United States v. Rodriguez-Aguirre , 30 F. App'x 803 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 6 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 00-2382, 00-2384
GABRIEL RODRIGUEZ - AGUIRRE (D.C. Nos. CIV-98-1195-LH/LCS,
and ELENO RODRIGUEZ - AGUIRRE, CR-92-486-JC, CIV-98-1318-LH/LCS,
CR-92-486-JC)
Defendants-Appellants. (D. N.M.)
ORDER AND JUDGMENT*
Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.
Defendants appeal a district court order denying their consolidated motions to
vacate sentence pursuant to 28 U.S.C. § 2255. A jury convicted Defendants of multiple
drug and money-laundering charges. The district court sentenced Defendant Gabriel
Rodriguez-Aguirre to 360 months imprisonment and Defendant Eleno Aguirre to 240
months imprisonment. We affirmed Defendants’ convictions on direct appeal. United
States v. Rodriguez-Aguirre, 108 F.3d 1228 (10th Cir. 1997), cert. denied, 522 U.S. 847
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
(1997); United States v. Aguirre, 108 F.3d 1284 (10th Cir. 1997), cert. denied, 522 U.S.
931 (1997). The prior opinions set forth the facts in detail and we need not restate them
here.
Gabriel Rodriguez-Aguirre timely filed his § 2255 motion. Eleno Aguirre filed his
§ 2255 motion on October 21, 1998, one year and one day after the Supreme Court denied
certiorari in his direct criminal appeal. The district court consolidated the cases on July
27, 1999. The court denied Defendants’ § 2255 motions in their entirety. The court also
denied Defendants’ request for a Certificate of Appealability (COA). See 28 U.S.C.
§ 2253(c)(1). By order dated March 21, 2001, this court granted a COA. We have
jurisdiction pursuant to 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291. We affirm.
I.
In attacking their respective convictions, Defendants assert a number of ineffective
assistance of counsel claims. Defendants also claim the Government (1) purchased
testimony in violation of 18 U.S.C. § 201(c)(2); and (2) failed to disclose evidence as
required under Brady v. Maryland, 373 U.S. 83 (1963).1 This court reviews the legal
basis for a denial of a § 2255 motion de novo. United States v. Kennedy, 225 F.3d 1187,
1193 (10th Cir. 2000). We review findings of fact for clear error. Id.
1
Defendants filed a motion to amend the request for relief in their opening brief.
Defendants seek to add a request for remand to permit them to amend their § 2255
petitions in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendants’ motion to
amend the request for relief is denied.
2
A.
As an initial matter, the Government contends Defendant Eleno Aguirre’s claims
are time-barred. Section 2255, as amended by the Antiterrorism and Effective Death
Penalty Act (AEDPA), establishes a one-year limitation period for motions attacking
sentence. See 28 U.S.C. § 2255. The limitation period runs from the latest of four
events, in this case “the date on which the judgment of conviction becomes final.” Id.
§ 2255(1). Eleno Aguirre’s conviction became final when the Supreme Court denied
certiorari on October 20, 1997. See United States v. Willis, 202 F.3d 1279, 1280 (10th
Cir. 2000). To be timely, Eleno Aguirre must have filed his motion by October 20, 1998.
See United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir. 1997)(calculating the
one-year limitation period). The court clerk time stamped the motion as filed on October
21, 1998.2 Aguirre asserts that the doctrine of equitable tolling should apply to extend the
deadline one day.3
2
Aguirre filed his petition by express mail with delivery guaranteed by noon on
October 20, 1998. He argues his motion should be deemed filed on the date the post
office guaranteed delivery rather than the date reflected by the time stamp. The district
court found the motion was filed on October 21, the date reflected by the court clerk’s
time stamp. In the absence of documentation confirming delivery on October 20, we
cannot say the district court committed clear error in relying on the time stamp for this
finding of fact.
