Opinion
EP-04-CA-066-DB, EP-98-CR-959-DB.
July 19, 2006
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Gustavo Diaz's ("Diaz") pro se "Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate") [Docket No. 566], filed in the above-captioned cause on February 18, 2004. Therein, Diaz challenges his conviction for conspiracy to commit mail fraud, contending that he received ineffective assistance of counsel during voir dire, trial, and on appeal. Respondent (hereinafter, "the Government") filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") [Docket No. 567] on April 12, 2004. Diaz's "Response to Government's Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Reply") [Docket No. 576] followed on June 1, 2004. After carefully considering the Parties' pleadings and the trial record, the Court concludes that Diaz has not shown that he is entitled to relief on the merits. The Court will accordingly deny Diaz relief and dismiss his Motion to Vacate with prejudice. The Court will additionally decline to certify Diaz's issues for appeal. I. BACKGROUND A. Criminal Cause No. EP-98-CR-959-DB
On August 4, 1998, the Grand Jury sitting in El Paso, Texas, returned a twenty-three count Indictment against Diaz and eight co-defendants. The Government named Diaz in only two counts of the Indictment, charging him with conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 371 and 1341 (Count One), and aiding and abetting mail fraud, in violation of 18 U.S.C. § 1341 (Count Ten). Diaz and four co-defendants, namely Arthur C.
In its opinion rejecting Diaz's direct appeal, the Fifth Circuit Court of Appeals summarized the Government's case against Diaz and his co-defendants:
As reflected by the trial evidence, physicians and medical service providers typically bill insurance companies by means of a standardized form known as a Healthcare Finance Administration (HCFA) Form No. 1500, the actual service for which a bill is submitted being designated on the HCFA Form by a Current Procedural Terminology (CPT) code, a numerical code that represents a specific service or procedure for which an insurance company will pay on behalf of an insured. On August 4, 1998, [Gustavo] Diaz, [Richard J.] Goldberg, [Jesse Jaime] Lopez, [Arthur C.] Bieganowski, and five others were charged in a twenty-three-count indictment with a series of offenses arising from a complex scheme to use these forms to defraud insurance companies. The essence of the scheme involved a conspiracy to submit bills for services that were either never performed, were known to be unneeded, or contained CPT codes that reflected a higher level of service than was actually provided.
Dr. Bieganowski began practicing medicine in Texas in 1979. By the time of his arrest in 1996, he owned five medical clinics in El Paso: El Paso Pain Stress Clinic (EPPSC), a clinic specializing in pain management and the center of Dr. Bieganowski's medical practice; El Paso Institute of Physical Medicine Rehabilitation (EPIPMR), a physical therapy clinic; El Paso Doctors Medical Center (EPDMC), a chiropracty clinic; and El Paso Radiology Services (EPRS), a radiology clinic. As a licensed physician and owner of the various clinics, Dr. Bieganowski was the central figure in the conspiracy, with Diaz, Lopez, and Goldberg fulfilling secondary roles. Diaz worked as a physician's assistant in Dr. Bieganowski's primary clinic, while Lopez worked as a physical therapist at the El Paso Institute of Physical Medicine Rehabilitation. Goldberg was nominally Dr. Bieganowski's outside accountant, but actually served as the de facto business manager for the various businesses.
The operation of the conspiracy, as charged in the indictment, covered the period between 1989 and 1996, and can be divided into three operational stages, the first of which involved the solicitation of patients. To obtain patients, Dr. Bieganowski initially engaged a self-styled telemarketer, [Robert] Griego, to solicit patients for the El Paso Pain Stress Clinic. To avoid the appearance that he was soliciting directly for Dr. Bieganowski, Griego was later employed through EPDMC, Dr. Bieganowski's chiropracty clinic. The connection, however, was only thinly veiled, as both Dr. Bieganowski and Goldberg met periodically with Griego to monitor his work, prepare scripts, and set quotas. Griego would obtain automobile accident reports from the El Paso Police Department and then use those reports to contact the accident victims by telephone. Once Griego contacted victims and referred them to EPDMC for chiropractic care, they would then be referred again to Dr. Bieganowski for further medical treatment.
