Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1985)

MEMORANDUM^** 

Francisco Aviles-Perez, a federal prisoner, appeals pro se the district court's order dismissing his motion under 28 U.S.C. § 2255 to vacate his criminal conviction and sentence. Aviles-Perez contends that he was denied effective assistance of counsel and that the district court erred in not instructing the jury regarding a lesser-included offense. We affirm.

On January 5, 1983, thirteen days before his scheduled trial date, defendant substituted attorney Frank Duncan in place of attorney Moises Luna. The court permitted this substitution provided that there was no delay in the trial. On January 14, 1983, the court continued the trial date from January 18, 1983 to February 1, 1983. Trial commenced on February 1. On February 11, the jury returned its verdict, finding the petitioner guilty of violating 21 U.S.C. § 846, conspiracy to possess and distribute cocaine and heroin; 21 U.S.C. § 848, conducting a continuing criminal enterprise; six counts of possessing and distributing heroin, 21 U.S.C. § 841(a) (1); and two counts of using a telephone in furtherance of a narcotics felony, 21 U.S.C. § 843(b).

Petitioner appealed his conviction, and on April 26, 1984, in an unpublished memorandum, this court affirmed that conviction in part. United States v. Aviles-Perez, No. 83-5060, slip op. (9th Cir. Apr. 26, 1984). We did, however, reverse petitioner's conspiracy conviction under 21 U.S.C. § 846 because it was a lesser included offense of the continuing criminal enterprise conviction. Id. at 2.

On October 13, 1985, petitioner filed a motion under 28 U.S.C. § 2255 seeking to set aside his conviction. The district court denied the motion by order entered December 27, 1985. Petitioner now timely appeals the denial of his Sec. 2255 motion. This court reviews de novo the district court's denial of a Sec. 2255 motion. United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987).

Aviles-Perez first contends that he was denied effective assistance of counsel because his trial counsel lacked adequate time to prepare for trial. He argues that his replacement counsel Frank Duncan had only 26 days (January 5 to February 1) to prepare for a case that took 42 days (from the filing of the first complaint) to reach the plea stage. Petitioner's argument is without merit.

To obtain reversal of a conviction for ineffective assistance of counsel, the moving party ordinarily must show: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). The latter showing is required because even a professionally unreasonable error by counsel does not warrant setting aside a proceeding if such error did not affect the outcome of the proceeding. Id. at 691-92.

However, the courts have recognized certain unusual cases in which prejudice may be presumed. One example is a situation in which there is a showing of actual conflict of interest between the defendant and his attorney. See Cuyler v. Sullivan, 446 U.S. 335 (1980). Similarly, prejudice is presumed where counsel is absent during a critical stage of the proceedings, see Geders v. United States, 425 U.S. 80 (1976), or where the attorney sleeps through a substantial portion of the trial. Javor v. United States, 724 F.2d 831 (9th Cir. 1984).

There are also circumstances in which late designation of trial counsel, along with other factors, may give rise to a presumption of prejudice. In Powell v. Alabama, 287 U.S. 45 (1932), the Court held that the defendants were deprived of effective assistance of counsel where they were assisted by an out-of-state lawyer, appointed on the day of the trial, who did not have an opportunity to prepare the case or familiarize himself with local procedure.

However, the Supreme Court has quite clearly stated that tardy appointment of counsel does not in itself give rise to a presumption of prejudice. United States v. Cronic, 466 U.S. 648, 661-62 (1984). Such a presumption arises only if the circumstances surrounding the defendant's representation justify such a presumption. Id. at 662. Petitioner contends that the fact that his trial counsel had 26 days to prepare for trial in a complex case is sufficient to justify a presumption of prejudice. We disagree.

In Cronic, the Court indicated that the length of counsel's preparation time and the nature of the charges are not in themselves sufficient to allow a court to conclude that the defendant is deprived of effective assistance of counsel.¹  Rather, the defendant must demonstrate that the totality of the surrounding circumstances creates a situation inherently inconsistent with a reasonably effective defense. Id. at 666 n. 40. Aviles-Perez has not done so in this case.

