United States v. Araujo ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20476
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISIDRO ARAUJO, also known as Wilfredo Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-1023
USDC No. H-98-CR-78-1
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Before BARKSDALE, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Isidro Araujo, a federal prisoner (# 79059-079), appeals
from the district court’s denial of his 28 U.S.C. § 2255 motion
to vacate his convictions and sentences for conspiracy to possess
with intent to distribute more than five kilograms of cocaine and
possession of more than five kilograms of cocaine with intent to
distribute. Araujo was granted a certificate of appealability as
to his claim that his trial attorney performed ineffectively by
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-20476
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denying Araujo his constitutional right to testify on his own
behalf.
Araujo has asserted that, although counsel initially told
him that he could testify at trial and that he would prepare him
to do so, and although Araujo had told counsel every day of trial
that he wanted to testify, counsel ultimately told him not to
worry about testifying and rested the defense’s case without
calling Araujo to the stand. Araujo, a citizen of the Dominican
Republic who at the time of trial had been in the United States
for only six years, has asserted that he was not aware that his
right to testify was a constitutional one and that he did not
know that he could insist on testifying despite counsel’s
strategic decision that he not do so. Araujo submitted a sworn
declaration in which he attested to these facts. The Government
did not submit an affidavit or declaration from counsel.
To prevail on a claim of ineffective assistance of counsel,
a movant must show (1) that his counsel’s performance was
deficient in that it fell below an objective standard of
reasonableness and (2) that the deficient performance prejudiced
his defense. Strickland, 466 U.S. at 689-94. When assessing
whether an attorney’s performance was deficient, the court “must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at
689. To show Strickland prejudice, a movant must demonstrate
that counsel’s errors were so serious as to “render[ ] the result
of the trial unreliable or the proceeding fundamentally unfair.”
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A failure to
No. 02-20476
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establish either deficient performance or prejudice defeats the
claim. Strickland, 466 U.S. at 697.
A defendant’s right to testify is a fundamental
constitutional one and is personal to him. See Rock v. Arkansas,
483 U.S. 44, 49-52 (1987). A waiver of this right must be
knowing and voluntary. Emery v. Johnson, 139 F.3d 191, 198
(5th Cir. 1997).
When a defendant argues that his attorney interfered with
his right to testify, this court applies the Strickland standard
to ineffectiveness claims concerning the right to testify. See
United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001); Sayre
v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (28 U.S.C. § 2254case). Although under the Strickland ineffective-assistance
standard “‘the decision whether to put a Defendant on the stand
is a ‘judgment call’ which should not easily be condemned with
the benefit of hindsight,’ . . . it cannot be permissible trial
strategy, regardless of its merits otherwise, for counsel to
override the ultimate decision of a defendant to testify contrary
to his advice.” United States v. Mullins, 315 F.3d 449, 453 (5th
Cir. 2002) (citation omitted). Araujo’s failure to stand up in
court and to insist on testifying is not dispositive of the issue
whether he acquiesced in his attorney’s decision that he not
testify. See id. at 455 (“We resist the suggestion that we ought
to insist that a defendant directly address the court at the pain
of waiver to assert his right to testify when his counsel will
not abide his decision.”).
No. 02-20476
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Because Araujo filed a sworn declaration asserting that
counsel effectively deprived him of his right testify and because
the Government did not file any evidentiary materials in
response, it is arguable that the district court erred in
concluding, without further developing the facts, that Araujo’s
failure to testify was “more likely” the product of counsel’s
persuasion that such was a better strategy. See United States v.
Martinez, 181 F.3d 627, 628 (5th Cir. 1999) (observing that this
court has not yet decided what degree of substantiation is
necessary to trigger an evidentiary hearing in a 28 U.S.C. § 2255right-to-testify claim).
Even if Araujo could show that counsel performed deficiently
under Strickland by effectively denying Araujo his right to
testify, Araujo still must establish that the deficient
performance prejudiced his defense. Mullins, 315 F.3d at 456.
Araujo has not succeeded in making this showing. In his sworn
declaration, Araujo asserted that he would have testified that he
knew nothing about the 9.5 kilograms of cocaine that he and a
codefendant, Delgado, retrieved from the apartment that Araujo
had sub-leased to a third man, Ramiro Guerrero, until he and
Delgado entered the apartment minutes before. During trial
Araujo had attempted to convince the jury that agents had
misidentified him as the man bringing the cocaine into the
apartment earlier that day; on cross-examination of Government
agents, Araujo’s counsel tried to raise the possibility that the
man agents had seen was in fact Guerrero.
No. 02-20476
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The evidence offered by the Government showed that, when
apprehended outside the apartment in the early evening of
February 11, 1998, Delgado was carrying the 9.5 kilograms of
cocaine and Araujo was with him. Araujo told an arresting
officer that the cocaine belonged to a man named “Ramiro,” who
had asked him to pick it up. At that time Araujo also offered to
give information about narcotics traffickers and people involved
in money-laundering if the Assistant United States Attorney could
guarantee his release.
In his sworn declaration, Araujo asserted that, if he had
been called to the stand, he would have testified as follows: On
February 11, 1998, Araujo had not been at the apartment prior to
the time he and Delgado had been stopped by the police, but
instead had been at his new house all day; Guerrero called him
that afternoon and told him that a family emergency required him
immediately to vacate the apartment and return to the Dominican
Republic; Guerrero asked Araujo to meet his friend Delgado so
that Araujo and Delgado could together remove Guerrero’s
belongings from the apartment; although Araujo thought Delgado
would have a truck for moving the items, he was surprised to see
Delgado was driving a Honda Accord; and as soon as the two men
entered the apartment, Delgado, who apparently had never been
there before, asked Araujo where the air-conditioning vent was.
(The cocaine was apparently stored in the vent.) Araujo stated
that until that moment he did not know that drugs were in the
apartment and that, had he known Delgado was going to pick up
drugs, he would have called the police.
No. 02-20476
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It is true that this proposed testimony would have been the
only trial evidence to support affirmatively the defense theory
that Araujo had not been present at the apartment prior to the
early evening of February 11, 1998. Araujo did not explicitly
dispute, however, the post-arrest statements that had been
attributed to him by an arresting officer. Those statements were
in conflict with Delgado’s proposed testimony that he did not
know the drugs were at the apartment. Moreover, although Araujo
stated in his sworn declaration that he would have called the
police had he known cocaine was in the apartment, he does not
explain why did not in fact do so when he realized why Delgado
had taken him there. In short, aspects of Araujo’s proposed
testimony appear incredible and would have been subject to
vigorous and, in all likelihood, damaging cross-examination. We
accordingly conclude that, even if it is assumed arguendo that
Araujo has demonstrated that trial counsel performed deficiently
by denying him his right to testify, Araujo has not demonstrated
that this attorney error prejudiced him under Strickland. We
thus AFFIRM the judgment of the district court.
AFFIRMED.