[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1126
JOSÉ A. RIVERO-CABAÑAS,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
No. 01-1215
JULIO FIGUEROA-ROMERO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Martin G. Weinberg, with whom Oteri, Weinberg & Lawson was on
brief, for appellant Rivero-Cabañas.
Kenneth J. Fishman, with whom Julie A. Hamon and Fishman,
Ankner & Horstmann were on brief, for appellant Figueroa-Romero.
Kimberly Homan, with whom Sheketoff & Homan was on brief or
appellants.
Thomas F. Klumper, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, were
on brief, for appellee.
September 9, 2002
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Per Curiam. Appellants José A. Rivero-Cabañas and Julio
Figueroa-Romero challenge the district court's dismissal of their
motions brought pursuant to 28 U.S.C. § 2255. Finding no error, we
affirm.
I.
In April 1994, Rivero-Cabañas, Figueroa-Romero, and
fifteen co-defendants were named in a ten-count indictment alleging
various drug related offenses. Rivero-Cabañas and Figueroa-Romero
were charged in six counts of the indictment.1 Roughly a year
later, after initially pleading not guilty on all counts, both
appellants pleaded guilty to one count of conspiracy to possess
with intent to distribute cocaine, pursuant to 21 U.S.C.
§§ 841(a)(1) and 846 (Count One), and one count of aiding and
abetting the use and carrying of firearms during the commission of
a drug trafficking crime, pursuant to 18 U.S.C. § 924(c)(1) (Count
1
The indictment charged them with: conspiracy to possess with
intent to distribute cocaine and marijuana, in violation of 21
U.S.C. §§ 846 and 841(a)(1) (Count One); attempting to import into
the United States from a place outside thereof approximately 3000
pounds of marijuana, in violation of 21 U.S.C. §§ 952, 960 and 963
and 18 U.S.C. § 2 (Count Three); use of a firearm in a drug related
offense, in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2
(Count Four); importation into the United States from a place
outside thereof approximately 629 kilograms of cocaine, in
violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2 (Count
Five); use of a firearm in a drug related offense, in violation of
18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2 (Count Six); and possession
with intent to distribute approximately 629 kilograms (gross
weight) of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Count Seven). In addition, Rivero-Cabañas was charged
with possession with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two).
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Six). In exchange for these guilty pleas, the government agreed to
dismiss the remaining counts against them.
On July 7, 1995, the district court sentenced both
appellants. Rivero-Cabañas was sentenced to a term of imprisonment
of 168 months as to Count One and sixty months as to Count Six,
with the terms to be served consecutively. Figueroa-Romero was
sentenced to a term of imprisonment of 144 months as to Count One
and sixty months as to Count Six, also with the terms to be served
consecutively. Appellants sought review on direct appeal. On
appeal, Figueroa-Romero petitioned for and was denied appointed
counsel. On May 21, 1997, this court affirmed the convictions.
See United States v. Figueroa-Romero, 114 F.3d 1170 (1st Cir. 1997)
(unpublished).
In late 1999, appellants filed separate motions to vacate
their sentences under 28 U.S.C. § 2255. The motions were referred
to magistrate judges, who both issued recommendations to deny
relief. The district court, adopting the recommendations,
dismissed appellants' cases. This timely appeal followed.
II.
Appellants' § 2255 motions attack their guilty pleas on
Count Six of the indictment, charging a violation of 18 U.S.C.
§ 924. Both appellants argue that they were denied effective
assistance of counsel inasmuch as: (1) their attorneys failed to
argue the correct legal standard applicable to aiding and abetting
liability under § 924(c)(1); and, (2) their attorneys did not
challenge the government's proffer at sentencing and failed to
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request an evidentiary hearing in order to compel the government to
establish that appellants satisfied a required element of the
offense. In addition, Figueroa-Romero argues that he was denied
due process because he was not given court-appointed counsel for
his direct appeals.
When faced with an appeal from the denial of a § 2255
motion, we review the district court's legal determinations de novo
and its factual findings for clear error. Familia-Consoro v.
United States, 160 F.3d 761, 764-65 (1st Cir. 1998).
A.
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel, Lema v. United States,
987 F.2d 48, 51 (1st Cir. 1993), which includes effective
representation during the plea process, Hill v. Lockhart, 474 U.S.
52, 56 (1985). In order for the appellants' ineffective assistance
of counsel claims to prevail, they must show that (1) considering
all the circumstances, counsel's performance fell below an
objective standard of reasonableness, and (2) there is a reasonable
probability that, but for counsel's unprofessional error, the
result of the proceedings would have been different. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the first prong, appellants must overcome a
"strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 689. Thus,
the errors of counsel must be "so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
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Amendment." Id. at 687. "Tactical decisions, whether wise or
unwise, successful or unsuccessful, cannot ordinarily form the
basis of a claim of ineffective assistance." United States v.
