United States v. Videa ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20175
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FERNANDO VIDEA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. H-93-CR-217-4
_________________________________________________________________
June 20, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
The petitioner, Jose Fernando Videa, seeks habeas relief under
28 U.S.C. § 2255. Videa was convicted on one count of conspiracy
to possess with intent to distribute cocaine in contravention of 21
U.S.C. §§ 841 & 846. This conviction was affirmed on direct
appeal. See United States v. Videa, 94-20666 (5th Cir. 1995).
Following the district court’s denial of Videa’s first petition for
habeas relief, our court granted Videa a COA limited to one issue:
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
“[W]hether Videa was denied effective assistance of counsel because
counsel failed to move for a judgment of acquittal at the close of
all evidence and/or make a timely postjudgment motion for a new
trial.” After reviewing the evidence supporting Videa’s conviction
under the “reasonable trier of fact” standard, we hold that Videa
was not prejudiced by counsel’s failure to renew his motion for
judgment of acquittal at the close of all of the evidence, and thus
affirm the district court.
To succeed on a claim of ineffective assistance of counsel,
the petitioner must demonstrate that (1) his counsel’s performance
was deficient, and (2) that as a result of this deficiency, he
suffered actual prejudice. See Strickland v. Washington, 466 U.S.
668, 687 (1984); Armstead v. Scott, 37 F.3d 202, 206 (5th Cir.
1994). Counsel’s performance will be rendered deficient if the
petitioner can establish that it fell below an objective standard
of reasonableness as measured by prevailing professional standards.
Id. A showing of actual prejudice requires the petitioner to
demonstrate that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” United States
v. Anderson, 987 F.2d 251, 261 (5th Cir. 1993). The failure of the
petitioner to establish either element will prove fatal to his
claim. See Kirkpatrick v. Blackburn, 777 F.2d 272, 285 (5th Cir.
1985).
2
Turning to the case before us, Videa argues that as a result
of counsel’s failure to renew this motion, counsel “narrowed the
scope of [appellate] review.” See United States v. Willis, 38 F.3d
170, 177-78 (5th Cir. 1994). Instead of reviewing the sufficiency
of the evidence supporting his conviction under the “reasonable
trier of fact” standard, see United States v. Resio-Trejo, 45 F.3d
907, 910-11 & n.6 (5th Cir. 1995), counsel’s failure to renew this
motion resulted in appellate review under the “manifest miscarriage
of justice” standard. See United States v. Pierre, 958 F.2d 1304,
1310 (5th Cir. 1992).1 Thus, Videa argues, he suffered actual
prejudice.
To demonstrate actual prejudice, Videa must establish that
“based on the totality of the evidence at trial, [no] rational
trier of fact could have found that the government proved the
essential element of the crime charged beyond a reasonable doubt.”
See United States v. Garcia, 77 F.3d 857, 859 (5th Cir. 1996);
1
As noted by the panel of our court reviewing Videa’s
conviction on direct appeal, there has been some debate regarding
whether there is a difference between the “miscarriage of justice”
and the “reasonable trier of fact” standards. See United States v.
Pennington, 20 F.3d 593, 597 & n.2 (5th Cir. 1994); United States
v. Davis, 583 F.2d 190, 198-99 (5th Cir. 1978)(Clark, J.,
concurring)(stating that the two standards are
“indistinguishable”). However, because we are without the
authority to reverse the judgment of a prior panel, see Barber v.
Johnson, 145 F.3d 234, 237 (5th Cir. 1998), we will review Videa’s
ineffective assistance claim under the “reasonable trier of fact”
standard.
3
United States v. Rosalez-Orozco, 8 F.3d 198, 199-200 (5th Cir.
1993). In reviewing challenges to the sufficiency of the evidence
under this standard, “we review the evidence, whether direct or
circumstantial, in the light most favorable to the jury verdict.”
Resio-Trejo, 45 F.3d at 910 (quoting United States v. Nguyen, 28
F.3d 477, 480 (5th Cir. 1994)). Further, “all credibility
determinations and reasonable inferences are to be resolved in
favor of the verdict.” Id. at 911.
At trial, the government offered the following evidence: (1)
The testimony of co-conspirator Roman Suarez that Videa was present
in February 1989 when 85 kilograms of cocaine belonging to Videa’s
brother, Juan Francisco Videa (“Juan”), “disappeared.” In an
attempt to recover this cocaine, Videa was present and involved in
several meetings and conversations, and traveled with Juan to
Chicago, Illinois. (2) The testimony of Rhonda Ellen Schmidlin,
co-conspirator Steve Vellon’s girlfriend, that on one occasion,
after Vellon received a page, she and Vellon went to a McDonalds’s
parking lot to meet Videa. At this meeting, Vellon and Videa
exchanged bags. Although Schmidlin did not know what was inside
the bag Vellon gave Videa, there was a substantial sum of money in
the bags Videa gave Vellon. Additionally, Schmidlin testified that
in response to her questioning of Videa regarding why Vellon and
Juan had gone to Columbia, Videa told her not to tell anyone where
4
Vellon and Juan were “because it would get a lot of people in
trouble.” (3) The testimony of Asher Hadad that following his
testimony at the criminal trial of Juan, Videa threatened him. (4)
Evidence establishing that Videa was registered at the hotel in
Houston, Texas, which served as the drop point for two cocaine
shipments from Columbia, on dates that corresponded to the dates on
which these shipments arrived. (5) Evidence establishing that
Videa used drug proceeds to purchase real estate on behalf of Juan.
(6) Records from Juan’s auto repair shop indicating that several
checks were issue to Videa for the purchase of beepers, and that
despite no employment record--records found for all other
employees--Videa received payroll draws. (7) Evidence related to
Videa’s prior arrest and conviction for possession with intent to
distribute cocaine offered to prove Videa’s intent.
After reviewing the evidence adduced at trial, it is clear
that a reasonable trier of fact could have found that the
government established (1) the existence of an agreement between
two or more people to traffic cocaine; (2) that Videa knew of the
agreement; and (3) that Videa voluntarily participated in the
agreement. See 21 U.S.C. § 846 (West 1999); United States v.
Maltos, 985 F.2d 743, 746 (5th Cir. 1992). Thus, Videa suffered no
actual prejudice as a result of his counsel’s failure to renew his
5
motion for judgment of acquittal at the close of all of the
evidence.
The district court’s judgment denying the petitioner’s request
for habeas relief is
A F F I R M E D.
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