Opinion
97 Civ. 5620 (TPG)
August 30, 2002
OPINION
Felix Hernandez moves pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The Government opposes Hernandez's motion claiming that the claims are either procedurally barred or meritless. The motion is denied.
Facts
Hernandez was charged with conspiracy to distribute and to possess with intent to distribute five kilograms and more of cocaine. According to the Government, Hernandez participated in an organization that distributed numerous kilograms of cocaine. The organization was headed by Jose de Jesus Zapata-Herrera who resided in Colombia. The Government claimed that Zapata-Herrera arranged for shipments of cocaine to be delivered in New York to Alejandro Martinez who in turn distributed the cocaine to Hernandez and others.
Hernandez's case was tried in November of 1993. The Government's proof included: (1) the testimony of four former members of the organization, Marino Rodriguez, Jose Rodriguez, Bolivar Francisco, and Michael Williams; (2) over twenty recorded conversations, in some of which Hernandez was a participant, obtained from wiretaps placed on Alejandro Martinez home phone and cellular phones; (3) drug records seized from Alejandro Martinez home, reflecting how various shipments of cocaine were distributed to Hernandez and others; and (4) cocaine, money, narcotics paraphernalia, beepers, cellular phones, address books, photographs, and documents seized from the homes of various members of the conspiracy, (apparently not the home of Hernandez). There were 250 grams of cocaine seized from Alejandro Martinez's car and 1.5 kilograms of cocaine seized from Jose Rodriguez's apartment.
The accomplices' testimony and the wiretap evidence portrayed how cocaine was sold by Zapata-Herrera to Alejandro Martinez and then to Hernandez. The drug records seized from Alejandro Martinez's residence established that Hernandez purchased two kilograms of cocaine at a price of $15,500 per kilogram from a December 1991 shipment of twenty kilograms. The drug records also established that Hernandez purchased another two kilograms for $28,400 from a July 1992 shipment of twenty-five kilograms.
The conversations between Hernandez and Alejandro Martinez are replete with coded references to the price, availability, quality, and quantity of the cocaine that Alejandro Martinez distributed to customers including Hernandez.
Hernandez was represented at trial by Trevor Reid. Hernandez's defense was that his dealings with Alejandro Martinez related to automobiles and not narcotics. Defense counsel did not call any witnesses, but did introduce one exhibit, which was a DEA voucher regarding a car seized from Hernandez upon his arrest on August 14, 1992. Counsel relied upon the voucher to support Hernandez's automobile business defense.
The Government conceded that Hernandez and Alejandro Martinez were involved in an automobile business and that some, but by no means all, of the tape-recorded conversations related to this automobile business.
Hernandez was found guilty by the jury. Following his conviction, Hernandez retained new counsel, Raymond Sussman. Through his new counsel, Hernandez filed a motion pursuant to Fed.R.Crim.P. 33 to set aside the verdict and to obtain a new trial on the basis that he had received ineffective assistance of trial counsel.
On July 17, 1995 Hernandez filed a § 2255 motion pro se claiming that his conviction was obtained in violation of the Double Jeopardy Clause of the Fifth Amendment because the Government had already administratively seized and forfeited his car as part of the proceedings in the case.
Hernandez appeared before the court for sentencing on October 19, 1995. He was represented by Sussman. The court denied Hernandez's Rule 33 motion on the ground that it was untimely and, in any event, had no merit. The court held Hernandez accountable for more than five kilograms of cocaine and sentenced him to a term of 121 months imprisonment to be followed by five years supervised release.
On November 1, 1995 the court denied the § 2255 motion by memorandum endorsement. This ruling was confirmed in an opinion dated September 18, 1996 based on the Supreme Court case United States v. Ursery, 518 U.S. 267 (1996).
