UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
JESUS TORIVIO-ARIAS, )
Petitioner )
) CIVIL ACTION
v. ) NO. 05-10417-NMG
)
UNITED STATES OF AMERICA, )
Respondent )
)
Government’s Memorandum In Opposition To
Petitioner’s Motion Under 28 U.S.C. §2255
Introduction
The United States of America, by Michael J. Sullivan, United
States Attorney, and David Hennessy, Assistant U.S. Attorney, for
the District of Massachusetts, hereby files this memorandum in
opposition to the motion of Jesus Torivio-Arias (hereinafter
“Petitioner”) under 28 U.S.C. §2255. Petitioner moves to vacate or
set aside the sentence this Court imposed, and the underlying
conviction, and for an evidentiary hearing, alleging that his
attorneys in both the District and Appeals Courts were
constitutionally ineffective.
As shown below, the real impetus for this Section 2255 motion
is that Petitioner’s attempt to defraud the Court and the Criminal
Justice System by lying about his true identity and his true
criminal history was exposed, and Petitioner received a much higher
sentence than what would have been imposed had his fraud not been
discovered. Because Petitioner’s claims are meritless, and because
they can be resolved on the papers, the petition should be
Case 1:05-cv-10417-NMG Document 4 Filed 07/10/2006 Page 1 of 21
1 Citations to “[PSR]” refers to the Pre-Sentencing Report;
“[D._]” refers to a docket entry; “[Def. Brf.]” refers to the
defendant’s brief; “[Plea Tr.]” refers to the transcript from the
change of plea hearing; and the citation “[Disposition]” refers
to the transcript of the sentencing hearing.
2
dismissed without a hearing.
Facts And Prior Proceedings
A. Indictment and Plea.
In November 2000, Petitioner was one of eleven named in a
fifteen-count Second Superseding Indictment. Petitioner was
charged with one count of conspiring to possess with the intent to
distribute, crack cocaine, in violation of 21 U.S.C. §846 (Count
1); and one count of possession of crack cocaine with the intent to
distribute it and distribution of it, in violation of 21 U.S.C.
§841(a)(1) (Count 11); [PSR ¶5-7].1 Petitioner moved to suppress
post-arrest statements on January 3, 2001. [D. 121 ]. The motion
was denied after a hearing on September 27, 2001. [D. 229-231].
On September 30, 2002, Petitioner pled guilty to both charges
without a plea agreement. [Plea Tr. 6]. Before accepting the
change of plea, this Court conducted a thorough legal and factual
colloquy pursuant to Fed.R.Crim.P. 11 to assure itself that the
plea was voluntary and intelligent. The Court: directed the
government to recite the applicable statutory penalties(a maximum
of life imprisonment and a mandatory minimum of ten years
imprisonment), report that there was no plea agreement, but that,
based on available information, that Petitioner gave the government
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a proffer that met the requirement of the safety valve, and asked
Petitioner if he was fully satisfied with the advice and
representation given to him by his attorney. Id. at 5-7. So
thorough was the colloquy that when Petitioner showed confusion
when asked whether he was pleading guilty to Count 11 (the
substantive drug offense), the Court inquired: “Do you understand
you’re pleading guilty to Count 11 now, Mr. Arias. Do you
understand that?” To which Petitioner answered, “Yes.” Id. at 12.
The Court also advised Petitioner that the applicable
guideline for his sentence would not be determined until after the
completion of a pre-sentence investigation report (“PSR”), and that
subject to the PSR and other information, that the Court had the
authority to impose a sentence that was more or less severe than
that required by the guidelines. Id. at 7-8. Petitioner
unequivocally acknowledged that he understood that the Court
possessed such authority. Finally, the Court obtained Petitioner’s
assurance that no promises had been made to induce his plea. Id. 6.
The Court also satisfied itself that there was an independent
factual basis for Petitioner’s plea. The government proffered that
had the case gone to trial, it would have proved that Petitioner,
along with his co-defendant Albert Torres, sold crack cocaine to an
undercover agent of the Drug Enforcement Agency. Id. at 9-11. On
October 28, 1999, the agent contacted Torres on the telephone to
set up a purchase for five ounces of crack cocaine. Id. at 9.
