e , and recognized what he believed to be Petitioner's truck. He called Petitioner, who s a id that he would follow Espaillat-Díaz to the delivery in the Country Club neighborhood of C a ro lin a . Espaillat-Díaz did not see Petitioner's truck follow him. At one point, he called

Civil No. 09-1067 (JAF)

-3 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

P e titio n e r for help in finding the delivery location. Then, at around 11:00, he reached the d e liv e ry location and Petitioner arrived to meet him five minutes later. Petitioner and EspaillatD ía z spent the next hour delivering and assembling the furniture for Rivera and CarrasquilloM a rq u e s . Petitioner and Espaillat-Díaz completed the delivery at noon and parted ways. T h e Government relied upon lineup and photo-array identifications made by LópezV illa f a ñ e and Lewis, identifying Petitioner as one of their assailants. As for rebutting

P e titio n e r's alibi, the Government presented the testimony of FBI Agent Eric Gonima Gil, who s ta te d that the drive from the crime scene to the home of Rivera and Carrasquillo-Marques a v e ra g e d ten minutes. Thus, the Government argued, Petitioner had ample time to drive from th e crime scene in Condado to the furniture delivery in Carolina. The jury returned its verdict o n August 18, 2006, convicting Petitioner of both counts in the indictment. P e titio n e r moved for a new trial on February 13, 2007, on the basis of what he claimed to be newly-discovered evidence supporting his alibi. (Crim. No. 06-198, Docket No. 71.) P e titio n e r asserted that his cell-phone records from April 12, 2006, reveal that all eight calls o rig in a tin g from or received by his cell phone between 9:33 and 10:30 a.m.--spanning the a p p ro x im a te time in which the assaults on Ramírez-Restes and López-Villafañe began-- were c a rrie d by cell towers in Carolina.1 We denied Petitioner's motion, finding that Petitioner had f a ile d the first two prongs of the analysis of a motion under Federal Rule of Criminal Procedure 3 3 : the evidence (1) was not available or unknown at the time of trial; and (2) could have been d isc o v e re d with due diligence. (Crim. No. 06-198, Docket No. 83.) The First Circuit affirmed

A more detailed description of Petitioner's evidence can be found in our opinion denying that motion (Case No. 06-198, Docket No. 83).

1

Civil No. 09-1067 (JAF)

-4 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

P e titio n e r's conviction and our denial of his motion for new trial, noting that Petitioner could c h o o s e to utilize his counsel's failure to present the cell-phone records at trial as the basis of an in e f f e c tiv e -a s s is ta n c e -o f -c o u n s e l claim under 28 U.S.C. § 2255. United States v. GarcíaÁ lv a re z , 541 F.3d 8, 18 (1st Cir. 2008). In the motion before us, Petitioner asserts four bases for relief under § 2255: (1 ) ineffective assistance of counsel, premised on various grounds, but the foremost being the f a ilu re to present Petitioner's cell-phone records as proof of alibi; (2) a jury instruction that im p e rm is s ib ly shifted the burden of proof from the Government to Petitioner; (3) insufficient e v id e n c e for conviction; and (4) admission of hearsay testimony in violation of Petitioner's S ix th Amendment right to confrontation as set forth in Crawford v. Washington, 541 U.S. 36 (2 0 0 4 ). (Docket No. 1-2.) II. S ta 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 a y challenge his sentence on the ground that, inter alia, it "was imposed in violation of the C o n s t i t u tio n or laws of the United States." Id. The petitioner is entitled to an evidentiary h e a rin g unless the "allegations, even if true, do not entitle him to relief, or . . . `state conclusions in ste a d of facts, contradict the record, or are inherently incredible.'" Owens v. United States, 4 8 3 F.3d 48, 57 (1st Cir. 2007) (quoting United States v. McGill, 11 F.3d 223, 225­26 (1st Cir. 1 9 9 3 )); see 28 U.S.C. § 2255(b). A petitioner cannot be granted relief on a claim that has not

Civil No. 09-1067 (JAF)