Hernandez, again represented by Sussman, appealed his conviction and sentence. Hernandez claimed that he had been deprived of his right to effective counsel at the trial. On this subject, there were two theories. One was based on the failure of trial counsel to introduce business records showing that Hernandez's recorded conversations with Alejandro Martinez only related to cars and not drugs. The other theory related to counsel's crossexamination of Marino Rodriguez. On cross, Marino Rodriguez had testified that he first met Hernandez at "the printing shop" in 1991 when Hernandez came to the shop to purchase a rubber stamp. Defense counsel went on to ask about the substance of their conversation. Marino Rodriguez answered that Hernandez told him that he needed the stamp for bags of heroin.
Another ground of appeal was Hernandez's claim that in the sentence the court improperly held him accountable for over five kilograms of cocaine. Specifically, Hernandez objected to the reliance on the 1.5 kilograms of cocaine seized from Jose Rodriguez's apartment.
On May 21, 1996 the Court of Appeals affirmed Hernandez's conviction in an unpublished opinion. The court noted that the Government had already conceded at trial that Hernandez and Alejandro Martinez were involved in an automobile business and that many of the tape-recorded conversations related to various cars that they were buying and selling. The court concluded that the introduction of further evidence that Hernandez was involved in a car business with Alejandro Martinez would not have proven anything that was not already conceded by the Government. The court found that the district court had properly held Hernandez accountable for over five kilograms of cocaine in connection with the sentence. Although the court did not specifically address Hernandez's claim about counsel's cross-examination of Marino Rodriguez, the court made a general finding that Hernandez's contentions were meritless.
In 1997 Hernandez, acting pro se, filed the instant § 2255 motion. Hernandez claims that the motion was filed in May while the docket report indicates that it was filed in July. For current purposes, this difference presents no issue.
Hernandez's motion, as originally filed, asserted four claims: (1) insufficient evidence; (2) erroneous jury instructions (3) ineffective assistance of both trial and appellate counsel; and (4) prosecutorial misconduct and judicial abuse of discretion.
On July 30, 1997 the matter was transferred to the Court of Appeals as a second or successive motion to the July 17, 1995 motion, so that the court could decide whether to certify it pursuant to 28 U.S.C. § 2244(b)(2). On October 24, 1997 the Court of Appeals issued an order directing the District Court to determine whether Hernandez's motion was a second or successive motion with respect to the 1995 motion. The District Court then ruled that Hernandez's 1997 motion was a not second or successive motion to the 1995 motion. The District Court then proceeded to deal with the motion.
In January of 1998 the Government was directed to respond. Before the Government responded, Hernandez filed an amended motion on January 28, 1999. This amended motion is what is now before the court. The amended motion only raises the issues of insufficient evidence and ineffective assistance of counsel. In effect, Hernandez has withdrawn the claims relating to (1) erroneous jury instructions and (2) prosecutorial misconduct and judicial abuse of discretion.
The Government filed its response on February 17, 1999. The Government takes the position that Hernandez's claims are procedurally barred and, in any event, without merit.
Claims in the Present Motion
Insufficiency of Evidence
Hernandez argues that the evidence presented at trial was insufficient to convict him. Hernandez claims that the Government failed to prove beyond a reasonable doubt that he was involved in the conspiracy because the Government's only evidence linking him to the conspiracy was the testimony of co-defendant Jose Rodriguez who testified at trial that he gave cocaine to Hernandez. Hernandez asserts that Jose Rodriguez's veracity is questionable because on two occasions prior to the trial Jose Rodriguez did not mention to the U.S. Attorney's Office that he gave cocaine to Hernandez. The first occasion was Jose Rodriguez's post-arrest interview with AUSA Sharon Davies. The second occasion was a proffer session when Jose Rodriguez spoke with AUSA Michael Rogoff. The argument about the insufficiency of the evidence was not raised on direct appeal.
Ineffective Assistance of Trial Counsel
Hernandez also claims that his trial counsel, Trevor Reid, was ineffective for the following reasons, some of which were already argued on appeal.
Argued on Direct Appeal
Trial counsel failed to present business records illustrating that Hernandez and Alejandro Martinez were in the used car business.
