Garcia-Garcia v. USA
Filing
17
OPINION AND ORDER - DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-415.) MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-415.) filed by Sandry Garcia-Garcia. Signed by Judge Jose A Fuste on 9/24/12.(su) (Main Document 17 replaced on 9/24/2012) (su).
UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
SANDRY GARCÍA-GARCÍA,
Petitioner,
Civil No. 10-1309 (JAF)
(Crim. No. 07-415 (1)(JAF)
v.
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Petitioner, Sandry García-Garcia, brings this pro se petition under 28 U.S.C.
§ 2255 for relief from sentencing by a federal court, alleging that the sentence imposed
on him violated his rights under federal law. He requests an order to vacate, set aside, or
correct the sentence imposed in Cr. No 07-415 (JAF). (Docket No. 1-2.) Respondent
opposes (Docket No. 7), and Petitioner replies (Docket No. 10).
I.
Factual and Procedural History
We derive the following summary from the trial record (Crim. No. 07-415, Docket
Nos. 97; 98.) unless otherwise noted. On June 21, 2006, Petitioner was indicted on
charges of carjacking, 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. 07-415, Docket No. 7.) The charges
arose from an armed robbery and carjacking perpetrated against Federico LópezVillefañe on the morning of April 12, 2006, at his apartment building in the Condado
neighborhood of San Juan.
At around 9:30 that morning, López-Villefañe’s
condominium maintenance worker, William Ramírez-Restes, was ambushed and
assaulted by several people as he entered the basement of the 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-Villefañe as he was leaving his
apartment, forcing him to the basement, where he was bound and blindfolded with tape.
The assailants, in possession of López-Villefañe’s keys, stole various valuables from his
apartment—assaulting López-Villefañe’s maid, Clemencia Lewis (“Lewis”), in the
process—before stealing his car. López-Villefañe eventually freed himself and called
police.
Petitioner’s trial began on August 14, 2006. The Government’s case relied on
lineup and photo-array identifications made by López-Villefañe and Lewis, identifying
Petitioner as one of their assailants. The jury returned its verdict on August 18, 2006,
convicting Petitioner of both counts in the indictment. Petitioner was convicted and
sentenced to 181 months’ imprisonment. Petitioner appealed his conviction to the First
Circuit, challenging this court’s jurisdiction, several elements of his offenses and the
permissibility of the photo-line-ups used to identify him. The First Circuit denied all of
Petitioner’s claims. United States v. Garcia-Garcia, 354 F. App’x 434, 438 (1st Cir.
2009).
In the motion before us, Petitioner asserts five grounds for relief under § 2255:
that he (1) received ineffective assistance of counsel; (2) was denied the opportunity to
present witnesses in his defense; (3) was tried and convicted based on his foreign
alienage; (4) was tried in prison clothing; and (5) was convicted based on impermissible
or insufficient evidence.
(Docket No. 1-2.)
Accordingly, we deny Petitioner’s claim for relief.
II.
None of these arguments has merit.
Standard 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 may challenge his sentence on the ground that, inter alia, it “was imposed
in violation of the Constitution or laws of the United States.” Id. The petitioner is
entitled to an evidentiary hearing unless the “allegations, even if true, do not entitle him
to relief, or . . . ‘state conclusions instead of facts, contradict the record, or are inherently
incredible.’” Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (quoting United
States v. McGill, 11 F.3d 223, 225–26 (1st Cir. 1993)); see 28 U.S.C. § 2255(b). A
petitioner cannot be granted relief on a claim that has not been raised at trial or direct
appeal, unless he can demonstrate both cause and actual prejudice for his procedural
default. See United States v. Frady, 456 U.S. 152, 167 (1982).
III.
Analysis
Because Petitioner appears pro se, we construe his pleadings more favorably than
we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nevertheless, Petitioner’s pro se status does not excuse him from complying with
procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
A.
Ineffective Assistance of Counsel
Petitioner claims that his trial counsel was ineffective because one of his attorneys,
Ramón González-Santiago, represented him despite having a conflict of interest and also
was not present at the sentencing proceedings. Petitioner claims that his other attorney,
Elfrick Méndez-Morales, did not adequately prepare for trial (Docket No. 1-2). To
prevail on a claim of ineffective assistance of counsel, Petitioner must show that his
counsel performed below an objective standard of reasonableness and that if his counsel
had performed adequately, the result of his proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Petitioner’s only evidence of González-Santiago’s alleged conflict of interest is a
conversation referenced in the record between González-Santiago and another public
defender who represented a related defendant. (Docket No. 1-2 at 8.) Petitioner offers no
explanation as to why this conversation created a conflict of interest for GonzálezSantiago, and no such conflict is apparent. Petitioner’s claim that González-Santiago was
not present at sentencing is refuted by the sentencing transcript. The transcript shows that
the court acknowledged González-Santiago’s presence at sentencing and relates
numerous statements from him throughout the proceedings. (S.H. Tr., 8/27/2008, pg. 3.)
We need not accept the Petitioner’s allegations as true when they directly contradict the
record. Owen, 483 F.3d at 57.
In any event, Petitioner received a second attorney, Elfrick Méndez-Morales, who
represented him at trial and sentencing alongside González-Santiago.
Although
Petitioner complains that he met Elfrick Méndez-Morales only once before his trial, that
fact alone does not mean that Petitioner received representation falling below an
objective standard of reasonableness. See United States v. Cronic, 466 U.S. 648, 657
n.21 (1984) (“If counsel is a reasonably effective advocate, he meets constitutional
standards irrespective of his client's evaluation of his performance.”); Fusi v. O’Brien,
621 F.3d 1, 9-10 (1st Cir. 2010) (defendant’s counsel was constitutionally adequate
where counsel met defendant on day of trial).
