Morales-Machuca v. USA
Filing
19
OPINION AND ORDER denying 3 Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 02-117) filed by David Morales-Machuca. Signed by Judge Juan M Perez-Gimenez on 02/28/2012. (JG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
*
*
*
*
v.
*
*
*
UNITED STATES OF AMERICA,
*
Respondent.
*
__________________________________________*
DAVID MORALES-MACHUCA,
Petitioner,
CIVIL NO. 09-2036(PG)
RELATED CRIM. 02-117(PG)
OPINION & ORDER
Before the Court is Petitioner’s 28 U.S.C. Sec. 2255
Habeas Corpus Petition (D.E.3)1; Petitioner’s Supplemental
Motion (D.E. 4);
(D.E.13); and
Respondent’s Response to the Petition
Petitioner’s Reply to the Government’s
Response (D.E. 16). For the reasons discussed below, the
Court finds the Petition shall be DENIED.
I. BACKGROUND
On March 14, 2003, Petitioner, David Morales-Machuca,
(hereinafter “Petitioner” or “Morales-Machuca”) and four
(4) other co-defendants were indicted by a Federal Grand
Jury in a Second Superseding Indictment (Crim. D.E. 85)2.
Count One (1) charged Petitioner and his four (4) codefendants with on or about November 30, 2001, up to and
including the date of the return of this indictment, in the
District of Puerto Rico and within the jurisdiction of this
1
D.E. is an abbreviation of docket entry number.
2
Crim.D.E. is an abbreviation of criminal docket entry.
Civil No. 09-2036(PG)
Page 2
Court, all five co-defendants, did, knowingly, willfully,
unlawfully,
and
intentionally
combine,
conspire,
confederate and agree with each other and with diverse
other persons to the grand jury unknown, to unlawfully
obstruct, delay and affect, commerce as the term is defined
in Title 18, United States Code, Section 1951(b)(3), and
the movement of articles and commodities in such commerce,
by robbery as that term is defined in Title 18, United
States Code, Section 1951(b)(1), by the unlawful taking or
obtaining property, consisting of money in custody or
possession
of
Ranger
America
Armored
Services
Co.,
a
business or industry engaged in interstate commerce or
affecting interstate commerce, from the person of or in the
presence of the possessor of said money, against his will
by means of actual and threatened force, violence, or fear
of injury, immediate or future, to his person.
Counts Two through Ten are incorporated herein by
reference
and
are
further
alleged
as
overt
acts
furtherance of the conspiracy charged herein.
in
All in
violation of Title 18, United States Code, Section 1951(a).
Count Two (2) charged Petitioner and his four (4) codefendants with on or about November 30, 2001, up to and
including the date of the return of this indictment, in the
District of Puerto Rico and within the jurisdiction of this
Court, the defendants herein, and other persons to the
grand
jury
unknown,
aiding
and
abetting
each
other,
knowingly possessed, used or carried firearms, as that term
Civil No. 09-2036(PG)
is
defined
in
Page 3
Title
18,
United
States
Code,
Section
921(a)(3), in furtherance of, or during and in relation to
a crime of violence as that term is defined in Title 18,
United States Code, Section 924(c)(3) to wit: conspiracy to
interfere with commerce by robbery, as set forth in Count
One of this Indictment, an offense for which they may be
prosecuted in a Court of the United States, in violation to
Title 18, United States Code, Section 1951(a), all in
violation
of
Title
18,
United
States
Code,
Section
924(c)(1)(A)(iii)and 2.
Count Seven (7) charged Petitioner and his four (4) codefendants, the defendants herein, and other persons to the
grand jury unknown, aiding and abetting each other, did
knowingly,
willfully,
intentionally
and
unlawfully
obstruct, delay or affect commerce, or the movement of any
article or commodity in commerce, as that term is defined
in Title 18, United States Code, Section 1951(b)(3), by
robbery as that term is defined in Title 18, United States
Code, Section 1951(b)(1), by unlawfully taking or obtaining
property consisting of money to wit: approximately One
Hundred Thousand Dollars ($100,000.00), in the custody or
possession of Ranger America Armored Services Co., from the
person of or in the presence of Ranger America security
guards,
against
their
will
by
means
of
actual
and
threatened force, or violence, that is, at gun point, and
by shooting towards the security guards and causing the
death of Gilberto Rodriguez-Cabrera.
