Eladio Alberto Munoz v. United States ( 2013 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14517 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 30, 2013
________________________ JOHN LEY
CLERK
D. C. Docket Nos. 05-23260-CV-ASG,
96-00443-CR-ASG
ELADIO ALBERTO MUNOZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 30, 2013)
Before BARKETT, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Eladio Alberto Munoz, a federal prisoner convicted of six felony counts,
including conspiracy to commit Hobbs Act robbery, appeals the denial of his
motion to vacate his conviction, filed pursuant to 28 U.S.C. § 2255. The district
court granted a certificate of appealability (“COA”) as to his claim of ineffective
assistance of counsel, and Munoz now argues that his trial counsel was ineffective
by failing to: (1) file a motion to sever his trial from other codefendants, because
he was prejudiced by evidence relating to crimes for which he was not charged; (2)
advise him of his right to testify at trial; (3) discuss the benefits of pleading guilty;
(4) convey any plea offers made by the government; and (5) file objections to the
computation of his criminal history category for including misdemeanor
convictions for which he was not represented by an attorney. 1 We conclude that
trial counsel did not render ineffective assistance and affirm the ruling of the
district court.
Whether counsel is ineffective is a mixed question of law and fact that we
review de novo. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).
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The district court also granted a COA as to Munoz’s claim that his sentence was
imposed in violation of Booker v. Washington, 524 U.S. 296 (2004). However, this Court has
held that “Booker’s constitutional rule falls squarely under the category of new rules of criminal
procedure that do not apply retroactively to § 2255 cases on collateral review.” Varela v. United
States, 400 F.3d 864, 868 (11th Cir. 2005). Thus, this claim is not properly before us and we do
not consider it.
To the extent that Munoz raises a claim of prosecutorial misconduct, no COA was
granted as to that claim and we therefore do not consider it.
We previously ordered a limited remand to the district court to consider Munoz’s Rule
60(b) motions, Munoz v. United States, 451 Fed. App’x 818 (11th Cir. 2011), which were
subsequently considered and denied. Munoz v. United States, No. 05-cv-23260 (S.D. Fla. Feb.
19, 2013).
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To establish ineffective assistance of counsel, a defendant must show that: (1) his
counsel’s performance was deficient; and (2) the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
As mentioned, Munoz points to five perceived failures of his trial counsel
which he maintains constituted ineffective assistance. He first contends that his
counsel’s failure to move to sever his trial from that of his codefendants was
ineffective, but his conclusory claim of prejudice from joinder is insufficient to
satisfy either prong under Strickland. Joinder of Munoz’s case with that of his
coconspirators was appropriate under Federal Rule of Criminal Procedure 8(b),
and, even now, Munoz does not articulate any risk of “actual compelling
prejudice,” which is required to sever the trials of properly joined defendants under
Rule 14. Thus, counsel’s failure to move for severance in the absence of any
colorable claim of prejudice was not deficient, nor, by logical extension, could it
have been prejudicial. See also, United States v. Diaz, 248 F.3d 1065, 1101 (11th
Cir. 2001) (rejecting Munoz’s codefendant’s claim on direct appeal that he was
prejudiced as a result of denial of severance by the same “spillover effect” claimed
here by Munoz).
As to Munoz’s claims that his counsel failed to advise him of his right to
testify at trial, discuss the benefits of pleading guilty, or convey any plea offers
made by the government, all three claims are belied by the record. Munoz stated to
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the trial court, on the record, that he had been advised of his right to testify and that
he choose not to. It is also clear from the record that no plea offer was ever
extended to Munoz and there is no indication that Munoz desired to plead guilty;
indeed, before the magistrate judge he maintained that under no circumstances
would he ever have pled guilty. When the failures alleged are directly contradicted
by the record evidence, Munoz simply cannot maintain that his counsel rendered
deficient performance.
Finally, Munoz’s claim that his counsel was ineffective for failing to object
to the inclusion of certain prior offenses in the presentence investigation report is
without merit because counsel did in fact attempt to make such an objection. After
initially instructing his counsel to make no objections, at the last moment Munoz
alleged to counsel that he had been unrepresented in the proceedings leading to two
state court convictions included in the report. Counsel’s subsequent objections
were denied as untimely, with the district court expressly recognizing that the
untimeliness was the result of Munoz’s actions, not counsel’s. Munoz’s
conclusory assertions to the contrary will not now sustain a claim of deficient
performance.
AFFIRMED.
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