-5 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

b e e n raised at trial or direct appeal, unless he can demonstrate both cause and actual prejudice f o r his procedural default. See United States v. Frady, 456 U.S. 152, 167 (1982). III. A n a ly s is B e c a u s e 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 e rth e le s s , Petitioner's pro-se status does not excuse him from complying with procedural a n d substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). A. I n e ffe c tiv e Assistance of Counsel P e titio n e r claims ineffective assistance of trial counsel, Assistant Federal Public D e f e n d e r ("AFPD") Joannie Plaza, based on the following errors: (1) failure to request an e v id e n tia ry hearing at sentencing; (2) opening the door to evidence of prior bad acts; (3) failure to subpoena a witness; and (4) failure to investigate and introduce the Petitioner's cell-phone re c o rd s in support of his alibi defense. T h e success of an ineffective-assistance-of-counsel claim depends on Petitioner's s h o w in g not only a deficient performance by his trial counsel but also a resulting prejudice. P e ra lta v. United States, 597 F.3d 74, 79 (1st Cir. 2010). Deficient performance is present w h e re the trial counsel's representation "fell below an objective standard of reasonableness," a standard that is informed by "prevailing professional norms." Id. (quoting Strickland v. W a s h in g to n , 466 U.S. 668, 688 (1984)). Choices made by counsel that could be considered part o f trial strategy will almost never amount to deficient performance. See Strickland, 466 U.S. a t 690; see also Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (holding that performance is

Civil No. 09-1067 (JAF)

-6 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

d e f ic ie n t only where "counsel's choice was so patently unreasonable that no competent attorney w o u ld have made it"(internal quotations omitted)). Counsel's decision not to pursue "futile ta c tic s" will not be considered deficient performance. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1 9 9 9 ); see also Acha v. United States, 910 F.2d 28, 32 (1st Cir. 1990) (stating that failure to ra is e meritless claims is not ineffective assistance of counsel). Prejudice exists where "there is 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." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome," and said probability is less o n e ro u s than a "more likely than not" standard. Id. 1. F a ilu r e to Request an Evidentiary Hearing

P e titio n e r argues that AFPD Plaza was ineffective in not requesting an evidentiary h e a rin g to resolve sentencing factors in dispute. The U.S. Sentencing Guidelines Manual § 6A1.3 provides that "[w]hen any factor important to the sentencing determination is re a s o n a b ly in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." Petitioner claims that his cell-phone records and his presence a t the robbery were both factors in dispute. The cell-phone evidence was only discussed during th e sentencing hearing as it related to a pending motion for a new trial, and it did not affect the c a lc u la tio n of his sentence. (See Crim. No. 06-198, Docket No. 87 at 1­7.) Petitioner's p re s e n c e at the robbery had already been affirmed by the jury when they convicted him of the c h a rg e d conduct. Since there were no disputed factors for which a hearing would have been n e c e s sa ry, Petitioner's representation was not defective. Petitioner also suggests that AFPD P la z a was ineffective in not objecting to the presentence report. (Docket No. 1-2 at 10.) AFPD

Civil No. 09-1067 (JAF)

-7 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

P la z a did, however, object to part of the presentence report. (Crim. No. 06-198, Docket No. 87 a t 8.) 2. O p e n in g the Door

P e titio n e r also claims that AFPD Plaza's representation fell below reasonable standards b e c a u s e her cross-examination of a witness "opened the door to bad acts" evidence under F e d e ra l Rule of Evidence 404(b). Petitioner points to a portion of the cross-examination of p o lic e officer Rivera-Alvarado, wherein AFPD Plaza questioned the witness as to the criminal re c o rd s of Rubén and Sandry García, relatives of Petitioner and suspects in the criminal in v e stig a tio n . (Crim. No. 06-198, Docket No. 68 at 87­89.) AFPD Plaza in no way introduced e v id e n c e of prior crimes or bad acts of the Petitioner, the victim, or a witness and, thus, the door w a s never opened to the Government's introduction of prior crimes or bad acts of Petitioner. S e e Fed. R. Evid. 404(a)(1)­(3). 3. F a ilu r e to Subpoena

N e x t, Petitioner argues that AFPD Plaza failed to subpoena a key witness, police officer J e n n if e r Rivera-Villanueva. (Docket No. 1-2 at 16.) AFPD Plaza did, in fact, subpoena the w itn e ss on August 11, 2006. The trial transcript reveals that the police officer simply did not c o m p ly with the subpoena, having worked a late shift and taken "a lot of pills" for a migraine. (D o c k e t No. 69 at 92.) AFPD Plaza explained, "[W]e have discussed the matter with the d e f e n d a n t, and we are going to proceed without the witness." (Id.) This was clearly a strategic c h o ic e , one to which Petitioner consented. See Strickland, 466 U.S. at 690 ("[S]trategic choices m a d e after thorough investigation of law and facts relevant to plausible options are virtually u n c h a l l e n g e a b l e ." ) .