All in violation of
Civil No. 09-2036(PG)
Page 4
Title 18, United States Code, Sections 1951(a) and 2.
Count Eight (8) charged Petitioner and his four (4) codefendants with on or about March 27, 2002, in the District
of Puerto Rico and within the jurisdiction of this Court,
the defendants herein, and other persons to the grand jury
unknown,
possessed,
aiding
and
brandished,
abetting
each
discharged,
other,
used
and
knowingly
carried
firearms, as that term is defined in Title 18, United
States Code, Section 921(a)(3), during and in relation to
a crime of violence as that term is defined in Title 18,
United States Code, Section 924(c)(3), for which they may
be prosecuted in a Court of the United States, that is,
interference with commerce by robbery in violation to Title
18, United States Code, Section 1951(a) and as set forth in
Count Seven of this Indictment, which is realleged and
incorporated by reference herein, and in the course of that
crime, unlawfully killed Gilberto Rodriguez-Cabrera with
malice aforethought through the use of a firearm, which is
murder as defined in Title 18, United States Code, Section
1111, by knowingly, willfully, deliberately, maliciously,
and with premeditation, shooting Gilberto Rodriguez-Cabrera
with a firearm, thus causing his death.
All in violation
of Title 18, United States Code, Section 924(j) and (2).
Count Nine (9) charged Petitioner and his four (4) codefendants with on or about March 27, 2002, in the District
of Puerto Rico and within the jurisdiction of this Court,
the defendants herein, and other persons to the grand jury
Civil No. 09-2036(PG)
unknown,
possessed,
aiding
Page 5
and
abetting
brandished,
each
discharged,
other,
used
or
knowingly
carried
firearms, as that term is defined in Title 18, United
States Code, Section 921(a)(3), during and in relation to
a crime of violence as that term is defined in Title 18,
United States Code, Section 924(c)(3), to wit: interference
with commerce by robbery as set forth in Count Seven
herein, an offense for which they may be prosecuted in a
Court of the United States in violation of Title 18, United
States Code, Section 1951(a), all in violation of Title 18,
United States Code, Sections 924(c)(1)(A)(iii)and 2.
Count Ten (10) charged Petitioner with on or about
April 17, 2002, in the District of Puerto Rico and within
the
jurisdiction
of
this
Court,
Morales-Machuca,
the
defendant herein, who has been convicted in any court, of
a crime punishable by imprisonment for a term exceeding one
year, did knowingly and unlawfully possess in or affecting
commerce any firearm or ammunition, or receive any firearm
or ammunition, as those terms are defined in Title 18,
United States Code, Sections 921(a)(3) and 921(a)(17)(A)
respectively, that is: a loaded 9mm caliber, Taurus pistol,
model PT99AFS, serial number TPA62607, which firearm or
ammunition has been shipped or transported in interstate or
foreign commerce.
It
is
alleged
that
Morales-Machuca,
the
defendant
herein, committed the above-mentioned firearm offense after
being convicted and sentenced on or about October 25, 1996,
Civil No. 09-2036(PG)
Page 6
to two (2) years of imprisonment for a violation of the
Puerto Rico Penal Code, Attempt to Murder, in the Superior
Court
of
Puerto
Rico,
Humacao
Part,
and
on
or
about
December 3, 1996, was sentenced to three (3) years of
imprisonment for violations of the Puerto Rico Weapons Law,
in the Superior Court of Puerto Rico, Caguas Part, all in
violation
of
Title
18,
United
States
Code,
Sections
922(g)(1) ans 924(a)(2).
On September 9, 2005, on the eighth day of a jury trial
Morales-Machuca was found guilty as to counts one (1), two
(2), seven (7), eight (8), nine (9) and ten (10) of the
Second Superseding Indictment (Crim.D.E.564).
On January
4,
filed
2006,
Petitioner
through
his
counsel
objections to the Pre-Sentence Report (Crim.D.E.598).
his
On
January 11, 2006, Morales-Machuca’s sentencing was held.