The second stage of the scheme was the heart of the conspiracy and involved the creation and submission of fraudulent bills and HCFA Forms to medical insurance companies for reimbursement. The Government presented evidence of a number of fraudulent acts, including double billing, billing for services performed by Dr. Bieganowski on days when he was not in El Paso, billing for treatments known to be unneeded, billing for treatments performed by a non-physician at a physician's rate, double billing, and billing for the use of equipment that the clinic never possessed. Lopez, for example, was convicted of billing for therapy provided in a device called a Hubbard Tank, when none of Dr. Bieganowski's clinics actually possessed such a device.
The third aspect of the conspiracy involved money laundering, and the movement of the funds derived from the submission of the fraudulent HCFA Forms. In the early stages of the conspiracy, before 1994, payments from insurance companies were deposited directly into bank accounts maintained in the names of the various clinics at Norwest Bank in El Paso. After November 1994, the scheme increased in complexity and the billing operations for the various clinics were consolidated through Servicio de Facturacion y Cobranza, S.A. de C.V. (Servicio), a Mexican corporation established by Goldberg and located in Ciudad Juarez, Mexico. Under the direction of Lucy Campos, Dr. Bieganowski's nominal office manager and a named co-conspirator, Servicio assumed the role of submitting bills for the clinics for reimbursement from various insurance companies. Insurance company reimbursements were then deposited into accounts held in the clinics' names at the Bank of the West in El Paso. From there Campos, the sole signator on the Servicio account, would transfer the entire amount of the reimbursements into an account held in the name of Servicio, also at the Bank of the West. Once the funds were consolidated in the Servicio account, Campos shifted those amounts necessary to cover the clinics' operating expenses back to the original clinic accounts maintained at Norwest Bank. The excess funds that remained in the Servicio account then followed the below described routes from the Bank of the West to Dr. Bieganowski's pocket.
A certain amount of the surplus funds held in the Servicio account was delivered directly to Dr. Bieganowski. The remainder, however, was transferred to UTM Professional Management (UTM), a shell corporation established under Goldberg's guidance, whose nominal owner and sole officer was a young college student and former nanny to Dr. Bieganowski's children. Under Goldberg's direction, the funds deposited in UTM's name were moved by means of wire transfers from UTM's account in El Paso to Barclays Bank in New York. From New York, the funds were transferred to a Barclays account held by International Medical Management, a limited partnership in the Cayman Islands, where they eventually became available for Dr. Bieganowski's personal use. In 1994, the Federal Bureau of Investigation (FBI) along with the Internal Revenue Service (IRS) began to investigate Dr. Bieganowski's medical practice. An undercover investigation soon followed, which, together with the results of a search executed in 1996, led to the appellants' arrest in August of 1998. Shortly after his arrest, Dr. Bieganowski was diagnosed with cancer. Although incarcerated in El Paso, he began treatment and was briefly transferred to New York for medical attention. As a result of Dr. Bieganowski's condition and the volume of discovery, the case was considerably delayed, and did not proceed to trial until March 13, 2000.
