Opinion
97 Civ. 4440 (MGC), 93 CR 680 (MGC).
April 18, 2000.
JAIRO EMIL ZULUAGA, 35009-054, Petitioner Pro Se.
MARY JO WHITE, United States Attorney, Attorney for Respondent. By: Daniel J. Fetterman, Esq. Assistant United States Attorney.
OPINION ORDER
Petitioner Jairo Emil Zuluaga moves to vacate his sentence pursuant to 28 U.S.C. § 2255. The grounds for petitioner's motion are that the government knowingly presented perjured testimony that was the sole basis for his conviction and that petitioner received ineffective assistance of counsel. For the reasons discussed below, petitioner's motion is denied.
BACKGROUND
A jury convicted petitioner of one count of conspiracy to violate the United States narcotics laws in violation of 21 U.S.C. § 821, 841(a)(1), 841(b)(1)(A), and 846. The evidence showed that petitioner was involved in a conspiracy to import cocaine and heroin to the United States from Colombia.
Petitioner worked at a parking garage where other participants in the conspiracy left cars containing the proceeds of illegal drug sales. Petitioner knowingly assisted coconspirators to transfer these proceeds to Ecuacol, the organization through which the money was laundered, by parking and storing these cars.
The jury also heard evidence that petitioner and a coconspirator, Jairo Lopez, transported cocaine disguised as beans. Lopez initially gave the "beans" to petitioner without knowing of their contents. Petitioner, in turn, gave the beans to his sister and sister-in-law. Lopez subsequently learned that the beans contained cocaine and called petitioner to warn him that the beans were "poisoned." Petitioner responded that he had already told his sister not to eat them. After this phone call, Lopez met petitioner and drove him to his sister's home where petitioner picked up a bag. Lopez then drove with petitioner to Queens in a manner that led agents to believe that Lopez and petitioner knew that they were under surveillance. The agents lost sight of the car driven by Lopez. After evading the surveillance, Lopez phoned another coconspirator to inform him that a bag of beans had been left in Queens for him to pick up.
Petitioner was sentenced to 87 months in prison to be followed by five years of supervised release. Petitioner appealed his conviction on the grounds that the evidence was insufficient to convict him and that the denial of his motion for a severance was error. The Court of Appeals affirmed petitioner's conviction.United States v. Lopez, 101 F.3d 683 (2d Cir. 1996).
DISCUSSION
Petitioner did not raise the claims he raises in this motion on direct appeal. Petitioner may assert claims that he failed to raise on direct appeal by a § 2255 motion only if he can show both cause and prejudice. Claims of ineffective assistance of counsel are excepted from this rule if the petitioner had the same counsel both at trial and on appeal or if the petitioner's claim of ineffective assistance of counsel is not based solely on the trial record. Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993). Petitioner does not qualify for either exception. He was represented by different counsel on appeal, and his claim of ineffective assistance is based on his trial lawyer's alleged failure to aggressively cross-examine a witness and point out that witness' failure to identify petitioner. This claim can be resolved from the trial record.
Plaintiff must show cause "excusing his . . . procedural default" and "actual prejudice resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168, 102 S. Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); see also Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) ("[F]ailure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice."). Plaintiff has made no such showing. His claims are therefore procedurally barred.
Even if petitioner could show both cause and prejudice, his claims fail on their merits. All of petitioner's claims of error stem from the same incident at his trial. One of petitioner's co-defendants, Alberto Puerto, pled guilty to conspiracy to distribute narcotics. He agreed to testify at petitioner's trial. Puerto testified that his role in the conspiracy was to "pick up money and pick up drugs." (Trial Tr. 1402: 13.) Puerto testified that he was instructed to pick up a car containing his payment for drug activity from the garage in which petitioner worked. During the course of Puerto's testimony about retrieving the car, he was asked to identify petitioner. The following exchange between the government and Puerto took place:
Q: Who was it that you talked to at the garage?
A: With Jairo Zuluaga.
Q: What were you calling him at that time?
A: El Ena.
Q: Do you see that individual in the courtroom today?
A: Yes.
Q: Would you please point him out and identify him by an article of clothing on [sic]?
A: He has a white shirt and he has a tie with long black stripes and some dots.
Mr. Fetterman: Your Honor, may the record reflect the witness has identified the defendant Jairo Mora?
The Court: It will. (Trial Tr. 1435: 5-22.)
