Fournier-Olavarria v. USA

Filing 10

OPINION AND ORDER denying 1 Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. 2255. Signed by Judge Juan M. Perez-Gimenez on 1/19/2018. (NNR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Jorge Fournier-Olavarria,
Petitioner
CIVIL NO. 14-1351 (PG)
Related Crim. No. 07-290 (PG)

v.
United States of America,
Respondent.

OPINION AND ORDER
Before the court is petitioner Jorge Fournier-Olavarria’s (“petitioner” or
“Fournier”) motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 (Docket No. 1), and the United States’ (or the “government”) response in
opposition thereto (Docket No. 6). 1 For the reasons explained below, the court
DENIES petitioner’s motion to vacate.
I.

BACKGROUND

On July of 2007, a grand jury indicted Fournier and ninety-four other
individuals for conspiring to possess and distribute narcotics within 1,000 feet
of a public housing facility. See Crim. No. 07-290 (PG) (hereinafter “Crim.”),
Docket No. 2. The grand jury also indicted Fournier and other defendants for
aiding and abetting the use or carrying of a firearm in furtherance of a drug
crime. Id. Succinctly, from January 2003 to July 2007 a violent gang known as
“the Combo of Dr. Pila” (the “Combo”) ran drug distribution points at several
public housing projects located in Ponce, Puerto Rico and other neighboring
areas and municipalities. 2 Id. The indictment deemed Fournier a “facilitator”
within the Combo organization, as he supplied his co-conspirators with guns,
ammo and cars, and even financed drug purchases. Id. at p. 16. He entered a plea
of not guilty and proceeded to trial.
Following trial by jury, on September 3, 2009, Fournier was found guilty
of conspiracy to possess with intent to distribute narcotics in violation of 21
U.S.C. §§ 841, 846 and 860, and of aiding and abetting the possession of guns

1

On September 9, 2014, Fournier filed his reply to the United States’ response. See Docket

No. 8.
2 The Combo gang got its name after the Dr. Manuel De La Pila Iglesias Public Housing
Project in Ponce, Puerto Rico, where members ran drug-trafficking operations.

Civil No. 14-1351 (PG)

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in furtherance of the drug-trafficking crime in violation of 18 U.S.C. §§ 2 and
924(c). See Crim. Docket No. 2917. On December 15, 2009, Fournier was sentenced
to seventy-eight months of imprisonment as to the drug count, and sixty months
as to the gun count, to be served consecutively. Crim. Docket Nos. 3138 and
3155. 3 Petitioner appealed, but the First Circuit Court of Appeals affirmed his
conviction and sentence. See United States v. Acosta-Colon, 741 F.3d 179 (1st
Cir. 2013); Crim. Docket Nos. 4062 and 4070.
On May 2, 2014, Fournier filed the motion now before the court, alleging
he received ineffective assistance of counsel at the trial stage. See Docket
No. 1. He raises two issues. First, Fournier avers that the courtroom seating
arrangement at trial undercut his ability to communicate with attorney Luis R.
Rivera-Rodriguez (“Counsel” or “Rivera”). 4 See Docket No. 1-1 at pp. 4-5. Second,
Fournier claims that Rivera was ineffective because he failed to object to an
alleged courtroom closure during the jury selection process. See id. at pp. 813.
On August 15, 2014, the United States filed its response in opposition to
petitioner’s motion. See Docket No. 6. In short, the government argues that
petitioner’s

courtroom

seating

claim

is

underdeveloped,

or

otherwise

contradicted by the record, and should thus be dismissed. Id. at pp. 4-6. With
respect to the second issue, the government hesitantly suggests that because
the trial record lacks conclusive evidence of a courtroom closure, an evidentiary
hearing may be necessary. Id. at pp. 6-10.
II.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set
aside, or correct his sentence “upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral

3 Petitioner later filed a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).
Crim. Docket No. 4202. On August 2015, the court granted the motion and reduced the previously
imposed term of imprisonment as to the drug count from seventy-eight months to sixty-three months.
Crim. Docket Nos. 4391 and 4392.
4 Fournier was represented by other counsel throughout the criminal prosecution, but they
eventually withdrew. See e.g. Crim. Docket Nos. 451, 874, 887 and 995. Evidently, Fournier retained
attorney Rivera before trial proceedings began in August 2009. See id. Docket Nos. 2698 and 3459.