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Torres asked the agent to meet him at a residence at 296 Kimball
Street in Fitchburg. Id. The agent met Torres outside and then
they entered the house. Id. Torres entered a back room and
returned with Petitioner. Id. Petitioner was carrying a package
containing beige, cookie-shaped substances. Id. at 10. The three
men went into a bedroom where Petitioner broke off pieces of the
substances so the agent could weigh them. Id. The agent asked
Torres if he could purchase the crack for $800 an ounce. Id.
Torres spoke with Petitioner in Spanish and then explained to the
agent that the crack was Petitioner’s and the lowest Petitioner was
willing to sell it for was $850 an ounce. Id. The agent asked how
much he could get for $4,000 and Petitioner replied through Torres
that he could have the five ounces now and could pay the difference
later. Id. The agent agreed, placed the crack in a bag, and then
left. Id. The next day the agent returned. Id. Petitioner was
not there, so the agent paid Torres the remaining $250. Id. The
DEA lab determined the substances contained cocaine base, with a
net weight of 136.9 grams. Id. Petitioner did not disagree with
or seek to change this proffer. Id. at 10-11.
The Court accepted the plea. Id. When the Court did so, it
was the government’s belief that Petitioner had no criminal history
and was safety-valve eligible. See Id. at 6.
B. Petitioner’s Obstruction of Justice
After the plea, it came to light that Petitioner had attempted
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to defraud the Court: from arrest until publication of the initial
PSR, Petitioner falsely represented that he was Jesus Torivio-
Arias. For instance, at his plea hearing under oath and during his
post-plea interview with Probation, Petitioner said he was Jesus
Torivio-Arias. Id. at 4. He even gave Probation false personal
and family history, and asserted he was a permanent resident alien.
[PSR ¶¶44A, 54]. All of this was a lie – designed to conceal
Petitioner’s extensive criminal history of narcotics predicates and
illegal presence in the U.S. Petitioner is Miguel Angel Morales
Peguero, an illegal alien who had been twice convicted of narcotics
felonies. [Disposition 2,17]. This fact was discovered by
Probation during the PSR investigation. Id. at 10. Only after
Probation exposed the lie, did Petitioner request another meeting
with Probation to confess that had concealed his true identity, id.
at 4, and give his true name. [PSR ¶44-45].
The reason for the concealment was apparent: while no
convictions existed for Jesus Torivio-Arias, under his real name
Petitioner had a substantial criminal history, including two prior
cocaine distribution convictions and a conviction for escape from
prison. Id. at ¶ 33-35. Furthermore, the PSR revealed that
Petitioner obtained a resident alien card using fraudulent
documents, and had been deported from the U.S. Id. at ¶ 20, 54.
C. Sentencing
On April 29, 2003, this Court held a sentencing hearing. [D.
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351]. According to the PSR, Petitioner was responsible for 136.9
grams of crack, the amount he sold to the undercover. [PSR ¶16].
The PSR recommended a two-level upward adjustment for obstruction
of justice, yielding an adjusted offense level of 34. [PSR ¶¶23-
28]. However, this adjustment was moot. The Court also found that
Petitioner, under his true identity, had two felony narcotics
convictions, and that coupled with the instant conviction,
qualified as a career offender. Accordingly, the base offense
level was 37 (based on maximum sentence of life) and his criminal
history category was VI under U.S.S.G. §4B1.1(b). [PSR ¶¶29-30,
39; Disposition 17]. According to the PSR, Petitioner’s
obstruction of justice was incompatible with acceptance of
responsibility. The resulting guideline sentencing range was 360
months to life imprisonment. [PSR ¶71].
Notwithstanding a hornbook example of obstruction,
Petitioner’s attorney advocated for a reduction for acceptance of
responsibility. [Disposition 3-6]. While conceding that Petitioner
lied about his identity, Counsel argued, under the authority of
U.S.S.G. §331.1 that both adjustments might be awarded in
“extraordinary cases,” that the case was extraordinary because
Petitioner had from the time of arrest admitted to committing the
crimes charged in the indictment and had proffered with the
government. Id. at 5-6.
The government disagreed, arguing that accepting
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responsibility for an offense necessarily included admitting one’s
true identity. Id. at 7-9. It also argued that Petitioner moved
to suppress his post-arrest admissions and that his offer to
cooperate with the government failed because he did not want to
plead guilty. Id. at 7-8. Finally, the government argued that
petitioner’s concealment of his identity until after the plea
hearing was intended to hide his criminal history and cause the
Court to sentence him on incomplete and inaccurate information.