Petitioner's case for presumed prejudice is far less compelling than that rejected by the Court in Cronic. Cronic's case was complex, consisting of charges of mail fraud involving a check kiting scheme that the government had investigated for over four years. Thousands of documents had been reviewed by the government during that investigation. Moreover, Cronic's lawyer, who had never tried a case before a jury and was principally a real estate lawyer, was given twenty-five days to prepare, although he requested more. Such factors are absent in this case. There is nothing in the record to suggest twenty-six days was an inadequate amount of time to prepare for this trial. Both Aviles-Perez and his substitute trial counsel were aware of the amount of time remaining before trial when the voluntary substitution took place. Aviles-Perez simply has not shown that the circumstances surrounding his representation are so inherently inconsistent with a reasonably effective defense as to justify a presumption of prejudice. Cronic at 666 n. 40.

Petitioner cites United States v. King, 664 F.2d 1171 (10th Cir. 1981) and United States v. Golub, 638 F.2d 185 (10th Cir. 1980) in support of his contention that prejudice may be presumed on the basis of facts similar to those in this case. These cases are inapposite. Both are pre-Strickland Tenth Circuit cases which applied a five factor test to allow the court to infer that the defendant's Sixth Amendment rights had been violated. However, at that time, the Tenth Circuit did not require a showing of prejudice in order to establish a Sixth Amendment violation. See Golub, 638 F.2d at 187-88. Thus, the five factors went only to whether counsel's performance was reasonable, not to whether prejudice may be presumed. In fact, the Tenth Circuit applied this five factor test in Cronic to find that Cronic had been denied effective assistance of counsel. The Supreme Court reversed, specifically holding that this inferential test was no longer appropriate. 466 U.S. at 652-53 ("Under the test employed by the Court of Appeals, reversal is required even if the lawyer's actual performance was flawless. By utilizing this inferential approach, the Court of Appeals erred.").

Because this is not a case in which prejudice may be presumed, petitioner must establish that there is a reasonable probability that unprofessional errors committed by his attorney affected the outcome of his trial. Strickland, 466 U.S. at 694. He has not done so. Petitioner's brief does not allege any specific errors that may have influenced the outcome of his trial. The only elements of counsel's performance that are challenged are counsel's failure to seek a continuance to allow additional time to prepare, and counsel's failure or inability to file pretrial motions due to his late entry into the case.

Nothing in the record indicates that counsel's performance was adversely affected by having "only" 26 days to prepare for this trial. Counsel presented a long and detailed closing argument on petitioner's behalf, attempting to discredit the government's major witness, and show that the government failed to establish the elements of the continuing criminal enterprise charge. Thus, counsel's failure to request more time does not appear to have prejudiced the defendant.

Similarly, petitioner has not established that he was prejudiced by inadequate filing or handling of pretrial motions. A number of pretrial motions were filed on behalf of Aviles-Perez and the other defendants throughout the period preceding trial. In addition, petitioner does not allege what motions trial counsel should have, but failed to, litigate below, or that these motions would have had any merit. Our review of the record reveals no obvious failures on the part of petitioner's counsel in this respect. As the trial judge in this case noted, the evidence against petitioner was simply overwhelming. He has failed to establish prejudice as required by Strickland.

Petitioner's second contention is that the trial court's failure to give a lesser-included offense instruction to the jury resulted in his conviction both for conspiracy under Sec. 846 and continuing criminal enterprise under Sec. 848. This argument is without merit. As petitioner recognizes in his brief, his conviction for conspiracy under Sec. 846 was vacated by this court on direct appeal. United States v. Aviles-Perez, No. 83-5060, slip op. at 2. Nevertheless, he argues that this action "did not erase the prejudice of not permitting the jury to decide the issue." It is difficult to imagine why this would be the case. This case is not like Keeble v. United States, 412 U.S. 205 (1973) where the Court reversed a conviction of assault with intent to commit serious bodily injury because the trial court failed to instruct the jury on the uncharged lesser offense of simple assault. The lesser offense was charged in this case, and the jury was instructed on the charge. The jury concluded that there was enough evidence to convict both on the continuing criminal enterprise count and on the conspiracy count. The conviction for the greater offense is supported by the evidence. Aside from the duplicative conspiracy conviction vacated on appeal, Aviles-Perez suffered no harm from the court's refusal to give a lesser included offense instruction.

The district court's order dismissing the Sec. 2255 motion is AFFIRMED.