Rivera-Santiago v. United States

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2458
MIGUEL RIVERA-SANTIAGO,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Miguel A. Rivera-Santiago on brief pro se.
H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, and Sonia I. Torres-Pabon, Assistant U.S.
Attorney, on brief for appellee.
June 25, 2004
Per Curiam. Appellant Miguel Rivera-Santiago was
convicted of drug offenses and sentenced to life imprisonment.
He appeals pro se from a district court order that denied his
28 U.S.C. § 2255 motion. See Rivera-Santiago v. United States,
219 F. Supp. 2d 186 (D.P.R. 2002). The district court granted
appellant a certificate appealability (COA) on an issue which
the parties have interpreted differently in their respective
briefs. We interpret the issue as being whether the district
court erred in failing to address the following constitutional
claims:
(1) that a conflict of interest arose from
the defense attorneys' fee arrangement,
(2) that due to this conflict of interest,
appellant's counsel failed to relay the
government's plea offer to him,
(3) that appellant's sentence violates
Apprendi v. New Jersey, 530 U.S. 466(2000), and
(4) that defense counsel rendered
ineffective assistance by failing to argue
properly Rivera's Rule 29(c) motion for
acquittal.
At the outset, we put to one side the third and
fourth of these constitutional claims. The Apprendi issue that
Rivera seeks to raise is barred by Sepulveda v. United States,
330 F.3d 55, 63 (1st Cir. 2003). The ineffective assistance
claim in paragraph (4), although encompassed by the COA, was
not raised by Rivera in the district court and so we decline to
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address it. See David v. United States, 134 F.3d 470, 474 (1st
Cir. 1998).
The conflict of interest claim set forth in the first
two paragraphs was expressed in vague terms in Rivera's
original pro se section 2255 petition and more fully elaborated
in his first motion to amend that petition. In its ruling, the
district court asserted that this motion to amend had been
denied, and Rivera on this appeal claims that the denial was
itself error; but so far as we can tell, the district court
never ruled on the motion to amend one way or the other; there
is certainly no docket entry reflecting a denial of the motion.
A party is ordinarily entitled to amend his initial
complaint once as a matter of right before a responsive
pleading is filed, see Acosta-Mestre v. Hilton Intern. of
Puerto Rico, 158 F.3d 49, 51 (1st Cir. 1998), and we have
previously assumed without deciding that this applied as well
to a motion under section 2255. See Rogers v. United States,
180 F.3d 349, 356 (1st Cir. 1999); 1 Liebman and Hertz, Federal
Habeas Corpus Practice and Procedure, §17.2, at 730 (4th ed.
2001). Since in this case the motion to amend seemingly did no
more than flesh out a basic conflict of interest claim already
made in the petition itself, it is unclear why the district
judge would have denied the motion to amend. And, of course,
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no reason has been given for such a denial, there being no
denial reflected in the record.
Curiously, the district court itself correctly noted
that a "conflict of interest among counsel" was one of several
ineffective assistance of counsel claims made by Rivera in his
original section 2255 petition. See 219 F. Supp. 2d at 190.
Yet the district court did not address or resolve this claim in
its own decision. If we were satisfied that the claim was
without merit, we would nevertheless affirm without requiring
a remand. But on the present record it appears to us possible
that there may have been a conflict of interest and also that
it is possible (although far from certain) that Rivera can show
that it affected counsel’s performance.
The gist of the conflict claim derives from Rivera's
assertion that his own lawyer and several other defense counsel
were paid their fees by counsel for one of the other co-
defendants and that this was done on the express condition that
the parties present a unified defense and not testify at trial.
Another co-defendant made similar allegations and in allowing
a motion for judgment for acquittal, the district court
indicated that it would have granted a motion for a new trial
based on such conflict if the court had not ordered an
acquittal. We do not know whether the allegation is true, nor
are we prepared to say whether there was or was not a conflict
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of interest in whatever arrangement existed; but the claim
cannot be casually disregarded.