A jury returned a guilty verdict on at least some counts for [Diaz, Lopez, Goldberg, and Bieganowski]. Goldberg was found guilty on two counts, conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 371, and conspiracy to money launder in violation of 18 U.S.C. § 1956 (a)(1)(B)(I), (a)(2)(B)(I), and (h). A third count against Goldberg was dismissed on the government's motion. He was sentenced to one hundred months' imprisonment on the conspiracy to money launder count and to a sixty month concurrent term on the mail fraud conspiracy count. Lopez was charged in five counts of the indictment, was convicted on two counts of mail fraud, and was acquitted on the other three counts. He was sentenced to concurrent terms of forty-one months' imprisonment and a two-year period of supervised release. Diaz was charged in two counts of the indictment. He was convicted of one count of conspiracy to commit mail fraud, and sentenced to a term of fifty-one months' imprisonment. He was acquitted on the other count. Bieganowski, the central participant in the conspiracy, was charged in fifteen of the twenty-three counts of the indictment. The jury returned a guilty verdict on ten of those counts, including nine counts of mail fraud and conspiracy to commit mail fraud, and one count of conspiracy to money launder. He was acquitted on five counts. Bieganowski was sentenced to 168 months' imprisonment.United States v. Bieganowski, 313 F.3d 264, 269-271 (5th Cir. 2002) (footnotes omitted).
Bieganowski, Richard J. Goldberg, Jesse Jaime Lopez, and Guadalupe Rodriguez Morales, entered a plea of not guilty and exercised their constitutional right to stand trial by jury. After an eight-week trial, the jury found Diaz guilty of conspiracy to commit mail fraud, as charged in Count One of the Indictment. The Court deferred sentencing to allow for the preparation of a Presentence Investigation Report. The Court entered its final judgment on August 28, 2000, sentencing Diaz to 51-month term of imprisonment and 2-year term of supervised release. The Court additionally ordered Diaz to pay a $100 special assessment.
Diaz appealed, arguing that the Government engaged in prosecutorial misconduct because it substantially interfered with defense expert witness Linda Howard's choice to testify. Diaz alleged that the prosecution had improperly attempted to intimidate Howard to keep Howard from testifying. Diaz specifically objected to the prosecutor's warning to Howard that the Government was considering prosecuting her for misprision of a felony and perjury. The Fifth Circuit Court of Appeals rejected Diaz's argument in a published opinion issued on November 22, 2002. Diaz did not seek a writ of certiorari from the Supreme Court of the United States.
Id. at 291.
Id.
Id.
B. Diaz's Motion to Vacate
Diaz contends that his retained counsel, Randolph Joseph Ortega ("Ortega"), rendered ineffective assistance at voir dire, trial, and on appeal. First, the Court understands Diaz to assert that, during voir dire, a prospective juror discussed a local newspaper article in front of the entire jury pool. The article allegedly contained prejudicial information concerning the imminent trial. Diaz argues that, after the juror revealed the article's contents, Ortega should have asked the Court to question the remaining prospective jurors to determine whether the juror's comments had affected their neutrality ("Ground One"). Alternatively, Diaz avers that Ortega should have asked the Court to instruct the jury to disregard the juror's comments. Second, Diaz alleges that Ortega failed to adequately investigate, interview, and call defense witnesses and did not allow Diaz to testify in his own defense ("Ground Two"). Third, Diaz argues that Ortega did not adequately cross-examine Government witnesses ("Ground Three"). Diaz contends that an adequate cross-examination would have revealed inconsistencies in FBI Special Agent James Griego, Jr.'s testimony, that the Texas Medical Practices Act allows a licensed physician's assistant to treat patients in a physician's absence, and that prior to 1996, pool therapy was not required to be supervised. Lastly, Diaz argues that Ortega was ineffective because he did not raise the foregoing issues on direct appeal ("Ground Four"). Before evaluating the merits of Diaz's claims, the Court will first consider the scope and purpose of motions pursuant to 28 U.S.C. § 2255 and the legal standard governing ineffective assistance of counsel claims.
II. LEGAL STANDARDS A. Motions to Vacate Pursuant to 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or federal law; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is similarly well settled that a collateral challenge may not take the place of a direct appeal. If a petitioner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows either cause for his procedural default and actual prejudice resulting from the error, or demonstrates that the alleged constitutional violation probably resulted in the conviction of one who is actually innocent.
Withrow v. Williams, 507 U.S. 680 (1993).