Id. at 8-10. It noted that as a result of the petitioner’s deceit,
the government lost the opportunity to seek an enhanced sentence
based on his criminal record because 21 U.S.C. §851 required notice
prior to the guilty plea.
This Court awarded an obstruction of justice enhancement
(although it was moot in light of the career offender designation)
and denied the acceptance of responsibility adjustment. It
explained that “it does seem to me, however, that an indication of
one’s acceptance of responsibility for a crime is to admit the
identity of the person who committed the crime. The Court ruled:
[T]he defendant is not entitled to any
reduction for acceptance of responsibility
because, in this Court’s opinion, the
defendant has not accepted responsibility, as
evidenced by his failure, extreme failure, to
give truthful answers to the questions asked
of him by the probation officer after he pled
guilty. And, as I understand it, when he was
confronted even at the second hearing with the
probation officer about whether or not he had
ever been deported, he denied that until
confronted with evidence of the fact that that
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occurred.
For those reasons, and as I’ve said,
because I do not believe this defendant has
truly accepted responsibility, he is not
entitled to any reduction in that regard.
Id. at 11-12.
Counsel still persisted in his advocacy for Petitioner.
Counsel had filed a motion for a downward departure based on Career
Offender designation overstating criminal history and likelihood of
recidivism. At the hearing Counsel supplemented the motion. Id.
at 19-20. The Court denied the motion.
Although moot because of the Career Offender designation, this
Court also determined, over the objection of Petitioner’s Counsel,
that the criminal history score should include two points for being
under a criminal justice sentence at the time of the commission of
the instant offense. [Disposition 14-16].
Under the career offender guideline, the applicable sentencing
range was 360 months to life. The Court sentenced Petitioner to
360 months of imprisonment, five years of supervised release, and
a $200 assessment. Id. at 21-25.
D. Appeal.
Petitioner appealed, claiming that the Court erred in denying
him credit for acceptance of responsibility. [D. 356]. On March
15, 2004, the Court affirmed. [D. 386]. The Court held:
“We find no clear error in the sentencing
court’s refusal to grant a reduction in the
offense level pursuant to United States
Sentencing Guidelines Manual 3E1.1, given the
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significant reduction in Torivio’s sentence
that would have resulted had he succeeded in
withholding his true identity through
imposition of sentence”.
[D. 386].
ARGUMENT
Counsel Effectively Represented Petitioner
Petitioner claims that he was denied effective assistance of
counsel when: (1) his attorney advised him that by his guilty plea
he faced a maximum jail sentence of 180 months; (2) his attorney
failed to advise him to withdraw his guilty plea; (3) his attorney
failed to raise Sixth Amendment objections to Court determinations
by a preponderance of guideline and criminal history enhancements;
(4) his attorney failed to object to the government’s filing of
Section 851 notices; and (5) his appellate attorney failed to take
up these issues of ineffective assistance on direct appeal. Each
of these claims should be denied without a hearing.
We deal briefly and out of order with one claim: that counsel
was ineffective for failing to object to the filing of Section 851
notices. Petitioner misstates or misconstrues the record. No
Section 851 notices, which would have subjected Petitioner to a
mandatory life sentence, were filed in this case. Indeed,
precisely because Petitioner succeeded in concealing his true
identity and criminal history until after his guilty plea, the
government was barred from filing Section 851 notices.
Accordingly, this claim should be summarily dismissed. We turn to
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Petitioner’s remaining claims.
A. Legal Principles
In Strickland v. Washington, 466 U.S. 668 (1984), the Court,
in reaffirming that the Sixth Amendment guarantees a criminal
defendant “effective” assistance of counsel, said, “[t]he benchmark
for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result.” Id. at 686. The Court formulated a two-prong test
for evaluating counsel’s performance. To establish a violation of
the Sixth Amendment, a defendant must prove: (1) that counsel’s
performance fell below an objective standard of reasonableness; and
(2) that counsel’s deficient performance prejudiced the defendant,
resulting in an unreliable or fundamentally unfair outcome of the
proceeding. Id. at 687. In considering such a claim “counsel is
strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonably professional
judgment.” Id. at 690 (emphasis added). “Courts must ‘judge the
reasonableness of counsel’s challenged conduct on the facts of a
particular case, viewed as of the time of counsel’s conduct’”. Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000)(quoting Strickland, 466
U.S. at 690). In the context of a guilty plea, “[i]n order to
satisfy the second, or ‘prejudice,’ requirement, the defendant must
show that there is a reasonable probability that, but for counsel's
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errors, he would not have pleaded guilty and would have insisted on
going to trial”. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
B. Petitioner’s claim of ineffective assistance of counsel
because his attorney represented that he faced a maximum
of 180 months’ jail is without merit.