The
Court
denied
Petitioner’s
request
for
adjustment for minor role in the offense.
a
downward
The Court
sentenced Petitioner to a term of imprisonment of twenty
(20) years as to counts one (1) and seven (7) and ten (10)
years as to count ten (10), said terms to be served
concurrently with each other.
A term of imprisonment of
thirty (30) years as to counts two (2) and nine (9), said
terms
to
be
served
concurrently
consecutively to all other counts.
of Life as to count eight (8).
with
each
other
but
A term of imprisonment
A Supervised Release Term
of three (3) years as to counts one (1) seven (7) and ten
(10) and a term of Supervised Release of five (5) years as
Civil No. 09-2036(PG)
to
counts
two
Page 7
(2),
eight
(8)
and
nine
(9)
to
run
concurrently with each other (Crim.D.E. 602).
On January 19, 2006, Morales-Machuca filed a Notice of
Appeal (Crim.D.E.604).
On November 3, 2006, Petitioner
filed a Motion to Dismiss the Second Superseding Indictment
(Crim.D.E. 645).
On November 8, 2006, the Court entered an
Order denying the Motion to Dismiss the Second Superseding
Indictment (Crim.D.E. 646).
On May 16, 2007, Petitioner
again filed a Motion to Dismiss the Second Superseding
Indictment (Crim.D.E. 677).
On May 17, 2007, the Court
entered an Order denying said motion (Crim.D.E. 678).
On
May 31, 2007, Morales-Machuca filed a Notice of Appeal as
to the Court’s order denying the dismissal of the Second
Superseding Indictment (Crim.D.E. 681).
On May 6, 2008,
the First Circuit Court issued its Judgment affirming the
District Court’s denial of the dismissal of the Second
Superseding Indictment (Crim.D.E.689).
On October 17, 2008, the First Circuit Court of Appeals
affirmed
Petitioner’s
conviction
and
sentence,
United
States v. Morales-Machuca, 546 F.3d 13 (1st Cir. 2008).
No
request for writ of certiorari was filed and the conviction
became
final
on
January
15,
2009.
Pursuant
to
the
Antiterrorism and Effective Death Penalty Act of 1996,
Morales-Machuca had until January 15, 2010, to file his
2255 Petition.
The same was filed on October 7, 2009,
therefore the same is timely (D.E.3).
II. DISCUSSION
Civil No. 09-2036(PG)
Page 8
In his 2255 Petition, Morales-Machuca raises seven
allegations of ineffective assistance of counsel:
1.
Whether the Government suppressed evidence in
violation of Brady v. Maryland;
2. Whether the Prosecutor committed subordination
of perjury as such violating Petitioner’s right to due
process;
3.
Whether it was Prosecutorial misconduct in
presenting evidence of Petitioner’s prior conviction, and
whether that evidence was prejudicial to the Petitioner;
4.
ineffective
Whether
Petitioner’s
assistance
of
counsel
counsel
during
rendered
suppression
hearing;
5.
Whether
Petitioner’s
counsel
rendered
ineffective assistance of counsel during trial;
6. Whether appellate counsel rendered ineffective
assistance of counsel;
7.
The cumulative effect of counsel’s deficient
performance resulted in prejudicial error that violated
Petitioner’s
Fifth
Amendment
Constitutional
Right
and
Petitioner’s Sixth Amendment Right.
A. 28 U.S.C.
requirements
Sec.
2255
standards
and
exhaustion
Title 28 U.S.C. Sec. 2255 allows a federal prisoner to
move
the
court
to
vacate,
set
aside,
or
correct
his
sentence if one of the following events happens:
1.
the sentence was imposed in violation of the
Civil No. 09-2036(PG)
Page 9
Constitution or laws of the United States...
2.
the court was without jurisdiction to impose
the sentence
3.
The sentence was in excess of the maximum
authorized by law
4.
The
sentence
is
or...
otherwise
subject
to
collateral attack.
When a prisoner files a motion for relief pursuant to
section 2255, the court may dismiss the motion without an
evidentiary hearing if “the motion and files and records of
the case show conclusively that the movant is not entitled
to relief.”
