United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
jury trial, petitioner-defendant Gustavo Castro-Caicedo was
convicted of conspiracy to import cocaine from Colombia into
the United States. He was subsequently sentenced to serve 300
months in prison. See Docket No. 258. The First
Circuit affirmed both Castro-Caicedo1s conviction and
sentence. United States v. Castro-Caceido, 775 F.3d
93 (1st Cir. 2014). The Supreme Court denied his petition for
certiorari. Castro-Caicedo v. United States, 135
S.Ct. 1884 (2015).
acting pro se, timely filed the instant Motion to
Vacate his Sentence pursuant to 28 U.S.C. §2255 (the
"Motion"). See Docket No. 335. The Motion,
in vague, conclusory terms, alleges ineffective assistance of
counsel in four respects. The government filed a detailed
Opposition to the Motion. See Docket No. 339.
Castro-Caceido filed a brief Reply. See Docket No.
341. He subsequently submitted a "Request to Take
Judicial Notice of Adjudicative Facts," which in effect
seeks relief based on purportedly newly discovered evidence
that he claims demonstrates on his actual innocence.
See Docket No. 344.
Castro-Caiceido is representing himself, the court has
liberally construed his pleadings. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nevertheless, for the
reasons stated in the government's Opposition (Docket No.
339) as amplified in this Memorandum, Castro-Caceido's
claims of ineffective assistance of counsel are each
unmeritorious. Therefore, the Motion is being denied. To the
extent that Castro-Caceido now seeks relief based on alleged
actual innocence, that claim is also unmeritorious.
evidentiary hearing is not in this case necessary or
appropriate. Castro-Caceido1s claims are conclusory. This
court presided at his trial and recalls it clearly. With this
perspective it concludes that the record in this case
conclusively refutes Castro-Caceido's claims of
ineffective assistance of counsel and actual innocence.
Therefore, an evidentiary hearing is not justified. See
United States v. McGill, 11 F.3d 223, 225-26 (1st
makes three claims that his trial counsel were ineffective.
First, he asserts without elaboration that he was not advised
of the relative merit of pleading guilty rather than going to
trial. This contention is belied by, among other things, the
fact Castro-Caceido successfully sought the replacement of
his first Criminal Justice Act ("CJA") appointed
counsel, John Salsberg, because Mr. Salsberg was allegedly
"compelling" him to plead guilty. See
Docket No. 70. Moreover, after other members of the alleged
conspiracy pled guilty, in unauthorized pro se
filings, Castro-Caceido stated his desire to go to trial.
See Docket No. 75, ¶¶ 8-9. In addition, in
response to court orders that counsel for the parties confer,
it was repeatedly reported that Castro-Caceido wanted a
trial. See, e.g., Docket Nos. 108 at 2;
retained Robert Galbois, II to replace his * second
CJA appointed attorney, Mark Shea. He now alleges that Mr.
Galbois did not adequately communicate with him, did not
sufficiently investigate before trial, and did not make what
would have been meritorious objections at trial. See
Motion at 5-6. However, in support of a motion for a bench
trial, Castro-Caceido described his extensive discussions
with Mr. Galbois. See Docket No. 204-1. Mr. Galbois
filed a series of pretrial motions, including a motion to
dismiss the indictment, a motion to suppress, and motions in
limine. See, e.g., Docket Nos. 121, 141,
151. Many of Castro-Caceido1s criticisms of Mr. Galbois'
decisions concerning questions to be asked at trial were
found to be unmeritorious on appeal. See
Castro-Caceido, 775 F.3d at 93. In addition, when
questioned at trial about his decision not to testify at
trial, Castro-Caceido stated he was "fully
satisfied" with Mr. Galbois' representation of him.
Docket No. 314 at 9.
regard to his sentencing, Castro-Caceido claims that Mr.
Galbois did not discuss the Presentence Report with him.
See Motion at 7. However, at sentencing,
Castro-Caceida stated that he had read it and did not find
that anything in it was incorrect. See Docket No.
317 at 5-6. In addition, Castro-Caceido contends that his
attorney was ineffective for not arguing that a 300-month
sentence would result in unwarranted disparity when compared
to the sentences of his co-defendants. See Motion at 7.
However, Castro-Caceido and his co-defendants were not
similarly situated. His co-conspirators each pled guilty;
some cooperated and testified for the government; and the
First Circuit found that these facts made Castro-Caceido1s
much higher sentence reasonable. See Castro-Caceido,
775 F.3d at 103.
extent that some of the claims in the Motion "were
decided on direct appeal [they] may not be litigated under a
different label on collateral review." United States
v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990); see also
Cabrera v. United States, 972 F.2d 23, 25 (2d Cir.
1992). More fundamentally, to succeed on a Sixth Amendment
claim of ineffective assistance of counsel, a petitioner must
show both deficient performance by counsel and resulting
prejudice. See Strickland v. Washington, 466 U.S.
