Gallego v. U.S., 97-4485

• Decision Date: 05 May 1999
• Docket Number: No. 97-4485,97-4485
• Parties: 12 Fla. L. Weekly Fed. C 799 Orlando GALLEGO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1196

174 F.3d 1196

12 Fla. L. Weekly Fed. C 799

Orlando GALLEGO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-4485.

United States Court of Appeals Eleventh Circuit.

May 5, 1999.

Kathleen M. Williams, Federal Public Defender, Brenda G. Bryn, Assistant Federal Public Defender, Ft. Lauderdale, FL, for Petitioner-Appellant.

Jeanne M. Mullenhoff, Adalberto Jordan, Stephanie K. Pell, Assistant U.S. Attorneys, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

Defendant Orlando Gallego challenges his drug conviction pursuant to 18 U.S.C. § 2255. The single issue on appeal is whether the magistrate judge applied the wrong legal standard to determine whether defendant's counsel rendered ineffective assistance of counsel by failing to properly advise defendant that he had a constitutional right to testify that only he could waive, so that defendant's waiver of that fundamental right was knowing and intelligent. Because the district court followed an erroneous legal standard in assessing defendant's claim, we vacate and remand.

The charges against Gallego stem from an undercover narcotics investigation in which the federal joint drug task force in Miami, Florida set up a phony import company through which a Colombian cocaine broker could distribute cocaine in the United States. Although the investigation was months long, involving multiple co-defendants, we recite here only the facts germane to Gallego's case. On the day of his arrest, agents observed Gallego leave the body shop where he was employed, drive to a cocaine-filled van parked in a shopping center, enter and exit the van and leave again. The agents later observed Gallego return to the shopping center, re-enter the van, and drive it to his sister's house, and park it in the garage.

When the agents executed a search warrant at the house, they observed that most of the cocaine had been unloaded from the van, removed from burlap sacks and placed into other boxes marked with kilogram amounts.

Defendant and a co-defendant were convicted by a jury of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I); and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Count II). At the time of trial, four other co-defendants had been declared fugitives. Immediately prior to defendant's trial, the court granted a severance to Gallego's sister, who was also the wife of one of the co-defendants. Defendant was sentenced to 292 months incarceration on both counts to run concurrently.

This Court affirmed the conviction on direct appeal. Gallego then filed his motion to vacate under 28 U.S.C. § 2255 in the United States District Court for the Southern District of Florida. A United States Magistrate conducted an evidentiary hearing and issued a report recommending that the motion be denied. The district court adopted the recommendation of the magistrate judge.

On appeal, defendant challenges the district court's rejection of his allegations that his counsel failed to properly advise him of his right to testify.

A claim of ineffective assistance of counsel is the proper framework to analyze defendant's allegation that his attorney has violated his right to testify. See United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.) (en banc) cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). A criminal defendant has a "fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel." Teague, 953 F.2d at 1532. Where counsel has refused to accept the defendant's decision to testify and refused to call him to the stand, or where defense counsel never informed the defendant of his right to testify and that the final decision belongs to the defendant alone, defense counsel "has not acted 'within the range of competence demanded of attorney's in criminal cases,' and the defendant clearly has not received reasonably effective assistance of counsel." Teague, 953 F.2d at 1534 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

In his § 2255 motion, Gallego contended that despite his repeated requests to testify, his counsel prevented him from doing so by "failing to discuss the strategic implications of testifying or not testifying and Gallego's right to ultimately make the final decision." The following testimony was adduced at the evidentiary hearing: Gallego's trial attorney, Robert Hertzberg, testified that he visited Gallego only two times prior to trial. After Hurricane Andrew, he stated, "Gallego was lost within the system." He spoke with Gallego just prior to the trial commencing, and discussed with Gallego the potential testimony of Gallego's employer to prove that Gallego was associated with the auto body shop.

With regard to whether Gallego should testify, Hertzberg said he "[m]et with, spoke with him on the telephone, felt his English was marginal, did not think he was comfortable speaking, did not think he would be a good witness at trial." Hertzberg had no documentation as to what was discussed in any of his pre-trial discussions with Gallego, and nothing other than his own testimony regarding whether he discussed with Gallego his right to testify and that it was his right alone to waive. Hertzberg testified that the right to testify is an issue he discusses in every case and that on at least one or two occasions he spoke with Gallego concerning his right to testify. He denied that Gallego repeatedly requested the opportunity to testify.

For his part, Gallego...