Arizaga v. United States

130 F. Supp. 2d 335, 2001 U.S. Dist. LEXIS 1416, 2001 WL 114972
CourtDistrict Court, D. Puerto Rico
DecidedFebruary 5, 2001
DocketNo. CIV. 99-2120(HL); No. CRIM. 96-214(HL)
StatusPublished

This text of 130 F. Supp. 2d 335 (Arizaga v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizaga v. United States, 130 F. Supp. 2d 335, 2001 U.S. Dist. LEXIS 1416, 2001 WL 114972 (prd 2001).

Opinion

OPINION AND ORDER

LAFFITTE, Chief Judge.

Before the Court is a petition for post-conviction relief under 28 U.S.C. § 2255 filed by José Arizaga. Arizaga was charged in three of the indictment’s fifteen counts. Count one charged him with being part of a conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count twelve charged him with possessing one kilogram of cocaine with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Count fourteen charged him with attempting to possess ten kilograms of cocaine with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846.1 Sixteen other individuals were charged in the indictment. Most of them plead guilty. Arizaga and three other defendants chose to go to trial. After a seven-day trial, the jury found Arizaga guilty on all three counts.2 The Court sentenced him to one hundred twenty-one months as to counts one and fourteen and sixty months as to count twelve, to be served concurrently.3 He appealed, and the First Circuit affirmed his conviction in an unpublished opinion. See United States v. Arizaga, 187 F.3d 623, 1999 WL 529523 (1st Cir. March 11,1999).

Arizaga then filed the present petition. He claims that he was denied his Sixth Amendment right to effective assistance when his trial attorney failed to move for a severance; failed to let him testify; failed to interview or call as a witness co-defendant Samuel Rivera Maldonado; .failed to interview or call as a witness the manager of the Burger King where a drug transaction involved in this case took place; failed to present a Government video taken at [338]*338the Burger King; failed to point out discrepancies in the testimonies of the police officers who were present; and failed to attack the credibility of Luis Chevere, the Government’s chief witness. He also bases his petition on claims that the Court should have granted the Rule 29 motion made at trial and that the jury’s verdict was based on unsupported conjecture and speculation.

DISCUSSION

1. Failure to move for a severance

Because Arizaga is appearing pro se, the Court will broadly construe normal pleading requirements. See United States v. Michaud, 925 F.2d 37, 41 (1st Cir.1991) The Sixth Amendment guarantees a criminal defendant effective assistance of counsel in order to protect that defendant’s fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). The Constitution does not guarantee a defendant a perfect or successful defense; rather, he is guaranteed “ ‘reasonably effective assistance under the circumstances then obtaining.’ ” Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993) (quoting United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991)). A court should evaluate the challenged conduct not with the benefit of hindsight, but from the attorney’s perspective at the time of the trial. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Lema, 987 F.2d at 51.

A petitioner must show, first, that his counsel’s performance was deficient and, second, that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir.1996); Bonneau v. United States, 961 F.2d 17, 20 (1st Cir.1992). The petitioner has the burden of proving both prongs of this test, and the burden is a heavy one. Bucuvalas, 98 F.3d at 658. An attorney’s performance is deficient if it is “ ‘so inferior as to be objectively unreasonable.’ ” Id. (quoting United States v. McGill, 11 F.3d 223, 226 (1st Cir.1993)). The petitioner must show that, but for his counsel’s deficient performance, the outcome would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; United States v. Hart, 933 F.2d 80, 83 (1st Cir.1991); Carsetti v. Maine, 932 F.2d 1007, 1012 (1st Cir.1991). He must show that his counsel’s errors were so serious that they deprived him of a fair trial, a trial whose result is reliable. United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.1999). There is a strong presumption that the counsel’s performance comes within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The defendant must overcome the presumption that his counsel’s performance could “ ‘be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). The court’s scrutiny of the attorney’s performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Arizaga argues that his trial attorney should have moved to sever his case. He asserts that he was prejudiced by the spill-over from the conduct charged against the other defendants with whom he went to trial. The general rule in federal court, however, is that defendants who are indicted together should be tried together. United States v. Shareef, 190 F.3d 71, 77 (2nd Cir.1999); United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.1999). It is not at all apparent that a motion to sever would have been successful. Given the lack of a clear likelihood of success that a motion for severance would have had, the failure to move for one was not deficient or so inferior as to be objectively unreasonable.

2. Failure to let Arizaga testify

Arizaga next argues that his attorney prevented him from taking the stand to testify in his own behalf.

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Related

Affronti v. United States
350 U.S. 79 (Supreme Court, 1955)
Michel v. Louisiana
350 U.S. 91 (Supreme Court, 1956)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
United States v. McGill
11 F.3d 223 (First Circuit, 1993)
Bucuvalas v. United States
98 F.3d 652 (First Circuit, 1996)
United States v. Ademaj
170 F.3d 58 (First Circuit, 1999)
United States v. DeLeon
187 F.3d 60 (First Circuit, 1999)
United States v. Hubert Michaud
925 F.2d 37 (First Circuit, 1991)
Emil Carsetti v. State of Maine
932 F.2d 1007 (First Circuit, 1991)
Kenneth L. Kenley v. Bill Armontrout
937 F.2d 1298 (Eighth Circuit, 1991)
United States v. Donald Teague
953 F.2d 1525 (Eleventh Circuit, 1992)
Dennis Bonneau v. United States
961 F.2d 17 (First Circuit, 1992)
Charles D. Lema v. United States
987 F.2d 48 (First Circuit, 1993)
United States v. Jabril Shareef
190 F.3d 71 (Second Circuit, 1999)
Passos-Paternina v. United States
12 F. Supp. 2d 231 (D. Puerto Rico, 1998)

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Bluebook (online)
130 F. Supp. 2d 335, 2001 U.S. Dist. LEXIS 1416, 2001 WL 114972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizaga-v-united-states-prd-2001.