UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-20665
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS RUIZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(CR-H-91-27; 94-CV-2391)
November 2, 1995
Before POLITZ, Chief Judge, JOLLY and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:*
Jose Luis Ruiz appeals the district court’s summary denial of habeas corpus relief1 on
his motions to vacate, set aside, and correct sentence. Finding no abuse of discretion, we
affirm.
*
Local rule 47.5 provides: “The publication of opinions that have no precedential value
and merely decide particular cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal profession.” Pursuant to that Rule,
the Court has determined that this opinion should not be published.
1
28 U.S.C. § 2255.
Background
Ruiz was convicted by a jury of conspiracy to possess in excess of five kilograms of
cocaine with the intent to distribute and for aiding and abetting its distribution, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2. He was sentenced to 292
months of imprisonment, five years of supervised release, a $10,000 fine, and a $100 special
assessment. We affirmed the conviction on direct appeal.2
Ruiz then filed the instant 28 U.S.C. § 2255 motion which the district court summarily
denied without written reasons and without conducting an evidentiary hearing. Ruiz
complains that his counsel was ineffective, that the government’s conduct in this case was
improper, and that the district court erred in summarily denying his section 2255 motion
without conducting an evidentiary hearing.
Analysis
Ineffective Assistance of Counsel
Ruiz first contends that his counsel was ineffective for failing to: (1) move for an
independent chemical analysis of the seized substance for use in sentencing; (2) challenge
on appeal the conversion of the cocaine base to crack cocaine; (3) object to the imposition
of a fine; (4) challenge on appeal the amount of drugs; and (5) appeal the district court’s
refusal to grant a section 3B1.2 reduction for his alleged minor role in the offense.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that
his counsel’s performance was deficient in that it fell below an objective standard of
reasonableness and that the deficient performance prejudiced his defense.3 To show
Strickland prejudice, a defendant must demonstrate that counsel’s errors were so serious as
2
United States v. Ruiz, No. 91-2917 (5th Cir. Aug. 3, 1992).
3
Strickland v. Washington, 466 U.S. 668 (1984).
2
to render the result of the trial unreliable or the proceeding fundamentally unfair.4 Further,
in a sentencing context we have held that “in deciding such an ineffectiveness claim, a court
must determine whether there is a reasonable probability that but for trial counsel’s errors
the defendant’s non-capital sentence would have been significantly less.”5 The court noted
“one foreseeable exception to this requirement would be when a deficiency by counsel
resulted in a specific, demonstrable enhancement in sentencing -- such as an automatic
increase for a ‘career’ offender or an enhancement for use of a handgun during a felony --
which would have not occurred but for counsel’s error.”6
Ruiz contends that his counsel was ineffective for failing to secure an independent
chemical analysis. The chemist attested at trial that he analyzed the seized substance and
determined that it was cocaine.7 Ruiz makes no showing to the contrary, nor does he allege
that an independent analysis was available and would have reached a different result. This
complaint is without merit as is the complaint about the conversion of cocaine to the crack
cocaine equivalent which was done by the probation officer using the conversion tables in
the guidelines.
The claim of ineffectiveness for failure to object to the fine assessed is not cognizable
in a section 2255 review.8
The claim that counsel was ineffective for failing to challenge on appeal the amount
4
Lockhart v. Fretwell,113 S.Ct. 838 (1993).
5
Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).
6
Id. at 89 n.4.
7
In particular, the DEA lab results reflect that there were 35,843.7 grams of cocaine
hydrochloride and 4835.2 grams of cocaine base.
8
United States v. Segler, 37 F.3d 1131 (5th Cir. 1994).
3
of drugs attributable to Ruiz’s offense is without merit. Ruiz was convicted of a conspiracy.
He is accountable for the foreseeable actions of his co-conspirators. Further, the record
reflects that he played an integral role in the conspiracy and appeared to be aware of its
scope. The cocaine seized in the Houston apartment appropriately was included in the
relevant conduct assessment.
This observation also applies to the complaint that counsel should have appealed the
trial court’s refusal to grant an offense level reduction because Ruiz played a minor role in
the offense. The record does not support that assertion.
Improper Government Conduct
Ruiz maintains that the government was guilty of misconduct in the handling of his
case by: (1) threatening to withdraw the plea agreements of certain witnesses if they testified
in favor of Ruiz; (2) concealing exculpatory evidence; and (3) the corrupt actions of the
prosecutor and defense counsel designed to deprive him of justice. These issues were not
raised in the trial court and may not be considered on appeal.9
Summary Denial of Section 2255 Motion
Finally, we address Ruiz’s contention that the district court erred in denying this
section 2255 motion without conducting an evidentiary hearing. “Section 2255 provides that
a hearing is required ‘unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.’”10 We review such determinations for abuse
of discretion.11 We find that the district court did not abuse its discretion in denying Ruiz’s
9
Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991).
10
United States v. Plewniak, 947 F.2d 1284, 1290 (5th Cir. 1991), cert. denied, 502 U.S.
1120 (1992).
11
United States v. Bartholomew, 974 F.2d 39 (5th Cir. 1992).
4
motion without holding an evidentiary hearing because the motion, files, and record amply
demonstrate that Ruiz is not entitled to relief.
AFFIRMED.
5