United States v. Rivero ( 2002 )


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  •       [NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
    United States Court of Appeals
    For the First Circuit
    No. 02-1243
    MANUEL GONZALEZ-GONZALEZ,
    Petitioner, Putative Appellant,
    v.
    UNITED STATES,
    Respondent, Putative Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Selya and Lipez, Circuit Judges.
    Judith H. Mizner, on motion for issuance of certificate of
    appealability, for putative appellant.
    October 29, 2002
    SELYA, Circuit Judge.        The petitioner, Manuel Gonzalez-
    Gonzalez, moves for a certificate of appealability, 
    28 U.S.C. § 2253
    ,   alleging   ineffective      assistance       of    appellate     and   trial
    counsel.      We   recite    only   the      facts   necessary      to    limn   the
    petitioner's claims. We refer readers who hunger for more exegetic
    detail to our opinion on direct appeal.                   See United States v.
    Gonzalez-Gonzalez, 
    136 F.3d 6
     (1st Cir.), cert. denied, 
    524 U.S. 910
     (1998).
    The petitioner's principal claim is that his appellate
    counsel blundered by failing to argue that he (the petitioner) had
    been deprived of his Sixth Amendment right to represent himself.
    The record, however, shows that the district court correctly denied
    the   petitioner's     request   for     self-representation        because      the
    petitioner did not unequivocally waive his right to counsel.                     See
    United States v. Betancourt-Arretuche, 
    933 F.2d 89
    , 92 (1st Cir.
    1991) (honoring "every reasonable presumption against waiver of the
    right to counsel") (citation and internal quotation marks omitted).
    With his counseled motion for hybrid representation still pending,
    the petitioner submitted a pro se motion stating that he "remains
    in    his   position   of    requesting      from    the    Court   his    pro   se
    representation with the assistance of his attorney . . . as standby
    counsel."     (emphasis     supplied).        The    unavoidable       conclusion,
    reinforced by the lengthy colloquy during the second day of trial,
    is that the petitioner was not asserting his right to represent
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    himself,    but,    rather,    was   renewing    his       request   for   hybrid
    representation. Accordingly, appellate counsel was not ineffective
    for declining to raise the issue of self-representation.
    We are somewhat more troubled by the claim that trial
    error occurred during jury deliberations — error to which trial
    counsel's lethargy allegedly contributed and about which appellate
    counsel neglected to complain.         We set the stage.
    The preferred practice in this circuit is that "messages
    from a deliberating jury, pertaining to ongoing deliberations,
    ought to be fully disclosed to the lawyers when received, so that
    the latter may be heard before the judge implements a course of
    action." United States v. Parent, 
    954 F.2d 23
    , 25 (1st Cir. 1992).
    According to the petitioner's unsworn memorandum,1 the district
    court, without notifying either counsel, granted the jury's request
    for transcripts of the testimony of two government witnesses.                 The
    court then issued a written supplemental instruction in response to
    a   jury   note    without    involving     counsel   in    the   process.     In
    substance, the instruction reminded the jury that it had a duty to
    determine the guilt or innocence of the defendant from the evidence
    in the case, and that the verdict must be unanimous as to each
    count of the indictment.
    1
    The sworn petition alleges only that the court "decid[ed]
    jury notes out of presence of defendant."
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    In the ordinary course, a habeas application must rest on
    a foundation of factual allegations presented under oath, either in
    a verified petition or a supporting affidavit.          See, e.g., Rule 2,
    Rules Governing Section 2255 Proceedings, 
    28 U.S.C. § 2255
    .          Facts
    alluded to in an unsworn memorandum are not sufficient.                See
    Barrett v. United States, 
    965 F.2d 1184
    , 1195 (1st Cir. 1992);
    Dalli v. United States, 
    491 F.2d 758
    , 760 (2d Cir. 1974).           Here,
    moreover,    even   were   we   to   accept   the   petitioner's   unsworn
    allegations as true, they would not warrant a certificate of
    appealability because the petitioner has identified no plausible
    way in which he might have been prejudiced.
    The rule in this circuit is that "a trial court's error
    in failing seasonably to inform counsel about a jury note does not
    require reversal if the error is benign."           Parent, 
    954 F.2d at
    25
    (citing United States v. Maraj, 
    947 F.2d 520
    , 526 (1st Cir. 1991));
    accord United States v. Hernandez, 
    146 F.3d 30
    , 35 (1st Cir.
    1998).2   This comports with the authorities elsewhere.         See, e.g.,
    United States v. Bustamante, 
    805 F.2d 201
    , 203 (6th Cir. 1986);
    United States v. Widgery, 
    778 F.2d 325
    , 329 (7th Cir. 1985); United
    2
    We have yet to decide whether the appropriate test for
    harmlessness in this context is that set forth in Chapman v.
    California, 
    386 U.S. 18
    , 24 (1967) (asking whether the error was
    "harmless beyond a reasonable doubt") or the more lenient inquiry
    delineated in Kotteakos v. United States, 
    328 U.S. 750
    , 776 (1946)
    (asking whether "the error had substantial and injurious effect or
    influence" vis-à-vis the judgment). We need not make that choice
    today, as the petitioner falls short under either definition of
    harmless error.
    -4-
    States v. Arriagada, 
    451 F.2d 487
    , 488 (4th Cir. 1971); Jones v.
    United States, 
    299 F.2d 661
    , 662 (10th Cir. 1962).
    In this instance, the supplemental instructions were
    correct on their face.        Moreover, even though the supplemental
    instructions were "delivered at a critical juncture in the case,"
    they were not "out of balance" in any material respect.                   Parent,
    
    954 F.2d at 26
    .     In any event, the supplemental instructions were
    similar to portions of the charge, given earlier, that counsel had
    reviewed without objections.       As for the transcripts, if they were
    furnished to the jury at all — the court promised them only at the
    conclusion of its own review — it is hardly remarkable (and
    certainly not erroneous) for the court to have key testimony read
    or submitted to the jury at the jury's request.            See, e.g., United
    States v. Argentine, 
    814 F.3d 783
    , 787 (1st Cir. 1987).                      The
    petitioner gives us no convincing reason to think that counsel
    might have objected; or that, if he had objected, he could have
    changed the trial court's mind; or even that, had the transcripts
    been withheld, the verdict might have been different.
    In   an   effort    to   parry   this    thrust,    the   petitioner
    contends that, notwithstanding the Parent rule, prejudice should be
    presumed because he was "denied counsel at a critical stage of his
    trial."   United     States   v.   Cronic,   
    466 U.S. 648
    ,   659   (1984)
    (footnote omitted).    Doctrinally speaking, however, prejudice per
    se is hen's-teeth rare.       Indeed, two recent Supreme Court cases
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    have emphasized just how unusual are the circumstances that would
    justify a court in forgoing particularized inquiry into whether
    counsel's inadequate performance undermined the reliability of a
    verdict. See Mickens v. Taylor, 
    122 S. Ct. 1237
    , 1241 (2002); Bell
    v. Cone, 
    122 S. Ct. 1843
    , 1850-51 (2002).         In both instances, the
    Court    reiterated   the   proposition   that,    in   the   ineffective
    assistance context, prejudice may be presumed only in narrowly
    circumscribed situations.3    We too have emphasized the same point.
    See, e.g., Ouber v. Guarino, 
    293 F.3d 19
    , 33 (1st Cir. 2002);
    Scarpa v. Dubois, 
    38 F.3d 1
    , 12, 15 (1st Cir. 1994).              We are
    constrained by these authorities to hold that the prejudice per se
    doctrine does not apply in the circumstances of this case.4
    The petitioner next asserts that his various counsel
    should have anticipated the Supreme Court's decision in Apprendi v.
    New Jersey, 
    530 U.S. 466
     (2000), and that he should be resentenced
    3
    Moreover, the Supreme Court recently vacated the decision in
    French v. Jones, 
    282 F.3d 893
    , 901 (6th Cir. 2002) (affirming the
    grant of a state prisoner's habeas petition on the ground that the
    state courts "unreasonably applied harmless error analysis to
    French's   deprivation   of   counsel   during  the   supplemental
    instruction").     The Court remanded the case "for further
    consideration in light of Bell v. Cone[.]" Jones v. French, 
    122 S. Ct. 2324
     (2002) (per curiam).
    4
    Our opinion in Curtis v. Duval, 
    124 F.3d 1
     (1st Cir. 1997),
    is not to the contrary. Dictum aside, the Curtis court, consistent
    with Bell and Mickens, rejected the habeas petitioner's reliance on
    "Cronic's prejudice per se principle" and held that the petitioner
    was not "actually prejudiced." 
    Id. at 6
    . We explained that the
    trial court's error in instructing the jury during the "transitory
    absence" of the petitioner's counsel "was neither substantial nor
    injurious," but, rather, "harmless." 
    Id.
    -6-
    in    light   of   that    decision.    Even   assuming      Apprendi   applies
    retroactively to this case — a matter on which we take no view —
    any error would be harmless.       See United States v. Duarte, 
    246 F.3d 56
    , 61-62 (1st Cir. 2001) (applying harmless error analysis to
    assertion of Apprendi error).
    Here, the evidence overwhelmingly establishes the minimum
    drug quantity needed to justify the sentence actually imposed. The
    government's "very strong case against Gonzalez" included the
    physical seizure of 350 kilograms of cocaine, part of a "major
    shipment of cocaine and marijuana Gonzalez had imported from
    Colombia to Puerto Rico in September of 1992."            Gonzalez-Gonzalez,
    
    136 F.3d at 8, 10
    .         No more is exigible to defeat an unpreserved
    Apprendi claim.
    The petitioner also asseverates that his trial counsel
    should have investigated and called three witnesses on his behalf.
    This asseveration is unpersuasive. There is no indication that one
    witness, a convicted codefendant in a related case, made available
    any    allegedly    exculpatory    information      before    or   during    the
    petitioner's trial.         The second witness would have offered only
    cumulative impeachment testimony.            The third might in turn have
    been impeached with his prior statements implicating the petitioner
    in several drug transactions.            Under these circumstances, the
    petitioner cannot overcome the presumption that counsel's decision
    not to    call     these   witnesses   might   be   considered     sound    trial
    -7-
    strategy.    See, e.g., Lema v. United States, 
    987 F.2d 48
    , 55 (1st
    Cir. 1993) (stating that the "decision to interview potential
    witnesses, like the decision to present their testimony, must be
    evaluated in light of whatever trial strategy reasonably competent
    counsel devised in the context of the particular case"); United
    States ex rel. Walker v. Henderson, 
    492 F.2d 1311
    , 1314 (2d Cir.
    1974) (stating that "the decision to call or bypass particular
    witnesses is peculiarly a question of trial strategy which courts
    will practically never second-guess") (citation omitted).
    Finally, the petitioner faults his appellate counsel for
    not bringing the government to account for sharp tactics.      In this
    regard, he contends that the government improperly "highlighted"
    alleged code words in video transcripts that were shown to the
    jury, using quotation marks and contrasting typeface for emphasis.
    At trial, the petitioner objected to the government's playback of
    tape recordings on several grounds, including improper redaction,
    manipulation of volume, and apparent errors of transcription.
    Highlighting was not one of his complaints.          We find the new
    allegation inherently improbable and contradicted by the record.
    Thus, we cannot say that appellate counsel was ineffective for
    failing to raise this claim.
    We need go no further.     The motion for a certificate of
    appealability is denied and the appeal is terminated.
    So ordered.
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