Petitioner contends that his trial attorney was
constitutionally ineffective by advising Petitioner that he faced
a maximum of 180 months’ imprisonment if he pled guilty, and that
as a result, Petitioner’s plea, which resulted in a sentence of 360
months’ jail, was neither knowing nor voluntary. [Def. Br. 9].
This claim is without merit.
As an initial matter, it is pellucid that where, as here, a
defendant misrepresents critical information to his attorney,
counsel cannot be found to have been ineffective in relying on the
misrepresentation and advising a defendant based thereon. As the
Court noted in Strickland:
The reasonableness of counsel’s actions may be determined
or substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually
based, quite properly, on informed strategic choices made
by the defendant and upon information supplied by the
defendant.
466 U.S. at 691; see also United States v. Colon-Torres, 382 F.3d
76, 86 (1st Cir. 2004)(“[L]awyers are entitled to rely reasonably
on the explicit representations of clients about their criminal
histories.”; remanding claim of ineffective assistance where record
indicated counsel may have learned of prior crimes before plea).
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2This is no small assumption since the substance of
communications between Petitioner and Counsel is not proved by an
affidavit from Petitioner or Counsel, but the say-so of someone
who had demonstrated little regard for truth.
12
Here, assuming Counsel had told Petitioner he faced no more
than 180 months in jail,2 Counsel understandably was acting upon
Petitioner’s repeated representations, including averments under
oath, that he was Jesus Torivio-Arias, for whom there was no known
criminal history. Indeed, shortly before the change of plea
hearing, both Counsel and the government believed that Petitioner
was safety-valve eligible and conducted a proffer so that
Petitioner might so qualify. [Disposition at 10]. Accordingly,
Counsel’s advice, assuming it was given, cannot be considered to
have fallen below an objective standard of reasonableness.
Moreover, to his credit, and as an indication of Counsel’s
competence in representing Petitioner, Counsel made an effort at
damage-control. Upon learning of Petitioner’s false statements,
Counsel promptly requested a second interview with Probation so
that Petitioner could admit and correct his false statements. Such
a strategy positioned Counsel to better argue for acceptance of
responsibility credit or leniency by noting Petitioner had promptly
owned up to the lies.
Equally unavailing is Petitioner’s claim that because of
Counsel’s estimate that he faced 15 years in jail, his plea was not
knowing and voluntary. The plea shows that Petitioner was advised
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that he could face up to life imprisonment. It also shows that
Petitioner was expressly advised that the Court would not be able
to determine the Guidelines until after the PSR had been prepared
and Counsel and the government had an opportunity to challenge it.
Id. at 8. In this regard, the Court expressly advised Petitioner
that his sentence could be more or less severe than called for in
the guidelines. Id. In each instance, Petitioner said he
understood. Finally, the Court secured Petitioner’s unambiguous
assurance that no promises or assurances of any kind had been made
or influenced Petitioner’s decision to plead guilty. Id. at 6.
Hence, there is nothing in the record, even assuming Counsel told
Petitioner that he faced no more than 15 years, to suggest
Petitioner did not knowingly and voluntarily plead to a crime that
exposed him to life imprisonment. Hence, the Section 2255 motion
should be dismissed without a hearing.
C. A Failure to Advise Petitioner to Withdraw his guilty plea
at Sentencing Does Not Constitute Ineffective Representation.
Petitioner next claims that his attorney was ineffective
because Counsel failed to advise Petitioner, after the PSR was
prepared, that he could move to withdraw his plea. [Def. Br. 9-11].
This claim is without merit.
Withdrawal of a guilty plea is not an absolute right. Fed. R.
Crim. P. 11(d) requires defendant seeking to do so to show a “fair
and just” reason. See also United States v. Torres-Rosa, 209 F.3d
4, 8 (1st Cir. 2000). Upon such a motion, a Court should consider
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the totality of the circumstances, and in particular: (i) the
plausibility of the proffered reason, (ii) the timing of the
attempted retraction, (iii) the presence or absence of a claim of
innocence, and (iv) whether the circumstances cast serious doubt on
the bona fides of the original plea. Id. at 8-9. “The fact that
a defendant finds himself faced with a stiffer sentence than he had
anticipated is not a fair and just reason for abandoning a plea”.