See Shaid, 937 F.2d at 231 ("[A] collateral challenge may not do service for an appeal").
Id. at 232.
To satisfy the "cause" standard, a petitioner must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. To establish "actual innocence" sufficient to overcome the procedural bar to review of his claims, a petitioner must present new evidence which, when considered with all the evidence presented at trial, makes it more likely than not that no reasonable juror would have convicted the petitioner. B. Ineffective Assistance of Counsel
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
Schlup v. Delo, 513 U.S. 298, 327-28 (1995).
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins, 539 U.S. at 521; Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id. (quoting Strickland, 466 U.S. at 688).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his attorney's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
Strickland, 466 U.S. at 687-91.
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (explaining the compelling policy considerations behind Strickland's contemporary, rather than retrospective, assessment of counsel's conduct); Burger v. Kemp, 483 U.S. 776, 789 (1987) (stating that a fair assessment of attorney performance requires the court to make every effort to eliminate the distorting effect of hindsight and to evaluate counsel's decisions based on the then-existing circumstances and counsel's perspective at the time); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (stating that the court will not find inadequate representation merely because, with the benefit of hindsight, it disagrees with counsel's strategic choices).
Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel feared that the jury would not view such testimony as mitigating and that the prosecution might respond to the testimony by presenting its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond reviewing a presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (explaining that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (holding that clairvoyance is not a required attribute of effective representation).
Furthermore, even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both Strickland's prongs, his failure to establish either deficient performance or prejudice under that standard makes it unnecessary for a court to examine whether the petitioner has satisfied the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of ineffective assistance claims are insufficient, as a matter of law, to raise a constitutional issue.
Id. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d 922, 928 (5th Cir. 1993) (stating that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Strickland, 466 U.S. at 699 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test); Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992) (stating that a court evaluating a claim of ineffective assistance need not address the components of the applicable test in order, and if a defendant fails to carry his burden as to one component of the test, the court need not address the other component); Pierce, 959 F.2d at 1302 (asserting that an insufficient showing of prejudice pretermits addressing the adequacy prong of the Strickland test for ineffective assistance).
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
With the principles articulated above in mind, the Court now turns to the merits of Diaz's ineffective assistance claims.
III. THE MERITS OF DIAZ'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
After due consideration and for the reasons discussed below, the Court concludes that Diaz has failed to establish that Ortega rendered constitutionally ineffective assistance of counsel under the applicable legal standard.
A. Ground One
In Ground One of his Motion to Vacate, Diaz alleges that Ortega rendered ineffective assistance because he did not ask the Court to question the jury pool further after one prospective juror revealed prejudicial information contained in a local newspaper article. After review, the Court concludes that Diaz has not established that Ortega performed deficiently or that Ortega's alleged shortcoming adversely affected Diaz's defense.
The record shows that, during voir dire on March 13, 2000, the Court questioned the venire about their general exposure to media coverage of the defendants' indictment and trial. Co-defendant Arthur Bieganowski's attorney, Charles Roberts ("Roberts") then asked the prospective jurors whether any of them had read an article published that same morning by the local newspaper. After six prospective jurors, including James Carr, stated that they had read or at least seen the article, Roberts asked the Court for an opportunity to question the six individuals about the article's effect on them, outside the other venire members' presence. The Court allowed Roberts to question the six venire members about the article, but required Roberts to do so in open court. When Roberts asked Juror Carr whether Carr remembered anything from the article, Carr replied, "Yeah, [Bieganowski] allegedly threatened witnesses, threatening to kill them, and a large amount involved in the alleged offense." Roberts immediately, but unsuccessfully, moved for a mistrial, arguing that Carr's statement had infected the entire jury pool.
Transcript, Vol. 9 of 43, at 28-135.
Id. at 153.
Id. at 155-56.
Id.
Id. at 157.
Id. at 158.
