Armando Lisasuain v. USA

• Court: District Court, D. New Hampshire
• Decided: April 22, 1999
• Docket: CV-98-624-B
• Status: Published

Opinion

Armando Lisasuain v. USA CV-98-624-B 04/22/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Armando Lisasuain

v. Civil No. 98-624-B

United States of America

MEMORANDUM AND ORDER

I have reviewed Armando Lisasuain's motion seeking relief

pursuant to 28 U.S.C. § 2255, the government's objection to the

motion, Lisasuain's response to the government's objection,

Lisasuain's motion to amend his § 2255 motion, the files in the

underlying case, the trial transcript, and the sentencing hearing

transcript. I am also thoroughly familiar with the underlying

case as I presided over Lisasuain's two-day criminal trial and

his sentencing. Based on my familiarity with the case and my

review of the record, I am satisfied that, notwithstanding

Lisasuain's conclusory allegations to the contrary, the record

conclusively demonstrates that Lisasuain is not entitled to

relief pursuant to § 2255. Accordingly, for reasons I explain in

greater detail below, I deny his § 2255 motion without holding an evidentiary hearing. See David v. United States, 134 F.3d 470,

477 (1st Cir. 1998).

Lisasuain's claims fall into three different categories. He

first contends that his conviction should be vacated because it

was based on perjured testimony and insufficient evidence. He

next argues that I made certain legal errors during his

sentencing hearing. Finally, he argues that his trial counsel,

his sentencing counsel, and his appellate counsel were all

constitutionally ineffective. I address each class of claims in

turn.

I. Perjured Testimony and Sufficiency of the Evidence

The first five grounds cited by Lisasuain in support of his

motion challenge the truthfulness of the government's witnesses

and argue that the evidence was insufficient to support his

conviction. The short answer to these claims is that they simply

have no merit. The jury rejected Lisasuain's challenges to the

government's evidence at trial and the government produced ample

evidence to warrant a conviction. Lisasuain cites no new

evidence that would call into guestion the jury's decision.

2 II. Sentencing Errors

Lisasuain also argues that I erred in giving him an

obstruction of justice enhancement for committing perjury during

his trial and in determining that he should be sentenced as a

career offender. Lisasuain cites no new evidence to support his

challenges to these decisions and the record provides ample

support for both enhancements. Moreover, the First Circuit Court

of Appeals has already rejected Lisasuain's career offender

claim. See United States v. Lisasuain, No. 97-1172 (1st Cir.

Aug. 5, 1998) at 2. Accordingly, I reject both arguments.

Ill. Ineffective Assistance of Counsel

Lisasuain's remaining arguments challenge the effectiveness

of his trial counsel, his sentencing counsel, and his appellate

counsel. In order to establish an ineffective assistance of

counsel claim, Lisasuain must establish that "(1) counsel's

performance fell below an objective standard of reasonableness

and (2) there is a reasonable probability that but for counsel's

error the result of the proceedings should have been different."

Smullen v. United States, 94 F.3d 20, 23 (1st Cir. 1996) .

Lisasuain's claims must be rejected because he can satisfy

neither reguirement.

3 A. Trial Counsel

Lisasuain argues in a conclusory fashion that his trial

counsel was ineffective because she (1) failed to call the

government's informant, Henry Bellamare, as a trial witness; (2)

failed to exploit evidence suggesting that the telephone number

that Bellamare allegedly dialed to set up the drug deal was an

unlisted number not registered to Lisasuain; and (3) conducted an

ineffective direct-examination of Lisasuain. Each contention is

easily answered. First, defense counsel's decision not to call

Bellamare was a reasonable, tactical decision and both her

exploitation of the allegedly erroneous telephone number and her

direct-examination of the defendant were competently done.

Second, Lisasuain has failed to explain how calling Bellamare,

using the telephone number issue more effectively, or conducting

a more powerful examination of the defendant could have produced

a different outcome. Accordingly, Lisasuain has failed to

establish either aspect of his claim that his trial counsel was

constitutionally ineffective.

B. Sentencing Counsel

Lisasuain complains that his sentencing counsel was

ineffective because he failed to object to the use of his prior

convictions at sentencing. The short answer to this argument is

4 that it was considered and rejected by the court of appeals when

it resolved his direct appeal. See Lisasuain, No. 97-1172 (1st

Cir. Aug. 4, 1998) at 2.

C. Appellate Counsel

Lisasuain argues that his appellate counsel was ineffective

because he failed to raise the issues Lisasuain is attempting to

raise in his § 2255 motion. As I have already determined that

none of Lisasuain's other § 2255 arguments have merit, I reject

his argument that his appellate counsel was ineffective because

he failed to raise the issues himself.

IV. Conclusion

As all of Lisasuain's claims are plainly lacking in merit,

his motion is denied.

SO ORDERED.

Paul Barbadoro Chief Judge

April 22, 1999

cc: Armando Lisasuain, pro se