Civil No. 14-1351 (PG)

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attack.” 28 U.S.C § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962);
Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).
Moreover, the Sixth Amendment guarantees that in all criminal prosecutions,
the accused have a right to the assistance of counsel for their defense. U.S.
Const. amend. VI. It has long been recognized that the right to counsel means
the right to the effective legal assistance. Strickland v. Washington, 466 U.S.
668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)).
Where, as here, a petitioner moves to vacate his sentence on an ineffective
assistance of counsel basis, he must show that “counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied
upon as having produced a just result.” Id. 686 (1984); see also Argencourt v.
United States, 78 F.3d 14, 16 (1st Cir. 1996) (a petitioner seeking to vacate
his sentence based on the ineffective assistance of counsel bears a very heavy
burden).
For petitioner’s claim to succeed, he must satisfy a two-part test. First,
petitioner needs to show that “counsel’s representation ‘fell below an objective
standard of reasonableness.’” Padilla v. Kentucky, 559 U.S. 356, 366 (2010)
(quoting Strickland, 466 U.S. at 688). Second, petitioner must establish that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been more favorable to him. See United
States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013) (citing Missouri v. Frye,
132 S.Ct. 1399, 1409 (2012)). Thus, petitioner must demonstrate both incompetence
and prejudice. Failure to prove one element proves fatal for the other. See
United States v. Caparotta, 676 F.3d 213, 219 (1st Cir. 2012). Nonetheless, the
court “need not address both requirements if the evidence as to either is
lacking.” Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007). Thus, “[i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice…that course should be followed.” Strickland, 466 U.S. at
697.
III.

DISCUSSION

A. Courtroom Seating
Fournier’s first claim stems from an alleged “bizarre and prejudicial
[courtroom] seating arrangement,” which allegedly undercut his ability to confer
with Rivera during trial. Docket No. 1-1 at pp. 4-5. Due to space limitations,

Civil No. 14-1351 (PG)

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Fournier and five of his co-defendants sat in the first row of the courtroom’s
spectator section, approximately ten feet behind defense counsels’ table. 5 Docket
No. 1-2 at p. 2. The court refers to the hand-drawn sketch of the courtroom
submitted by petitioner, see Docket No. 1-2 at p. 2 (“Exhibit A”), because even
if inexact, the same provides a relative frame of reference as to the actual
seating of the defendants.
The government requests dismissal of this first claim. In short, it argues
that Fournier failed to properly develop or otherwise support his contention by
-at the very least- mentioning specific instances where he intended but could
not communicate with Rivera because of where he was seated. See Docket No. 6 at
pp.

4-5.

The

contradicted

United
by

the

States
trial

also

avers

transcripts

that
on

petitioner’s

record,

which

allegations

demonstrate

are

“open

communications between the defense counsels and the defendants.” Id. at p. 5.
For the reasons that follow, the court sides with the government.
To begin, the court stresses that courtroom seating arrangements vary due
to many factors, such as “the size of the courtroom, the number of spectators,
the number of defendants and lawyers, acoustics, security provisions, etc.….”
United States v. Balsam, 203 F.3d 72, 82 (1st Cir. 2000) (quoting United States
v. Turkette, 656 F.2d 5, 10 (1st Cir. 1981) (citing United States v. DeLuca, 137
F.3d 24, 34 (1st Cir. 1998)). The First Circuit has therefore held it “will not
interfere with the trial court’s decision unless there was a ‘clear-cut abuse
of discretion.’” Turkette, 656 F.2d at 10. In the context of this case,
petitioner must show that attorney Rivera’s placement and his own was inherently
prejudicial. See Holbrook v. Flynn, 475 U.S. 560, 572 (1986) (the arrangement
of the courtroom, which includes the placement of the defendants, their counsel
and the security personnel, is subject to challenge only if it is inherently
prejudicial) (emphasis added)).
Upon a careful review of Fournier’s motion and supporting documents, the
court finds he has failed to demonstrate that the arrangement of the courtroom
and his seating placement prevented him from conferring with Rivera. To the
contrary, the trial transcripts evince that other defendants were able to, and
indeed, communicated with their respective attorneys. See e.g. Crim. Docket No.
2866 at pp. 6-7; Docket No. 2872 at pp. 27, 44. The transcripts also show defense
5 Fournier and the following five other defendants charged in the indictment proceeded to
a joint trial: Danny Guzman-Correa, Alexis Pabon-Rodriguez, Miguel Pacheco-Ortiz, Fernando
Castillo-Morales, and Jose David Acosta-Colon.