It is well settled law that a section 2255 motion is
not a substitute for an appeal.
must
first
raise
his
claims
Therefore, the defendant
on
direct
appeal
before
bringing the claim in a section 2255 motion. United States
v. Essig, 10 F.3d 968 (3d Cir. 1993).
If a defendant fails
to preserve his claim on direct appeal a court may not
consider the claim in a subsequent section 2255 motion,
unless the defendant can establish “cause and prejudice”,
United States v. Frady, 456 U.S. 152, 167 (1982); or a
“fundamental miscarriage of justice”. Murray v. Carrier,
477 U.S. 478, 496 (1986).
The exception to this dogma of
the exhaustion requirement is the allegation of ineffective
assistance of counsel which may be brought for the first
time in a section 2255 motion.
B.
Claim of Ineffective Assistance of Counsel
Civil No. 09-2036(PG)
To
establish
Page 10
ineffective
assistance
of
counsel,
a
defendant must show that:
1.
His attorney’s performance was deficient, and
2.
The
deficient
performance
prejudice
his
defense. Strickland v. Washington, 466 U.S.
668, 687 (1984).
In
order
to
establish
establish
that
objective
standard
deficiency,
counsel’s
of
a
performance
reasonableness
defendant
“fell
under
must
below
an
prevailing
professional norms.” Strickland 466 U.S. at 688.
Under
Strickland, counsel is presumed to have acted within the
range of “reasonable professional assistance,” and it is
defendant
who
bears
the
burden
of
“overcoming
the
presumption that, under the circumstances, that challenged
action
‘might
Strickland,
defendant
466
must
be
considered
U.S.
sound
trial
at
689.
To
show
establish
that
“there
is
strategy.’”
prejudice,
a
a
reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
reasonable
probability
is
a
probability
sufficient
A
to
undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
Petitioner has been unable to meet the Strickland
standard.
The Court will review each of the seven claims
raised by Petitioner.
Brady violation
Civil No. 09-2036(PG)
Page 11
Morales-Machuca’s first allegation is that of a Brady
violation. Petitioner alleges that the Government withheld
evidence that if provided would have helped him in his
defense.
Specifically,
Morales-Machuca
alleges
that
the
Government withheld information as to the friendship or
close ties between the Government witness Jocelyn Serrano
and Puerto Rico Police Officer Sergeant Agosto3.
unclear
what
basis
Petitioner
has
to
allege
It is
that
the
Government had evidence of such a relationship or possessed
information
on
the
matter.
A
review
of
the
record
indicates that there can be no valid claim of a Brady
violation.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme
Court
held
that,
irrespective
of
good
or
bad
faith,
suppression by the prosecution of evidence favorable to a
defendant who has requested it violates due process where
such evidence is material to either guilt or punishment.
The elements of a Brady claim are that the evidence at
issue must be favorable to the accused, either because it
is exculpatory, or because it is impeaching; the evidence
must have been suppressed by the State, either wilfully or
inadvertently; and prejudice must have ensued, Strickler v.
3
Petitioner alleges that Sergeant Agosto and Serrano were
neighbors and knew each other very well. His insinuation is that
they plotted to frame Petitioner and involve him in this crime as
retaliation for Morales-Machuca being physically abusive towards
Serrano (D.E. 4).
Civil No. 09-2036(PG)
Page 12
Greene, 527 U.S. 263 (1999). Morales-Machuca’s Brady claim
falls short.
The facts are that Petitioner’s arresting officer was
Pedro Diaz, Sergeant Agosto was his partner on the day of
the arrest of Morales-Machuca.
It was officer Pedro Diaz
who testified at trial and not Sergeant Agosto (T.Tr.
September 6, 2005, pp. 22-46).
During Officer Diaz’s
testimony at trial the following ensues:
Q: Now, when Sergeant Agosto saw Jocelyn Serrano,
did he tell you he knew her?
A: Well, again, I’ll tell you, he knew her because
inclusively he lived next door to her.
And as I
told you earlier, I knew her because of the toll
station in Palmas.
Q:
So,
actually
you
knew
Jocelyn
Serrano
was
Sergeant Agosto’s next door neighbor.
A: Where he lived before.
(T.Tr. September 6, 2005 at pp. 45-46).
