U.S. v. Torres

• Decision Date: 07 January 1999
• Docket Number: No. 97-50308,97-50308
• Citation: 163 F.3d 909
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rudy Villarreal TORRES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 909

163 F.3d 909

UNITED STATES of America, Plaintiff-Appellee, v. Rudy Villarreal TORRES, Defendant-Appellant.

No. 97-50308.

United States Court of Appeals, Fifth Circuit.

Jan. 7, 1999.

Joseph H. Gay, Jr., U.S.Atty., Philip Eugene Police, San Antonio, TX, for Plaintiff-Appellee.

Rudy Villarreal Torres, San Antonio, TX, pro se.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, WIENER and DENNIS, Circuit Judges.

WISDOM, Senior Circuit Judge:

I. Introduction

Rudy Villarreal Torres pleaded guilty to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a), and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). ¹ A chrome-plated .38-caliber handgun and the heroin were found under the driver's seat in Torres's car. The district court sentenced Torres to a 51-month term of imprisonment on the drug count and a 60-month term of imprisonment on the firearm count. The sentences were to be served consecutively and were to be followed by a three-year period of supervised release. Torres did not file a direct appeal.

Torres filed a pro se motion under 28 U.S.C. § 2255 challenging his § 924(c)(1) firearm conviction. He asserted that the conviction could no longer stand in the wake of the Supreme Court's interpretation of § 924(c)(1) in Bailey v. United States, ² a case decided after his conviction. ³ In Bailey, the Court held that the Government, to sustain a conviction under the "use" prong of 18 U.S.C. § 924(c)(1), must prove that a defendant actively employed a firearm during the predicate drug offense. ⁴ Torres's argument, construed liberally, ⁵ is that Bailey undermined the factual basis for his guilty plea to the firearm count, and thus rendered his conviction thereunder unsupportable.

In its response, the Government asserted that because Torres could have raised his assertion that the factual basis did not support his guilty plea to "carrying" a firearm on direct appeal, his claim was procedurally barred. Additionally, the Government maintained that even if the court were to reach the merits of Torres's claim, the facts supported his conviction for carrying a firearm.

Without addressing the question of procedural bar, the magistrate judge recommended that Torres's motion be denied on the grounds that his reliance on Bailey was misplaced, and that the facts supported his guilty plea. Relying on Torres's guilty plea and the admittance of the factual statement offered at the guilty plea hearing, the magistrate judge concluded that Torres admitted to "carrying" a firearm as contemplated by § 924(c)(1). Over Torres's objections, the district court adopted the magistrate judge's report and recommendation and denied § 2255 relief. Torres timely filed his notice of appeal. For the reasons that follow, we affirm.

II. Background

On the morning of August 17, 1990, Bexar County, Texas, deputy sheriffs were conducting surveillance outside a San Antonio residence that was the subject of a search warrant. During the course of their surveillance, the deputies observed Torres walk from the residence to a car parked in the driveway. He retrieved a brown paper bag from the trunk of the car and returned to the residence. Two hours later, Torres and a female companion exited the residence and approached two cars in the driveway. The deputies blocked the driveway, surrounded Torres, and advised him and his companion of the search warrant. After the deputies issued Miranda warnings, Torres agreed to cooperate and showed the deputies bags of heroin that were hidden in his car under the driver's seat and under the dashboard. He also pointed to the handgun under the driver's seat. He admitted ownership of both the heroin and the handgun. The deputies' search of the car and residence yielded $11,061 in currency and approximately 200 grams of heroin. Torres told the deputies that the money was generated by his heroin sales over the previous two days.

