Rosa-Carino v. USA
Filing
20
ORDER denying 15 Supplemental Motion; adopting Report and Recommendation re 16 Report and Recommendation; denying 3 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 1/22/2015. (VCC)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
ELIEZER ROSA-CARINO,
Petitioner,
v.
CIV. NO. 11-2113(PG)
(Re: Criminal No. 06-0253(PG))
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Before the court are the petitioner’s motion to vacate, set aside or
correct sentence (Docket No. 3) with its accompanying Memorandum of Law
(Docket No. 4) and his supplemental motion to vacate (Docket No. 15). As
per this court’s request, on June 23, 2014, Magistrate-Judge Justo Arenas
entered a Report and Recommendation (“Report” or “R&R”) recommending that
the petition be denied and warning the parties that they had fourteen (14)
days to file any objections to the R&R. See Docket No. 34. The petitioner
filed his objections to the R&R. See Docket No. 37.
Pursuant to 28 U.S.C. §§ 636(b)(1)(B), FED.R.CIV.P. 72(b), and Local
Rule 72, a District Court may refer dispositive motions to a Magistrate
Judge for a Report and Recommendation. See Alamo Rodriguez v. Pfizer
Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R. 2003). The adversely
affected
party
may
“contest
the
Magistrate
Judge’s
report
and
recommendation by filing objections ‘within ten days of being served’ with
a copy of the order.” U.S. v. Mercado Pagan, 286 F.Supp.2d 231, 233 (D.P.R.
2003)(quoting 28 U.S.C. §§ 636(b)(1)).
If objections are timely filed, the District Judge shall “make a de
novo determination of those portions of the report or specified findings or
recommendations to which [an] objection is made.” Felix Rivera de Leon v.
Maxon Engineering Services, Inc., 283 F.Supp.2d 550, 555 (D.P.R. 2003). The
Court can “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate,” however, if the affected party
fails to timely file objections, “the district court can assume that they
have agreed to the magistrate’s recommendation.” Alamo Rodriguez, 286
F.Supp.2d at 146 (citation omitted).
Civ. No. 11-2113(PG)
Page 2
I. Arguments
1. The Petitioner’s Theory of Defense was Unconstitutionally Suppressed
The petitioner avers that the magistrate made no findings of fact or
conclusion
of
law
as
to
the
claim
that
his
theory
of
defense
was
unconstitutionally suppressed by the trial court. See Docket No. 19 at page
1. He is mistaken.
The R&R points out that the petitioner did not raise the issue on
direct appeal and thus his claim is barred from collateral review. See
Docket No. 16 at page 11. A failure to raise a particular issue on direct
appeal bars a court from examining the merits of that issue in a § 2255
petition unless the petitioner can establish either cause for failing to
raise the issue and prejudice resulting therefrom or show proof that he is
actually innocent. Alicea-Torres v. U.S., 455 F.Supp.2d 32, 44 (D.P.R.
2006) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
Thus, the petitioner must show both “cause excusing his procedural
default and actual prejudice from the unpreserved error in order to obtain
collateral relief.” Prou v. United States, 199 F.3d 37, 47 (1st Cir.1999).
In the alternative, the petitioner can establish his innocence only if he
can “demonstrate that in light of all the evidence, it is more likely than
not that no reasonable juror would have convicted him.” Bousley, 523 U.S.
at 623.
We find that Rosa-Carino has not shown either good cause for nor
actual prejudice from his failure to raise his claims on direct appeal.
Likewise, he has not put forth enough evidence to support his claims of
actual innocence. Therefore, he is procedurally barred from introducing the
allegations regarding his theory of defense in the Motion to Vacate.
2. Ineffective Assistance of Counsel
The petitioner’s § 2255 claims regarding ineffective assistance of
counsel rest on his counsel’s alleged failure to present at trial the
testimony of six witnesses. According to Rosa-Carino, those witnesses would
have contradicted “crucial parts” of the damaging testimony of a coconspirator. See Docket No. 4 at page 21.
To prevail on a claim of ineffective assistance of counsel, the
petitioner must show both that counsel's performance was deficient and that
it resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687
Civ. No. 11-2113(PG)
Page 3
(1984); Shuman v. Spencer, 636 F.3d 24, 31 (1st Cir. 2011). If he falls
short on either requirement, his claim fails. Strickland, 466 U.S. at 697.
