Maldonado-Garcia v. United States of America, No. 3:2006cv01685 - Document 11 (D.P.R. 2009)
Court Description: OPINION AND ORDER. Petitioner's motion to vacate, set aside, or correct sentence is DENIED. Signed by Judge Salvador E Casellas on 8/3/2009.(LB)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 5 6 7 NESTOR MALDONADO-GARCIA, Petitioner v. Civil No. 06-1685 (SEC) UNITED STATES OF AMERICA Respondent 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 OPINION & ORDER Pending before this Court is Petitioner Nestor Maldonado-Garcia s ( Petitioner ) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.A § 2255, seeking to invalidate his sentence in Criminal Case No. 03-230 (HL)-1. See Docket # 1. The United States of America ( United States ) opposed Petitioner s claims. See Docket # 6. After considering the filings, and the applicable law, Petitioner s motion is hereby DENIED. Factual and Procedural Background The facts of the case go back to July 26, 2003, when Caribbean Transportation Services (CTS), a California based freight shipping company, detected a large quantity of marijuana in one of its shipments destined for Puerto Rico. CTS employees confirmed that the two (2) crates contained marijuana concealed in false bottoms, and that the shipment was between two nonexisting companies in California and Puerto Rico. DEA agents took custody of the crates, took them apart, photographed, and weighed the narcotics. The shipment was kept overnight in the office safe for controlled delivery as previously accorded with the DEA office in Puerto Rico. During the trip from California, the crates were not removed from the plane. DEA agents received the crates at the airport in Puerto Rico. 1 Civil Case No. 06-1685 (SEC) Page 2 2 On July 28, 2003, Petitioner arrived alone at CTS to pick up the crates in a Ford 450 3 dump truck. At CTS, Maldonado-Garcia picked up the merchandise, and paid the freight 4 charges with six (6) pre-filled money orders under a false name, Jose de Leon. CTS employees 5 loaded the crates in to the back of Petitioner s truck. As he was leaving the CTS facilities, the 6 truck was stopped, and the agents arrested him. While Maldonado-Garcia was being pulled out 7 of the truck, Fano Samuel Cruz-Santiago, a Puerto Rico police officer assigned to the DEA task 8 force, observed a revolver on the floor area of the vehicle. 9 A Grand Jury indicted Petitioner on three counts. The charges were: aiding and abetting 10 in the possession, with intent to distribute, of approximately five-hundred forty-one (541) 11 pounds of marijuana, under 18 U.S.C. § 2, and 21 U.S.C. § 841(a)(1), (b)(1)(vii) ( Count One ); 12 knowingly, willfully, intentionally, and unlawfully possessing or carrying a firearm in 13 furtherance, or during and in relation to a drug trafficking crime, under 18 U.S.C. § 14 924(c)(1)(A) and (c)(1)(A) ( Count Two ); and knowingly and unlawfully possessing a firearm 15 with an obliterated or removed serial number, which had been shipped or transported in foreign 16 or interstate commerce, under 18 U.S.C. § 922(k), and 924(a)(1)(B) ( Count Three ). See 17 Docket ## 1 & 6. However, the district court declared a mistrial on June 17, 2004, since the 18 jury could not reach a verdict. Notwithstanding, a second jury trial commenced on July 29, 19 2004, and the jury found Petitioner guilty on all counts. Accordingly, on November 8, 2004, 20 the Court sentenced Petitioner to 63 months for Counts One and Three, and 60 months for 21 Count Two, to be served consecutively. The total sentence was 123 months. 22 Petitioner appealed, and his conviction was affirmed by the First Circuit. U.S. v. 23 Maldonado-Garcia, 446 F.3d 227 (1st Cir. 2006). On appeal, he argued, to no avail, that there 24 was insufficient evidence to establish that he knowingly possessed the firearm found in the truck 25 he was driving. He also unsuccessfully appealed the trial court s exclusion of testimonial 26 evidence related to the violent death of a prior lessee of the truck. Now Petitioner seeks to 1 Civil Case No. 06-1685 (SEC) 2 strike his sentence on the following grounds: (1) that his constitutional right to counsel was 3 violated because his counsel provided