Trial counsel committed error when cross examining Marino Rodriguez because testimony was elicited in which Marino Rodriguez stated that Hernandez bought a rubber stamp to use to stamp bags of heroin.
Not Argued on Direct Appeal
As will be shown in the later discussion of the law, it is necessary, in dealing with claims not argued on direct appeal, to distinguish between claims based on the trial record and claims not based on the trial record.
The claims based on the trial record are as follows:
(1) Counsel failed to object to Jose
Rodriguez's testimony that Hernandez now alleges was hearsay.
(2) Counsel failed to request a jury instruction about lack of specific intent.
In regard to the latter claim, Hernandez does not fully describe what the proposed instruction would have said, or how it would have differed from what the judge actually told the jury. Hernandez makes no objection to the jury instructions themselves.
The claims not based on the trial record are as follows:
(1) Counsel failed to conduct a pre-trial interview of Alejandro Martinez regarding the automobile business he had with Hernandez.
(2) Counsel failed to call Martinez as a witness.
(3) Counsel failed to conduct a pre-trial interview of Jose Rodriguez which would have exposed Rodriguez's perjury.
(4) In response to Hernandez's request to testify, trial counsel dissuaded him, saying that there was no need because the Government could not prove its case.
Ineffective Assistance of Appellate Counsel
Hernandez also asserts that his appellate counsel was ineffective based on the fact that his attorney raised the issue of the ineffectiveness of trial counsel at the appellate proceedings before the Court of Appeals rather than allowing the issue to be raised in a § 2255 motion to the District Court.
Discussion
Motions under 28 U.S.C. § 2255 may not be utilized to make claims previously raised and considered on appeal. Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986).
The question of using a § 2255 motion to raise claims not previously presented on appeal was extensively discussed in two Second Circuit cases, Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), and Douglas v. United States, 13 F.3d 43 (2d Cir. 1993). The court recognized the general rule that where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a § 2255 proceeding unless he can establish both "cause" for the procedural default and actual prejudice resulting therefrom. Billy-Eko at 113-13. Having recognized the general rule, the Second Circuit went on to adopt the view taken in other circuits, that a Sixth Amendment claim of ineffective assistance of counsel is most often appropriately made by way of collateral attack rather than on direct appeal. In many instances an accused will be represented by the same attorney at trial and on direct appeal and it is obviously not to be expected that trial counsel will raise his own ineffectiveness on appeal. More importantly, ineffective assistance of counsel claims often raise matters outside the record on direct appeal, which will require proof in the form of attorney-client correspondence or other evidence not introduced at trial. Billy-Eko at 114; Douglas at 47. However, the Second Circuit recognized a limitation on the general rule allowing ineffective assistance claims on collateral attack. This limitation generally applies where: (1) the petitioner was represented by new appellate counsel on direct appeal, and (2) the claim is based solely on the record developed at trial. Billy-Eko at 115; Doublas at 47. Where a claim of ineffective assistance could properly be brought on direct appeal and is not, it is barred from being presented in a § 2255 motion unless there is a showing of cause and prejudice. Billy-Eko at 115-16.
"Cause is something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991). Constitutionally ineffective assistance of appellate counsel is cause. See MeCleskey v. Zant, 499 U.S. 467, 494 (1991). Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. Id.
It is now necessary to apply these rules to the issues on the present motion.
Insufficiency of Evidence
Hernandez failed to raise on appeal the claim that there was insufficient evidence to convict him. It is necessary to apply the normal rule that a claim not raised on direct appeal is procedurally barred unless there is a showing of cause and prejudice. No showing of cause or prejudice has been made. The claim cannot be raised in the present § 2255 motion. In any event, the argument of insufficiency has no merit.
Ineffective Assistance of Appellate Counsel
Hernandez's claim in this regard is not procedurally barred for obvious reasons. Hernandez contends that his appellate counsel was ineffective because he raised the issue of ineffectiveness of trial counsel on appeal rather than allowing the issue to be raised for the first time in a § 2255 motion.