It is apparent that this is merely a transcription error. Puerto identified Jairo Mora at another point during his testimony. He described Mora's clothing differently when asked to identify him:
Q: Do you see the person whom you met at Ecuacol that day, named Jairo, in the courtroom today?
A: Yes.
Q: Would you please point him out and identify him by an article of clothing.
A: He is wearing glasses and a gray suit.
Mr. Fetterman: Your Honor, can the record reflect that the witness has identified defendant Jairo Mora.
The Court: The record may so reflect. (Trial Tr. 1463: 24-25 to 1464: 1-8.)
The other evidence presented at trial further supports the conclusion that the alleged failure to identify cited by petitioner is merely a transcription error. This evidence is consistent with Puerto's identification of petitioner in connection with the parking garage. Petitioner stipulated that he worked at the garage in question during the relevant time period. (Trial Tr. 767.) His sister also testified that he worked at the garage in question. (Trial Tr. 1621-23.) Petitioner's defense was not that he had never seen Puerto at the garage. Rather, petitioner asserted that he had only a social relationship with some of the coconspirators and that this relationship did not make him a knowing and willful member of the conspiracy. Petitioner's counsel acknowledged that petitioner met Puerto at the garage when Puerto came to pick up the car. He argued in his summation that Puerto's testimony was evidence of petitioner's innocence. (Trial Tr. 2147-49.) Puerto had been instructed by another coconspirator not to talk at length to petitioner. Petitioner's counsel argued that this showed that petitioner was not a member of the conspiracy and that he knew nothing about the contents of the cars. (Id.)
Petitioner contends that Puerto failed to identify him and gave perjured testimony. He further contends that the government knew Puerto was lying. He argues that he has therefore been deprived of his right to a fair trial and to due process of law.
However, the only testimony that petitioner points to as false is the mistake in the record stating that Puerto identified Jairo Mora, not Jairo Zuluaga. The context of the identification is a series of questions about petitioner. Moreover, petitioner stipulated that he worked at the garage, and meeting Puerto at the garage was consistent with the defense theory that petitioner was a hard-working garage attendant who unknowingly parked cars containing illegally obtained cash. This transcription error does not provide any support for a conclusion that Puerto gave false testimony or that the government knowingly presented false testimony. Even if Puerto's testimony were false, it was not the sole basis for petitioner's conviction. The evidence that petitioner was involved in the transportation of beans filled with cocaine could have led the jury to conclude that petitioner was a participant in the conspiracy.
II. Ineffective Assistance of Counsel
Petitioner claims that he was denied the effective assistance of counsel because his lawyer did not highlight for the jury that Puerto had identified a co-defendant, Jairo Mora, instead of petitioner.
In order to prevail on a claim of ineffective assistance of counsel, petitioner must satisfy the two prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). First, petitioner must establish that counsel's performance was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. 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 different." Id. at 694, 104 S.Ct. at 2068.
Petitioner cannot meet either prong of the Strickland test. Petitioner's counsel cross-examined Puerto about his acquaintance with petitioner. Puerto was a casual friend of petitioner's brother and occasionally saw petitioner at the apartment petitioner shared with his brother. Petitioner's counsel also specifically asked about the time that Puerto went to the garage to pick up a car containing money, admitting that petitioner did see Puerto at the garage. The defense theory was that petitioner did not know what was in the cars and therefore did not knowingly participate in the conspiracy. (Trial Tr. 1483.) Not only does this lend support to the argument that petitioner was not wrongly identified, it also demonstrates that as a tactical matter, counsel had no reason to argue that Puerto had never seen petitioner at the garage. See United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (holding that cross-examination is "entrusted to the judgment of the lawyer" and should not be second-guessed "unless there is no strategic or tactical justification for the course taken"); United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (holding that the scope of cross-examination is a tactical decision to be made by the lawyer).
Petitioner was also not prejudiced. Puerto's identification of petitioner was not the only evidence against him. Other evidence demonstrated that petitioner had been involved in the transportation and delivery of cocaine. The jury also knew that petitioner worked at the garage. Even if Puerto's testimony identifying petitioner as the one from whom he obtained a car with proceeds of drug crime were demonstrated to be false, the jury would not have been compelled to conclude that petitioner was innocent of the crime charged.
CONCLUSION
Petitioner is procedurally barred from bringing the claims he did not raise on direct appeal in this petition. In any event, his claims fail on the merits. The error petitioner points to is only an error in transcription, not an error of constitutional dimension. He was not denied the effective assistance of counsel. The petition is, accordingly, denied.
SO ORDERED.
Dated: New York, New York April 17, 2000