Ortiz-Oliveras, 717 F.2d 1, 3-4 (1st Cir. 1983). And under the
second prong, even where unprofessional error during the plea
process is shown, no relief is available absent demonstration of a
"reasonable probability that, but for counsel's errors,
[appellants] would not have pleaded guilty and would have insisted
on going to trial." Hill, 474 U.S. at 59.
We are convinced that neither error nor prejudice can be
established on the facts here. Appellants' various legal and
factual arguments boil down to the same basic contention: that the
facts which the appellants admitted were insufficient to support a
guilty plea for aiding and abetting the use and carrying of
firearms during the commission of a drug trafficking crime, under
§ 924(c)(1). On the legal front, appellants complain that their
attorneys should have argued to the court that the knowledge
element necessary to support a conviction under § 924(c)(1) is that
of "practical certainty," see United States v. Torres-Maldonado, 14
F.3d 95, 103 (1st Cir. 1994), rather than a more lenient vicarious
liability standard, see Pinkerton v. United States, 328 U.S. 640,
645-48 (1946) (holding that a conspirator may be held vicariously
liable for a substantive crime committed by a co-conspirator if
that crime is reasonably foreseeable and committed in furtherance
of the conspiracy). On the factual front, appellants argue that
the conduct to which they admitted did not satisfy the higher
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standard and that their attorneys should have forced the government
to adduce proof in an evidentiary hearing establishing that
appellants knew to a practical certainty that their accomplices
would be using guns during the commission of the drug crimes.
In this case, it would be academic for us to address the
question of whether the "practical certainty" or Pinkerton standard
should govern convictions under § 924(c)(1), as we think there were
good tactical reasons -- well within the range of acceptable
professional assistance -- for appellants' attorneys not to pursue
such arguments during the plea proceedings. In exchange for
appellants' guilty pleas on two counts in the indictment, the
government agreed to dismiss the remaining counts. Appellants'
attorneys were quite successful in securing favorable plea bargains
for their clients. A tactical decision not to jeopardize that
bargain is therefore entirely defensible. Had the pleas been
withdrawn, the government would have been free to seek convictions
on all of the counts charged in the indictment. And if proven,
those counts would have carried stiff additional penalties for the
appellants.
As for the showing of prejudice, appellants have barely
alleged, much less provided proof, that absent their attorneys'
supposed errors they would have withdrawn their guilty pleas and
insisted on going to trial. We therefore affirm the district
court's conclusion that no claim for ineffective assistance has
been shown.
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B.
Figueroa-Romero claims that he was denied his
constitutional rights of due process and effective assistance of
counsel when he was forced to proceed on direct appeal without the
assistance of counsel. The record is clear that Figueroa-Romero
filed a motion with this Court requesting the appointment of
counsel after his request for the withdrawal of trial counsel had
been granted. This Court informed Figueroa-Romero that he must
file a financial affidavit, as well as a motion to proceed in forma
pauperis with the district court, before seeking appointment of
counsel on appeal. Although Figueroa-Romero claims that he drafted
and filed the required documentation, no docket entry in the
district court confirms this.
It is well settled that an indigent defendant shall not
be denied effective assistance of counsel on appeal. See Douglas
v. California, 372 U.S. 353, 355 (1963). To that end, the Criminal
Justice Act provides for the appointment of counsel for a criminal
defendant who is financially unable to obtain adequate
representation at any stage of the proceedings, including appeal.
See 18 U.S.C. § 3006A(a) & (c). Although the Criminal Justice Act
requires the district court to conduct an "appropriate inquiry"
into the financial status of a defendant who seeks appointed
counsel, id. § 3006A(b), the applicant bears the burden of
persuading the court that he is financially unable to obtain
counsel, see United States v. Harris, 707 F.2d 653, 660 (2d Cir.
1983). Appellate courts employ the "clearly erroneous" standard in
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reviewing the trial court's determination as to whether an
applicant qualifies for counsel. Id.
The district court found that Figueroa-Romero failed to
comply with this Court's order to file in district court a motion
to proceed in forma pauperis prior to requesting appointed counsel.
We find no basis for upsetting the district court's ruling.
Although Figueroa-Romero claims that he filed the necessary
documents in district court, we only have his word and a copy of
what he claims he filed to prove that he did. This is insufficient
to establish clear error, and we detect no other basis for
upsetting the district court's ruling on Figueroa-Romero's claim.
Affirmed.
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