The court disagrees. Appellate counsel was not counsel at trial and thus had a duty to raise issues about ineffectiveness of trial counsel arguably arising from the trial record. Billy-Eko v. United States, 8 F.3d 111, 115-116 (2d Cir. 1993).
Ineffective Assistance of Trial Counsel
Two of Hernandez's claims in this category are procedurally barred because they dealt with an direct appeal. The first of these is the argument that trial counsel should have introduced into evidence certain business records which showed that Hernandez was in the used car business with Alejandro Martinez. The second is the claim premised upon the cross-examination of Marino Rodriguez.
Hernandez's other claims that his trial counsel was ineffective were not raised on direct appeal. They can be categorized into two groups. One group involves claims based on the trial record. The other group pertains to matters not based on the trial record.
The claims in the first category are (1) to object to Jose Rodriguez's testimony that Hernandez now alleges was hearsay; and (2) to request a jury instruction about specific intent. Items (1) and (2) are procedurally barred unless Hernandez shows cause and prejudice. The only cause he argues is that his appellate counsel failed to raise them. But as described earlier, attorney errors short of constitutionally inadequate assistance of counsel does not constitute cause and does not excuse a procedural default. McClesky v. Zant, 499 U.S. 467, 494 (1991). There is no suggestion of a Sixth Amendment violation in trial counsel failing to voice a hearsay objection to Jose Rodriguezs testimony or to request a particular jury instruction about specific intent. Therefore these claims of Hernandez are barred from being dealt with in the present § 2255 motion.
Hernandez's other claims of ineffective assistance of trail counsel involve issues which not based on the trial record and therefore are not procedurally barred. These claims relate to Hernandez's allegations that: (1) counsel failed to conduct a pre-trail interview of Alejandro Martinez regarding the automobile business he had with Hernandez; (2) counsel failed to call Martinez as a witness; (3) counsel failed to conduct a pre-trial interview of Jose Rodriguez which would have exposed Jose Rodriguez's perjury; and (4) counsel dissuaded Hernandez from testifying.
To prevail on these claims, Hernandez must demonstrate that (1) trial counsel's performance fell below an objective standard of reasonableness and (2) that there was a reasonable probability that but for trial counsel's performance the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688-694 (1984). Hernandez cannot make such a showing.
Hernandez argues that trial counsel's failure to conduct a pre-trial interview of Alejandro Martinez was detrimental to his defense that he and Alejandro Martinez were partners in a used car business and not narcotics trafficking. However, since the Government had already conceded that Hernandez and Alejandro Martinez were partners in a car business, there is not a reasonable probability that but for trial counsel's failure the outcome of the trial would have been different.
Hernandez also argues that trial counsel failed to interview Jose Rodriguez and therefore failed to expose Jose Rodriguez's perjury. However, in addition to Jose Rodriguez's testimony, there was overwhelming evidence of Hernandez's participation in the drug cartel. In addition to Jose Rodriguez's testimony, the evidence presented against Hernandez at trial included wiretap tapes and Alejandro Martinez's drug records which established that Hernandez had received at least four kilograms of cocaine from Alejandro Martinez between December 1991 and August 1992. Since Hernandez was properly convicted with overwhelming evidence, his challenges to trial counsel's actions pertaining to discrediting Jose Rodriguez are unavailing because there is not a reasonable probability that the outcome of the trial would have been different or indeed that counsel could have succeeded in discrediting Jose Rodriguez.
Because of such overwhelming evidence of Hernandez's participation in the drug cartel, there also is not a reasonable probability that the outcome of the trial would have been different had Hernandez taken the stand.
Conclusion
For the reasons stated above, Hernandez's § 2255 motion is denied. Hernandez has not made a substantial showing of the denial of a constitutional right. Therefore, a certificate of appealability pursuant to 28 U.S.C. § 2253 will not be issued. In respect to the in forma pauperis statute, this court certifies that an appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED