[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12218 JUNE 5, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket Nos. 1:10-cv-20266-DMM,
1:05-cr-20915-DMM-1
JAIRO RAFAEL SANZ DE LA ROSA,
llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllRespondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 5, 2012)
Before CARNES, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Jairo Rafael Sanz De La Rosa appeals the district court’s dismissal of his
motion to vacate under 28 U.S.C. § 2255. He argues that he was entitled to an
evidentiary hearing to determine whether his trial counsel rendered ineffective
assistance by failing to investigate and cross-examine a key government witness
during his trial.
I.
A jury convicted Sanz of one count of conspiracy to import five kilograms
or more of cocaine, in violation of 21 U.S.C. § 963; one count of conspiracy to
possess with intent to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846; and one count of possession with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1).
At trial, Sanz testified on his own behalf and admitted to being responsible
for a total of 3.2 kilograms of cocaine. The government’s key witness, Jorge
Isaacs, who was a co-defendant of Sanz, testified that he retrieved cocaine from
airplanes while working for an aircraft maintenance company and delivered it to
Sanz. He claimed that during 2004 and 2005, he retrieved about eighteen to
twenty loads of cocaine for Sanz. Each load purportedly contained three to six
200-gram bars of cocaine. Isaacs testified that in 2004 alone, he successfully
retrieved about eight loads, although roughly twelve loads were sent. Overall,
2
Isaacs acknowledged responsibility for between five and fourteen kilograms of
cocaine. Defense counsel cross-examined Isaacs to reveal possible bias and to
challenge the accuracy of the government’s evidence.
At sentencing, the district court indicated that it found Isaacs to be a
“persuasive witness,” and calculated Sanz’s guideline range based on five to
fifteen kilograms of cocaine, resulting in an offense level of 36 and a guideline
range of 188 to 235 months.
In January 2010, Sanz filed a § 2255 motion to vacate or correct his
sentence. Among other constitutional violations, he alleged that he received
ineffective assistance of counsel, because his trial counsel failed to conduct proper
pretrial investigation and failed to impeach the government’s key witness, Isaacs.
Specifically, Sanz alleged that he advised counsel during pretrial proceedings that
Isaacs had an expired U.S. residency card and an expired airport identification
card. Sanz says these expired cards would have precluded Isaacs from accessing
the airport’s secure areas in 2004, which included those areas where Isaacs
purportedly retrieved the cocaine on behalf of Sanz. However, according to Sanz,
trial counsel failed to investigate the expired identification cards or cross-examine
Isaacs with regard to these facts. He argued that had trial counsel investigated
these facts, counsel would have revealed during cross examination that Isaacs
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could not have retrieved any cocaine on behalf of Sanz during 2004. He further
claims that without the 2004 drug loads, Sanz would have been responsible for
only the 3.2 kilograms of cocaine that came in during 2005, which would have
resulted in a lesser sentence. Sanz requested that the district court hold an
evidentiary hearing as to this claim.
The district court adopted the magistrate judge’s Report and
Recommendation dismissing Sanz’s motion, and denying the request for an
evidentiary hearing.
II.
We review for abuse of discretion a district court’s denial of a request for an
evidentiary hearing in a § 2255 proceeding, Aron v. United States, 291 F.3d 708,
714 n.5 (11th Cir. 2002), construing pro se filings liberally, United States v. Yizar,
956 F.2d 230, 232 (11th Cir. 1992).
Under § 2255, “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,” the district court shall
grant an evidentiary hearing on the claims asserted. 28 U.S.C. § 2255(b). We
have held that such a hearing is not required if the allegations are “affirmatively
contradicted by the record, or the claims are patently frivolous.” Aron, 291 F.3d at
715. On the other hand, if the record does not conclusively show that relief should
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be denied, we will remand for an evidentiary hearing. Yizar, 956 F.2d at 234.
In order to demonstrate ineffective assistance of counsel, a defendant must
allege facts showing: 1) that his counsel’s representation failed to meet an
objective standard of reasonableness; and 2) that the deficient performance
prejudiced him in such a way that there is a reasonable probability it affected the
outcome of the proceeding. See United States v. Willis, 649 F.3d 1248, 1254
(11th Cir. 2011). A counsel’s decision not to investigate should be considered
under the totality of the circumstances, including the defendant’s communications
with counsel. Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 2066
(1984).
Here, we cannot say that the record conclusively establishes that Sanz is not
entitled to relief. As to the deficiency prong under Strickland, the record does not
contradict Sanz’s allegation that he told his counsel about the expired
identification cards. Further, the record reveals that, during cross-examination of
Isaacs, neither Sanz’s counsel nor counsel for any of the co-defendants questioned
Isaacs about his expired residency card or airport identification card. Finally, the
government does not challenge, and review of the record does not contradict,
Sanz’s allegation that Isaacs did not have the proper identification in 2004, or his
allegation that without these identification cards, Isaacs could not have accessed
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the airport’s secure areas in 2004 to retrieve cocaine. We further note that Sanz
attached a purported copy of Isaacs’s expired residency card to his § 2255 motion,
listing an expiration date of January 2003. Sanz also attached an affidavit from
Isaacs recanting his testimony,1 stating that he did not retrieve any cocaine for
Sanz during 2004.
As to the prejudice inquiry, even the Report and Recommendation
acknowledges that the district court considered Isaacs to be a “very persuasive
witness[] when determining that the amount of drugs involved in the offenses was
at least five kilograms.” At this stage, it is sufficient to note that had the district
court not credited Isaacs’s testimony, Sanz might have only been found
responsible for 3.2 kilograms of cocaine at sentencing. This would have resulted
in a base offense level of 28,2 and an adjusted offense level of 32,3 thereby
reducing Sanz’s guideline range to 121 to 151 months, which is a sufficient
1
We acknowledge that “recantations are viewed with extreme suspicion by the courts.”
United States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1998). Therefore, the district court
fairly questioned the trustworthiness of Isaacs’s recantation. However, we cannot say the
questionable trustworthiness of the recantation is a proper ground for determining that the rest of
the record affirmatively contradicts Sanz’s allegations for the purposes of granting or denying an
evidentiary hearing.
2
U.S.S.G. § 2D1.1(c)(6) assigns a base offense level of 28 to offenses involving between
2 and 3.5 kilograms of cocaine.
3
Sanz received a four-level enhancement for his role in the offense under U.S.S.G.
§ 3B1.1(a).
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reduction to constitute prejudice.4 Cf. Glover v. United States, 531 U.S. 198,
202–03, 121 S. Ct. 696, 699–700 (2001). Beyond that, discrediting Isaacs’s
testimony as to the quantity of cocaine might have resulted in a lower statutory
range of five to forty years, instead of ten years to life. See 21 U.S.C.
§ 841(b)(1)(A)(ii), (B)(ii).
III.
For these reasons, we hold that the record does not conclusively show that
Sanz is not entitled to relief. We therefore VACATE the denial of his § 2255
motion and REMAND this case to the district court for the appointment of counsel
pursuant to 18 U.S.C. § 3006A, and for further proceedings, including an
evidentiary hearing.
4
While the reduced guideline range would not necessarily result in a lower sentence, see
Booker v. United States, 543 U.S. 220, 245, 125 S. Ct. 738, 757 (2005) (rendering the
Sentencing Guidelines advisory), we note that the district court sentenced Sanz at the lowest end
of the guideline range, which might indicate that the court would again choose the bottom end of
any lower guideline range. Therefore, we cannot say that the record conclusively demonstrates
the absence of prejudice at sentencing.
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