Another question with no clear answer on this record
is whether such a conflict, if it existed, adversely affected
counsel's performance. Under governing Supreme Court
precedent, prejudice is automatic if a defendant has no counsel
at all, see Mickens v. Taylor, 535 U.S. 162, 166 (2002); but
where the claim is that counsel labored under the burden of
dual allegiance, the defendant who raised no objection at trial
must demonstrate that counsel might plausibly have pursued an
alternative defense strategy that counsel forsook because of
his conflicting loyalties, see, e.g., Familia-Consoro v. United
States, 160 F.3d 761, 764 (1st Cir. 1998).1
In this instance, Rivera's second numbered
constitutional claim, listed above, says that his own counsel
failed to relay to him a government plea offer. Although the
record on this point is unclear, there is a suggestion that an
1
Rivera raised no conflict of interest objection at trial nor
on direct appeal based on the alleged fee arrangement, which does
not in itself bar its presentation in a section 2255 motion. See
Massaro v. United States, 538 U.S. 500, 509 (2003); United States
v. Burgos-Chaparro, 309 F.3d 50, 51 (1st Cir. 2002), cert. denied,
537 U.S. 1135 (2003). However, in the district court there was
some inquiry into whether Rivera’s counsel should withdraw because
he shared office space with a co-defendant’s attorney. The
district court found that the office arrangement posed no conflict
of interest, and we regard the issue as outside the scope of the
certificate of appealability, or, alternatively, as waived for
failure to raise in Rivera’s opening brief.
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investigator for another defendant interviewed Rivera's defense
counsel who confirmed that such an offer had been made by the
government for a plea with a ten-year sentence. See Aff. of
Rivera, D.E. # 20, ¶ 16. Rivera denied that any such offer was
relayed to him, see id., although there may be conflicting
evidence on this issue.
Rivera makes two other claims at different points as
to adverse effects of the supposed conflict: one is that he
was prevented from testifying because of the conflict although
he wished to do so, and the other is that based on the alleged
fee agreement, his own counsel failed to move for a severance.
This latter claim is less impressive since such severances are
very rarely granted. So even assuming that Rivera would have
been better off in a severed trial, this may not have been a
plausible strategy.
In all events, at least two of the three claims of
adverse effect are sufficiently colorable--although the facts
may not bear them out--to prevent us from summarily affirming.
Instead, we are bound to vacate the district court's denial of
the section 2255 petition (insofar as it rejected the conflict
of interest claim) and remand for further consideration of that
claim. We think that the district court should regard this
conflict claim as adequately presented by the section 2255
petition, as fleshed-out by the first motion to amend (D.E. #
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5) and Rivera’s affidavit (D.E. # 20), and that no further time
should be expended on the question whether the first motion to
amend was appropriate. On the other hand, we do not think the
district judge is obliged to grant further motions to amend--a
habit that Rivera is beginning to abuse.
On remand, we expect that the district court will
treat this long-pending petition as a matter of urgency. This
is not because we are as yet persuaded that it is necessarily
a meritorious petition. Rather, we are quite concerned that
this case has been pending since 1997 and that several prior
long periods elapsed in which no action was taken on pending
matters. Although some of the delay may have been due to
Rivera's amendments, it is important that this case be taken at
hand and resolved promptly.
To this end, the district court also ought to
consider on remand whether the matter can best be handled by
once again appointing counsel for Rivera. Short of an
evidentiary hearing, this is a decision for the district court.
But the conflict issue is more than routine; the history
appears to be complicated; and there may be legal questions
that a lawyer is better qualified to address.
Rivera's renewed motion for appointment of counsel on
appeal is denied. The judgment of the district court is
vacated insofar as it rejected the conflict of interest claim,
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and the matter is remanded for further proceedings consistent
with this decision.
It is so ordered.
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