Filomeno-Cruz v. Soto et al
Filing
88
OPINION AND ORDER. Signed by US Magistrate Judge Silvia Carreno-Coll on 11/10/2015.(NBB)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
OBED FILOMENO -CRUZ,
Plaintiff,
v.
CIV . NO .: 13-1221(SCC)
CESAR R. MIRANDA RODRÍGUEZ, ET AL .,
Defendants.
OPINION AND ORDER
In 2003, Petitioner Obed Filomeno-Cruz was sentenced by
a state-court judge to thirty years in prison for the robbery of
a flower shop in Carolina, Puerto Rico. In 2013, Filomeno filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, Docket No. 3, and on May 7, 2015, I held an evidentiary
hearing regarding his claim, Docket No. 84. I now deny his
petition.
1. Factual Background
On October 19, 2002, a man robbed a flower shop in
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Carolina, Puerto Rico. At gunpoint, the store was robbed and
the owner and several customers were ordered into the store’s
refrigerator, where they were left. They emerged sometime
later to find the assailant gone.
Agent José Delgado of the Police of Puerto Rico investigated the robbery. Several days after the incident, the flower
shop’s owner, Milagros Vázquez-Rivera, called him and said
that she had seen a television news story about a robbery at a
Subway store; she recognized the Subway assailant as the same
person who had robbed her store. Agent Delgado learned from
the agents investigating the Subway robbery that Filomeno
was suspected of that crime.
At the time, Filomeno was living at a rehabilitation home
called Mount Horeb. Agent Delgado picked him and brought
him to the station for a lineup. According to his testimony, he
was brought to the station where four individuals who he later
learned were the robbery victims—who were presumably
there to make identifications in a lineup—were also present.1
1.
I have listened several time to Filom eno’s testimony about when the
witnesses saw him, and I simply cannot tell when or where the sighting
took place. In the space of just a few m oments, Filomeno made
statements suggesting that it happened after he was brought inside the
station; outside the station after being removed from a patrol car; and
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All four of those individuals identified him, including the store
owner. At Filomeno’s trial, the prosecution was based on these
witnesses’ identifications, which were repeated in court.2
Filomeno was never charged with the robbery of the Subway,
as the complainant in that case ultimately withdrew her
identification of Filomeno.
A legal aid attorney was appointed to represent Filomeno.
According to Filomeno’s testimony, which I found largely
credible, this attorney was not diligent in keeping up communications with Filomeno, and he did not consult Filomeno
regarding his representation. Indeed, Filomeno denies having
before being put in a patrol car. I cannot resolve which of these
statements was correct.
2.
According to Filomeno, the trial testimony of both Vázquez and Agent
Delgado indicated that Agent Delgado showed Vázquez several photos
of Filomeno before the lineup. See Docket No. 29, at 7. These facts, if
proved, would have been analytically important. But they were not
offered at the hearing, and I cannot take Filomeno’s word for the
content of the trial transcript, which has never been filed. I understand
this decision to have been motivated by the prohibitive cost of
translating a 380-page transcript from Spanish. See id. at 5 n.2. I am
sympathetic to Filomeno and the Federal Defenders on this point, but
these facts could have been proved by other means: partial translations
of the transcript could have been offered, or Filom eno could have
subpoenaed Vázquez and/or Agent Delgado.
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had an opportunity to even tell his counsel about the questionable lineup procedure, and the attorney never filed a motion to
suppress the identifications.
Despite this lack of communication, Filomeno’s counsel
performed a sufficient investigation to present an alibi defense
at trial: he called several witnesses in an attempt to show that
Filomeno was at Mount Horeb at the time of the crime and, in
fact, could not possibly left Mount Horeb on account of its
security.3 He called Rebeca Maldonado-Natal, a counselor for
the Department of Corrections, who testified about referring
Filomeno to Mount Horeb but who could not account for his
whereabouts on the day of the robbery; Urbano Ayala-Tañon,
the pastor in charge of Mount Horeb, who testified that
Filomeno had not left Mount Horeb that day but who was
himself not present the day of the robbery; and Edwin GarcíaPérez, another resident of Mount Horeb, who testified that at
the time of the robbery Filomeno was with him in the Mount
Horeb kitchen preparing lunch. At the hearing, Filomeno
testified that had he been asked by his lawyer, he would not
3.
