[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2464
ARNALDO WILSON-LOPEZ,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Arnaldo Wilson-Lopez on Petition for Certificate of
Appealability, pro se.
JULY 24, 2001
Per Curiam. Arnaldo Wilson-Lopez seeks a certificate of
appealability (COA) to appeal from the denial of his motion
pursuant to 28 U.S.C. § 2255. “It is well established that a
party may not unveil an argument in the court of appeals that he
did not seasonably raise in the district court.” David v. United
States, 134 F.3d 470, 474 (1st Cir. 1998). Therefore, we focus
exclusively on the issues identified in this COA which were also
raised below. Wilson-Lopez seeks to vacate his conviction
following a guilty plea to Count One of the indictment, charging
him with conspiracy to possess with intent to distribute in
excess of 500 grams of heroin. He asks that his sentence be
vacated and a new sentence imposed solely for his guilty plea to
Count Five, charging him with carrying a firearm during and in
relation to a drug trafficking offense.
The ground on which Wilson-Lopez seeks § 2255 relief is
ineffective assistance of counsel in the form of 1) his
attorney’s failure to investigate and discover exculpatory
evidence with respect to Count One and 2) her advice that
petitioner plead guilty to Count One notwithstanding
petitioner’s protestations of innocence and inadequate factual
support for the plea.1
1 Petitioner raises a claim pursuant to Apprendi v. New
Jersey, 530 U.S. 466 (2000) in his COA. Even assuming that such
claim was raised before the district court, it is meritless.
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Wilson-Lopez has not identified any exculpatory evidence
that his attorney failed to discover in advance of his guilty
plea, much less shown that such evidence “would have led counsel
to change his recommendation to the plea.” Hill v. Lockhart, 474
U.S. 52, 58 (1985). Wilson-Lopez’ attempt to rely upon certain
affidavits of his co-defendants (included in their un-translated
form as a supplement to his § 2255 motion) is unavailing. The
affidavits were provided to Wilson-Lopez prior to the time that
he pled guilty and their evidentiary force depends on
credibility determinations by the fact finder.
The record supports a finding that there was adequate
factual support for the guilty plea. The evidence against
Wilson-Lopez was strong. He stipulated to arriving at the scene
of the pre-arranged drug sale with two co-defendants who were
directly involved in its negotiation. There is a video tape of
him remaining on the scene in his parked car, holding a semi-
automatic weapon. “Mere presence at the scene of a crime is
insufficient to prove membership in a conspiracy.” United States
v. Ocampo, 964 F.2d 80, 82 (1st Cir. 1992). On the other hand,
“proof of direct participation in the sale of drugs is not
required to convict in a drug conspiracy case.” United States v.
Wilson-Lopez’ sentence was below the 40-year statutory maximum
and, therefore, there was no Apprendi-based error.
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Marrero-Ortiz, 160 F.3d 768, 773 (1 st Cir. 1998). And “the
factfinder may fairly infer . . . that it runs counter to human
experience to suppose that criminal conspirators would welcome
innocent participants as witnesses to their crimes.” United
States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991).
We agree with the district court’s statement in its Order
and Opinion denying the § 2255 motion, that Wilson-Lopez did not
“sufficiently detail how his participation in the conspiracy to
rob an individual bringing money for the drug transaction was
independent of the conspiracy to distribute narcotics.” The
evidence is to the contrary, suggesting that any plan to rob the
purchaser of the drugs was in furtherance of the conspiracy to
possess and distribute heroin.
Wilson-Lopez has failed to make a substantial showing of
ineffective assistance of counsel. We agree with the district
court’s finding that defense counsel’s recommendation that
petitioner plead guilty to Count One was reasonable. The
request for a certificate of appealability is denied.2
2 To the extent that petitioner is arguing that his guilty
plea was involuntary and unknowing because his attorney
misrepresented the sentence he could receive if he did not plead
guilty, that argument was rejected by this court on direct
appeal and may not be relitigated on collateral review. See
Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994).
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