Civil No. 09-1067 (JAF)

-8 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

4.

F a ilu r e to Introduce Alibi Evidence

P e titio n e r's final ground for ineffective assistance of counsel is that AFPD Plaza failed to introduce his cell-phone records as alibi evidence. Petitioner claims that he specifically in stru c te d Plaza to introduce his cell-phone records "to show his whereabouts during the time o f the robbery" but that counsel ignored his request and did not even begin to research these re c o rd s until two months following the jury verdict. (Docket No. 1-2 at 17.) W e first ask whether this was deficient performance. The Government has argued that A F P D Plaza's failure to investigate these records was a tactical decision made as part of her o v e ra ll trial strategy--a decision which should be accorded considerable deference. (Docket N o . 8 at 6­8.) The Supreme Court has held that such deference is owed to strategic choices " m a d e after thorough investigation of law and facts" or after a reasonable professional judgment t h a t "particular investigations [are] unnecessary." Strickland, 466 U.S. at 690­91. AFPD P la z a 's motion for a new trial states that she obtained Petitioner's cell-phone records during p re tria l investigation but did not introduce them at trial because "the potential relevancy that this in f o rm a tio n carried was not developed since [Petitioner's] alibi defense was to be presented th ro u g h the testimonies of witnesses and other documentary evidence." (Crim. No. 06-198, D o c k e t No. 71-1 at 8.) The motion goes on to state that AFPD Plaza did not anticipate the G o v e rn m e n t's theory that Petitioner took steps to manufacture his alibi. (Id.) AFPD Plaza's s ta te m e n ts and work logs establish that she conducted no further investigation of the cell-phone re c o rd s until several months after the jury's guilty verdict, at which point she enlisted the aid o f engineers from Petitioner's cellular provider to decipher certain billing codes. (See Crim. N o . 06-198, Docket Nos. 71-1; 71-12.)

Civil No. 09-1067 (JAF)

-9 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

A s AFPD Plaza claims that she did not thoroughly investigate the cell-phone records b e f o re trial, we must ask whether this choice to limit her investigation and presentation of the a lib i defense was the product of reasonable professional judgment or, rather, a choice no re a s o n a b ly-c o m p e te n t attorney would make. In Pina v. Maloney, the choice to forgo presenting e v id e n c e of an alibi was held reasonable by the First Circuit where trial counsel chose instead to pursue a misidentification defense. 565 F.3d 48, 55­56 (1st Cir. 2009). Trial counsel in Pina k n e w that the defendant's fiancee was willing to testify that the defendant was at home with her d u rin g the time he was alleged to have participated in a murder in the streets. Id. Yet, the g o v e rn m e n t was set to call two witnesses who were at the scene of the murder and would testify th a t defendant was the shooter. Id. at 51. In light of this testimony, counsel abandoned the alibi d e f e n s e , which would have been based on the testimony of a "plainly interested witness," and in ste a d chose to rely on misidentification. The First Circuit upheld this as a "reasonable, tactical d e c is io n ." Id. at 56. S im ila rly, AFPD Plaza was confronted in this case with eyewitness testimony of two v ic tim s identifying Petitioner as their assailant. Unlike the counsel in Pina, AFPD Plaza did not a b a n d o n the alibi defense completely. Instead, she presented both alibi and misidentification d e f e n s e theories. Confident that she could establish the alibi with the testimony of EspaillatD ía z and delivery recipients Rivera and Carrasquillo-Marques, AFPD Plaza made a reasonable a s se s s m e n t that further investigation of the cell-phone records was unnecessary. Furthermore, w e must remember that the value of such evidence depends entirely upon tying the cell phone to Petitioner during the crime. The only evidence to support Petitioner's use of the phone at th o s e times is the testimony of Espaillat-Díaz, Petitioner's employee and, thus, a witness who

