Caraballo Teran v. U.S., Civil No. 94-2116(GG).

• Decision Date: 31 July 1997
• Docket Number: Civil No. 94-2116(GG).,Criminal No. 90-004(GG).
• Parties: Santiago CARABALLO TERAN, Plaintiff v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

975 F.Supp. 129

Santiago CARABALLO TERAN, Plaintiff v. UNITED STATES of America, Defendant.

Civil No. 94-2116(GG).

Criminal No. 90-004(GG).

United States District Court, D. Puerto Rico.

July 31, 1997.

Santiago Caraballo Teran, Texarkana, TX, pro se.

Wilfredo Rios Mendez, Caguas, PR (Defense Atty. in Cr. 90-004).

Guillermo Gil, U.S. Atty., Jorge E. Vega Pacheco, Chief Criminal Div., Hato Rey, PR, for U.S.

OPINION AND ORDER

GIERBOLINI, Senior District Judge.

Pending before this court is petitioner Santiago Caraballo Teran's pro se motion to vacate and set aside his imprisonment sentence, pursuant to the provisions of 28 U.S.C. § 2255. Both his trial counsel and the government demur.

FACTUAL AND PROCEDURAL BACKGROUND

On December 18, 1989, a United States Customs aircraft was dispatched to survey a suspicious vessel located southeast of Santo Domingo, Dominican Republic. When the aircraft arrived at the reported position its crew observed a coastal freighter bearing the name "VITA NOVA" on its side. The coordinates of the freighter were! relayed to the Coast Guard Cutter Vashon, which was patrolling the Mona Passage. When the Vashon arrived, around 6:30 p.m., the "VITA NOVA" was not displaying a flag. The Vashon tried to communicate repeatedly with personnel on board the "VITA NOVA" by means of radio and loudspeaker, both in English and Spanish, to no avail. See, Transcript (TR) pp. 132-136.

In addition, the "VITA NOVA" turned off the lights and began, to maneuver erratically.¹ A boarding party was assembled under the supervision of Lt. Mark Ogle, Executive Officer of the Cutter Vashon. Accordingly, a small inflatable boat was launched and situated; alongside the "VITA NOVA". Co-defendant José R. Polo Caraballo's served as the spokesperson of the crew. When asked about the nationality of the vessel, he responded that it was registered in Malta, a Mediterranean island. He also informed Lt. Ogle that their last port of call was Acaro, an island off Venezuela and were heading towards Haiti, that they had a cargo of cement, that the captain had left earlier in the day and that he was Cuban. See, TR pp. 132-143.

Lt. Ogle requested Polo Caraballo's consent to board the vessel, but it was denied. Instead he was instructed to call Barranquilla² Colombia, for permission. Id. While watching the "VITA NOVA", Lt. Ogle saw smoke coming out of its pilot house and water coming out of the engine. The Coast Guard immediately offered assistance to save the boat, but the same was refused. Id., at 146. At that point, and since the vessel was in international waters, Lt. Ogle radioed the Vashon and asked the captain to proceed with a "Statement of No Objection" (SNO) through the U.S. Department of State for exercise of the United States' law enforcement authority on board the vessel. Id., at 147. While they waited for the SNO, they kept watching the "VITA NOVA", which continued sinking. Around 10:00 p.m., the crew finally decided to abandon the ship, put on life jackets and jumped into a life raft. Id., at 150.

The Coast Guard pulled the life raft away from the "VITA NOVA" and towed it over to the Vashon, where the crew members were detained. Since the freighter was in a shipping channel, Lt. Ogle returned to the "VITA NOVA" and boarded it to make sure it sank abruptly avoiding other ships to come along and run into it. They accomplished this by cutting the cargo hatch straps. Id., at 151-152. Once the "VITA NOVA" sank, among its debris, the Coast Guard found floating ten bales or duffle bags containing a white powdery substance, which when field tested proved positive for cocaine. All seven (7) crew members were indicted on one count of aiding and abetting each other to possess 305 kilograms (gross weight) of cocaine on board a vessel without nationality and subject to the jurisdiction of the United States, with the intent to distribute it, in violation of 46 U.S.C.App. §§ 1903(a)(C)(1)(A) & (f) and 18 U.S.C. § 2. (Docket entry # 1 in Criminal Case No. 90-004). After three (3) days of trial, having the government rested and defendants' motions for acquittal been denied, all co-defendants entered a guilty plea. (Docket entry # 57, 59, 66 & 67). For sentencing purposes the court only considered the amount of cocaine introduced into evidence, that is, 10 kilograms. Accordingly, Mr. Caraballo Terán was sentenced to one hundred and twenty (120) months of imprisonment and five (5) years of supervised release. (Docket entry # 89 & 90).

