Casiano-Jiménez v. United States

• Decision Date: 29 March 2016
• Docket Number: No. 13–1496.,13–1496.
• Parties: José Luis CASIANO–JIMÉNEZ, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

817 F.3d 816

José Luis CASIANO–JIMÉNEZ, Petitioner, Appellant,

v.UNITED STATES of America, Respondent, Appellee.

No. 13–1496.

United States Court of Appeals, First Circuit.

March 29, 2016.

David Ramos–Pagán, for petitioner.

Tiffany V. Monrose, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for respondent.

Before HOWARD, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA

, Circuit Judge.

A criminal defendant's right to testify in his own behalf—or, conversely, not to testify—is a critically important right. Given the salience of the right, a defendant is entitled to be fully briefed so that he may make an informed choice. In this case, the defendant did not receive his due. Consequently, the district court erred in denying the defendant's petition for post-conviction relief under 28 U.S.C. § 2255

.

I. BACKGROUND

We sketch the factual and procedural terrain in broad strokes. The reader who thirsts for more exegetic details may slake that thirst by consulting our opinion rejecting the petitioner's direct appeal. See United States v. Angulo–Hernández, 565 F.3d 2, 4–7 (1st Cir.2009)

.

In 2009, petitioner-appellant José Luis Casiano–Jiménez was convicted of conspiring to smuggle narcotics by ship into the United States. At trial, the petitioner's defense was based on lack of knowledge: he maintained that he was unaware that any contraband was clandestine aboard the ship. None of the seven defendants (including the petitioner) took the stand to testify. Rather, they presented a joint defense through a single expert who examined the vessel and opined that—based on the hidden location of the contraband—it was possible that none of the crew members were aware that drugs were on board.

The jury found the captain and the engineer, along with the petitioner (whom the government characterized as the ship's first officer) and one other crew member, guilty of conspiring to possess controlled substances with intent to distribute and aiding and abetting.¹ See 18 U.S.C. § 2(a)

; 46 U.S.C. §§ 70503(a)(1), 70506(b). The jury acquitted three other crew members (all ordinary seamen). The district court proceeded to sentence the convicted defendants (including the petitioner) to lengthy prison terms.

On direct review, the convicted defendants challenged the jury verdicts on various grounds, including the alleged insufficiency of the evidence. We affirmed, though one member of the panel dissented on the basis that the evidence, though sufficient to support the verdicts against the captain and the engineer, did not suffice to show that the other two convicted defendants (including the petitioner) were aware of any drugs being on board. See Angulo–Hernández, 565 F.3d at 13–18

(Torruella, J., concurring in part and dissenting in part). The petitioner unsuccessfully sought both rehearing en banc and a writ of certiorari, and his conviction and sentence became final.

The petitioner filed a timeous section 2255

petition for post-conviction relief that raised, inter alia, a claim that his trial counsel was ineffective for failing to advise him of his right to testify in his own behalf.² The district court denied the petition and refused to grant a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(2). This court granted a COA, however, limited to the plaint that the petitioner was entitled to an evidentiary hearing on his ineffective assistance of counsel claim. By unpublished order, we then remanded the case to the district court for such an evidentiary hearing. See Casiano–Jiménez v. United States, No. 11–2049 (1st Cir. Nov. 30, 2012) (unpublished order).

The district court held the evidentiary hearing in March of 2013. The petitioner and his trial counsel, Frank Inserni, both testified. They agreed that Inserni had never explained to the petitioner either that he had a right to testify in his own behalf or that the decision to do so belonged exclusively to him. Inserni added that the lawyers for all the defendants collectively decided that "it would be detrimental" to have any of the defendants testify. They chose instead to retain a single expert to present a "lack of knowledge" defense on behalf of all the defendants. The lawyers proceeded to communicate this strategy to the defendants at a group meeting.

The petitioner's testimony fit seamlessly with Inserni's testimony. The petitioner acknowledged that he had spoken to Inserni about testifying, but confirmed that Inserni had not advised him of his right to testify. He likewise corroborated Inserni's version of what was said at the group meeting.