On appeal, Roberts argued that the Court erred in denying him leave to question the six venire members outside the other prospective jurors' hearing and in denying his motion for mistrial after Carr's statement. The Court of Appeals found no reversible error, stating,
United States v. Bieganowski, 313 F.3d 264, 271 (5th Cir. 2002).
Undoubtedly, the district court would have been better advised to have granted Bieganowski's request to conduct individual voir dire, of those who indicated they had read the particular article, outside the hearing of the panel. The court also would have been better advised to have engaged in further questioning of the entire venire after Carr's statement in the presence of the panel about the contents of the article. Equally important, however, is Bieganowski's failure to request such additional questioning by the court (or otherwise). We must ask, therefore, whether the district court's failure to conduct individual voir dire after Carr's statement, in the absence of that failure being brought to the court's attention, so affected Bieganowski's substantial rights as to merit reversal. We conclude that it did not.
Id. at 273-74.
In his present collateral appeal, the Court understands Diaz argues that, like Roberts, Ortega should have asked the Court to question the entire panel further after Carr's statements. In addition, the Court understands Diaz to assert that Ortega should have urged the Court to issue a special instruction directing the panel to disregard Carr's statement.
The Government has offered an affidavit from Ortega addressing Diaz's allegations. Therein, with regard to Ground One, Ortega states that "I believed during trial and my professional opinion has not changed that the voir dire conducted and the instructions provided to the jury were more than adequate. In addition, the bulk of the media attention surrounded codefendants and not Mr. Diaz." After due consideration, the Court concludes that the media coverage in question focused on Arthur Bieganowski rather than Diaz, and therefore it was not professionally unreasonable for Ortega to decide that further questioning or a supplemental instruction were unnecessary. More over, even assuming for purpose of argument that Ortega performed deficiently, the Court finds that Diaz has nonetheless failed to establish prejudice resulting from Ortega's alleged shortcomings, for the reasons discussed by the Court of Appeals. B. Ground Two
Resp't's Resp., Docket No. 567, Ex. E.
Id. at ¶ 3.
Bieganowski, 313 F.3d at 274.
In Ground Two of his Motion to Vacate, Diaz argues that Ortega failed to adequately investigate, interview, and call defense witnesses and did not allow Diaz to testify in his own defense. After review, the Court concludes that Diaz has failed to not carried his burden under Strickland.
1. Inadequate Investigation
Diaz's allegation that Ortega failed to investigate or to interview defense witnesses is conclusory and thus insufficient as a matter of law to establish an ineffective assistance of counsel claim. The Court now turns to Diaz's contention that Ortega rendered ineffective assistance because he did not call certain witnesses to testify on Diaz's behalf.
Kinnamon, 40 F.3d at 735.
2. Uncalled Witnesses
The law does not favor ineffective assistance of counsel claims based on complaints of uncalled witnesses. "The presentation of witness testimony is essentially strategy and thus within trial counsel's domain." Mere "speculation as to what these witnesses would have testified is too uncertain." To show prejudice under Strickland, the petitioner must show not only that the uncalled witness's testimony would have been favorable, but he must also show that the witness would have testified at trial. "In the case of an uncalled witness, . . . at the very least the petitioner must submit an affidavit from the uncalled witness stating the testimony he or she would have given had they been called at trial." "A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim."
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Id.
Id.
Id.
Wright v. Gramley, 125 F.3d 1039, 1044 (7th Cir. 1997).
United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991); see Wing v. Sargent, 940 F.2d 1189, 1191 (8th Cir. 1991) (stating that the burden is on the petitioner to show that counsel's performance was objectively unreasonable, and that a petitioner's speculation regarding how the uncalled witnesses would have testified is insufficient to meet the burden of proof).
