United States District Court, D. Massachusetts
For USA, Plaintiff: Victor A. Wild, LEAD ATTORNEY, United States Attorney's Office, Boston, MA.
MEMORANDUM AND ORDER
Mark L. Wolf, UNITED STATES DISTRICT JUDGE.
On December 7, 2007, defendant Esther Arias was convicted of thirty-seven counts of Theft of Mail and Receipt of Stolen Mail, Mail Fraud, Identity Theft, Theft of Government Property, and Conspiracy. On April 22, 2008, she was sentenced to twelve years in prison and five years of supervised release, and was ordered to pay $105,602.33 in restitution bye this court. Her conviction and sentence were summarily affirmed by the First Circuit. See Judgment (Docket No. 289).
Arias challenges her conviction and sentence pursuant to 28 U.S.C. § 2255 on ineffective assistance of counsel, prosecutorial misconduct, trial by jury, and cruel and unusual punishment grounds. She has also moved for appointment of counsel and requested an evidentiary hearing. For the reasons explained in this Memorandum and Order, the § 2255 Motion is being dismissed, and Arias's other motions are being denied.
A. Trial and Conviction
On September 27, 2006, Esther Arias and her alleged co-conspirator, Gladys Cabrera, were indicted on thirty-nine counts of conspiracy, mail fraud, bank fraud, theft of mail and government property, and identity theft (Docket No. 1). On October 4, 2006, the magistrate judge appointed John P. Moss, Esq., to represent Arias (Docket No. 10). On July 23, 2007, Arias retained Jose Espinosa, Esq., as her counsel (Docket No. 99). The court granted Mr. Moss's motion to withdraw on August 2, 2007 (Docket No. 108). On November 20, 2007, the court granted the government's motion to dismiss two of the counts against Arias (Docket No. 192).
Arias's jury trial on the remaining thirty-seven counts began on November 26, 2007 (Docket No. 163). The jury was presented with testimony regarding Arias's and Cabrera's conspiracy that involved: stealing mail, see, e.g., Nov. 27, 2007 Tr. at 87:13-94:8, 122:5-127:16; using stolen identification data to open bank accounts, see, e.g., id. at 47:10-50:7, 127:23-128:21; obtaining a car loan under stolen identification, see, e.g., id. at 128:22-133:24; Nov. 28, 2007 Tr. at 50:14-55:25; obtaining credit cards under stolen identification, see, e.g., Nov. 30, 2007 Tr. at 99:22-101:13; altering stolen checks to obtain funds, see, e.g., Nov. 29, 2007 Tr. at 84:21-89:24; using credit card " courtesy" checks stolen from the mails to make fraudulent deposits to bank accounts and payments to merchants, see, e.g., Nov. 30, 2007 Tr. at 11:17-20:7, 84:11-92:15; and obtaining federal housing benefits under false pretenses, see, e.g., Dec. 3, 2007 Tr. at 22:10-35:6; 49:2-52:21. This testimony was corroborated by surveillance photographs of Arias cashing fraudulent checks and making purchases using fraudulent credit cards. See, e.g., Nov. 26, 2007 Tr. at 102:6-105:7; Nov. 27, 2007 Tr. at 64:19-66:14. It was further corroborated by fingerprint evidence establishing that Arias had handled some of the stolen checks. See, e.g., Nov. 27, 2007 Tr. at 110:19-118:19.
Arias was the only witness to testify for the defense. She denied any involvement in the alleged crimes and claimed that Cabrera was fully responsible. See, e.g., Dec. 3, 2007 Tr. at 136:6-137:22. She stated that she was in the Dominican Republic from December 4, 2003 until December 21, 2003, when many of the alleged crimes were committed. See id. at 142:9-142:21. Arias submitted her passport into evidence to corroborate her testimony. See Dec. 6, 2007 Tr. at 12:4-14. The passport contained what appeared to be an entry stamp to the Dominican Republic on December 4, 2003, and an exit stamp on December 21, 2003. See id. at 12:23-14:25. Arias testified that she was not the woman cashing the fraudulent checks or using stolen credit cards in the photographs that the government presented. See Dec. 5, 2007 Tr. at 13:4-14:15, 20:5-26:23. She further testified that her fingerprints were on one of the fraudulent checks because she had handled the check while being interrogated by police. See Dec. 3, 2007 Tr. at 143:22-144:10.