ineffective assistance in failing to renew a Rule 29 4 motion after all of the evidence was presented, or following the jury s verdict; (2) the testimony 5 of the DEA agent concerning the discovery of the weapon was inadmissible hearsay because 6 he was not the agent who found it; and (3) due to the cumulative effect of errors, Petitioner was 7 not able to receive a fair trial, nor a proper adjudication on appeal. Page 3 8 In opposition, the Government argues that: (1) counsel was not ineffective at sentencing, 9 or on appeal, (2) the record indicates that there was direct testimony in court by the agent that 10 discovered the revolver, and (3) the errors pointed out by Petitioner were not constitutional, and 11 cannot be accumulated. 12 Standard of Review 13 The standard of review for an attorney s performance is a very forgiving one. See U.S. 14 v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (citing Delgado v. Lewis, 223 F.3d 976, 981 (9th 15 Cir. 2000)). The Sixth Amendment to the Constitution of the United States provides in part 16 that: [i]n all criminal prosecutions, the accused shall enjoy the right to [...] have the Assistance 17 of Counsel for his defence (sic). U.S. C ONST. amend. VI. The legal assistance envisioned by 18 the Amendment, however, is not satisfied by merely having a lawyer present alongside the 19 defendant during trial. In order to comply with the Sixth Amendment guarantee, counsel must 20 provide effective assistance. Strickland v. Washington, 466 U.S. 668, 685-686 (1984). 21 A convicted defendant who questions the validity of the criminal proceeding against him 22 by way of claiming ineffective assistance of counsel must meet the two-part test established by 23 the U.S. Supreme Court in Strickland. This requires the criminal defendant to first establish 24 that (1) counsel s representation fell below an objective standard of reasonableness , and (2) 25 a reasonable probability that, but for counsel s unprofessional errors, the result of the 26 proceeding would have been different. Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) 1 Civil No. 06-1685 (SEC) 2 (citing Smiley v. Maloney, 422 F.3d 17, 20 (1st Cir. 2005) (quoting Strickland, 466 U.S. at 3 684)). In relation to the first part of the test, the U.S. Supreme Court has stated that there is a 4 strong presumption that counsel s conduct falls within the wide range of reasonable professional 5 assistance. Strickland, 466 U.S. at 700. Page 4 6 Even if a criminal defendant overcomes this rather formidable obstacle, his ineffective 7 assistance claim will not prosper unless he can also establish the second prong of the test. See 8 id. Strickland s holding also requires a showing that counsel s deficient performance prejudiced 9 the defendant. Id. at 694. That does not mean, however, that the court must address the two 10 prongs of the test in the order above, or even analyze both. If the court is satisfied that the 11 defendant cannot establish either that Counsel was deficient, or that such deficiency prejudiced 12 the defendant, it may dispose of the claim without further ado. See id. at 697. 13 Finally, the court s evaluation of Counsel s performance must be highly deferential. Id. 14 at 691. The Supreme Court held that [i]t is all too tempting for a defendant to second-guess 15 counsel s assistance after conviction or adverse sentence, and it is all too easy for a court, 16 examining counsel s defense after it has proved unsuccessful, to conclude that a particular act 17 or omission of counsel was unreasonable. Id. Therefore, to make a fair assessment of an 18 attorney s performance, the court should attempt to eliminate the distorting effects of hindsight. 19 Id. 20 Applicable Law and Analysis 21 Ineffective Assistance of Counsel 22 In his § 2255 motion, Petitioner first avers that his trial lawyer was ineffective at the 23 district court level. Specifically, Petitioner argues that due to his counsel s failure to renew a 24 Rule 29 motion at the end of his case, and after the jury verdict, the Court of Appeals held that 25 Maldonado waived his right to challenge the sufficiency of the evidence, and thus, the Court s 26 review was limited to clear and gross injustice. 