In a three-page unpublished order, the district court again rejected the section 2255

petition. It also declined—as it had before—to issue a COA. The petitioner nevertheless filed a notice of appeal. He then requested and received a COA from this court. Briefing and oral argument followed,³ and we took the matter under advisement.

II. ANALYSIS

Our analysis begins with an overview of the legal landscape and then proceeds to the merits of the petitioner's appeal.

A. The Legal Landscape.

"[T]he appropriate vehicle for claims that the defendant's right to testify was violated by defense counsel is a claim of ineffective assistance of counsel." United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.1992)

. Such a claim may properly be raised by a petition for post-conviction relief under 28 U.S.C. § 2255. See Owens v. United States,

483 F.3d 48, 56 (1st Cir.2007).

Prevailing on an ineffective-assistance claim necessitates two showings: the defendant "must demonstrate that counsel's performance fell below an objective threshold of reasonable care and that this deficient performance prejudiced him." United States v. Caramadre, 807 F.3d 359, 371 (1st Cir.2015)

; see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The prejudice prong requires a defendant to establish that, but for counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Turner v. United States, 699 F.3d 578, 584 (1st Cir.2012).

In any trial, a defendant's right to testify in his own defense is a "fundamental constitutional right" and is "essential to due process of law in a fair adversary process." Rock v. Arkansas, 483 U.S. 44, 51, 53 n. 10, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)

(quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). The defendant's lawyer, rather than the trial judge, bears the primary responsibility of informing and advising the defendant of this right, including its strategic ramifications. See Teague, 953 F.2d at 1533. Similarly, the defendant's lawyer bears the primary responsibility of explaining that the choice of whether or not to testify belongs to the defendant. See id. It follows inexorably that "[t]he right to testify may not be waived by counsel acting alone." Owens, 483 F.3d at 58 (citing cases). If the defendant is unaware of his right to testify and counsel, without consultation, unilaterally declines to call the defendant as a witness in his own behalf, the defendant's right to make an informed decision has been nullified. See id. at 59.

Viewed against this backdrop, it is not surprising that we have held that an attorney's failure to inform a defendant of his right to testify comprises constitutionally deficient performance. See id. at 58

; see also Teague, 953 F.2d at 1534 (explaining that such a failure amounts to an attorney's neglect of a "vital professional responsibility"). In determining whether a lawyer has adequately apprised his client of this fundamental right, no particular formulation is required. See Owens, 483 F.3d at 60 n. 10. There are no magic words; the inquiry is whether "some sort of conversation" has occurred between the attorney and his client, such that "the client can make a knowing and informed decision" regarding whether to testify in his own defense. Id.

B. The Case at Hand.

We now move from the general to the specific. Where, as here, a petitioner appeals the denial of post-conviction relief following an evidentiary hearing, we review the district court's findings of fact for clear error. See Owens, 483 F.3d at 57

. Under this rubric, credibility determinations are entitled to equal or greater deference. See Awon v. United States, 308 F.3d 133, 141 (1st Cir.2002) ; Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994). Questions of law, however, engender de novo review. See Owens, 483 F.3d at 57.

We start with an appraisal of trial counsel's performance. At the evidentiary hearing, Inserni was asked point-blank whether he had advised the petitioner of his right to testify. The attorney admitted unequivocally that he had not informed the petitioner about this right. Rather, a group meeting transpired at which counsel for all of the defendants "explained to them ... that it would not be advisable for any of them to take the stand" and that the attorneys had collectively agreed that a single expert would present the rudiments of a "lack of knowledge" defense on behalf of all the defendants. The petitioner's testimony on these points echoed that of his trial counsel.

In a terse rescript, the district court concluded that the petitioner's claim was "inherently incredible." The court made no explicit credibility findings—yet it refused to credit Inserni's and the petitioner's statements that the petitioner had never been apprised of his right to testify. Focusing instead on Inserni's description of the joint meeting among the defendants and their counsel, the court held that the petitioner had been sufficiently notified of his fundamental constitutional right to testify.

Although we recognize that the standard of review is deferential, see Awon, 308 F.3d at 141

, the foundation upon which the district court's holding rests is as insubstantial...