Santana-Diaz v. United States ( 1996 )

USCA1 Opinion

          June 17, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-2011



                                 RUBEN SANTANA-DIAZ,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Selya, Cyr and Lynch,

                                   Circuit Judges.
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            Ruben Santana-Diaz on brief pro se.
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            Guillermo  Gil, Acting  United States  Attorney, John  C.  Keeney,
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        Acting Assistant Attorney General, Theresa M.B. Van Vliet,  Chief, and
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        Lena Watkins, Attorney, Criminal Division, Narcotic and Dangerous Drug
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        Section, U.S. Department of Justice, on brief for appellee.





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                      Per Curiam.   Ruben  Santana Diaz appeals  from the
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            district court's dismissal of his petition  under 28 U.S.C.



            2255.  We affirm for the reasons given briefly below.



                      1.   Santana did not raise his claim that the trial



            court's failure  to order  identification or production  of a



            confidential informant  prejudiced his  ability to assert  an



            entrapment  defense in his direct appeal.   See United States
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            v. Panet-Collazo, 960 F.2d 256, 259 (1st Cir.), cert. denied,
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            506 U.S. 876 (1992).  Failure to raise a constitutional claim



            on  direct  appeal  ordinarily  bars  raising  the  issue  on



            collateral attack  unless the  petitioner can show  cause for



            the failure and actual prejudice from the alleged trial court



            error.   See Knight v.  United States, 37 F.3d  769, 774 (1st
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            Cir. 1994).



                      As  cause, Santana asserts  his appellate counsel's



            ineffective assistance of counsel.   However, as the district



            court  correctly  concluded  in  resolving  that  issue,  the



            failure to  obtain the confidential  informant's testimony at



            trial  did  not  prejudice  Santana's ability  to  assert  an



            entrapment defense.   Even assuming that  the informant would



            have  testified as  Santana suggests,  at most  his testimony



            would  have established  only one  element of  the entrapment



            defense -- that the government induced Santana to participate



            in  the drug  deal  in question.    To assert  an  entrapment



            defense, however, Santana also had to establish at trial that



            he  was  not predisposed  to commit  his  crime.   See United
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                                         -2-



























            States v. Panet-Collazo, 960 F.2d 256,  259 (1st Cir.), cert.
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            denied, 506 U.S. 876 (1992).    As we held on  direct appeal,
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            he never did so.  Id. at 259-60. 
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                      2.  Santana  bears the burden  of showing that  the



            court vindictively sentenced him  for exercising his right to



            a jury trial, as he claims.   United States v. Mena-Robles, 4
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            F.3d 1026, 1037  (1st Cir.  1993), cert. denied,  114 S.  Ct.
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            1550 (1994).   He  has not  pointed to  any statement by  the



            district court or any other evidence suggesting that there is



            a "reasonable likelihood" that he received a harsher sentence



            than he otherwise  would have because he went to  trial so as



            to trigger a  presumption of  vindictiveness.  See  id.   The
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            mere  fact  that  co-defendants, who  pled  guilty,  received



            lesser sentences does  not show that it  is reasonably likely



            that Santana  was vindictively sentenced.   Id.   Hence,  the
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            claim of vindictive sentencing fails.  Id.
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                      Affirmed.
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