Id. at 9.
Assuming arguendo that Counsel did not tell Petitioner he
could withdraw his plea – again Petitioner offers no affidavits or
proof of his communications with Counsel – the likelihood of
success of a motion to withdraw his plea was remote, and any
failure to advise Petitioner to do so was, under the circumstances,
a reasonable strategic choice. The factors noted above show that
such a motion had little chance of success. First, the proffered
reason for seeking withdrawal would have been that Petitioner faced
a higher sentence than he expected, a reason caselaw plainly
rejects as “fair and just.” Second, the timing of the motion is
fatal: Petitioner would have moved only after his lie about his
true identity was revealed. Third, Petitioner does not contend
that he is innocent; nor could he: Petitioner was face-to-face
with an undercover agent in negotiations and delivery of 135 grams
of crack. Lastly, as noted above, there is nothing in the record
to cast doubt on the bona fides of the original plea. Rather, the
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motion would have been predicated on the dubious ground that
Petitioner’s attempt to defraud the Court had been exposed. Under
all these circumstances, Petitioner has suffered no prejudice from
the alleged under-performance of counsel because a motion to
withdraw under these circumstances was doomed to failure.
But apart from its lack of merit, a motion to withdraw carried
extremely significant risks for Petitioner. Foremost, if made and
granted, the government would have been able to file the Section
851 enhancements that had been time-barred because Petitioner had
been able to conceal his criminal history until after his plea.
See 21 U.S.C. §851 (requiring that §851 notice be filed before
verdict or plea). As a result, withdrawal would have exposed
Petitioner to a mandatory life sentence. This is no small risk
because there is every reason to believe Petitioner would have been
convicted. The evidence against him included the testimony of the
undercover agent who participated in face-to-face negotiations with
Petitioner; Petitioner’s recorded statements during the transaction
(see Ex.1 hereto); and Petitioner’s post-arrest statement in which
he confessed to participating in the transaction (see Ex. 2 hereto
¶8). Under the circumstances, Counsel’s alleged failure to advise
Petitioner to move to withdraw his plea was not unreasonable.
For these reasons also, Petitioner’s reliance on United States
v. Sanchez-Barretto, 93 F.3d 17, 21-23 (1st Cir. 1996), is
misplaced. There, in support of a motion to withdraw a guilty
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plea, defendant claimed his innocence, and alleged that his
attorney’s failure to prepare caused counsel to coerce a plea.
Here, the unambiguous facts show that whatever advice Counsel
provided regarding a plea was skewed by false information
Petitioner affirmatively provided. “[T]he fault – if there was one
– lies not with what others said but with [Petitioner] himself.”
Mercedes, 428 F.3d at 360. Under such circumstances, the claim of
ineffective assistance should be dismissed without a hearing.
D. Petitioner Cannot Show Prejudice from Allegations that
Counsel Should have Interposed Apprendi Objections
Petitioner next contends that Counsel was constitutionally
ineffective for failing to object, on the basis of Apprendi v. New
Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220 (2005), to
findings by the Court by a preponderance of the evidence of factors
that increased Petitioner’s sentence beyond the Guidelines
Sentencing Range. (“GSR”). Petitioner identifies the following as
objectionable on this theory: Section 851 enhancements; a two-point
increase for obstruction of justice; and the assessment of two
criminal history points for committing the instant offense while
under a criminal justice sentence. This claim is without merit.
There is only one finding by this Court that affected the
sentence in this case, and that is that Petitioner is a career
offender. This finding had the effect of increasing the BOL to 37
and the criminal history to VI, which prescribe a GSR of 360 months
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to life. In light of this determination, findings that Petitioner
obstructed justice, or had 10 instead of 8 criminal history points,
were academic, and Petitioner suffered no prejudice from such
inconsequential findings, assuming arguendo the process violated
Apprendi and Booker. Indeed, at the sentencing hearing, such
findings were described, or at least recognized, as moot.
[Disposition 14, 17-18].
The significance of the foregoing is that the critical finding
that determined the sentence here is plainly outside the ambit of
Apprendi and Booker. The rule of Apprendi, as restated in Booker
is: “Any fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt”.