III. Standard of Review

We review the district court's findings of fact in relation to a motion filed under a § 2255 for clear error, and we review questions of law de novo. ⁶

IV. Discussion

We first confront the procedural barrier to considering Torres's Bailey claim. In the instant case, Torres did not file a direct appeal. Consequently, we must consider the government's procedural default argument before proceeding to the merits of Torres's appeal. In general, "[i]t is well settled that where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the petitioner can first demonstrate either (1) cause and prejudice, or (2) that he is 'actually innocent' of the crime for which he was convicted." ⁷ With specific regard to Bailey claims, however, a defendant's means of overcoming procedural default is more limited. Under our decision in United States v. Sorrells, ⁸ a petitioner asserting a Bailey claim must rely on the "actual innocence" prong of the standard to overcome a procedural default. ⁹ Because Torres did not raise his arguments at trial or on direct appeal, we apply this standard of review to the instant case. ¹⁰

In essence, then, Torres can only overcome his procedural default if he establishes that he was "actually innocent" of his § 924(c)(1) conviction. ¹¹ This standard imposes a heavy burden on a petitioner. ¹² "To establish actual innocence, [the] petitioner must demonstrate that, 'in light of all the evidence,' 'it is more likely than not that no reasonable juror would have convicted him.' " ¹³ Indeed, " 'actual innocence' means factual innocence, not mere legal insufficiency." ¹⁴ Consequently, we will reverse Torres's firearm conviction only if he can demonstrate, based on all of the evidence, that "it is more likely than not that no reasonable juror would have convicted." ¹⁵

In the case at bar, Torres cannot demonstrate that he is "actually innocent." ¹⁶ Torres owned the car in which the firearm was found. He admitted that he owned the heroin found in the car. He admitted that he owned the firearm found under the driver's seat. Torres was arrested, not at his own home, but at the home of his companion. Based on these facts, it is reasonable that a juror could have inferred that Torres did, in fact, "carry" the firearm during and in relation to the drug-trafficking offense. ¹⁷ It cannot be said that "it is more likely than not that no reasonable juror would have convicted." ¹⁸ Accordingly, Torres fails to overcome his procedural default, and we need not reach the merits of his Bailey claim. ¹⁹

Torres also raises an ineffective assistance of counsel claim. This claim is without merit. "The 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." ²⁰ To prevail on such a claim, a petitioner must demonstrate that (1) his counsel's performance was deficient and (2) that this deficient performance prejudiced his defense. ²¹ To satisfy the first requirement, the petitioner must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the [petitioner] by the Sixth Amendment." ²² As to the second requirement, the petitioner must demonstrate "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable." ²³

In the instant case, Torres has neither shown, nor does the record indicate, that his counsel's assistance was constitutionally substandard. Torres therefore fails to satisfy the first prong of the Strickland test, and we need not determine whether he has suffered prejudice.

V. Conclusion

For the foregoing reasons, we find that the petitioner failed to overcome his procedural default, and did not receive ineffective assistance of counsel. The judgment of the district court is

AFFIRMED.

DENNIS, Circuit Judge, concurring:

I specially and respectfully concur in the result of the majority opinion upholding the dismissal of Torres' application for a writ of habeas corpus. Torres has failed to allege facts which, if proven, demonstrate that a constitutional violation occurred in connection with his guilty plea, or that he is probably innocent of "carrying" a firearm. Torres' case therefore is not one which, under Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), a habeas petitioner, despite his failure to challenge his guilty plea on direct appeal, may have remanded to the district court for a determination of whether a constitutional error in his plea colloquy probably resulted in the conviction of one who is actually innocent.

In Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), the Supreme Court held that a habeas petitioner who did not challenge his guilty plea on direct appeal, but who alleged that, when he pleaded guilty in 1990 to "using" a firearm in violation of 18 U.S.C. § 924(c)(1), he was advised by the trial judge, by his own lawyer, and by the prosecutor that mere possession of a firearm would support a conviction of "use" of a firearm under § 924(c)(1), was entitled to an opportunity on remand to the district court to establish that the constitutional error in his plea colloquy " 'has probably resulted in the conviction of one who is actually innocent.' " Id. at ----, 118 S.Ct. at 1611, quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Bousley apparently alleged or pointed to facts which, if proven, demonstrated that he was actually innocent of "using" a firearm, and that he was induced to enter an unintelligent and therefore constitutionally invalid plea to the offense by the legal advice he received, which was critically incorrect in light of the holding in Bailey v. United States, 516...