3
Aguirre also argues that Fed. R. Civ. P. 6(e) provides an additional three days to
file his motion. This argument is without merit. Rule 6(e) provides:
Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other
(continued...)
3
The AEDPA’s one-year limitation period is not a jurisdictional bar and is subject
to equitable tolling. See Moore v. Gibson, 250 F.3d 1295, 1299 (10th Cir. 2001).
Equitable tolling is available, however, only in “rare and exceptional circumstances.”
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). The prisoner must demonstrate he
diligently pursued his claims and that his failure to timely file was due to extraordinary
circumstances beyond his control. Id.
The Supreme Court has recognized that the prison mail system presents delays
beyond a prisoner’s control and has adopted the “prison mailbox rule.” Houston v. Lack,
487 U.S. 266, 270 (1988). Under this rule, a prisoner’s pro se motion is deemed filed on
the date the prisoner delivers it into the prison mail system rather than on the date the
court clerk receives it. See id. Although the Supreme Court limited the rule to pro se
prisoners, Aguirre asserts prisoners represented by counsel are similarly hampered in
taking proper measures to ensure timely filing. In addition, he notes that his counsel
followed overnight mailing instructions provided by the court clerk and mailed the
motion with delivery guaranteed on October 20, 1998. Aguirre argues that any delay in
3
(...continued)
paper upon the party and the notice or paper is served upon the party by mail,
3 days shall be added to the prescribed period.
(emphasis added). Rule 6(e), by its terms, does not apply to § 2255 motions. The Rule is
applicable only when the deadline for a party’s action is established by date of service.
The one-year period of limitations in § 2255 does not run from date of service; it is
established by “the date on which the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(1).
4
receipt was beyond his control and that the filing should be deemed timely.
Aguirre has not presented sufficient evidence that the failure to timely file was due
either to exceptional circumstances or conditions beyond his control. Although the prison
mail system can delay receipt of prisoner mail, Aguirre was represented by current
counsel on the date the Supreme Court denied certiorari and had a full year to prepare the
motion and secure the proper signatures. Counsel should be aware of the potential for
delay and is in a position to take precautions to ensure timely filing. See id. at 270-71.
Counsel’s alleged conversations with the court clerk also do not establish a sufficient
basis to compel equitable tolling of the one-year limitation period. Counsel offers no
documentation of these conversations. Nor is she able to point to local rules to support
her claim. Cf. Sheviakov v. Immigration & Naturalization Serv., 237 F.3d 1144 (9th Cir.
2001)(deeming a motion filed on the date the post office delivered the document when
local rules provided instructions for overnight delivery and counsel provided
documentation of delivery conforming with the instructions). Eleno Aguirre’s § 2255
Motion is therefore untimely and his claims time-barred.
B.
Even assuming Defendant Eleno Aguirre’s claims were not time-barred, both
Defendants’ ineffective assistance of counsel claims fail on the merits. Ineffective
assistance of counsel claims involve mixed questions of law and fact which we review de
novo. Smith v. Gibson, 197 F.3d 454, 461 (10th Cir. 1999). Judicial scrutiny of
5
counsel’s performance is highly deferential. Strickland v. Washington, 466 U.S. 668, 689
(1984). To establish a claim for ineffective assistance of counsel, a defendant must show
(1) counsel’s performance was constitutionally deficient; and (2) counsel’s deficient
performance was prejudicial. See id. at 687. Counsel’s performance is deficient only if
the representation “fell below an objective standard of reasonableness.” Id. Prejudice is
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. Defendant bears the burden of
establishing both components of the Strickland standard. See id. at 697. We apply the
Strickland standard in assessing the effectiveness of both trial and appellate counsel.
United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). Courts may resolve an
ineffective assistance of counsel claim on either the performance or prejudice component.
Strickland, 466 U.S. at 697.
1.