Filomeno’s counsel also called the agent in charge of the Subway
investigation, who testified that the complainant had recanted her
identification of Filomeno.
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have supported calling any of these witnesses—Maldonado
and Ayala because they were not present, and García because
a jury would not have believed the word of a drug addict.
Filomeno does not say who we would have called, however, or
what defense he would have liked to see instead.4
2. Analysis
Filomeno argues that his trial counsel rendered ineffective
assistance of counsel which harmed him several ways. He
spends most of his time on a claim that the attorney should
have moved to suppress the identification testimony, but he
also points to supposed errors in the attorney’s decisions
regarding which witnesses to call and his general failure to
investigate the case. Filomeno has not met his burden as to any
of these claims.
2.1 The Lineup
On direct appeal, Filomeno challenged the victims’ identification testimony, arguing that it should have been suppressed.
The court of appeals rejected this challenge, agreeing with the
Court of First Instance that even if there had been procedural
4.
Filomeno has at all times proclaimed his innocence in the flower shop
robbery, and he testified that he would not have accepted any plea deal
on account of this fact.
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irregularities in the lineup, the victims’ trial identifications
would nonetheless have been valid. Resp.’s Exh. A. This may
suffice to bar Filomeno’s claim under 28 U.S.C. § 2254(d),
which forbids in most circumstances petitions by state prisoners regarding claims rejected on the merits by the state court.
I cannot tell whether this is true, however, because the materials submitted at the hearing do not show whether the argument that Filomeno now makes—that his attorney’s poor
investigation prevented a challenge to the lineups based on
suggestiveness—was presented to and decided by the state
court. I need not resolve this question, however, because even
if it was not, Filomeno is not entitled to relief.
To prevail on a claim of ineffective assistance of counsel, a
petitioner must show that his attorney’s conduct “fell below an
objective standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 688 (1984). The petitioner must also prove that he
was prejudiced by his counsel’s mistake. Id. Here, I will not
address the question of whether Filomeno’s counsel erred,
because I find that Filomeno cannot show prejudice in any
case.
To show prejudice from a failure to file a suppression
motion, the petitioner must “prove that his . . . claim is merito-
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rious and that there is a reasonable probability that the verdict
would have been different absent the excludable evidence.”
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The problem
for Filomeno is that even if all of his testimony is taken as true,
it does not suffice to prove that the lineup violated the Constitution. The Supreme Court has held that lineups may offend
due process only if the “suggestive circumstances” that make
them problematic are “arranged by law enforcement.” Perry v.
New Hampshire, 132 S. Ct. 716, 730 (2012). Where the circumstances of the identification are “not police-rigged, any dispute
about the identification’s reliability is for the jury.” United
States v. Correa-Osorio, 784 F.3d 11, 19 (1st Cir. 2015). Here,
Filomeno testified that he saw the victims at the police station,
but based on his testimony I cannot say whether this created
suggestive circumstances, much less whether those circumstances were created by the police. That is, he did not testify
about whether the victims saw him, nor did he testify about the
layout of the police station so that the Court could understand
whether these facts were, for example, simply the result of
everyone being in a small office; he did not testify about how
many other people were present, or whether they included the
other individuals in the lineup; he did not testify about
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whether he was handcuffed, or whether there were other
circumstances that would have indicated to the victims that he
was under special suspicion; and most importantly, he could
not have testified as to whether the police put the victims and
Filomeno together in the same place on purpose, and he did
not subpoena those officers so that the Court would have an
opportunity to consider their credibility.5 On these facts, I
could not reasonably find either suggestiveness or police
arrangement in the lineup.6 Given that proving prejudice was
Filomeno’s responsibility, I conclude that his testimony was
simply too thin a basis on which to find that he would have
prevailed on his suppression argument had it been properly
5.
In his amended petition, Filomeno suggests that he was seen outside
the police station as he emerged from a patrol car. If the other witnesses
were simply waiting there of their own accord, it seems rather unlikely
that the sighting (if the witnesses indeed saw Filomeno) was police
arranged rather than a coincidence. But of course I do not know where
Filomeno was, or even whether it was before the lineup.
6.
The First Circuit has explicitly reserved the question of whether, under
Perry, the police-arranged suggestiveness must be intentional. United
States v. Espinal-Almeida, 699 F.3d 588, 603 n.16 (1st Cir. 2012).