1 Civil No. 06-1685 (SEC) Page 5 2 3 To succeed in the § 2255 motion, herein Petitioner must prove that the failure to present 4 a motion for acquittal was prejudicial. U.S. v. Finley, 245 F.3d 199, 202 (2nd Cir. 2001) (failure 5 of defense counsel to renew a motion for acquittal at the close of defendant s case did not 6 amount to inadequate representation); U.S. v. Draves, 103 F.3d 1328, 1336 (7th Cir.1997); U.S. 7 v. Quintero-Barraza, 78 F.3d 1344, 1351 (9th Cir.1995) (finding that although counsel s failure 8 to file a renewed motion for acquittal waived any challenge to the sufficiency of the evidence, 9 it did not constitute ineffective assistance). However, even if Petitioner could establish that his 10 counsel was deficient in failing to renew his motion for judgment of acquittal, he has not shown 11 that he was prejudiced by this deficiency. Strickland, 466 U.S. at 697. Maldonado has failed 12 to show a reasonable probability that had his counsel renewed the motion for judgment of 13 acquittal, said motion would have been granted on the basis of insufficient evidence. U.S. v. 14 Rosalez-Orozco, 8 F.3d 198, 200 (5th Cir. 1993). Furthermore, on direct appeal, the Court 15 determined that there was sufficient evidence to support Petitioner s convictions.1 16 Petitioner also avers that his counsel did not challenge the chain of custody of the seized 17 drugs,2 further damaging his defense, and the outcome of the trial. See Docket # 1, p. 12. In 18 affirming the conviction, the Appellate Court stated that [w]ith respect to the firearms offenses 19 -- the appellant wisely does not attempt to challenge the sufficiency of the evidence on the drug 20 trafficking count [...]. Maldonado-GarcÃa, 446 F.3d at 231. The Court also held that the 21 evidence presented at trial was sufficient to permit a rational juror to conclude beyond a 22 reasonable doubt that the appellant constructively possessed the gun found in the truck. Id. 23 1 24 25 Given the evidence of the money orders, the use of an alias, and the appellant s attempt to evade arrest, the jury had ample reason to conclude that the appellant s involvement with the drugs was far from innocent. Maldonado-Garcia, 446 F. 3d at 321, n. 5. 2 26 The appellant s counselled (sic) brief also asserted a challenge with respect to the chain of custody of the seized drugs. Appellant s counsel explicitly abandoned this challenge during oral argument , however, and we make no further mention of it. Maldonado-Garcia, 446 F.3d at 229, n. 1. 1 2 Civil No. 06-1685 (SEC) Page 6 If counsel opted not to challenge the sufficiency of the evidence on the drug trafficking 3 count, the decision fell within his sound discretion. Furthermore, it is revealing that 4 Maldonado-Garcia praised his counsel in court, Mr. Nicholas [sic] Velez, who did an excellent 5 job of defending me in both trials. I have no complaints whatsoever. See Transcript of Record 6 at 6-7, Maldonado-Garcia, CR-03-0230 (HL) (2004). 7 Claims of ineffective assistance of appellate counsel are also measured under the 8 Strickland standard. Evitts v. Lucey, 469 U.S. 387 (1985). Tactical choices regarding issues 9 on appeal are properly left to the sound judgment of counsel. U.S. v. Perry, 908 F.2d 56, 59 (6th 10 Cir.1990). Appellate counsel is not required to raise every non-frivolous claim, but rather 11 selects among them to maximize the likelihood of success on the merits. Lattimore v. Dubois, 12 311 F.3d 46 (1st Cir. 2002). Winnowing out weaker arguments on appeal and focusing on 13 those more likely to prevail, far from being evidence of incompetence, is the hallmark of 14 appellate advocacy. Smith v. Murray, 477 U.S. 527, 536 (1986) (citing Jones v. Barnes, 463 15 U.S. 745, 751-752 (1983)). Where appellate counsel is charged with ineffectiveness for failure 16 to raise a particular claim, it is difficult to demonstrate that counsel was incompetent. Smith 17 v. Robbins, 528 U.S. 259, 288 (2000). To overcome the presumption of competence of 18 appellate counsel in these circumstances, a petitioner must show that the omitted issues were 19 clearly stronger than those counsel chose to assert. Id. Consequently, even if the unasserted 20 claim was not frivolous, the required prejudice cannot be shown if the claim is found to lack 21 merit. See Burton v. Renico, 391 F.3d 764, 773 (6th Cir. 2004). 