Booker, 543 U.S. at 244. Since Petitioner’s career offender
designation was based on prior convictions, the findings are not
objectionable under these cases. United States v. Almendarez-
Torres, 523 U.S. 224 (1998)(upholding the authority of judges to
determine criminal history); United States v. Ivery, 427 F.3d 69,
75 (1st Cir. 2005)(rationale of Apprendi does not apply to sentence
enhancement provisions based on prior convictions). Hence, it
would have been frivolous for Counsel to object to the Court’s
career offender finding based on Apprendi. See Polk County v.
Dodson, 454 U.S. 312, 323 (1981)(“It is the obligation of any
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3 To the extent Petitioner contends that his attorney should
have objected on grounds other than Apprendi to the Court’s
determination that he had obstructed justice and that he was in
violation of his parole, such objections would have been
meritless. The lie to the Court and Probation about identity and
history was a text-book example of obstruction. Perjury serves
as a trigger for the obstruction of justice enhancement. See
U.S.S.G. §3C1.1. The Court properly applied the test for
perjury: whether the defendant intentionally gave false
information regarding a material matter. United States v.
Campbell, 61 F.3d 976, 984 (1st Cir. 1995).
Similarly, (over his attorney’s objection) the Court
correctly assessed Petitioner two criminal history points for
committing the instant offense within two years of his release
from custody. In pertinent part, he was released in November
1998 from jail in Massachusetts to the custody of INS and then
deported from the United States in December of 1998. Petitioner
re-entered the United States illegally and committed the charged
offense during October 1999 less than a year after he was
released from Massachusetts state custody on the escape charge.
The assessment of two points was proper under Section §4A1.1(e).
18
lawyer-whether privately retained or publicly appointed-not to clog
the courts with frivolous motions or appeals”). The attack on
Counsel’s performance for failing to raise an Apprendi-like
objection should be summarily denied.3
E. Appellate Counsel’s Performance was Reasonable
Petitioner next sets his sights on appellate counsel: that
appellate counsel was also ineffective for failing to pursue the
issues of ineffective assistance of trial counsel on direct appeal.
[Def. Br. 7-8,11,13,15,21]. This claim is without merit.
It is settled that “[f]act-specific claims of ineffective
assistance of counsel, not raised below, cannot ordinarily be
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4Nevertheless, no hearing is required here because even
assuming that trial counsel provided the advice Petitioner now
attacks as falling below an objective standard of reasonableness,
the claims, as shown above, are without merit.
19
advanced for the first time on direct appeal, but, rather, must be
instigated through a post-conviction petition under 28 U.S.C. §
2255". Mercedes, 428 F.3d at 361. The rationale behind this rule
is that ineffective assistance of counsel claims normally require
fact-specific inquiries that an appellate court, without a
developed record, is ill-equipped to undertake. Id. Exceptions
have been made when the “critical facts are not genuinely in
dispute and the record is sufficiently developed to allow reasoned
consideration of [the] ineffective assistance claim”. Id. (quoting
United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991)).
This case does not fall within the exception. Petitioner’s
attack on trial counsel, though entirely unsupported, relies
heavily on the substance of his communications with trial counsel,
for which there was no record at appeal. Indeed, the claim is at
odds with Petitioner’s own application for an evidentiary hearing
on this 2255 motion.4 Moreover, even if the claims could have been
raised on appeal, it is hard to see how Petitioner has been
prejudiced by any failure to do so. His claims of ineffective
assistance of counsel are not barred by the failure to raise them
in an appeal. See Strickland, 466 U.S. at 687. Rather, Petitioner
is now receiving a meaningful opportunity to litigate his claims.
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Accordingly, the attack on appellate counsel should be summarily
dismissed.
Conclusion
Based on the foregoing, the government respectfully requests
that the Court dismiss Petitioner’s §2255 motion without a hearing
petition since the undisputed facts demonstrate that it is without
merit.
Respectfully submitted,
MICHAEL J. SULLIVAN
United States Attorney
/s/ David Hennessy
By: David Hennessy
Assistant U.S. Attorney
DATED: July 10, 2006.
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CERTIFICATE OF SERVICE
This is to certify that I have this day served upon the person
listed below a copy of the foregoing document by depositing in the
United States mail a copy of same in an envelope bearing sufficient
postage for delivery:
Jesus Torivio-Arias
Inmate No. 80221-038
USP McCreary
P.O. Box 3000
Pine Knot, KY 42635-3000
This 10th day of July, 2006.
/s/ David Hennessy
David Hennessy
Assistant U.S. Attorney
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