Not for Publication in West's Federal Reporter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. 04-1843
JAIME RIVERA ALICEA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
[Hon. Gustavo A. Gelpi, U.S. Magistrate Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Rafael F. Castro Lang, by appointment of the court, for
appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H. S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, were on brief, for appellee.
March 29, 2005
Per Curiam. The government originally charged
petitioner-appellant Jaime Rivera Alicea in a five-count felony
indictment. A trial yielded a split decision. The jury convicted
the petitioner of aiding and abetting the possession with intent to
distribute eighteen kilos of cocaine on May 23, 1996 (count 1);
conspiring to possess cocaine with intent to distribute on that
date (count 2); and aiding and abetting the use and carriage of a
firearm in relation to a drug-trafficking crime (count 3). See 21
U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 2, 924(c). At the same
time, the jury acquitted the petitioner of a charge that he had
attempted to kill, intimidate, or interfere with Carlos Montalvo,
a federal agent, while Montalvo was performing his official duties
(count 4); and a charge that he had attempted to kill, intimidate,
or interfere with Carmen D. Ortíz Díaz, a cross-designated agent
assisting Customs Service personnel in the execution of their
duties (count 5). The district court sentenced the petitioner to
concurrent 360-month incarcerative terms on the first two counts
and a consecutive five-year term on the third count. Judgment was
entered on May 29, 1998.
The petitioner unsuccessfully moved for a new trial on
the ground of newly discovered evidence, see Fed. R. Crim. P.
33(a), and then appealed to this court. We affirmed the
convictions, the sentence, and the denial of the motion for new
trial. United States v. Alicea, 205 F.3d 480 (1st Cir. 2000).
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On December 6, 2000, the petitioner served a pro se
motion to vacate and set aside the convictions and sentence. See
28 U.S.C. § 2255. The district court, through a magistrate judge,
wisely appointed counsel for the petitioner and ordered the
government to respond. Following receipt of the response, the
magistrate judge eschewed an evidentiary hearing and issued a
report and recommendation suggesting that relief under section 2255
be denied. Rivera Alicea v. United States, No. 00-2544 (D.P.R.
Jan. 21, 2004) (unpublished report and recommendation).
The petitioner filed timely objections to the report and
recommendation. See Fed. R. Civ. P. 72(b). On March 29, 2004, the
district court, without pausing to convene an evidentiary hearing,
adopted the magistrate judge's report and recommendation and
dismissed the section 2255 petition with prejudice. Rivera Alicea
v. United States, No. 00-2544, slip op. (D.P.R. Mar. 29, 2004)
(unpublished). This timely appeal followed.
We granted a certificate of appealability, see 28 U.S.C.
§ 2253(c), limited to the petitioner's claim of ineffective
assistance of counsel. That claim was premised on trial counsel's
putative failure to investigate, interview, and subpoena Raquelina
Mejías and Aleida Gotay as witnesses at the criminal trial.
Briefing and oral argument ensued.
We need not tarry. In Strickland v. Washington, 466 U.S.
668 (1984), the Supreme Court held that the Sixth Amendment right
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to counsel in a criminal case is the right to the effective
assistance of counsel. Id. at 686. In order to obtain reversal of
a conviction due to ineffective assistance of counsel, a defendant
must show both that counsel's representation fell below an
objective standard of reasonableness, id. at 687-88, and that there
is a reasonable probability that, but for such unprofessional
errors, the conviction would not have transpired, id. at 694. Such
a claim may be raised collaterally by means of a petition for
habeas relief. See, e.g., Hill v. Lockhart, 474 U.S. 52, 53
(1985); Scarpa v. DuBois, 38 F.3d 1, 4-5 (1st Cir. 1994).
In this case, the principal witness against the
petitioner on the counts of conviction was José Alberto Vásquez-
Hernández (Vásquez), a coconspirator who became a government
witness. The petitioner alleges that, while incarcerated to await
trial, he had conversations with Vásquez's girlfriend (Raquelina
Mejías) and with a cooperating government witness (Aleida Gotay).
The petitioner claims that both of these women told him that
Vásquez had admitted that he intended to lie about the petitioner's
involvement in the drug-trafficking enterprise in order to curry
favor with the authorities and obtain a sentence reduction.1 The
petitioner further alleges that he informed his trial counsel,
Ramón García-García (García), well before the trial, about these
1
Mejías had provided a corroborative statement, which was
annexed to a motion requesting an evidentiary hearing on the habeas
petition.
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potential witnesses, but that the lawyer failed to investigate or
otherwise act upon this information. When the petitioner
questioned this inaction, García assured him (inaccurately, as
matters turned out) that the government had no proof and that the
trial would culminate in a favorable verdict.
These allegations, made on the petitioner's personal
knowledge, are neither inherently improbable nor compromised by the
trial transcript. Indeed, they stand uncontradicted on the
existing record. In its response to the section 2255 motion, the
government provided no statement from García and the court held no
evidentiary hearing. Under the circumstances, there was a prima
facie showing of objectively unreasonable attorney performance in
failing either to investigate the situation or, at least, to
interview two potentially crucial witnesses. See, e.g., Horton v.
Allen, 370 F.3d 75, 87 (1st Cir. 2004) (noting that, in certain
circumstances, "the failure of defense counsel to interview
witnesses can establish the deficient performance prong of the
Strickland analysis"); cf. Williams v. Taylor, 529 U.S. 362, 371
(2000) (finding deficient performance for defense counsel's failure
to discover and present significant mitigating evidence at the
sentencing hearing).
We say "prima facie" because it may be that García was
not so informed by the petitioner and/or that García made no such
representation. Were such evidence forthcoming — and we have no
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way of telling — it would undercut the petitioner's prima facie
showing. We must, however, deal with the record as it stands,
without speculating as to what may turn up upon further
investigation.
A similar problem surrounds the question of prejudice.
Given the absence of an evidentiary hearing, it is difficult to
gauge what Mejías and Gotay actually would have said under the
prodding of direct and cross-examination. By the same token, it is
nearly impossible to assess either their credibility or the impact
that their testimony might have had on the jury. Added to this, we
know that Vásquez — the target of the proffered impeachment — was
the government's key witness against the petitioner; that the
testimony of the next most critical witness, Montalvo, was open to
some question; that the government's case against the petitioner
was not overwhelming; and that the jury returned a split verdict,
exonerating the petitioner on two of the five counts. Under these
circumstances, the existence of prejudice vel non is unusually hard
to evaluate. Cf. Strickland, 466 U.S. at 696 (explaining that "a
verdict or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with overwhelming
record support); Stephens v. Hall, 294 F.3d 210, 218 (1st Cir.
2002) (similar).
To its credit, the government, at oral argument, conceded
that an evidentiary hearing would have been useful and advised us
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that it had no objection to a remand for that purpose. We think
that it is in the interests of justice to accept the government's
concession. Consequently, we vacate the order appealed from and
remand the case so that the district court may hold an evidentiary
hearing.
We need go no further. We caution that nothing contained
herein should be read as intimating any view on our part as to the
correct outcome on remand. We leave that decision, at least in the
first instance, in the capable hands of the district judge.
The order dismissing the section 2255 petition is vacated
and the case remanded for further proceedings consistent with this
opinion.
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