Deficient performance means that trial counsel's representation failed
to meet "an objective standard of reasonableness." Tevlin v. Spencer, 621
F.3d 59, 66 (1st Cir. 2010) (quoting Strickland, 466 U.S. at 688) (internal
quotation marks omitted). Counsel's performance is deficient only if,
"given the facts known at the time, counsel's choice was so patently
unreasonable that no competent attorney would have made it." Id. (citing
Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)).
"[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Strickland,
466 U.S. at 690; see also Harrington v. Richter, 131 S.Ct. 770, 788 (2011).
Moreover, the petitioner must show a "reasonable probability" that if
counsel had acted differently, his trial would have had a more favorable
outcome. Tevlin, 621 F.3d at 66 (citing Porter v. McCollum, 130 S.Ct. 447,
453 (2009)) (internal quotations marks omitted.)
In cases where a habeas petitioner claims that his counsel failed to
call a particular witness, this Circuit has been inclined to give attorneys
the benefit of the doubt. “The decision whether to call a particular
witness is almost always strategic, requiring a balancing of the benefits
and risks of the anticipated testimony.” Hensley v. Roden, 755 F.3d 724,
737
(1st
Cir.
2014)(citing
Horton
v.
Allen,
370
F.3d
75,
86
(1st
Cir.2004)). It falls on Rosa-Carino to “overcome the presumption that,
under the circumstances, the challenged action might be considered sound
trial strategy.” Id. (citing Strickland, 466 U.S. at 689).
We find that he has not met this burden. Other than mentioning that
he provided his counsel with the names of six individuals, Rosa-Carino does
not explain how these witnesses’ testimony would have contradicted the
testimony of Toribio Jimenez Guerrero. What is more, Rosa-Carino has not
evidenced how the outcome of the trial would have been different had his
attorney presented such testimonies.
Therefore, he has failed to meet the Strickland test.
3. Challenge to the Jury Instructions
The petitioner avers that the court committed constitutional error in
charging to the jury that aiding and abetting is an element of 21 U.S.C.
§ 841(a)(1). See Docket No. 19 at page 5. In the government’s response in
Civ. No. 11-2113(PG)
Page 4
opposition to the Motion to Vacate, they correctly point out that there was
no charge that consolidated the aiding and abetting charged in Counts Three
and Four with the conspiracies charged in Counts One and Two. See Docket
No. 9.
Aside
from
the
lack
of
validity
of
the
substantive
argument,
petitioner did not question the sufficiency of the indictment or the jury
instructions during the trial or on direct appeal. As the R&R states,
because the issue should have been decided on direct review, the Petitioner
cannot attempt to relitigate the claim in his section 2255 motion. See
Docket No. 16 at page 11.
As previously discussed, it is long-settled law that failure to raise
a question on direct appeal precludes its consideration on a subsequent
motion to vacate pursuant to section 2255. Singleton v. U.S., 26 F.3d, 233,
240 (1st Cir. 1994). Unless he proves either cause for failing to raise his
claim on direct review or actual prejudice or that he is actually innocent,
the petitioner’s claims are precluded. He has proved neither. Rosa-Carino’s
argument that the “aiding and abetting instruction” “affected the actual
thinking of the jurors or the deliberative process” does not convince this
Court. See Docket No. 19 at page 6.
Such run-of-the mill allegations do not justify a departure from longstanding principles.
Having bypassed his opportunity to raise the claim on
direct appeal, Rosa-Carino cannot attempt to substitute such a review at
the collateral attack level.
4. Denial of Supplemental Pleading
On May 12, 2014 the petitioner filed a motion to supplement his § 2255
petition. See Docket No. 15. Relying on Rosemond v. United States, 134
S.Ct. 1240 (2014), the petitioner argued that the court erred in its jury
instructions on the aiding and abetting charge because it did not specify
that “advanced knowledge” of the amount of narcotics involved was required
to support a conviction under the federal aiding and abetting statute. See
Docket No. 15.
As the R&R states, Rosemond deals with violations of § 924(c)of Title
18. However, the opinion does set forth several general statements about
aiding and abetting. Most notably, the Highest Court emphasized the notion
that, when it comes to aiding and abetting, the perpetrator's intent to
advance the offense is not enough: "the intent must go the specific and
Civ. No. 11-2113(PG)
Page 5
entire crime charged." Rosemond, 134 S.Ct. at 1248. Furthermore, the Court
found that the District Court erred in the instructions because “it did not
explain
that
Rosemond
(the
plaintiff)
needed
advance
knowledge
of
a
firearm’s presence.” Rosemond, 134 S.Ct. at 1251 (emphasis supplied).