Civil No. 14-1351 (PG)

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attorneys, including Fournier’s, reporting that they had received information
from their clients during trial recesses. Crim. Docket No. 2866 at p. 3; Docket
No. 2872 at pp. 102-103. For example, on the fourteenth day of trial, Rivera
stated he spoke with Fournier after noontime. Crim. Docket No. 2872 at p. 103.
Given the aforementioned, the court believes that Fournier had ample
opportunity to confer with his attorney regarding any issue, including this one.
See Crim. Docket No. 2872 at pp. 102-103. Now, faced with potential dismissal,
petitioner changes his story and alleges for the first time that he instructed
counsel to object “several times” to the courtroom arrangement. Docket No. 8 at
p. 3. The court is unpersuaded, not least because Fournier has now admitted
that, despite his seating placement, he was able to communicate with Rivera
“several” (and much too convenient) occasions.
Because petitioner has not evinced that his seating arrangement offended
his Sixth Amendment right to assistance of counsel, the court need not determine
whether Rivera was ineffective in failing to object. See Strickland, 466 U.S.
at 697; Sleeper, 510 F.3d at 39. On this basis, his ineffective assistance of
counsel claim cannot succeed. 6
B. Courtroom Closure
Petitioner has also alleged that counsel was ineffective because he “failed
to voice, twice, timely objections to the courtroom closure…” (during jury
selection and the following day). Docket No. 1-1 at p. 8. According to Fournier,
this deprived him of his Sixth Amendment right to a public trial. Id. at p. 10.
The Sixth Amendment right to a public trial extends to the jury voir dire.
See Presley v. Georgia, 558 U.S. 209, 213 (2010) (per curiam) (citation omitted);
United States v. Agosto-Vega, 617 F.3d 541, 545 (1st Cir. 2007). Although that
right is not absolute, exceptions are few and far between. Agosto-Vega, 617 F.3d
at 545. Prior to excluding the public at any stage of a criminal trial, “the

6 Before moving on, the court notes that petitioner has also alleged the courtroom seating
arrangement violated his due process rights by “improperly undercut[ting] the presumption of
innocence, as the jury may have inferred from the isolated grouping of the jury that defendants
pose a security risk.” Docket No. 1-1 at p. 5. He further alleges that the Court Security Officers’
(“CSO”) movements were “defensive in nature and unusual” and may have led the jury to draw an
inference of guilt by association. Id. Petitioner claims this denied him the right to a fair
trial, so he requests a new one. But the First Circuit has already decided this issue and,
unfortunately for Fournier, he is not entitled to the relief he seeks. See Balsam, 203 F.3d at
81-82 (citing Turkette, 656 F.2d at 10) (finding that “[t]he front row section is not an inherently
prejudicial location for seating criminal defendants.”). As such, any federal due process claims
brought by petitioner at this stage are hereby dismissed.

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party seeking to close the hearing must advance an overriding interest that is
likely to be prejudiced, the closure must be no broader than necessary to protect
that interest, the trial court must consider reasonable alternatives…, and make
findings adequate to support the closure.” Waller v. Georgia, 467 U.S. 39, 48
(1984) (alteration in original); see also Presley, 558 U.S. at 213–214 (further
noting

