Opinion
Civil No. 99-2289 (PG), Crim. 94-90 (PG)
September 26, 2000
Kenneth Fishman, Esq., for Appellant.
Jose Ruiz-Santiago, Assistant U.S. Attorney, for Appellee.
REPORT AND RECOMMENDATION
Above petitioner has filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. He therein claims ineffective assistance of counsel for: the failure to request an evidentiary hearing regarding the factual basis for the entry of a guilty plea as to a weapon's law violation under 18 U.S.C. § 924 (c), and for a potential conflict of interest of his counsel regarding some recorded conversations. He also submits there was a failure to petition for dismissal of the indictment on the grounds that the United States Attorney's held an unconstitutional appointment. Petitioner also claims that the Court of Appeals' failure to appoint counsel on appeal resulted in a clearly deficient manner to present cognizable and substantial issues on his direct appeal.
Since this petition was filed the Court of Appeals for the First Circuit has decided United States v. Hilario, 218 F.3d 19 (1st Cir. 2000) which determined that the statute appointing the United States Attorney in this district was not unconstitutional as applied and that the district court's appointment did not violate the Appointments Clause.
Petitioner's ineffective assistance claim is predicated on counsel's failure at the sentencing hearing, wherein the government proffered that it had evidence from five co-conspirators that "they had obtained the firearms" during the commission of a drug offense from defendant Figueroa, to request an evidentiary hearing. It is prompted by the government not having provided proof of such proffer either through sworn statements or testimonies.
Defendant had objected to pleading guilty to the firearm violation § 924(c) as depicted in the presentence report and now contends that counsel was ineffective in not pursuing or challenging the government's proffer to support the guilty plea as to the firearms count.
In addition, petitioner argues that the interception of conversations with his counsel while under custody, had resulted in the possibility of a conflict of interest. Counsel is claimed to have had a greater concern to protect the nature of his own participation in said conversations for which he did not secure the recordings. However, since the initial habeas application was filed, petitioner was able to obtain the recordings and has not addressed the issue of the potential conflict any further, leaving in a vacuum his allegations of the existence of said conflict. Opportunity has been ample to develop the issues of the alleged conflict by counsel and petitioner's continuous failure to do so either is considered a waiver of said claim or could lead to a reasonable interpretation that evidence of said conflict is nonexistent. Since the court must in any such event deal then herein with a potential instead of a real conflict of interest in assessing petitioner's claims, he must first establish the two prong standards of cause and prejudice for such a claim of ineffective assistance to prevail. Strickland v. Washington, 466 U.S. 668 (1984);United States v. Soldevila, 17 F.3d 480 (1st Cir. 1993).
Cf. United States v. Rodriguez, 929 F.2d 747 (1st Cir. 1990) (wherein it was determined that petitioner's allegations concerning his attorney's divided loyalty relate to matters outside the record of his conviction, are were not inherently incredible nor conclusory).
United States v. Carey, 50 F.3d 1097 (1st Cir. 1994) (petitioner must demonstrate, citing Strickland, that his counsel actively represented conflicting interest and that an actual conflict of interest adversely affected his lawyer's performance, since the conflict of interest must be actual or real).
For an ineffective claim to proceed petitioner must meet the burden of establishing that indeed there was materially favorable evidence that counsel failed to use. To be material, such evidence should be reasonable considered to have an effect in the outcome of trial. Still, such omission of his counsel should be considered to fall below an objective standard of reasonableness constituting ineffective assistance. United States v. Porter, 924 F.2d 395 (1st Cir. 1991). A petitioner bears a very heavy burden on an ineffective claim, wherein district courts are to evaluate the alleged conduct from counsel's perspective at the time, further considering the totality of the circumstances. Strickland, supra; Perron v. Perrin,
742 F.2d 669, 673 (1st Cir. 1984). There is a strong presumption that counsel acted within the range of professional assistance. In addition to establish such a deficient performance, the actions of counsel must be so prejudicial as to undermine confidence in the outcome of trial and the fundamental fairness of the result. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838 (1993).
It is for a criminal defendant seeking habeas relief to demonstrate that his attorney's performance was unreasonably deficient and that he was prejudiced as a result of it. Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994). The court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance and must make every effort to eliminate distorting effects of hindsight as to counsel's action.
The record, as well as the petitioner, indicate that counsel objected to the presentence report insofar as the defendant's participation with the firearm charges as depicted therein. Counsel filed a motion entitled "Defendant's Urgent Objections to the Pre-Sentence Investigation Report and Request for an Evidentiary Hearing" after having previously informally arranged for amendments. The proposed amendments related to defendant not accepting that he possessed or distributed weapons.
Defendant's objections were adequately presented before the court. The plea agreement refers to defendant being personally responsible for conspiring to possess with intent to distribute less than 50 kilograms of cocaine, a violation to 21 U.S.C. § 841 (a)(1) and refers to the § 924(c) offense in general term in that during the commission of the drug-trafficking offense the co-conspirators carried firearms. See Plea and Forfeiture Agreement filed April 5, 1995.
Petitioner also claims that it could have opposed the government's evidence as proffered through his own testimony and another codefendant who also pleaded guilty to the firearms count. The related count in the Indictment as to the firearms entails a violation to Title 18 U.S.C. § 924 (c)(1) in that the participants use and carry firearms during the commission of a drug-trafficking offense. The arguments raised where discussed in the direct appeal of petitioner's conviction and a clarification was issued that defendant had pleaded guilty not to "carrying" but to aiding and abetting carrying, which requires solely that at least one other defendant carry a firearm. For purposes of the guilty plea defendant had acknowledged that he "pleaded guilty to participating in an illegal drug distribution scheme knowing (as an aider and abettor) that another co-conspirator(s) carried firearm(s) during said distribution . . ." The evidence is sufficient to support Figueroa's guilty plea to the aiding and abetting of carrying under § 924(c)(1)." United States v. Figueroa-Romero, 114 F.3d 1170 (1st Cir. 1997).
The guaranteed right to effective assistance of counsel of the Sixth Amendment requires that counsel offers reasonable assistance under the circumstances. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). In affirming his conviction, the Court of Appeals for the First Circuit examined all the evidence related to this defendant's participation both in the drug-trafficking offense and the firearms and found factual basis for the plea and evidence to support same.
Considering the above discussed, this magistrate opines that petitioner has failed to meet the requisites for a claim of ineffective assistance of counsel.
Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980) (once a defendant proves that a conflict actually affected the adequacy of his representation, then prejudice need not be shown to obtain relief. Otherwise, until this threshold is met, defendant has not established the constitutional predicate for his claim of ineffective assistance).
It is thus recommended that the claims in the petition regarding ineffective assistance of counsel be DENIED.
Petitioner has also submitted that the failure to appoint counsel to represent petitioner in his direct appeal prevented him from raising the full panoply of arguments to properly consider all issues of the appeal. The government's reply failed to discuss the point. Neither has petitioner submitted what matters were left outside the appeal that could have benefitted his position to seek redress. If anything, the record shows all issues that could have been presented were raised and no constitutional violation could be identified by petitioner. There are no merits to this contention.
Thus, it is recommended that the petitioner's motion for post-conviction relief BE DISMISSED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).