It is precisely this information which Petitioner contends
the Government withheld from him and therefore committed a
Brady violation.
First of all, there is no evidence on the
record that said information was withheld from MoralesMachuca.
Second, Petitioner himself was well aware of the
acquaintance of Jocelyn Serrano and Sergeant Agosto.
In
his own Memorandum in support of his 2255 petition MoralesMachuca
states
he
informed
his
counsel
prior
to
a
suppression hearing of the seized weapon which resulted in
Civil No. 09-2036(PG)
Page 13
his arrest by Officer Diaz, Petitioner states that he told
his attorney of the relationship between Jocelyn Serrano
and Sergeant Agosto including that they had been neighbors
(D.E. 4 at p. 8).
Furthermore, the Court fails to understand what if any
difference this information could have made in this case.
The fact remains that the information was provided to the
jury by way of the testimony of Officer Diaz and counsel
had every opportunity to question both Officer Diaz and
Jocelyn Serrano on the matter.
As to Sergeant Agosto Petitioner’s allegations are
inaccurate for he was not his arresting officer nor was he
a witness at his trial or any stage of the proceedings
against him.
This allegation does not constitute a Brady violation.
The requirements are not met.
and gossip is not evidence.
A trial is not a soap opera
Having established that there
was no evidence suppressed the Brady claim is DISMISSED.
Subordination of perjury
Petitioner
committed
alleges
perjury
by
that
witness
deliberately
Jocelyn
testifying
Serrano
at
trial
differently than her prior testimony before a Federal Grand
Jury.
This, Petitioner states, was done at the request of
the Government.
A review of the record including the trial transcripts
demonstrates that Morales-Machuca’s claim is false and
meritless.
Civil No. 09-2036(PG)
Page 14
In order for a witness to commit perjury it must be
established not that the witness’ statement is different
from a prior statement given under oath; but rather that
the witness intentionally gave false information as to a
material matter.
A witness testifying under oath or
affirmation commits perjury if she gives false testimony
concerning a material matter with the willful intent to
provide
false
testimony,
rather
than
as
a
result
of
confusion, mistake, or faulty memory, United States v.
Dunnigan, 507 U.S. 87 (1993).
In the case at hand the most that Petitioner can claim
is that Jocelyn Serrano confused details of her account of
the events as she lived through them.
from
perjury.
Furthermore,
the
That is a far cry
record
reflects
that
Jocelyn Serrano’s testimony was corroborated by exhibits
presented at trial as well as the testimony of other trial
witnesses.
As to the preposterous claim that the non existent
perjury
was
committed
at
the
request
or
with
the
acquiescence of the government, suffice it to say that the
same is frivolous, unsupported by facts and meritless. The
allegation of subordination of perjury is DISMISSED.
Prosecutorial misconduct - prior conviction evidence
Petitioner’s third allegation is that the Government
incurred in prosecutorial misconduct when it introduced at
trial evidence of his prior state convictions.
The fact of the matter is that Morales-Machuca was
Civil No. 09-2036(PG)
charged
in
Count
Page 15
Ten
(10)
of
the
Second
Superseding
Indictment with being a previously convicted felon in
possession of a firearm as established in Title 18, United
States Code, Section 921(g)(1) and 924(a)(2).
An element
of the offense which the Government had to prove was that
Petitioner
was
a
convicted
felon.
Therefore,
the
Government had to present evidence of his prior conviction
if it wished to prove the charges in count ten (10).
The Government meeting its burden of proof as to a
particular count is in no way prosecutorial misconduct nor
is it grounds for a valid allegation in a section 2255
petition; as such it is DISMISSED.
Suppression Hearing
Petitioner’s fourth allegation is that of ineffective
assistance of counsel during a suppression hearing.
review
of
Morales-Machuca’s
claim
and
of
the
A
record
indicates that the suppression hearing he is referring to
is
that
of
October
22,
2002.
Said
hearing
is
not
pertaining to the criminal case which leads to this 2255
petition.
On May 15, 2002, Petitioner was indicted in criminal
case 02-184(DRD).
In that case a suppression hearing was
held on October 22, 2002, (Crim.D.E. 27 of case 02-184).
