Beatrice Munyenyezi v. USA

2017 DNH 171

• Court: District Court, D. New Hampshire
• Decided: August 30, 2017
• Docket: 16-cv-402-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Beatrice Munyenyezi, Petitioner

v. Case No. 16-cv-402-SM Opinion No. 2017 DNH 171

United States of America, Respondent

O R D E R

Petitioner, Beatrice Munyenyezi, seeks relief from her

conviction and sentence under the provisions of 28 U.S.C.

§ 2255. Petitioner was convicted by a jury of unlawfully

procuring citizenship or naturalization (18 U.S.C. §§ (a) and

(b)).

Petitioner says her appointed defense counsel provided

constitutionally deficient representation; that prosecutorial

misconduct occurred in that the government failed to disclose

exculpatory evidence prior to trial and that she is entitled to

sentence relief under Johnson v. United States, 135 S. Ct. 2551

(2015). None of her claims have merit.

1 Ineffective Assistance

Defense counsel, as noted by the court of Appeals on direct

appeal, provided a thorough, zealous and informed defense. See

United States v. Munyenyezi, 781 F.3d 532 (1st Cir. 2015). They

poured over records; reviewed the history of Rwanda’s genocide;

researched the aftermath and current posture of the Rwandan

government toward those who perpetrated atrocities during the

months of genocide; traveled to Rwanda twice to identify and

interview potential defense witnesses and arranged their travel

to testify in the United States; retained an academic expert to

support a defense of Rwandan governmental manipulation of the

prosecution’s witnesses; and presented witnesses and vigorous

argument in support of defenses ranging from complete innocence

to mistakes in translation with respect to the pertinent

documents.

Nevertheless, says petitioner, counsel should have moved

for a change of venue. But venue was proper in this district,

and such motion would not have been granted. While petitioner

thinks that pretrial publicity counseled in favor of a change in

venue, the jury panel voir dire and individual juror voir dire

at side bar disclosed no basis to conclude that the empaneled

2 jury was influenced by any negative publicity. Certainly

petitioner has not shown that prejudice existed against her that

was so great that she could not obtain a fair trial. United

States v. Dougar, 748 F.2d 8, 29 (1st Cir. 1984). United States

v. Gullion, 575, F.2d 26, 28 (1st Cir. 1978). What publicity

occurred before and during the trial was generally factual, non-

hysterical, not overblown, nor so pervasive and biased as to

raise any concerns regarding the ability to empanel a fair and

impartial jury, and the jury was fair and impartial. It was

well within defense counsel’s discretion not to seek a change in

venue. It was hardly error not to do so. And, failure to seek

a venue change did not prejudice respondent in any way.

Next petitioner claims that counsel did not adequately

prepare for trial. The record completely belies the claim.

Counsel went well beyond the call of duty in providing an

exceptional defense effort in this case. Petitioner points to

nothing left undone that would have made any material difference

in the outcome, and nothing that would remotely qualify as

deficient performance, or that might have been materially

prejudicial. There are no perfect trials of course; to obtain

relief on grounds of ineffective assistance petitioner must do

3 more than second guess counsel’s performance, she must show that

their performance was so deficient that they were not

functioning as the counsel guaranteed by the Sixth Amendment and

that the deficient performance prejudiced her defense.

Strickland v. Washington, 466 U.S. 668 (1984). Petitioner

cannot begin to make such a showing on this record.

Petitioner asserts that counsel should have renewed

objections previously made to questions related to petitioner’s

sister’s relationship with the alleged head of the Rwandan

secret police. Again, petitioner can show no prejudice —

counsel did object, and the jury understood the point (facts

assumed in questions are not in evidence and the question itself

is not evidence of the assumed fact). The jury was repeatedly

instructed on the point and fully understood it. Even if

additional objections were called for, there was no prejudicial

effect given those instructions and the jury’s clear

comprehension, as well as the fact that the evidence of

petitioner’s guilt was overwhelming — the outcome would hardly

have been different had counsel interposed an additional

identical objection to the government’s questions.

4 Finally, petitioner criticizes counsels’ handling of the

sentencing phase of trial. There can be no legitimate

complaint. Counsel argued vigorously and as effectively as the

record evidence and prevailing circumstances would permit.

Counsel challenged the proposed departure from the facially

applicable Guideline Sentencing Range, argued for leniency in

light of respondent’s new life and family responsibilities,

reiterated defense themes related to mitigation, including

argument about the lack of certainty in the verdict as to the

nature of the misrepresentations underlying the counts of

conviction.

Counsel’s representation was not only not deficient, it was

commendable. See Munyenyezi, supra.

The sentence was not unreasonable for the reasons fully

discussed on the record at sentencing. Id.

The Johnson Claim

The holding in Johnson v. United States, 135 S. Ct. 2551

(2015) does not apply to this case. Petitioner was not

5 sentenced under the Armed Career Criminal Act, and her crimes of

conviction do not qualify as violent felonies.

Failure to Disclose Exculpatory Evidence

This claim, too, is without merit. While it is not

entirely clear what petitioner is asserting, she seems to say

that Defense Department satellite photographs exist that would

have clearly shown the roadblock over which petitioner was

alleged to have presided in April of 1994. Those photographs,

she says, would establish that she was not present. But there

is no evidence that such photographs exist. To the contrary,

the government’s satellite photograph expert testified that all

relevant photographs had been located and had been provided to

the defense. The government’s expert denied that any other

photographs existed beyond what was disclosed, and the

prosecution says they do not exist and so were not withheld from

the defense. Petitioner refers to a possible Brady violation,

Brady v. Maryland, 373 U.S. 83 (1963), but there is no evidence

presented showing that at any time prior to or during trial the

government was aware of any such photographs, or had custody or

control of such evidence, yet failed to disclose it.

6 Accordingly, the Brady rule is not triggered here. See United

States v. Maldonado-Rivera, 489 F.3d 60, 67 (1st Cir. 2007).

Conclusion

As the files and records of this case conclusively show

that the petitioner is entitled to no relief, the motion is

denied.

Petitioner has not made a substantial showing of the denial

of a constitutional right. The court, therefore, declines to

issue a certificate of appealability. 28 U.S.C. §

2253(c)(2)(1); Rule 11, Rules Governing Section 2255

Proceedings.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 30, 2017

cc: Beatrice Munyenyezi, pro se John A. Capin, AUSA