Tuesta-Toro v. United States ( 2000 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
____________________
No. 99-1371
HECTOR R. TUESTA-TORO,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Selya and Lipez, Circuit Judges.
_____________________
Allan E. Junker, with whom Frampton, Williams & Little was on
brief, for appellant.
Warren Vázquez, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant
United States Attorney, Chief, Criminal Division, and Nelson Pérez-
Sosa, Assistant United States Attorney, were on brief, for appellee.
____________________
July 20, 2000
____________________
TORRUELLA, Chief Judge. Héctor Tuesta-Toro appeals the
denial of his petition to vacate his sentence pursuant to 28 U.S.C. §
2255. For the reasons stated below, we affirm.
BACKGROUND
A. Factual Background
The facts of this case were aptly summarized by this Court
in United States v. Tuesta-Toro, 29 F.3d 771, 773 (1st Cir. 1994). We
see no need to duplicate that effort. Accordingly, we reiterate our
previous recitation of the facts largely verbatim.
On September 2, 1992, after receiving information from a
confidential informant ("CI") that petitioner Tuesta-Toro and Carlos
Martínez-Díaz were distributing large quantities of cocaine in the San
Juan metropolitan area, the United States Drug Enforcement
Administration recorded telephone conversations during which Martínez
agreed to sell the CI five kilograms of cocaine at $16,500 per kilogram
and identified Tuesta-Toro as his source. Martínez in turn spoke with
Tuesta-Toro by cellular phone in order to establish the price and
quantity of the cocaine to be sold to the CI and the site of the drug
transaction.
The next day Martínez advised the CI by phone that a
one-kilogram transaction (rather than the five-kilogram transaction
discussed the day before) would take place that afternoon, but that
Tuesta-Toro did not wish to be seen by the buyer. Martínez
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reestablished telephone contact with Tuesta-Toro at 2:40 p.m. En route
to the scene of the transaction, Martínez noted that Tuesta-Toro was
carrying a gun and more than one kilogram of cocaine. At Tuesta-Toro's
instruction, Martínez parked their vehicle so that Tuesta-Toro could
witness the drug deal without being observed. Martínez then exited the
car and delivered the cocaine to the CI, who was accompanied by an
undercover DEA agent. Shortly thereafter, Martínez and Tuesta-Toro
were arrested.
B. Procedural History
Following his arrest, petitioner Héctor Tuesta-Toro was
charged in the United States District Court for the District of Puerto
Rico with possession of cocaine with intent to distribute, see 21
U.S.C. § 841(a)(1), carrying a firearm during a drug trafficking
offense, see 18 U.S.C. § 924(c)(1), and using a communication facility
to facilitate a drug trafficking offense, see 21 U.S.C. § 843(b).
Pursuant to a plea agreement, Martínez testified against petitioner at
trial. Petitioner was subsequently convicted on all counts and
sentenced to 138 months of imprisonment.
On appeal, this Court affirmed the conviction. See generally
Tuesta-Toro, 29 F.3d 771. Petitioner filed a petition for rehearing
and a request for rehearing en banc. Both were denied. Petitioner
then filed a petition for a writ of certiorari, which the Supreme Court
denied. See Tuesta-Toro v. United States, 513 U.S. 1132 (1995).
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On April 26, 1995, petitioner filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. Petitioner raised five claims
in his habeas petition, only two of which he now pursues on appeal:
(1) ineffective assistance of counsel, and (2) a Giglio claim, see
Giglio v. United States, 405 U.S. 150 (1972). In addition, petitioner
now argues on appeal that the district court improperly denied his
Giglio claim without adequate discovery.
The record indicates that on June 21, 1995, petitioner's
habeas counsel moved for leave to propound discovery. The magistrate
judge ruled that petitioner's request was "broad, burdensome on the
government and resembled a fishing expedition on the co-defendant's
case file." Accordingly, petitioner's attorney was instructed to
"identify those portions of the record relevant to his claims of
ineffective assistance of counsel or bias of the trial court."
Petitioner was further advised that once the record was examined, a
hearing, if necessary, could be held. Petitioner appealed the ruling,
but the district court affirmed. The district court order, dated
January 20, 1996, denied discovery relating to (1) an alleged delay in
the sentencing of petitioner's co-defendant, (2) ineffective assistance
of trial counsel, and (3) the prosecution's trial strategy.
This notwithstanding, an evidentiary hearing was held before
the magistrate judge on April 19, 1996. At that hearing, counsel for
petitioner was given the opportunity to question Benito M. Rodríguez-
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Massó, petitioner's trial counsel, in relation to petitioner's
ineffective assistance of counsel claim. After the presentation of
additional witnesses not relevant to this appeal, the magistrate judge
heard oral argument on petitioner's habeas claims. Following oral
argument, the judge denied from the bench petitioner's request for
disclosure of additional information pertaining to the confidential
informant.