Civil No. 09-1067 (JAF)

-1 0 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

h a d a financial interest in his continued employment by Petitioner. While AFPD Plaza's d e c is io n not to present this evidence may not, in retrospect, have been the best choice, we must a v o id the "distorting effects of hindsight," Strickland, 466 U.S. at 689, while remembering that th e Sixth Amendment "does not guarantee a defendant a letter-perfect defense or a successful d e f e n s e , " United States v. Natel, 938 F.2d 302, 309­10 (1st Cir. 1991). Given the totality of th e circumstances presented to AFPD Plaza when preparing Petitioner's defense, which in c lu d e d credible identifications made by two victims, we find that the decision not to introduce th e cell-phone evidence was an exercise of reasonable professional judgment. E v e n assuming that AFPD Plaza's failure to research and present this evidence was d e f ic ie n t representation of her client, Petitioner's claim fails to meet the "prejudice" prong of S tric k la n d analysis. Petitioner was positively identified in open court by both López-Villafañe a n d Lewis as one of their assailants. (See Crim. No. 06-198, Docket Nos. 66 at 74­75; 67 at 7 9 .) In light of these identifications, we find no reasonable probability that the jury's verdict w o u ld have been different if Petitioner's cell-phone records, and their analysis by Centennial e n g in e e rs , had been introduced at trial. While this evidence may have demonstrated that a cell p h o n e registered to Petitioner was in Carolina during the commission of this crime, it does little t o undermine confidence in the lineup, photo-array, and courtroom identifications by LópezV illa f a ñ e and Lewis, witnesses who were cruelly assaulted. See Levasseur v. Pepe, 70 F.3d 1 8 7 , 195 (1st Cir. 1995) (noting that an assault victim's degree of attention during a traumatic in c id e n t "is presumed to have been acute" and supports the credibility of her witness id e n tif ic a tio n ) . The identification of Petitioner by his victims was critical in the jury's

c o n v ic tio n . Furthermore, a cell phone does not always follow the owner. The phone could have

Civil No. 09-1067 (JAF)

-1 1 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

b e e n in the hands of a third party while the Petitioner committed the crime. Considering the to ta lity of the evidence before the jury, the inclusion of this new evidence would not have re su lte d in a reasonable probability of acquittal. B. P r o c e d u r a lly Defaulted Claims P e titio n e r's three remaining claims of constitutional violations were neither preserved a t trial nor raised on direct appeal. For such claims to survive, petitioners must demonstrate " c a u s e and actual prejudice" of their procedural default. See United States v. Frady, 456 U.S. 1 5 2 , 167 (1982) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). Petitioner advances no cause f o r his default. We, therefore, cannot consider Petitioner's claims of faulty jury instructions, in su f f ic ie n t evidence, and admission of testimonial hearsay in violation of Crawford v. W a s h in g to n , 541 U.S. 36 (2004). IV . C e r tific a te of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we d e n y § 2255 relief we must concurrently determine whether to issue a certificate of appealability (" C O A " ). We grant a COA only upon "a substantial showing of the denial of a constitutional rig h t." 28 U.S.C. § 2253(c)(2). To make this showing, "[t]he petitioner must demonstrate that re a s o n a b le jurists would find the district court's assessment of the constitutional claims d e b a ta b le or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. M c D a n ie l, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable jurist could find o u r assessment of Petitioner's constitutional claims debatable or wrong. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22.

Civil No. 09-1067 (JAF)

-1 2 -

1 2 3 4 5 6 7 8 9 10 11 12 13

V. C o n c lu s io n F o r the foregoing reasons, we hereby DENY Petitioner's § 2255 motion (Docket No. 1), m o tio n for an evidentiary hearing (Docket No. 2), and motions to appoint counsel (Docket N o s . 11; 16; 17). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary d ism is s a l is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief in this court. Petitioner's motion to strike the United States' response (Docket N o . 10) is denied as moot. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 13th day of December, 2010. s/J o s é Antonio Fusté JO S E ANTONIO FUSTE Chief U.S. District Judge