668, 687 (1984); Peralta v. United States, 597 F.3d
74, 79 (1st Cir. 2010). A deficient performance is one that
falls "outside the wide-range of professionally
competent assistance." Strickland, 466 U.S. at
688. To prove prejudice, a petitioner must establish that
there is a reasonable probability that but for counsel's
deficient performance, the result of the case would have been
different. See Porter v. McCollum, 558 U.S. 30,
38-39 (2009). A "reasonable probability" is a
probability sufficient to undermine confidence in the
outcome. See Strickland, 466 U.S. at 694. In this
case, Castro-Caceido has neither proven that his
counsel's performance was deficient nor that he was
prejudiced by any imperfection in it.
has also not proven that his appellate counsel, Chauncey
Wood, was ineffective. Castro-Caceido1s unelaborated
assertions that counsel did not communicate with him about
the appeal are vague and, even if accepted as true, do not
demonstrate that he was prejudiced by any lack of
communication. See Motion at 9. Therefore, this
contention does not justify relief. Similarly, counsel's
alleged "failure to raise stronger issues" on
appeal is insufficient. Castro-Caceido does not identify any
additional issues that allegedly should have been raised on
appeal. In any event, "appellate counsel . . . need not
raise every non-frivolous claim, but rather may select among
them to maximize the likelihood of success on appeal."
Smith v. Robbins, 528 U.S. 259, 288 (2000); see
also Thompson v. Spencer, 111 Fed.Appx. 11, 13
(1st Cir. 2004).
indicated earlier, the court is liberally construing
Castro-Caceido's Request to Take Notice of Adjudicative
Facts (Docket No. 344) (the "Request") as a claim
for relief based on actual innocence based on newly
discovered evidence. It is unmeritorious for several reasons.
A motion for relief based on newly discovered evidence is not
cognizable under §2255 and, properly construed, is a
Federal Rule of Criminal Procedure 33 Motion for a New Trial.
See Ruiz v. United States, 221 F.Supp.2d 66, 72-73
(D. Mass. 2002), aff'd, 339 F.3d 39 (1st Cir.
2003) ("Where a claim for relief based on newly
discovered evidence is based on actual innocence, rather than
new evidence of a constitutional violation, the claim is not
cognizable under §2255 and, properly construed, is a
Rule 33 motion.") (citing Guinan v. United
States, 6 F.3d 468, 470-71 (7th Cir. 1993); Ruth v.
United States, 266 F.3d 658, 660 (7th Cir. 2001);
Sims v. United States, 1999 WL 1000855, *2 (6th Cir.
1999)). Such claims must be filed within three years after
the verdict. See Fed. R. Crim. P. 33(b)(1);
United States v. DiSantos, 86 F.3d 1238, 1250 (1st
Cir. 1996). As the jury verdict finding Castro-Caceido guilty
was delivered on September 27, 2012, and the Request was not
filed until April 2, 2019, the Request is time-barred.
Castro-Caceido does not present any evidence that can be
correctly characterized as "newly discovered", as
the evidence was either known to Castro-Caceido at the time
of trial or could have been discovered with due diligence. To
serve as a ground for a new trial under Rule 33, the
proffered evidence "must have been unknown or
unavailable to the defendant at the time of trial" and
"the defendant must have been duly diligent in
attempting to unearth it." United States v.
Conley, 249 F.3d 38, 45 (1st Cir. 2001). The Request
first relies on two affidavits. One is Castro-Caceido1s own
affidavit, in which he disputes evidence presented at trial,
including the testimony of one of the government's
witnesses. See Request, Exhibit A at 4-11. The
information in that affidavit was known to Castro-Caceido at
the time of trial. He could have testified at trial, but
chose not to do so. In addition, Castro-Caceido has submitted
a brief affidavit of co-defendant Hector Castro, which also
disputes the testimony of the same witness. See id.
at 2-3. However, Castro-Caceido makes no effort to explain
why he did not present, or try to present, Castro's
testimony at trial.
Request also attaches a DEA Investigation Report dated
September 7, 2011, in which Castro-Caceido appears to have
added notes contesting certain statements contained in the
report, without any substantiation. See id., Exhibit
A at 12-15. As with the affidavits, Castro-Caceido had the
opportunity to present testimony regarding the assertions in
these notes at trial, and has failed to explain why he did
not do so.
significantly, the alleged newly discovered evidence is not
material because there was overwhelming evidence that
Castro-Caciedo was guilty of conspiracy to import cocaine
into the United States. See Conley, 249 F.3d at 45
("[N]ewly discovered evidence must be material  and .
. . such that its emergence probably will result in an
acquittal upon retrial."). This evidence included:
testimony of a cooperating co-defendant concerning, among
other things, Castro-Caceido's personal involvement in
paying $20, 000 for one shipment of cocaine delivered to the
Bahamas; numerous wire-tapped telephone conversations, some
of which included Castro-Caceido speaking to his codefendants
and others; and the ...