that

when

a

defendant

objects

to

a

closure

but

does

not

offer

alternatives, the judge must think of some on his own).
Here, Fournier insists that the courtroom remained closed on August 6 and
August 7, 2009, for jury voir dire and the following day. Docket No. 1-1 at p.
8; see also Docket No. 1-2 at pp. 16-38. First, while the record shows that the
jury trial was scheduled to begin on August 6, the fact of the matter is that
on that day the court instead heard other pre-trial matters and conducted a
change of plea hearing, leaving the jury selection for the next day.7 Crim.
Docket Nos. 2812 and 2813. Thus, whether the courtroom was closed on August 6
is inapposite to the court’s inquiry because no trial proceedings implicating
Fournier’s Sixth Amendment right took place on that date.
In

light

of

the

foregoing,

the

court’s

analysis

will

be

factually

circumscribed to the events of August 7, 2009—the first day of Fournier’s trial.
Before jury voir dire, CSOs informed the undersigned that a group of people had
arrived in three school-type buses wearing custom printed t-shirts in support
of Danny Guzman-Correa, one of Fournier’s co-defendants. The situation was
discussed at side-bar with the attorneys, at which point the undersigned decided
to exclude that specific group of spectators from the courtroom. Crim. Docket
No. 3461 at pp. 59-60. Counsel Rivera did not object to said exclusion, and the
record so reflects:
The court:

All right. I've been informed by my CSO that
the marshals informed him that three buses,
school-buses type, have arrived here with
persons who have T-shirts saying "Danny, we
support you and we back you." I'm not going
to allow that and I'm not going to tolerate
it, and none of those persons are going to
walk into the courtroom. They are going to be
sent back and they are going to be –

Mr. Entin:

I don't think that's appropriate. I had no
idea. Send them back.

7 Also, court adjourned because the undersigned was trying another case during the
afternoon.

Civil No. 14-1351 (PG)

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The court:
I'm not blaming you guys. I'm just saying they
are here, the marshal told me. And I'm not
going to tolerate any activity like that from
any of the defendants. So you had better tell
you[r] clients during the recess or noon that
they had better behave; otherwise, I'm going
to exclude them from the courtroom and I'll
put a camera next door at the holding cells,
and then they can watch the trial from there.
Ms.
Lizarribar
Buxo:

Very well.

The court:

I'm going to order the marshals to remove them
from the court.

Id. Now, Fournier has submitted six sworn statements signed by family
members and close friends who affirm, under penalty of perjury, that U.S.
Marshals excluded them from the courtroom. 8 Docket No. 1-2 at pp. 16-39. The
court has carefully reviewed the statements, but finds the facts detailed therein
insufficient to show that a closure (be it complete or partial) occurred. As
the trial transcript demonstrates, supra, the undersigned only ordered the
removal of the t-shirt wearers before selecting and empaneling the jury.
It is important to note that Fournier’s wife filed a complaint of judicial
misconduct against the undersigned based on the alleged courtroom closure. Docket
No. 1-2 at p. 14. In the order of dismissal, then-Chief Judge Lynch highlighted
the fact that the complainants in that case “[did] not allege and there is no
evidence – either in the complaint or in the record – that the judge even knew
the complainants were seeking entry, intended to deny the complainants access
to the court, or harbored any other illicit animus.” Id. Notably, Judge Lynch
also stressed that the trial court’s order was specific “not to admit a large
group of persons visibly supporting another defendant.” Id. 9
i.
But

Actual Prejudice
assuming

arguendo

that

a

courtroom

closure

did

occur,

and

that

Fournier’s family and friends were excluded during jury voir dire, the court

8 The declarants are: (1) Maria Teresa Badea-Arce (Fournier’s wife); (2) Jormarie FournierBadea (Fournier’s daughter); (3) Carmen Milagro Olavarria-Franco (Fournier’s aunt); (4) Damaris
Fournier-Olavarria (Fournier’s sister); (5) Amanda Rodriguez (Fournier’s daughter-in-law); and
(6) Charlene Rosa (Fournier’s friend).
9 On appeal, the First Circuit understood that Counsel Rivera’s failure to object to the
alleged closure constituted a classic waiver, and quickly moved on. See Acosta-Colon, 741 F.3d at
186-194.