The government called several witnesses in rebuttal. A United States Customs and Border Patrol (" USCBP" ) supervisor testified that there was no record of Arias leaving or entering the country in December 2003. See Dec. 6, 2007 Tr. at 53:15-70:20. He stated that if, as Arias claimed, she had flown to and from the Dominican Republic, her re-entry into the United States would be documented on USCBP records. See id. Arias's former employer testified that his company's payroll records showed that Arias was paid for working from December 4, 2003 through December 21, 2003. See id. at 81:9-88:12. This would have required her to sign her time sheets in person at the office during that time period. See id.. Additionally, a bank supervisor testified that the check that Arias claimed to have handled during her interrogation was not given to the police by the bank until several months after Arias was questioned. See Dec. 6, 2007 Tr. at 41:12-42:22.
On December 7, 2008, the jury found Arias guilty on all thirty-seven counts (Docket No. 188). Prior to sentencing, Arias moved to replace her retained attorney, Mr. Espinosa, with court-appointed counsel (Docket No. 212). The court denied her request, finding that it was made primarily to delay her sentencing (Docket No. 222). Mr. Espinosa moved to withdraw as Arias's counsel because she was refusing to communicate with him (Docket No. 229). The court granted Mr. Espinosa's motion, but appointed him to serve as Arias's Standby Counsel at sentencing (Docket No. 229).
On April 22, 2008, the court sentenced Arias to 144 months in prison, 60 months of supervised release, and ordered restitution in the amount of $105,602.33. See April 22, 2008 Tr. at 111:10-112:12. Her sentencing guideline range based solely on criminal history and the offenses of conviction was 84 to 105 months. See id. at 87:14-18. The court found that the criminal history category significantly understated her risk of recidivism. See id. at 110:3-6. The court enhanced the Total Offense Level because of Arias's repeated perjury and two independent acts of obstruction of justice: Arias had caused her attorney to introduce a falsified passport into evidence and had sent a forged letter to the court purporting to be from Cabrera. See id. at 109:3-110:6. See id. at 107:20-111:8. This raised the guideline range for her sentence to 130 to 162 months. See id. at 111:3-8. The enhancement was appropriate because, as the court explained:
This is a case where an upward departure, based on multiple, discrete, serious efforts to obstruct justice is appropriate. The case is way out of the heartland. There's been the most persistent and pervasive effort to obstruct justice in the course of this case that I've encountered in my 23 years as a federal judge . . . .
Id. at 108:14-19. The First Circuit summarily affirmed Arias's conviction and sentence (Docket No. 289).
B. Section 2255 Proceedings
Acting pro se, Arias filed the instant motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence (Docket No. 292). She subsequently filed more than twenty letters supplementing her original § 2255 motion. On December 10, 2013, the court ordered her to file an amended § 2255 motion that contained all of the claims that she wished to raise, and which would supersede all prior filings. See December 10, 2013 Memorandum and Order (Docket No. 373).
Arias filed her amended motion on February 11, 2014 (" 2255 Motion" ) (Docket No. 383). Her motion raises seventeen ineffective assistance of counsel claims, an alleged violation of the government's duty to disclose material exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a due process claim, and a cruel and unusual punishment claim. Because many of her claims alleged that Mr. Espinosa's performance was unconstitutionally deficient, the court ordered Mr. Espinosa to submit an affidavit addressing her allegations. See April 4, 2014 Order (Docket No. 391). Mr. Espinosa has submitted an affidavit (Docket No. 395). The government has responded to Arias's amended petition, arguing that it is not meritorious and should be dismissed (Docket No. 406).
III. LEGAL STANDARD
A. Review Under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides a federal prisoner with a means to collaterally attack her sentence. As the First Circuit has explained:
28 U.S.C. § 2255 sets forth four grounds upon which a federal prisoner may base a claim for relief: (1) " that the sentence was imposed in violation of the Constitution or laws of the United States; " (2) " that the court was without jurisdiction to impose such sentence; " (3) " that the sentence was in excess of the maximum authorized by law; " and (4) that the sentence " is otherwise subject to collateral attack."
Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) (quoting Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1st Cir. 1994)).
The Rules Governing Section 2255 Proceedings require a motion to " (1) specify all the grounds for relief available to the moving party; [and] (2) state the facts supporting each ground . . . See Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 2(b). The court may either summarily dismiss a prisoner's § 2255 claim or grant an evidentiary hearing to determine if it is meritorious. 28 U.S.C. § 2255(b) provides:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.