Here, the Court understands Diaz to argue that Ortega should have called Howard Lee and Oscar Perez, two El Paso physicians, to testify on Diaz's behalf. After review, the Court finds that Diaz has not established prejudice. That is, Diaz has utterly failed to come forward with any evidence, let alone an affidavit from Lee or Perez, establishing that either physician would have been available and willing to testify at Diaz's trial or that their testimony would have assisted to Diaz's defense in any meaningful way. Diaz has therefore failed to meet his burden under Strickland as to this aspect of his ineffective assistance claim. The Court now considers Diaz's claim that Ortega was ineffective because he did not call Diaz to testify on his own behalf.
3. Ortega Advised Diaz Against Testifying at Trial
A criminal defendant has a fundamental constitutional right to take the stand to testify in his own defense. Where a defendant contends that his counsel interfered with his right to testify, the appropriate vehicle for his allegation is an ineffective assistance of counsel claim pursuant to Strickland. The deficient-performance analysis under the first prong of Strickland varies according to the particular nature of counsel's alleged interference. Because the right to testify is personal to the defendant, his counsel may not waive it over the objection of his client. Therefore, "it cannot be reasonable trial strategy for an attorney to not honor his client's decision to exercise his constitutional right to testify, not because the advice not to take the stand is unsound, but because counsel must in the end accede if the client will not abide by the advice." When counsel will not abide by his client's decision, the defendant's contemporaneous failure to address the trial court regarding his desire to testify does not, in itself, preclude the defendant from asserting the claim in a post-conviction proceeding.
Rock v. Arkansas, 483 U.S. 44, 49-52 (1987); Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001).
United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001); Sayre, 238 F.3d at 64; see United States v. Brown, 217 F.3d 247, 258-59 (5th Cir. 2000).
United States v. Mullins, 315 F.3d 449, 454 (5th Cir. 2002) (explaining that the defendant's right to testify is secured by the Constitution, and only he may waive it).
Mullins, 315 F.3d at 454.
Id. at 455 (explaining that placing the burden upon the defendant would be inconsistent with "the reality that routine instructions to defendants regarding the protocols of the court often include the admonition that they are to address the court only when asked to do so.").
Where the record indicates that the defendant knew of his right to testify and wanted to do so, but acquiesced in counsel's advice that he not take the stand, the only inquiry is whether counsel's advice against testifying constituted sound trial strategy. In examining counsel's strategy, the Court must remain mindful that the decision whether to put a defendant on the stand is "a judgment call that should not easily be condemned with the benefit of hindsight." As with all ineffective assistance claims, it is not enough to show that counsel performed deficiently. The defendant must also show that the alleged deficient performance perjudiced him. Specifically, the defendant must demonstrate "a reasonable probability that, absent the errors, the factfinder would have had reasonable doubt respecting guilt and that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Id. at 454-55.
Id. at 453.
Strickland, 466 U.S. at 691-92.
Mullins, 315 F.3d at 453.
Id. at 456.
Here, the Court understands Diaz to allege that he knew that he had a right to testify, discussed the prospect with Ortega, and acquiesced when Ortega advised him not to take the stand. The Court further understands Diaz to argue that Ortega's advice not to testify was professionally unreasonable. Ortega, for his part, does not dispute that he counseled Diaz against testifying. Ortega explains that "it was and is my opinion that based on the incredible and unbelievable explanations Mr. Diaz would have forwarded to the jury regarding his involvement, his chances of conviction would have risen substantially." After due consideration and given the wide professional discretion afforded counsel, the Court finds that Diaz has not shown that Ortega's advice fell outside the bounds of reasonable professional judgment.
Resp't's Resp., Ex. E. ¶ 4.
C. Ground Three
In Ground Three of his Motion to Vacate, Diaz argues that Ortega did not adequately cross-examine Government witnesses Maximo Arroyo, Lei Zhang, Maribel Mata, Lucy Campos, Arthur C. Bieganowski, and Agent James Griego. Diaz additionally asserts that Ortega did not adequately cross-examine Bieganowski's expert witness, Linda Howard. The Court has closely examined these witnesses' testimony and Ortega's actions regarding cross-examination. After due consideration, the Court concludes that Diaz has failed to show that Ortega's choices regarding whether and to what degree to cross-examine the aforementioned witnesses fell outside the ambit of reasonable professional judgment, or that prejudice ensued to Diaz's defense as a result of Ortega's strategic decisions.