The petitioner uses that language to conclude that this court “fell
short” of the Rosemond standard because it should have included the word
“advanced” when it instructed the jury. Moreover, he states, Rosemond
“requires
proof
that
Petitioner
knew
in
advance
that
the
importation/distribution scheme involved 300 kilograms of cocaine, and
possessing that knowledge still intended to help the importers succeed.”
See Docket No. 15 at page 3.
Rosa-Carino stretches the holding of Rosemond to the point where it’s
no
longer
recognizable.
Aiding
and
abetting
in
the
context
of
a
§924(c)charge is not the same as aiding and abetting in a narcotics import
scheme
pursuant
to
21
U.S.C.
§
952(a).
We
refuse
to
adhere
to
the
petitioner’s one-size-fits-all approach to aiding and abetting violations.
What is more, even if we were to extend the limited ruling of Rosemond
to the set of facts in this case, we agree with the R&R that the evidence
at trial proved that Rosa-Carino was aware of the amount of cocaine
involved in the transaction.
Though in a somewhat different context, Rosa-Carino raised a similar
argument regarding the amount of cocaine involved in the transaction on his
direct appeal. He claimed that he should only be responsible for the amount
of drugs that he would personally receive as payment for his involvement in
the import scheme and for the roughly 300 kilograms that were recovered.
In refuting his position, the First Circuit recounted the evidence
presented at trial and expressed:
Wiretap recordings confirmed that Rosa had enough information
that the Luquillo delivery would involve 300 kilograms; on
one tape he was explicitly told it would be over 200
kilograms of cocaine. Indeed, Rosa insisted that the 2
kilograms he was promised might not be enough if the overall
delivery was much larger than 200 kilograms. Rosa worked
closely with Jiménez to arrange the 300–kilogram shipment,
and they had a number of phone calls about it.
Rosa-Carino, 615 F.3d at 82.
No more need be said. The petitioner was an active participant in a
drug transaction and had full knowledge of the circumstances constituting
the charged offense. Rosemond does not provide safe-conduct under these
Civ. No. 11-2113(PG)
Page 6
circumstances. Therefore, the Supplemental Pleading (Docket No. 15) is
DENIED.
5. Denial of § 2255 Motion without an Evidentiary Hearing
The Magistrate recommends that the Motion to Vacate be denied without
an evidentiary hearing. The petitioner disagrees, arguing that his trial
counsel failed to interview key witnesses and that this was a case of
mistaken identity.
The mere filing of a motion under section 2255 does not entitle a
petitioner to an evidentiary hearing as a matter of right. See David v.
U.S., 134 F.3d 470, 478 (1st Cir. 1998). “To progress to an evidentiary
hearing, a habeas petitioner must do more than proffer gauzy generalities
or drop self-serving hints that a constitutional violation lurks in the
wings.” Id.
Rosa-Carino’s allegations do not sway this Court to depart from the
Magistrate’s recommendation. A review of the record shows that counsel’s
actions were valid strategic decisions. See Barrett v. United States, 965
F.2d 1184, 1193 (1st Cir. 1992). Moreover, the evidence presented at trial
showed that Rosa Carino was a member of a drug smuggling conspiracy. The
First Circuit had a chance to review Rosa-Carino’s challenges to the
conviction and affirmed.
In short, the petitioner has not made a showing that would entitle him
to an evidentiary hearing. Borrowing from Judge Selya’s expressions, on
such a “gossamer showing” we refuse “to license a fishing expedition.”
David, 134 F.3d at 478.
II. Conclusion
Based on all the above, upon de novo review, we find no fault with
Magistrate Judge’s assessment and thus APPROVE and ADOPT his Report and
Recommendation as our own. Consequently, Petitioner’s motions (Dockets
No. 3 and 15) are DENIED and the above captioned action will be DISMISSED
WITH PREJUDICE. Judgment shall be entered accordingly.
Civ. No. 11-2113(PG)
Page 7
SO ORDERED.
In San Juan, Puerto Rico, January 22, 2015.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE
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