Petitioner argues that he was denied effective assistance of counsel, his guilty plea was not voluntary, he was a victim of an illegal search and seizure, there was insufficient evidence to convict him, the court lacked subject matter jurisdiction because the government violated international law and there were errors in the narrative of the offense conduct of the Pre-Sentence Report. In order to properly assess Mr. Caraballo-Terán's allegations we ordered both the U.S. Attorney and Wilfredo Rios Méndez, Esq., his former trial counsel, to file a response stating their respective positions. They timely complied with our order, obviously opposing petitioner's motion. Although granted twenty (20) days, as of today Mr. Caraballo Terán has not replied to said briefs.

INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Lema v. U.S., 987 F.2d 48, 51 (1st Cir.1993). This right does not require neither a letter perfect nor a successful defense. Perry v. Leeke, 488 U.S. 272, 279, 109 S.Ct. 594, 599, 102 L.Ed.2d 624 (1989). In order to prevail on a Sixth Amendment claim one must satisfy the two prongs set forth in Strickland v. Washington, supra. These are: "(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that prejudice resulted." Matthews v. Rakiey, 54 F.3d 908, 916 (1st Cir.1995) (citing Strickland, at 694, 104 S.Ct. at 2068).

As to the first prong, the touchstone is whether counsel has brought to "bear such skills and knowledge as will render the trial as a reliable adversarial process." Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir.1994) (citing Strickland, at 687, 104 S.Ct. at 2064). That is, the proper measure of attorney performance remains simply reasonableness under the prevailing professional norms taking also into consideration the totality of circumstances. Id. The evaluation as to this prong demands a fairly tolerant approach. Scarpa, at 8. Specifically, Strickland provides:

Judicial scrutiny of counsel's performance must be highly deferential. It is all to tempting for a Defendant to second guess counsel's assistance after conviction and adverse sentence ... because of difficulties inherent in making the evaluation, a court must indulge in a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, a Defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland, at 689, 104 S.Ct. at 2065 (quoting Michel v. Lousiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). In conclusion, a petitioner bears an extremely heavy, burden. Bucuvalas v. U.S., 98 F.3d 652, 657 (1st Cir.1996). The habeas court must evaluate the challenged conduct from counsel's perspective at the time, considering the totality of the circumstances before it, and making every effort to eliminate the distorting effects of hindsight. Strickland, supra. See, Perron v. Perrin, 742 F.2d 669, 673 (1st Cir.1984).

As to the second prong, petitioner must have suffered actual prejudice as a result of counsel's decision. Strickland, at 693, 104 S.Ct. at 2067-68. This "prejudice" element also presents a high hurdle to overcome. Argencourt v. U.S., 78 F.3d 14, 16 (1st Cir. 1996). Even if counsel's error is perceived as professionally unreasonable, that by itself does not warrant setting aside the judgement. Strickland, at 691, 104 S.Ct. at 2066. The defendant must show that the error actually had an adverse effect on the final outcome of the trial. That is, he must affirmatively show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 693-94, 104 S.Ct. at 2067-68.

Petitioner argues that he was denied an effective assistance of counsel because he was practically coerced by his counsel into entering a guilty plea by being informed that because of his Colombian nationality he would not be acquitted and could be, sentenced to life imprisonment. In addition, petitioner claims that his counsel failed to investigate the facts of the case to properly assert available defenses, to advise him of his right to appeal and to file an appeal on his behalf. A quick glance at petitioner's; claims and the criminal record of this case demonstrates that petitioner's list of counsel's alleged failures is unsubstantiated and based on conclusory and bald allegations of a Sixth Amendment violation.

GUILTY PLEA

We commence our analysis with petitioner's allegations that his trial counsel induced him to enter a guilty plea and that it would be a miscarriage of justice to uphold the same when he was practically illiterate, had no knowledge of the American Judicial System, did not understand the English language, and he thought he had to do it since all the other co-defendants had done the same. These contentions are self-serving and totally refuted by the record.

"A defendant does not enjoy an absolute right to withdraw a plea of guilty, once it has been entered". U.S. v. Miranda-Santiago, 96 F.3d 517, 522 (1st Cir.1996) (citing U.S. v. Isom, 85 F.3d 831, 834 (1st Cir.1996)). A defendant, who never seeked to withdraw his plea before the district court and challenges it for the first time on collateral attack...