28 U.S.C. § 2255(b). A prisoner's pro se petition must be " liberally construed . . . [and] a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
The First Circuit elaborated the test for granting an evidentiary hearing in a § 2255 proceeding in United States v. McGill, 11 F.3d 223 (1st Cir. 1993). As the First Circuit wrote:
When a petition is brought under section 2255, the petitioner bears the burden of establishing the need for an evidentiary hearing. See Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. ), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978). In determining whether the petitioner has carried the devoir of persuasion in this respect, the court must take many of petitioner's factual averments as true, but the court need not give weight to conclusory allegations, self-interested characterizations, discredited inventions, or opprobrious epithets.
We have distilled these principles into a rule that holds a hearing to be unnecessary " when a § 2255 motion (1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to the alleged facts by the files and records of the case." Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974). In other words, a " § 2255 motion may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are 'inherently incredible.'" Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984) (citations omitted).
Id. at 225-26 (some citations omitted); see also United States v. Panitz, 907 F.2d 1267 (1st Cir. 1990); David v. United States, 134 F.3d 470, 478 (1st Cir. 1998) (" To progress to an evidentiary hearing, a habeas petitioner must do more than proffer gauzy generalities or drop self-serving hints that a constitutional violation lurks in the wings." ). " Moreover, when . . . a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing." McGill, 11 F.3d at 225.
B. Ineffective Assistance of Counsel
" To succeed on a claim of ineffective assistance of counsel under the Sixth Amendment, [a movant] must show both deficient performance by counsel and resulting prejudice." Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996). " The burden is on the petitioner to demonstrate ineffective assistance by a preponderance of the evidence." Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993).
" In order to satisfy the 'deficient performance' prong, [a movant] must show that his trial counsel's representation 'fell below an objective standard of reasonableness.'" Peralta, 597 F.3d at 79 (quoting Strickland, 466 U.S. at 688). The court must determine " whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. " Judicial scrutiny of counsel's performance must be highly deferential," and " a court must indulge in a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. " The defendant, as a result, must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Phoenix II, 233 F.3d at 81 (internal citations omitted); see also Prou v. United States, 199 F.3d 37, 47-48 (1st Cir. 1999); Arroyo v. United States, 195 F.3d 54, 55 (1st Cir. 1999).
The court must respect counsel's strategic choices, recognizing that " [t]he law does not require counsel to raise every available nonfrivolous defense." See Knowles v. Mirzayance, 556 U.S. 111, 127, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). Furthermore, counsel also has a " right to ignore frivolous claims pressed by clients," and is " not required to waste the court's time with futile or frivolous motions." United States v. Hart, 933 F.2d 80, 83 (1st Cir. 1991) (citing United States v. Wright, 573 F.2d 681, 684 (1st Cir. 1978).
As to the second prong, " [u]nder Strickland, a defendant is prejudiced by his counsel's deficient performance if 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 694). " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Peralta, 597 F.3d at 79-80.
" [T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. " Addressing the prejudice prong prior to evaluating counsel's conduct is a permissible approach and even endorsed where more efficient." Gonzalez-Soberal v. United States, 244 F.3d at 273, 277-78 (1st Cir. 2001).
A. Ineffective Assistance of Counsel Claims
During Arias's sentencing hearing, the court observed that she had affirmed on at least six occasions throughout the trial that she was fully satisfied with Mr. Espinosa's assistance. See April 14, 2008 Tr. at 15:10-19. Furthermore, after the trial, the court " commend[ed] counsel for their energetic efforts," and observed that " Mr. Espinosa worked hard and was fully effective in the circumstances." See Dec. 7, 2007 Tr. at 133:7-13.
Arias now raises seventeen ineffective assistance of counsel claims. Mr. Espinosa has submitted an affidavit addressing Arias's allegations. However, " material issues of fact may not be resolved against the petitioner solely by relying on ex parte, sworn or unsworn, statements of the government or defense counsel." See United States v. Butt, 731 F.2d 75, 77-78 (1st Cir. 1984).
As explained below, each of Arias's allegations of ineffective assistance provides no more than a conclusory, vague, and unsupported claim of deficient performance by Mr. Espinosa. Therefore, each of her ineffective assistance claims merits summary dismissal. See McGill, 11 F.3d at 225-26.
1. Exculpatory Evidence
Arias claims that Mr. Espinosa's performance was unconstitutionally deficient because he did not investigate several pieces of information that she provided him that were helpful to her defense. None of these claims is meritorious.
a. Housing Assistance Fraud Alibis
Arias was convicted of three counts of theft of government property in violation of 18 U.S.C. § 641. The government alleged that Arias fraudulently obtained federal funds under the Section 8 Housing Assistance Program operated by the Department of Housing and Urban Development (" HUD" ). The government presented evidence that she was receiving Section 8 housing ...