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must still determine whether Fournier is entitled to habeas relief. On the one
hand, petitioner maintains that a public trial right violation constitutes
structural error, for which reason he need not prove that Rivera’s failure to
object resulted in actual prejudice. See Docket No. 1-1 at pp. 12-13. On the
other hand, the United States suggests that in light of First Circuit precedent,
an evidentiary hearing may be appropriate to adjudicate this matter. See Docket
No. 6 at pp. 9-10.
Ordinarily, the violation of the constitutional right to a public trial is
a structural error. See Waller, 467 U.S. at 49-50 and n.9. The structural error
inquiry applies when the alleged error is one that “affects the framework within
which the trial proceeds,” and not “simply an error in the trial process itself.”
Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Cf. United States v. GonzalezLopez, 548 U.S. 140, 148 (2006) (quoting Fulminante, 499 U.S. at 310) (noting
that trial errors generally subject to harmlessness review are errors that
“occurred during presentation of the case to the jury” and their effect may “be
quantitatively assessed in the context of other evidence presented in order to
determine whether [they were] harmless beyond a reasonable doubt”). Fournier
asserts that the structural error doctrine requires this court to presume
prejudice—-and that automatic reversal of his conviction must follow. Docket
No. 1-1 at p. 13.
However, the Supreme Court recently clarified the proper standard within
which to evaluate an ineffective-assistance claim premised on counsel’s failure
to object to a structural-type error. Weaver v. Massachusetts, 137 S. Ct. 1899,
1910-12 (2017). Relevant to this case, the Court recognized that “while the
public-trial right is important for fundamental reasons, in some cases an
unlawful closure might take place and yet the trial still will be fundamentally
fair from the defendant’s standpoint.” Id. at 1910. Now, when a defendant
specifically raises a public-trial violation via an ineffective-assistance-ofcounsel claim, a showing of prejudice is required. Id. at 1910-1912.
To satisfy this burden, Fournier must demonstrate a reasonable probability
of a different outcome but for counsel’s failure to object to the closure or
that such failure by counsel rendered his trial fundamentally unfair. Weaver,
137 S. Ct. at 1910-1912. After a careful review of petitioner’s motion to vacate
and other moving papers--and assuming for argument’s sake that actual courtroom
closure could be established--, the court finds that Fournier has not alleged,
let alone shown, that he was actually prejudiced. And even assuming that Fournier

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could also establish prejudice by showing that the public trial violation was
so serious as to render his trial fundamentally unfair, he has not.
Consequently, Fournier’s ineffective assistance of counsel claim on this
basis necessarily fails.
C. Evidentiary Hearing
Fournier has requested an evidentiary hearing. Docket No. 1. The United
States, in turn, believes that one may be necessary as to the courtroom closure
claim. But evidentiary hearings in § 2255 cases are the exception, not the norm,
and there is a heavy burden on the petitioner to demonstrate that an evidentiary
hearing is warranted. See Moreno–Morales v. United States, 334 F.3d 140 (1st
Cir. 2003). A hearing “is not necessary when a § 2255 petition is inadequate on
its face, or although facially adequate, is conclusively refuted as to the
alleged facts by the files and records of the case.” United States v. DiCarlo,
575 F.2d 952, 954 (1st Cir. 1978).
In Fournier’s case, even if the court deemed his petition as facially
adequate, the fact of the matter is that the record belies his allegations.
Having ruled that the petitioner’s ineffective assistance of counsel claims lack
merit, the court finds that a hearing is not warranted. Accordingly, Fournier’s
request is DENIED.
IV.

CONCLUSION

In short, the court concludes that Fournier failed to establish that trial
counsel’s performance fell below an objective standard of reasonableness or that
the alleged errors on counsel’s part produced “‘a fundamental defect which
inherently results in a complete miscarriage of justice….’” Knight v. United
States, 37 F.3d 769, 772 (1st Cir. 1994) (quoting Hill, 368 U.S. at 428)). In
so ruling, the court also takes into account the interest of finality of
judgments and the costs and uncertainties associated with vacating petitioner’s
sentence.
Based on the foregoing, petitioner’s motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 (Docket No. 1) is hereby DENIED, and
the case is DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly.

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V. CERTIFICATE OF APPEALABILITY
It is further ordered that no certificate of appealability should be issued
in the event that the 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).
IT IS SO ORDERED.
In San Juan, Puerto Rico, January 19, 2018.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE