Rijo v. United States ( 2020 )

United States Court of Appeals
For the First Circuit
No. 17-2213
SANDRI RIJO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
David Ramos-Pagán for appellant.
David Christian Bornstein, Assistant United States Attorney,
with whom W. Stephen Muldrow, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, were on brief, for appellee.
December 3, 2020
KAYATTA, Circuit Judge. Sandri Rijo was found guilty
after trial of conspiring to possess with intent to distribute
five kilograms of cocaine and of aiding and abetting others to do
so as well. On direct appeal, we affirmed his conviction and
sentence. See United States v. Cruz-Feliciano, 786 F.3d 78, 92
(1st Cir. 2015).
Rijo thereafter timely filed a habeas petition under 28
U.S.C. § 2255. On the papers, the district court dismissed Rijo's
section 2255 petition. We then granted a certificate of
appealability under 28 U.S.C. § 2253(c)(2), allowing this appeal
on a single issue: whether defense counsel rendered ineffective
assistance in deciding not to call two witnesses and introduce
certain documents. For the following reasons, we now affirm the
dismissal of Rijo's petition.
I.
In January 2012, law enforcement apprehended a group of
men, including Rijo, after observing them in the process of
smuggling a substantial amount of cocaine by motorboat. See Cruz-
Feliciano, 786 F.3d at 82–83. A later prepared DEA Report of
Investigation stated that, according to cooperating witness Freddy
Altagracia-Medina, Rijo was on board the motorboat that brought
the drugs to shore. See id. at 85. This statement conflicted
with Altagracia's testimony at trial that Rijo was on the shore to
receive the drugs while his co-defendants Gary Brito-González and
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Sandy Navarro were on the boat. See id. at 86. The rough notes
of the DEA agent who prepared the report revealed that the agent
had apparently confused "Sandy (Navarro)" with "Sandri (Rijo)" in
reducing Altagracia's oral statement to rough notes and then to a
report. See id. at 85-86.
Rijo's defense counsel at trial opted not to try to
exploit this error. In a nutshell, he regarded the inconsistency
as a dead end, given that it was so easily explained as the agent's
mistake, and he feared that the foray would simply re-run the
prosecution's narrative. Rijo now argues that the decision not to
introduce the DEA report and the agent's notes and not to cross-
examine Altagracia on the inconsistency between the report and his
testimony violated Rijo's right to effective assistance of counsel
under the Sixth Amendment. See, e.g., Strickland v. Washington,
466 U.S. 668, 686 (1984). Success in making such an argument
requires a showing that counsel's performance was "outside the
wide range of professionally competent assistance," id. at 690,
and that there is a "reasonable probability" that the trial would
have ended more favorably to the defendant but for counsel's
errors, id. at 694.
For the reasons well stated by the district court, we
find it unlikely that counsel's trial strategy decision was so
unreasonable as to constitute deficient performance under
Strickland. But even if counsel's performance was deficient,
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Rijo's ineffective assistance claim still fails because there is
no reasonable probability that the results of the trial would have
differed had counsel done what Rijo now argues he should have done.
Law enforcement surveilled the unloading as it occurred and then
stopped the smuggler's vehicles as they left the scene, finding
Rijo in one of them. See Cruz-Feliciano, 786 F.3d at 82–83.
Moreover, government witnesses other than Altagracia also
testified that Rijo was involved in the smuggling. See id. Given
Rijo's immediate apprehension at the scene and the government
witnesses' testimony, we find it highly unlikely that any jurors
would have been persuaded by an effort to exploit the easily
explained error in the DEA reports about whether Rijo was on the
boat or on the shore unloading drugs from the boat.
II.
For the foregoing reasons, we affirm.
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