On February 24, 1997, petitioner, through counsel, filed a
Motion Requesting Ruling on Pending Discovery Motions. The magistrate
judge issued a written order on March 14, 1997, stating "we conclude
that petitioner's . . . request is MOOT inasmuch as the discovery
requested has been provided, thus his reiterated petitions for what he
has already received are frivolous." The court reasoned, in part,
that:
[E]ven though the minutes of procedure do reflect
that discovery requests pertaining to the
existence and background of a confidential
informant were denied, it remains a fact that
throughout the evidentiary hearing attorney for
petitioner was given ample opportunity to examine
trial attorney Benito Rodríguez-Massó on issues
such as: trial strategy, existence of an
informant, available information regarding the
informant, pretrial motions filed, plea
agreements, the individuals present at the
sentencing hearing, the sentencing court's
demeanor and the existence of a cooperating co-
defendant . . . . Thus, it is patently clear
that petitioner's prior requests for discovery
(except for a request to submit interrogatories
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to the government and depose the co-defendant)
were satisfied during the hearing.
The court added the following:
Through his broad, general requests for
discovery, counsel has repeatedly violated the
provisions of Rule 6(b) of the 28 U.S.C. § 2255
Rules, which mandate that discovery requests be
specific as to the documents sought. The court
will not allow counsel to engage in a fishing
expedition, absent some showing by him that: 1)
petitioner's claims can remotely entitle him to
relief; and 2) the evidence specifically
requested provides support to those claims. See
DeVincent v. United States, 632 F.2d 145, 146
(1st Cir. 1980).
Shortly thereafter, on March 27, 1998, the magistrate judge
issued its report and recommendation that petitioner's § 2255 motion be
denied. On January 13, 1999, the district court issued an opinion and
order adopting the report and recommendation. On the same day, the
court entered judgment dismissing the case. The instant appeal ensued.
DISCUSSION
I. Ineffective Assistance of Counsel
Petitioner claims that his trial counsel's alleged failure
to obtain information regarding the identity, whereabouts, and criminal
record of the confidential informant in this case constitutes
ineffective assistance of counsel. We disagree.
To succeed on an ineffective assistance of counsel claim,
petitioner "has the burden of showing that (1) counsel's performance
fell below an objective standard of reasonableness, and (2) there is a
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reasonable probability that, but for counsel's error, the result of the
proceedings would have been different." Smullen v. United States, 94
F.3d 20, 23 (1st Cir. 1996). In applying this test, first announced in
Strickland v. Washington, 466 U.S. 668, 687 (1984), "judicial scrutiny
of counsel's performance must be highly deferential." There is, in
other words, a "strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Id. As a
corollary, "the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial
strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). In this regard, this Court has previously stated that "[t]he
decision whether to call a particular witness is almost always
strategic, requiring a balancing of the benefits and risks of the
anticipated testimony." Lema v. United States, 987 F.2d 48, 54 (1st
Cir. 1993).
Here, the record clearly demonstrates that petitioner's
ineffective assistance of counsel claim is untenable. Petitioner's
trial attorney, Rodríguez-Massó, testified before the magistrate judge
that, contrary to petitioner's assertion, he knew the identity of the
confidential informant. He explained that the identity of the
informant had been provided to attorney Rafael Anglada, petitioner's
original trial counsel. Mr. Rodríguez further testified that prior to
trial he ascertained that the informant was not willing to testify on
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behalf of the defense. Accordingly, Mr. Rodríguez believed that "any
information, if at all, that [the informant] would have given at trial
would have been not to [petitioner's] benefit but to [his] detriment."
Under these circumstances, and given the fact that petitioner's co-
defendant had agreed to testify for the government, Mr. Rodríguez
determined that it was best "as a matter of legal strategy" not to call
the informant as a trial witness. In addition, Mr. Rodríguez stated
that although he was not aware of the informant's criminal record,
which consisted of two complaints pertaining to domestic violence, he
would not have called the informant to testify even if he had seen
those records prior to trial.
Given this evidence, the district court correctly determined
that trial counsel's decision not to personally interview the informant
or call him as a trial witness was purely strategic in nature. This
claim, therefore, cannot succeed. See Strickland, 466 U.S. at 689.
II. Giglio Claim
Petitioner next argues that an alleged delay in the
sentencing of the cooperating co-defendant Martínez prejudiced him
inasmuch as the lenient sentence Martínez received for his cooperation
could have been used by petitioner to impeach Martínez at trial. Once
again, we see no merit in this argument.
The government has a constitutional duty to disclose evidence
that is favorable to a criminal defendant, be it exculpatory or
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impeachment evidence. See Kyles v. Whitley, 514 U.S. 419, 432-33
(1995); United States v. Bagley, 473 U.S. 667, 682 (1985); Brady v.
Maryland, 373 U.S. 83, 86-87 (1963). As petitioner correctly
indicates, evidence of a prior agreement with a government witness not
to prosecute that witness is generally considered impeachment material
and therefore discoverable under Brady. See Giglio v. United States,
405 U.S. 150, 153-54 (1972); see also United States v. Dumas, 207 F.3d
11, 16 (1st Cir. 2000) ("[I]t is clear that impeachment evidence falls
within the Brady rule.").