A
“report
and
Recommendation”
as
to
said
hearing
was
rendered on October 31, 2002, (Crim.D.E. 28 of case 02184).
On March 23, 2003, the government requested the
dismissal of the indictment in 02-184 on speedy trial
Civil No. 09-2036(PG)
grounds.
Page 16
As such the judgment of discharge was entered on
April 1, 2003 (Crim.D.E. 36 of case 02-184).
Therefore,
Petitioner’s
allegation
of
ineffective
assistance of counsel is related to a separate case which
was eventually dismissed and has no bearing on the matter
The same is DISMISSED.
at hand.
Ineffective assistance of counsel during trial
Petitioner
alleges
that
his
trial
counsel
was
ineffective due to his failure to renew a Rule 29 motion at
the end of the case and after the jury verdict.
The record
reflects that counsel did not in fact renew the Rule 29
motion and therefore waived it.
However, Morales-Machuca
must be able to establish that said failure was such that
it caused him prejudice.
At this he fails.
Morales-Machuca has failed to show
with reasonable
probability that had his counsel renewed the Rule 29 motion
the same would have been granted by the court on the basis
of insufficiency of the evidence.
Furthermore Petitioner raised this precise allegation
on appeal.
The First Circuit Court of Appeals stated:
Based on this evidence, a reasonable jury could
have concluded that Morales participated in the
conspiracy to obstruct interstate commerce through
robbery (Count One), and aided and abetted the
commission of the March 27, 2002 robbery (Count
Seven).
While a large portion of the evidence
submitted to the jury regarding Morales’s role in
Civil No. 09-2036(PG)
the
Page 17
offense
testimony,
is
the
based
jury
primarily
reasonably
account of the events.
on
Serrano’s
credited
her
It is not for us to make
credibility determinations in the course of a
review of the sufficiency of the evidence.
Our
task is only to determine whether a rational jury
could have believed the testimony.
See United
States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992).
Here
a
rational
jury
could
have
and
did
so.
United States v. Morales-Machuca, 546 F.3d 13, 21
(1st Cir. 2008).
The Court went on in its analysis of the Rule 29 failure
and stated:
Based on the record evidence, we conclude that a
reasonable jury could have found Morales guilty
beyond
a
offenses.
reasonable
doubt
of
all
the
charged
He therefore fails to make the more
difficult showing of clear and gross injustice.
Accordingly, we affirm the district court’s denial
of his Rule 29 motion. Morales-Machuca at 22.
Having established that this issue was already resolved
on appeal Petitioner is not entitled to re assert it in his
2255 petition, as such the same is DISMISSED4.
Petitioner’s
4
second
allegation
of
ineffective
The Court notes that even if Petitioner were allowed to re
submit the argument it would still fail at meeting the requirements
of Singleton.
Civil No. 09-2036(PG)
assistance
of
Page 18
counsel
during
trial
revolves
around
counsel’s alleged failure to object to the introduction
into evidence of the gun occupied during Morales-Machuca’s
traffic stop and subsequent arrest.
The record does not support Petitioner’s allegation.
A review of the trial transcript clearly establishes that
the
Government
laid
the
proper
foundation
for
the
introduction of the weapon. The correct ruling was to admit
it into evidence and exhibit it to the jury.
Petitioner complains that his counsel did not establish
that the weapon lacked compatibility with the casing used
to murder the Ranger America guard Gilberto RodriguezCabrera.
said
Once again the trial transcript does not support
allegation.
Both
the
government
and
defendants
presented expert witnesses that analyzed the bullet casings
recovered from the murder and compared it to the weapon
taken from Morales-Machuca. Each expert had an independent
and different opinion.
It was up to the jury to determine
which expert it wished to follow in its analysis and so
they did5 .
This
is
not
an
instance
of ineffective
assistance of counsel and therefore the allegation is
DISMISSED.
Ineffective assistance of counsel during appeal
Petitioner’s sixth allegation is that his appellate
5
See Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620
(1983); United States v. Fortune, 513 F.2d 883(5th Cir. 1975).
Civil No. 09-2036(PG)
Page 19
counsel was ineffective because he did not properly review
the evidence nor did he investigate the allegation that
Jocelyn Serrano and Sergeant Agosto were out to frame him.