22 Even applying the general Rule 29 standard, rather than the stricter clear and gross 23 injustice standard, it appears that a rational trier of fact could have found that the essential 24 elements of the crime(s) were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 25 307, 319 (1979). Petitioner s challenge to the sufficiency of the evidence fails. 26 1 Civil No. 06-1685 (SEC) Page 7 2 Inadmissable hearsay testimony 3 Petitioner also challenges the weapon s count, averting that he should not have been 4 convicted on this charge. First, he asserts that there was conflicting testimony as to the 5 weapon s location. Secondly, he claims that counsel was ineffective because his attorney 6 allowed hearsay testimony to enter the record, because the agent that located the weapon did 7 not testify at trial. However, the record shows that, on the second day of trial, the Government 8 called Task Force Agent Fano Cruz as a witness. He testified that, in overseeing security, he 9 observed how Defendant was removed from the driver s side of the truck. He then noticed the 10 weapon lying on the floor.3 Thus the record belies Petitioner. 11 Moreover, since the challenge to the firearms count was raised and settled on appeal,4 12 the same cannot be revisited under a collateral proceeding. Section 2255 cannot be used to 13 relitigate matters that were decided on appeal. Berthoff v. U.S., 308 F.3d 124, 127-128 (1st Cir. 14 2002); Singleton v. U.S., 26 F.3d 233, 240 (1st Cir. 1993). In view of this, Maldonado s second 15 challenge to the inadmissable hearsay testimony also fails. 16 Cumulative effect of errors 17 Petitioner claims that the errors that occurred had a cumulative effect, which prejudiced 18 his right to a fair trial. The First Circuit has held that, under limited circumstances, the 19 cumulative effect of several errors may prejudice a defendant to the extent that his conviction 20 must be overturned. . In U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), the Court held that 21 individual errors insufficient of themselves to necessitate a new trial may in the aggregate have 22 a more debilitating effect. Id. at 1195-96. 23 constitutional error, and nothing can accumulate to the level of a constitutional violation. However, in this case, there is no single 24 25 3 Agent Fano Cruz s testimony, see Docket # 6, p.9. 26 4 See Maldonado-Garcia, 446 F.3d at 231. 1 Civil No. 06-1685 (SEC) Page 8 2 In his motion, Petitioner limits himself to state that counsel s omission were [sic] 3 ineffectiveness [sic] to the point where the petitioner did not receive a fair trial, nor a proper 4 adjudication on his appeal, without referring to the errors allegedly committed. Unfortunately 5 for Maldonado, the alleged errors are non-existent. 6 evidentiary sufficiency of the case, and concluded that Maldonado was fairly tried, justly 7 convicted, and lawfully sentenced. Maldonado-GarcÃa, 446 F.3d at 233. As a result, this Court 8 finds that Maldonado has not been able to establish that the District Court erred, and, 9 accordingly, there is no cumulative effect of errors which would amount to a due process 10 violation. U.S. v. Flemmi, 402 F. 3d 79, 95 n.23 (1st Cir. 2005) (finding that because we have 11 found that none of [the defendant s] individual complaints resulted in prejudice, and that most 12 are completely without merit, we reject the final contention that his conviction was tainted by 13 cumulative error. ) (quoting U.S. v. DeMasi, 40 F.3d 1306, 1322 (1st Cir. 1994)). The Court of Appeals reviewed the 14 Conclusion 15 In light of the above, this Court concludes that Petitioner s claim for ineffective 16 assistance of counsel lacks support in the record. As a result, his § 2255 motion is hereby 17 DENIED, and this case is hereby DISMISSED with PREJUDICE. 18 IT IS SO ORDERED. 19 In San Juan, Puerto Rico, this 3 rd day of August, 2009. 20 21 22 23 24 25 26 S/ Salvador E. Casellas SALVADOR E. CASELLAS United States District Judge
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