United States v. Ruiz

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21108
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WISTING FIERRO RUIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CV-1470 & H-91-CR-211-3)
September 28, 1999
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Wisting Fierro Ruiz,2 federal prisoner No. 59534-079, appeals
the district court’s dismissal of his motion for relief under 28
U.S.C. § 2255, which was filed in district court prior to the April
24, 1996, effective date of the Antiterrorism and Effective Death
Penalty Act.
Ruiz’s challenge to the district court’s sentencing
determinations is not cognizable under § 2255. United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). We reject Ruiz’s
1
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this opinion should not be published and is not precedent except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.
2
Ruiz is sometimes referred to as Wisting Fierro. See United
States v. Fierro, 38 F.3d 761 (5th Cir. 1994).
argument that the Government’s failure to provide Ruiz with copies
of handwriting exemplars submitted by Ruiz and codefendant Olga
Martinez violated Brady v. Maryland.3
Ruiz raises a multitude of allegations of ineffective counsel.
He argues that his trial counsel failed to challenge the district
court’s reliance on drug ledgers at sentencing; object to the
district court’s handling of handwriting exemplars; object to
arguments concerning address books which were offered as evidence;
move for a mistrial when the Government failed to call a
handwriting expert as a witness; move for a new trial based on all
alleged Jencks Act violation; advise Ruiz to testify at trial;
impeach an FBI Agent’s testimony; investigate suppression issues;
obtain expert testimony; present an alibi defense; object to the
introduction of telephone bills; request a buyer-seller jury
instruction; and argue that the evidence established multiple
conspiracies. Ruiz also suggests that he received ineffective
counsel on direct appeal because his appellate attorney did not
have access to transcripts of the trial and thus, simply, adopted
a codefendant’s appellate brief.
Ruiz’s argument that counsel failed to object at sentencing is
frivolous. The record shows that counsel objected that the drug
ledgers were not reliable evidence for sentencing purposes. Ruiz’s
arguments concerning counsel’s failure to object to the district
court’s handling of handwriting exemplars, to move for a new trial
based on an alleged violation of the Jencks Act, and to impeach FBI
3
373 U.S. 83, 87 (1963).
2
Agent Susie Wong are irrelevant. Counsel’s decisions not to object
to arguments by a codefendant and the prosecutor concerning address
books which apparently doubled as drug ledgers, counsel’s decision
not to move for a mistrial based on the Government’s failure to
call a handwriting expert as a witness, and counsel’s advice that
Ruiz not testify all fall within the realm of reasonable trial
strategy. Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988).
Ruiz has failed to demonstrate that he was prejudiced by counsel’s
alleged failure to investigate suppression issues, obtain expert
testimony, present an alibi defense, object to the introduction of
telephone bills, request a buyer-seller jury instruction, or argue
that the evidence established multiple drug conspiracies.
Strickland v. Washington, 466 U.S. 668, 697 (1984).
Ruiz has cited no evidence to support his conclusional
assertion that appellate counsel lacked access to Ruiz’s trial
transcripts and we find none in the record. See Koch v. Puckett,
907 F.2d 524, 530 (5th Cir. 1990). Ruiz’s suggestions that his
appellate counsel was ineffective fail to establish that his trial
was fundamentally unfair or that the jury’s verdict of guilt was
unreliable. See Goodwin v. Johnson, 132 F.3d 162, 174-76 (5th Cir.
1998).
AFFIRMED.
3