Filomeno’s amended petition does not cite Perry or even mention the
requirem ent that suggestive circumstances be police-arranged. See
Docket No. 29. Unsurprisingly, then, neither does it address whether
that arrangement must be intentional.
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presented to the trial court.7
2.2 The Trial Witnesses
Filomeno also argues that his counsel erred in calling the
witnesses he did at trial. Filomeno did not call his trial counsel
as a witness, so I have no actual evidence of his strategic
thinking. It is apparent, however, that he was trying to
construct for Filomeno an alibi defense. Plainly, this defense
was unsuccessful, however, and Filomeno was convicted.
Nonetheless, I see no route to relief for Filomeno on this claim.
Decisions about which witnesses to call—and what kind of
defense to make—are generally given to the attorney’s
discretion, and challenges to such decisions are considered
skeptically. Pina v. Maloney, 565 F.3d 48, 55–56 (1st Cir. 2009).
It is thus not especially relevant whether Filomeno himself
would have called any of the witnesses that his lawyer called;
rather, the question is whether the lawyer made a strategic
7.
The allegations in the amended petition regarding the police showing
the store owner pictures of Filomeno prior to the lineup would likely
be both sufficiently suggestive and police-arranged to satisfy Perry.
However, given that same conduct did not taint the other witness’s
identifications, it is highly unlikely that the jury would have reached a
different conclusion had the owner’s testimony been excluded for this
reason.
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decision after a complete investigation of the facts. Id. at 55.
This question is difficult to answer. To be sure, Filomeno’s
testimony that his counsel essentially never asked him questions about the facts suggests that an insufficient inquiry was
made; on the other hand, the attorney must have conducted
some investigation to have found the alibi witnesses that he did.
And resolving this conflict is difficult in the absence of the
attorney’s testimony: I have no idea what he did or why he did
it.
Additionally, Filomeno has not shown any prejudice from
the calling of these witnesses. The testimony of Ayala and
Maldonado perhaps did not do Filomeno as much good as his
counsel would have liked—neither was present on the day of
the robbery, so they could not specifically testify to his whereabouts—but neither did they testify to any facts that actually
hurt Filomeno or made his conviction more likely. And
García’s testimony was the most direct evidence of Filomeno’s
innocence that he could have hoped for. As any defense
attorney knows, calling a drug addict and felon is a risky
move, but in certain circumstances it may also be a necessary
one. Filomeno’s lawyer plainly thought the circumstances
weighed in favor of calling García, and knowing what I know
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about the facts I am inclined to think this was the right call.
After all, if García did not testify, what defense was Filomeno
left with? It would have been the word of five eyewitnesses
standing uncontradicted. And given that Filomeno testified
that he would not have under any circumstances taken a plea,
the inevitable result of such a scenario would have been
conviction. Not calling the alibi witnesses would not have
changed the trial’s result. I thus deny Filomeno’s motion on
these grounds.
2.3 Other Matters
In his amended petition, Filomeno also points to other
alleged prejudice suffered as a result of his attorney’s failure to
undertake a sufficient factual investigation. For example, he
argues that the lawyer failed to “investigate potentially
exculpatory evidence, such as the video of the fast food
robbery, or the original police Incident Report.” Docket No. 29,
at 18. But neither this video or the incident report were
admitted at the hearing, and so it is impossible to conclude that
Filomeno suffered prejudice as a result of his attorney’s failure
to discover either piece of evidence.
Similarly, Filomeno argues that his lawyer “failed to make
proper objections to inadmissible, prejudicial testimony by
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[the] prosecutors[‘] witness regarding a previous robbery
investigation.” Id. However, the specifics of this allegation
were not explored during the hearing (and the trial transcript
was not admitted into evidence), and so it is not possible to
know whether the attorney erred, much less whether prejudice
was suffered as a consequence.
3. Conclusion
As I explain above, I find that Filomeno has failed to meet
his burden in demonstrating that his attorney failed to perform
at the constitutionally required level and that he was prejudiced by this failure. For that reason, I have no choice but to
deny his petition for habeas corpus. Furthermore, because I
find that Filomeno has not made “a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), I deny
a certificate of appealability. Judgment shall follow.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 10th day of November, 2015.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
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