Rizo v. United States

662 F. App'x 901
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 1, 2016
DocketNo. 15-10679
StatusPublished
Cited by6 cases

This text of 662 F. App'x 901 (Rizo v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rizo v. United States, 662 F. App'x 901 (11th Cir. 2016).

Opinion

PER CURIAM:

Abel Rizo appeals denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or reduce his sentence, following an evidentiary hearing on remand. We affirm.

I. BACKGROUND

A. Underlying Criminal Case

Rizo emigrated from Cuba to the United States with his family as a child and settled in Miami, Florida. From August 1992 to May 1996, Rizo attended Lambuth University in Jackson, Tennessee, on a football scholarship. Rizo was arrested for drug, firearm, robbery, and conspiracy crimes in June 1996. There were fourteen codefendants, including his father, mother, and brother. Rizo and his codefendants allegedly were members of a criminal enterprise involved in robbing and extorting drug traffickers. The indictment implicated Rizo in four robberies. As an overt act in furtherance of the conspiracy, it alleged several of Rizo’s codefendants traveled to Puerto Rico in late July 1992 to obtain cocaine (the “Puerto Rico rip-off”), the proceeds of which were delivered to Rizo and his family. Rizo also was charged for a robbery on June 29, 1992 (the “Lozano robbery”), a robbery on April 30, 1993 (the “Cano robbery”), and a robbery on November 24, 1993 (the “De la Torre robbery”).

Rizo initially was represented by Howard Sohn, but a conflict arose with his representation; on August 30, 1996, Lance Armstrong was substituted as Rizo’s counsel. Rizo pled not guilty and proceeded to trial with five codefendants, including his father. At trial, a cooperating codefendant implicated Rizo in an uncharged robbery in late March 1994 (the “Carmelo robbery”). The jury found Rizo guilty on all eight counts with which he was charged.

[903]*903Prior to sentencing, Rizo obtained new counsel. At the sentencing hearing in August 1997, Rizo sought to present alibi witnesses. The district judge permitted Rizo to proffer the proposed alibi testimony; the judge noted, however, the jury had convicted Rizo, and a sentencing hearing was not the appropriate forum for presenting an alibi defense. The judge also permitted Rizo to present alibi testimony concerning the Puerto Rico rip-off from his grandfather, Hinaico Velasquez, because Rizo was implicated in, but not charged with, that crime. Velasquez testified Rizo was living on his farm in July 1992. On cross-examination, Velasquez stated it was impossible to say whether Rizo actually lived on the farm for the entire month or spent every hour on the farm. The district judge sentenced Rizo to 468 months of imprisonment. Rizo appealed; we affirmed his conviction and sentence in April 2001. United States v. Gallego, 247 F.3d 1191 (11th Cir. 2001).

B. § 2255 Motion and Initial Appeal

Rizo filed a § 2255 motion with supporting affidavits, which included a claim of ineffective assistance of counsel because of Armstrong’s failure to call his alibi witnesses at trial. The government argued the statements of the proffered alibi witnesses failed to provide an alibi for Rizo; Armstrong had made a reasonable strategic decision to present a defense focused on discrediting the testimony of the government witnesses, rather than presenting an implausible alibi defense that was unlikely to succeed. A magistrate judge issued a Report and Recommendation (“R&R”) and recommended Rizo’s § 2255 motion be denied without holding an evidentiary hearing.

The district judge adopted the R&R over Rizo’s objections and denied his motion; however, she granted him a Certificate of Appealability (“COA”) on the question of whether the judge had erred in denying Rizo’s alibi claim without holding an evidentiary hearing. On appeal, we vacated the denial of Rizo’s § 2255 motion and remanded the case with instructions to hold an evidentiary hearing on Rizo’s alibi claim. Rizo v. United States, 446 Fed.Appx. 264, 266 (11th Cir. 2011). We concluded the affidavits attached to Rizo’s motion and the trial transcript did not conclusively establish Armstrong’s failure to pursue the potential alibi witnesses did not prejudice Rizo’s defense.

C. Proceedings on Remand

1. Evidentiary Hearing

On remand, an evidentiary hearing was conducted before a magistrate judge. Victor Wallace, Rizo’s former football coach, testified, in August 1996, he had sent a letter to Sohn, Rizo’s first attorney, attached a copy of the 1994 spring football schedule, and stated he would be available to testify on Rizo’s behalf. Wallace did not recall ever being contacted by Armstrong and testified he was never asked or subpoenaed to be a witness at trial. Wallace did not recall Rizo ever missing a practice. Wallace acknowledged his letter to Sohn had stated, unless Rizo was in his presence when the alleged crimes were committed, he could not testify to Rizo’s innocence.

Eugene Poole, Rizo’s roommate, testified he had seen Rizo every day while he was at Lambuth. Final exams took place at the end of April in 1993; the last day of exams was April 29, 1993. The day after exams ended, Poole and Rizo helped Rizo’s girlfriend, Juliana Meadow, and her roommate move from their dorm room. Poole and Rizo left Lambuth around noon or 1 p.m. on April 30,1993; Poole did not arrive at his home in Opa Locka, Florida, until the afternoon or evening the next day. Poole was not contacted by an attorney [904]*904regarding Rizo’s case and had not seen Armstrong before the evidentiary hearing. Juliana contacted Poole in .1996 or 1997 about testifying on Rizo’s behalf; Poole told her he was available to testify. On cross-examination, Poole stated he did not remember Juliana’s providing him with the name or .contact information of any lawyers before or during the trial; Juliana, however, did contact him to testify at the sentencing hearing.

Sven Ouderdorp, Rizo’s teammate, testified he saw Rizo “pretty much every day at practice,” ate with him almost every day, and often saw him during his free time, when they were at Lambuth. Eviden-tiary Hr’g Tr. at 75 (July 26, 2012). Rizo was present at every football practice and weightlifting session. In March 1994, Oud-erdorp saw Rizo every day, including during their spring break trip to Key Largo. They left Lambuth on March 5 and returned to Tennessee on March 13. During the trip, they went fishing and Ouderdorp went with Rizo to purchase an engagement ring for Juliana. Ouderdorp was not contacted by an attorney or investigator regarding Rizo during the relevant time period. After Juliana initially informed him of Rizo’s arrest, she never contacted Ouder-dorp about being a witness at trial. Juliana did have Ouderdorp’s contact information at that time.

Kimberly Simmons Ingram testified-Rizo had helped pack her car on Friday, April 30, 1993. Rizo and Poole came over that morning; Ingram had left campus before noon. When she left, Rizo and Poole were still on campus. Juliana contacted Ingram two or three times between May and December 1996 and asked her to contact Rizo’s lawyer. Ingram attempted to contact Armstrong three or four times by telephone and left messages; Armstrong did not return her calls. After reviewing her affidavit to refresh her memory, Ingram testified she had attempted to contact Armstrong by fax, but she no longer had the fax. Ingram stated she would have been available to testify at trial.

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662 F. App'x 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rizo-v-united-states-ca11-2016.