At trial, Martínez stated that he had not been promised
anything in exchange for his testimony and specifically denied having
received a promise of leniency. While Martínez did indicate that two
of the counts in his indictment were to be dismissed in exchange for
his guilty plea, he clarified that the dismissal of the two counts was
not contingent on his testifying in court. The copy of the plea
agreement, submitted by petitioner, confirms this testimony. Martínez
also indicated that a prior statement he made which exculpated
petitioner was not true. He explained that he had made the prior false
statement under pressure from petitioner to assume responsibility for
the crimes in exchange for a car and other assistance.
There is no question that Martínez ultimately benefitted
from the government's sentencing recommendation, adopted by the
sentencing court, that a downward departure from the Sentencing
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Guidelines was warranted in light of Martínez's substantial assistance.
Nevertheless, we concur with the district court's conclusion that
"[t]he evidence presented at trial shows that [petitioner's]
codefendant did not receive a promise of leniency in exchange for his
testimony." Tuesta-Toro v. United States, No. 95-1522, slip op. at 7-8
(D.P.R. January 11, 1999). This finding forecloses petitioner's
argument. Where, as here, the record clearly indicates that there was
no suppression of exculpatory or impeachment evidence by the
prosecution, a Giglio claim fails as a matter of law.
While we need look no further to reject petitioner's claim,
we note that petitioner has also failed to make the showing of
materiality required under Brady. See Brady, 373 U.S. at 87; see also
Kyles, 514 U.S. at 433-37 (citing Bagley, 473 U.S. at 682). Evidence
is material under Brady only when "there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, 473 U.S. at 682; see
also Kyles, 514 U.S. at 433-35; United States v. Cunan, 152 F.3d 29, 34
(1st Cir. 1998). Therefore, as the Supreme Court has indicated, "[w]e
do not . . . automatically require a new trial whenever 'a combing of
the prosecutors' files after the trial has disclosed evidence possibly
useful to the defense but not likely to have changed the verdict.'"
Giglio, 405 U.S. at 153-54 (quoting United States v. Keogh, 391 F.2d
138, 148 (2d Cir. 1968)). In this case, as the district court
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emphasized, the record is replete with additional evidence of
petitioner's guilt other than Martínez's testimony. The record, for
example, includes recorded phone calls indicating that petitioner was
the supplier of the cocaine and the incriminating testimony of several
other witnesses who testified for the prosecution.
Undaunted by the foregoing, petitioner now alleges that the
district court erred by denying his requests for discovery of Giglio
material. Specifically, petitioner states that he was denied the
opportunity (1) to request a transcript of Martínez's sentencing, (2)
to request all plea or cooperation agreements pertaining to Martínez,
(3) to depose Martínez, and (4) to propound interrogatories on the
government regarding the alleged delay in Martínez's sentencing. We
remain unpersuaded.
Discovery in a habeas proceeding is a matter confided to the
discretion of the district court. See Fed. R. 6(a) Governing 28 U.S.C.
§ 2255 Cases; see also Bracy v. Gramley, 520 U.S. 899, 909 (1997).
Accordingly, discovery rulings in a habeas case are reviewed for abuse
of discretion only. See, e.g., Clark v. Johnson, 202 F.3d 760, 765-66
(5th Cir. 2000); Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir.
1993); see also DeVincent v. United States, 632 F.2d 145, 146 (1st Cir.
1980).
Here, the record indicates that petitioner received an
abundance of discovery, including a full evidentiary hearing held on
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April 19, 1996. While the district court ultimately denied some of
petitioner's discovery requests, it did so on the ground that
"[p]etitioner's request for discovery amounts to no more than
speculative assertions that Giglio material may exist." Tuesta-Toro,
No. 95-1522, slip op. at 7. This ruling is well within the trial
court's discretion.
First, petitioner ignores the fact that "a witness' 'nebulous
expectation of help from the state' is not Brady material." Hill v.
Johnson, 210 F.3d 481, 487 (5th Cir. 2000) (quoting Goodwin v. Johnson,
132 F.3d 162, 187 (5th Cir. 1997)). Second, and more important, " Brady
is not a discovery rule, but a rule of fairness and minimum
prosecutorial obligation." United States v. Beasley, 576 F.2d 626, 630
(5th Cir. 1978) (citing United States v. Agurs, 427 U.S. 97, 107
(1976)). Accordingly, "mere speculation about materials in the
government's files [does not require] the district court or this court
under Brady to make the materials available for [petitioner's]
inspection." United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir.
1986) (quoting United States v. American Radiator & Standard Sanitary
Corp., 433 F.2d 174, 202 (3d Cir. 1970)); see also DeVincent, 632 F.2d
at 146. Finally, pursuant to Rule 6(a), a habeas petitioner is
required to show good cause for discovery requests. See Fed. R. 6(a)
Governing 28 U.S.C. § 2255 Cases. In this case, petitioner has failed
to make any such showing.
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In summary, because the district court did not abuse its
discretion in denying petitioner's request for additional discovery,
and because the record indicates that the prosecution did not suppress
exculpatory or impeachment evidence in this case, petitioner's Giglio
claim fails.
CONCLUSION
For the reasons stated above, we affirm the district court
order dismissing Héctor Tuesta-Toro's 28 U.S.C. § 2255 petition.
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