Defendants allege trial counsel provided ineffective assistance by failing to file
motions to suppress evidence obtained in numerous allegedly improper searches.4 To
satisfy the prejudice requirement under Strickland, Defendants must demonstrate a
4
Specifically, Defendants assert counsel failed to file motions challenging (1) the
search of nine parcels of real property seized in civil forfeiture proceedings pursuant to ex
parte seizure warrants; (2) the validity of six search warrants based on evidence
discovered on the wrongfully searched property; (3) the validity of four search warrants
served in conjunction with seizure warrants; and (4) the validity of a residential search
conducted pursuant to the “knock and announce” rule.
6
reasonable probability that the verdict would have been different, absent excludable
evidence. United States v. Owens, 882 F.2d 1493, 1498 (10th Cir. 1989). Defendants do
not address how suppression of some or all of the evidence seized pursuant to the
searches at issue would have impacted the outcome of the trial. Defendants provide a
chart summarizing the property searched and the evidence seized, but the chart does not
indicate whether the seized evidence was admitted at trial, the relevance of the seized
evidence to Defendants’ convictions, or the importance of the seized evidence to the
Government’s case.5 Although suppression of some or all of this evidence might have
been significant, Defendants have failed to establish a reasonable probability that, without
the allegedly excludable evidence, the jury verdict would have been different.6
2.
Defendant Rodriguez-Aguirre also contends appellate counsel rendered ineffective
5
Defendants filed a motion seeking to supplement the record with the complaint
and record of civil forfeiture proceedings in which the Government seized and searched
nine parcels of real property. Defendants assert that the proffered documents establish
Defendants’ standing to challenge the searches, and thus support Defendants’ assertion
that trial counsel unreasonably failed to challenge the searches. Because we conclude
Defendant has not established prejudice, we need not determine whether counsel rendered
deficient performance. Defendants’ motion is therefore denied as moot.
6
Defendants also contend trial counsel rendered ineffective assistance in failing to
investigate whether the Government planted a buried kilogram of cocaine discovered on
property Defendants forfeited prior to trial. The magistrate judge held evidentiary
hearings on this claim. For substantially the same reasons stated in the July 24, 2000
report and recommendation adopted by the district court, we conclude Defendants failed
to demonstrate either cause or prejudice with respect to this claim and thus failed to
establish ineffective assistance of counsel under Strickland, 466 U.S. 668 (1984).
7
assistance of counsel by failing to raise an ex post facto argument. He asserts, without
explanation, that application of the 1987 Sentencing Guidelines would result in a sentence
of 188 months instead of the 360 months imposed under the 1994 Guidelines. Defendant
Rodriguez-Aguirre does not provide any basis on which to find deficient representation or
prejudice under Strickland. Defendant did not provide this Court with a copy of the
indictment or a discussion of the relevant convictions. Nor does Defendant’s brief
discuss application of specific Sentencing Guidelines to Defendant’s convictions.
Further, Defendant does not provide any rationale or supporting authority for his assertion
that the 1987 Guidelines are applicable. Defendant was convicted of numerous drug and
money-laundering offenses, including several offenses that occurred after the 1989
Sentencing Guidelines became effective. Defendant has the burden of providing this
Court with a complete and accurate record of the issues he wishes reviewed. See 10th
Cir. R. 10.3(B). Defendant also has the burden of demonstrating the deficiency in
counsel’s performance and the prejudice suffered as a result. See Strickland, 466 U.S. at
687. Defendant has not provided sufficient information to meet either burden.
II.
Defendants next claim the Government purchased testimony in violation of 18
U.S.C. § 201 and failed to disclose evidence as required under Brady v. Maryland, 373
U.S. 83 (1963). The claims relate to the trial testimony of a Government witness. The
witness entered into an agreement to testify against Defendants and, as a cooperating
8
witness and a participant in the Witness Protection Program, received payments for
relocation and living expenses. Defendants were aware the witness received such
payments, but were not aware of the amount until after trial.7 In addition, prior to
testifying, the witness was arrested and charged with felony drug possession. The charges
were later dropped and misdemeanor charges were filed. Defendants allege that the
charges were dropped in response to a letter from the Assistant United States Attorney
seeking leniency. Defendants were not aware of the felony charges or the letter at trial or
at the time of appeal. Defendants characterize the Government’s failure to disclose this
information as a Brady violation, and characterize the payments and letter as gratuity in
violation of 18 U.S.C. § 201.8
A.
Defendants’ claim that the Government purchased testimony in violation of 18
U.S.C. § 201(c)(2) is without merit. The anti-gratuity statute does not apply to the
United States or to an Assistant United States Attorney functioning within the official
scope of the office. United States v. Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999)(en
banc). To prevail on this claim, Defendants must show (1) the Government promised
7
Specifically, Defendants claim that the witness received a total of $80,000 in
exchange for her testimony. Before trial, the Government disclosed payments totaling
$40,000.
8
The Government contends that these claims are time barred with respect to
Defendant Eleno Aguirre and procedurally barred with respect to both Defendants. As
discussed above, Eleno Aguirre’s claims are time barred. We need not address whether
the claims are procedurally barred because the claims clearly fail on the merits.
9
something of value in exchange for witness testimony; (2) the promise was one not
normally made in exchange for testimony; and (3) this action is inconsistent with the role
of a prosecutor. See United States v. Jackson, 213 F.3d 1269, 1289 (10th Cir. 2000).
The anti-gratuity statute authorizes a party to pay “witness fees provided by law.”
18 U.S.C. § 201(d). The statute also authorizes a party calling a witness to pay
subsistence payments and compensation for the reasonable value of time lost in attending
the proceedings. Id. Federal law also expressly authorizes payments made through the
Witness Protection Program, 18 U.S.C. § 3521(b), and subsistence payments, 28 U.S.C.
§ 1821. The practice of providing these payments in exchange for truthful testimony is a
long established practice authorized by law and does not constitute a violation of the anti-
gratuity statute. See Jackson, 213 F.3d at 1289. In addition, we have held that an offer of
leniency in exchange for truthful testimony is not a violation of the statute. See
Singleton, 165 F.3d at 1298. Defendants do not assert that the testimony offered was
untruthful. Thus, the Government did not violate the anti-gratuity statute.
B.
Defendants’ Brady claim also is without merit. Brady requires the Government to
disclose only “evidence favorable to the accused that, if suppressed, would deprive the
defendant of a fair trial.” United States v. Bagley, 473 U.S. 667, 675 (1985); United
States v. Walters, 269 F.3d 1207, 1214 (10th Cir. 2001). To establish a Brady violation, a
defendant must demonstrate “(1) the prosecutor suppressed evidence; (2) the evidence
10
was favorable to the defendant as exculpatory or impeachment evidence; and (3) the
evidence was material.” Walters, 269 F.3d at 1214. Evidence is material only if a
reasonable probability exists that, had the Government disclosed the evidence to the
defense, the result of the trial would have been different. See id.
Defendants fail to show that the information the Government allegedly withheld is
material. They fail to show how payments totaling $80,000 materially differ from
payments totaling $40,000, or how their knowledge of this information would have
altered the jury verdict. Defendants also fail to demonstrate how knowledge of the
witness’ felony charges would have altered the verdict. Defendants had substantial
evidence of the benefits the witness received in exchange for her testimony. On both
direct and cross-examination, the witness testified that she actively participated in drug
trafficking, that she was a convicted felon, that she had agreed to testify to avoid
prosecution, and that she had received subsistence and relocation payments from the
Government. How the additional impeachment evidence differs materially from that
introduced at trial is unclear. The Government’s alleged failure to disclose the details of
its agreement with the witness did not violate Defendants’ due process rights and did not
constitute a Brady violation.
11
Accordingly, the judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
12