Petitioner has failed to show that his counsel performed below an objective
standard of reasonableness. See Strickland, 466 U.S. at 687.
B.
Denied Opportunity to Present Witnesses
Petitioner argues that he was denied his right to present witnesses on his behalf.
(Docket No. 1-2.) The Compulsory Process Clause of the Sixth Amendment “guarantees
a defendant the right to call witnesses ‘in his favor.’ ” Melendez-Diaz v. Massachusetts,
557 U.S. 305, 313 (2009). Ordinarily a petitioner must show not only that “the testimony
of uncalled witnesses would have been favorable, but also that those witnesses would
have testified at trial.” Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990). If the
witnesses do not testify, the petitioner must explain why and “ ‘demonstrate, with some
precision, the content of the testimony they would have given at trial.’ ” Id., 900 F.2d at
130 (quoting United States ex rel. Cross v. DeRoberts, 811 F.2d 1008, 1016 (7th Cir.
1987)).
Here, Petitioner gives no indication of who the uninterviewed witnesses might
have been, or the subject matter of their potential testimony, or what defense they might
have helped to establish. His claim is conclusory, without supporting argumentation.
Mere assertions without any evidentiary support are insufficient to warrant collateral
relief. Cody v. United States, 249 F.3d 47, 53 n.6 (1st Cir. 2001). This claim fails.
C.
Trial in Prison Garb
Next, Petitioner claims that he was deprived of his constitutional right to be
presumed innocent because during his trial “he was purposely ‘[c]lothed with MDC
[c]lothes’” and was only thrown a “[d]irty T-Shirt on top of his [j]umpsuit, and the
jumpsuit was short that showest (sic) petitioner’s socks; the sleeves of the jumpsuit were
so long that were coming of the [t]-Shirt Sleeves.” (Docket No. 1-2 at 8.)
A defendant cannot be compelled to stand trial before a jury while dressed in
identifiable prison clothes.
Estelle v. Williams, 425 U.S. 501, 503 (1976).
Here,
however, there is no evidence that Petitioner appeared in prison garb at his trial. To the
contrary, Petitioner acknowledges that he was given a t-shirt to cover his prison-issued
jumpsuit. (Docket Nos. 1; 10.) In fact, when asked to point out the Petitioner in the
courtroom, a trial witness described him as “wearing a blue shirt,” not as wearing prison
clothing. (R.Tr., 4/22/2008, p.5).
Even if some of Petitioner’s prison-issued clothing was visible beneath the t-shirt,
Petitioner never objected to his appearance at trial and did not raise the issue in his direct
appeal. Petitioner has not demonstrated cause for failing to raise this issue on direct
appeal. Frady, 456 U.S. at 167 (petitioner must show cause and actual prejudice for
failing to raise claims on direct appeal).
Also, we would have never permitted
unexplained prison clothing at trial and here there is nothing in the record, or in the
court's memory, that indicates that the defendant was compelled to appear in prison garb.
This claim fails.
D.
Alienage
Petitioner asserts that he was prosecuted because of his Dominican nationality.
No evidence supports this claim. In fact, Petitioner was prosecuted because three of the
victims in this case saw their assailants face-to-face and subsequently identified
Petitioner as one of the perpetrators. (Crim. No. 07-415, Docket No. 7.) Petitioner has
provided no evidence to indicate that his prosecution was based on his nationality. Mere
conclusions without evidence are insufficient to warrant relief under § 2255. Owens, 483
F.3d at 57 (petitioner’s allegations need not be credited where they are merely
conclusory); Resto-Diaz v. United States, 182 F. Supp. 2d 197, 210-11 (D.P.R. 2002)
(same).
E.
Evidentiary Issues
Petitioner’s remaining claims are attempts to relitigate evidentiary issues
determined at his trial. Petitioner alleges that the victims’ identifications were improper.
(Docket No. 1-2 at 12.) On direct appeal, however, the First Circuit determined that the
photo line-up identifications in this case were not impermissibly suggestive. United
States v. Garcia-Garcia, 354 F. App’x 434, 438 (1st Cir. 2009).
Petitioner cannot
relitigate that decision today. See Murchu v. United States, 926 F.2d 50, 55 (1st Cir.
1991) (“Issues resolved by a prior appeal will not be reviewed again by way of a 28
U.S.C. § 2255 motion.”).
Petitioner also claims that certain physical evidence from the crime scene was not
tested and introduced at trial to prove a physical link between Petitioner and the crime.
(Docket No. 1-2 at 12-13; 15-16.) Petitioner did not raise this claim on direct review, so
in order for this claim to survive, he must demonstrate “cause and actual prejudice” for
his procedural default. See United States v. Frady, 456 U.S. 152, 167 (1982) (citing
Wainwright v. Sykes, 433 U.S. 72 (1977)). Petitioner advances no cause for his default.
We therefore cannot consider Petitioner’s claim that the government lacked sufficient
evidence linking him to the crime.
IV.
Certificate of Appealability
In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever
issuing a denial of § 2255 relief we must concurrently determine whether to issue a
certificate of appealability (“COA”). We grant a COA only upon “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
“[t]he petitioner must demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537
U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While
Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could
find our 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.
V.
Conclusion
For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket
No. 1). 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 from this court.
IT IS SO ORDERED.
San Juan, Puerto Rico, this 24th day of September, 2012.
s/José Antonio Fusté
JOSE ANTONIO FUSTE
Chief U.S. District Judge
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