Instead he choose other arguments.
Claims of ineffective assistance of appellate counsel
are measured under the Strickland standard, Evitts v. Lucy,
469 U.S. 287(1985).
Appellate counsel is not required to
raise every non-frivolous claim, but rather selects among
them to maximize the likelihood of success on the merits,
Lattimore v. Dubois, 311 F.3d 46 (1st Cir. 2002).
Where appellate counsel is charged with ineffectiveness
for failure to raise a particular claim, “it is difficult
to demonstrate that counsel was incompetent.” Smith v.
Robbins,
528
presumption
U.S.
of
259,
288
competence
(2000).
of
To
appellate
overcome
counsel,
the
a
petitioner must show that the omitted issues were “clearly
stronger” than those counsel chose to assert.
Machuca has not made such a showing.
Morales-
His allegation that
the failure to argue something that is mere gossip versus
stronger arguments such as the Rule 29 motion to dismiss
simply does not prosper.
Appellate counsel made a tactical choice regarding the
issues to be raised on appeal.
The fact that Petitioner
would have raised different challenges does not establish
that counsel was ineffective, Smith v. Robbins, 528 U.S.
259 (2000).
In this case Petitioner has been unable to
meet the burden of establishing that his appellate counsel
Civil No. 09-2036(PG)
failed
to
Page 20
raise
litigated.
assistance
and
As
such
of
his
argue
he
stronger
can
appellate
not
issues
than
establish
counsel.
those
ineffective
His
claim
of
ineffective assistance of appellate counsel is DISMISSED.
Cumulative effect
Petitioner’s final allegation is that of cumulative
effect.
Meaning that so many errors were committed that
the totality of the errors made allows for the granting of
his 2255 petition.
In order for this claim to prosper, Morales-Machuca had
to
have
established
that
as
to
each
of
the
errors
incorporated in his petition there was a deficient conduct
which lead to his prejudice and he would be entitled to
relief. Fisher v. Angelone, 1563 F.3d. 835 (4th Cir. 1998).
Petitioner has clearly been unable to make such a showing
to even one of his allegations.
cumulative
effect
and
his
final
Therefore, there is no
allegation
is
to
be
DISMISSED.
Claim of actual innocence
The Court will address one final claim raised by
Petitioner and that is his claim that he is actually
innocent of the crimes he was convicted of.
he has new evidence that would prove such.
He claims that
Petitioner’s
new evidence is the testimony of his sister who would state
that Jocelyn Hernandez told her that Morales-Machuca did
not participate in the crime.
Suffice it to say that the
evidence presented at trial was more than enough for a jury
Civil No. 09-2036(PG)
Page 21
to convict Morales-Machuca of the crimes charged.
The same
was analyzed by the First Circuit Court of Appeals as part
of Morales- Machuca’s appeal process and his conviction and
sentenced were affirmed.
Finally, the “new evidence”
stated by Petitioner simply does not meet the criteria of
United
States
v.
Desir,
273
F.3d
39
(1st
Cir.
2001).
Therefore the same will not be entertained by this Court.
III. CONCLUSION
For
the
Petitioner
reasons
DAVID
stated,
the
MORALES-MACHUCA,
Court
is
federal habeas relief on the claims.
concludes
not
that
entitled
to
Accordingly, it is
ordered that petitioner DAVID MORALES-MACHUCA’s request for
habeas relief under 28 U.S.C. Sec. 2255(D.E.3) is DENIED,
and his Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. Sec. 2255 is DISMISSED WITH PREJUDICE.
Petitioner’s request for an evidentiary hearing is DENIED.
IV. CERTIFICATE OF APPEALABILTY
For the reasons previously stated the Court hereby
denies Petitioner’s request for relief pursuant to 28
U.S.C.
Section
2255.
It
is
further
ordered
that
no
certificate of appealability should be issued in the event
that Petitioner files a notice of appeal because there is
no substantial showing of the denial of a constitutional
right within the meaning of 28 U.S.C. 2253(c)(2).
Civil No. 09-2036(PG)
Page 22
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 28th of February, 2012.
s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
UNITED STATES DISTRICT JUDGE
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