Transcript, Vol. 15 of 43, at 159-270 Vol. 17 of 43, at 6-60 (test. of M. Arroyo); Vol. 18 of 43, at 252-288 Vol. 19 of 43, at 7-66 (test. of L. Zhang); Vol. 19 of 43, at 208-92, Vol. 20 of 43, at 13-76, Vol. 25 of 43, at 320-40, Vol. 26 of 43, at 16-46, Vol. 30 of 43, at 161-218, Vol. 33 of 43, at 276-77 (test. of J. Griego); Vol. 30 of 43, at 233-65, Vol 31. of 43, at 44-237, Vol. 32 of 43 at 42-307, Vol. 33 of 43, at 11-151 (test. of L. Howard).
D. Ground Four
Diaz argues that Ortega performed deficiently because he did not raise the allegations included in Grounds One through Three of Diaz's Motion to Vacate on direct appeal. Ortega responds that, after reviewing the extensive trial record, he determined that no viable grounds for appeal existed. However, in an abundance of caution, Ortega explains, he filed his own brief on Diaz's behalf and adopted the briefs filed by Diaz's co-defendants. Ortega notes that none of the arguments he or counsel for Diaz's co-defendants raised on appeal were successful, as the Fifth Circuit Court of Appeals affirmed each defendant's conviction.
Resp't's Resp., Docket No. 567, Ex. E. at ¶ 6.
Id.
Id.
As a threshold matter, the Court notes that the United States Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal. Further, it is clear that the Court of Appeals considered and rejected the argument raised in Ground One of Diaz's Motion to Vacate. Diaz therefore cannot show prejudice even if he could show that Ortega performed deficiently. As to Diaz's Grounds Two and Three, the Court observes that the record would not have been sufficiently developed for the Court of Appeals to evaluate the merits of Diaz's claims. Lastly, the Court finds that Ortega acted in a professionally unreasonable manner in choosing which grounds to raise and which grounds to forego regarding Diaz's appeal.
Jones v. Barnes, 463 U.S. 745, 751 (1983); Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989).
Pierce, 959 F.2d at 1301.
VI. CERTIFICATE OF APPEALABILITY
To appeal the denial of a Motion to Vacate filed under 28 U.S.C. § 2255, the petitioner must obtain a Certificate of Appealability. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the scope of appellate review from the denial of habeas petition is limited to issue on which the CoA granted).
28 U.S.C.A. § 2253(c)(3); Crutcher, 301 F.3d at 658 n. 10; Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997); Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997).
A CoA to appeal the denial of a Motion to Vacate shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If the Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge the Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must satisfy two requirements. First, the petitioner must demonstrate that jurists of reason would debate whether the petition states a valid constitutional claim. Second, the petitioner must show that jurists of reason would debate whether the Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C.A. § 2253(c)(2); Miller-El, 537 U.S. at 327.
Miller-El, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Id.
Id.
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and the Parties' pleading, the Court concludes that jurists of reason could not debate whether Diaz has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court will deny Diaz a CoA regarding his claims.
VII. CONCLUSION ORDER
For the reasons discussed above, the Court finds that Diaz is not entitled to relief regarding the claims he raises in his Motion to Vacate. The Court additionally finds that Diaz is not entitled to a Certificate of Appealability. The Court accordingly enters the following Orders:
1. Petitioner Gustavo Diaz's pro se "Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" [Docket No. 566], filed in the above-captioned cause on February 18, 2004, is hereby DENIED and this matter is DISMISSED WITH PREJUDICE.
2. The Court DENIES Petitioner Diaz a Certificate of Appealability with respect to his claims.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.