Elortegui v. US

• Decision Date: 25 June 1990
• Docket Number: No. 88-2435-CIV-NESBITT.,88-2435-CIV-NESBITT.
• Parties: Ricardo ELORTEGUI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Florida

743 F. Supp. 828

Ricardo ELORTEGUI, Petitioner, v. UNITED STATES of America, Respondent.

No. 88-2435-CIV-NESBITT.

United States District Court, S.D. Florida.

June 25, 1990.

Bruce Rogow, Miami, Fla., for petitioner. U.S. Atty's. Office, for defendant.

MEMORANDUM OPINION

NESBITT, District Judge.

This case presents the novel question of whether the Eleventh Circuit's decision in United States v. Piccinonna, 885 F.2d 1529 (11th Cir.1989), permitting the limited admission of polygraph evidence at trial, should retroactively apply to actions brought under 28 U.S.C. § 2255, the "habeas" provision for federal prisoners.

I. BACKGROUND

On September 2, 1986, Ricardo Elortegui was convicted of two criminal counts under 21 U.S.C. §§ 841(a) and 846: 1) conspiracy to possess cocaine with the intent to distribute, and 2) possession of cocaine with the intent to distribute. Elortegui appealed his conviction to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals affirmed the decision of this Court, and the Supreme Court denied certiorari on December 14, 1987. Elortegui then brought this motion to vacate his conviction pursuant to 28 U.S.C. § 2255.

At all appropriate stages of the trial, Elortegui filed motions to conduct an evidentiary hearing pursuant to Rule 702 of the Federal Rules of Evidence to determine the admissibility of polygraph examinations. According to the defense, the polygraph tests corroborated both Elortegui's testimony concerning his lack of participation in the cocaine transaction and the testimony of four of Elortegui's alibi witnesses.¹ This Court denied the motions based on the Eleventh Circuit per se rule barring the admission of polygraph evidence, which was undisputedly the relevant law at the time of the trial. On direct appeal, Elortegui again raised the issue of whether a hearing should be held on the admissibility of the polygraph tests.

Elortegui, pro se, filed his motion to vacate pursuant to 28 U.S.C. § 2255 on September 2, 1989. On September 28, 1989, the Court of Appeals for the Eleventh Circuit, en banc, decided United States v. Piccinonna, 885 F.2d 1529 (11th Cir.1989), revisiting the issue of the admissibility of polygraph evidence at trial and revising the prior rule. On October 27, 1989, Petitioner, through counsel, supplemented his motion to vacate based on Piccinonna. Petitioner argues in his supplemental petition that this Court should consider, in light of the "new law," whether the proffered polygraph evidence is admissible. The Court addresses below only Elortegui's supplemental claim regarding the retroactive application of Piccinonna pursuant to 28 U.S.C. § 2255.

II. DISCUSSION

A. The Piccinonna Decision

In Piccinonna, the Court of Appeals reconsidered its approach to the admission of polygraph evidence at trial, "in the wake of new empirical evidence and scholarly opinion which have undercut many of the traditional arguments against the admission of polygraph evidence...." 885 F.2d at 1533. The court noted that, with respect to polygraph examinations, the circuits fall into roughly three categories: jurisdictions that hold polygraph evidence inadmissible per se, jurisdictions that allow the admission of polygraph evidence when the parties stipulate to the admissibility of the evidence prior to the administration of the test, and jurisdictions which leave the issue within the sound discretion of the trial judge. Id. at 1533-34. The majority of circuits belonged to the latter two groups. Quoting Justice Potter Stewart, the Eleventh Circuit joined the majority, reversed prior decisions, and held polygraph evidence admissible under two circumstances, because "`any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.'" Id. at 1535 (quoting Hawkins v. United States, 358 U.S. 74, 81, 79 S.Ct. 136, 140, 3 L.Ed.2d 125 (1958)).

After Piccinonna, polygraph evidence must be admitted in two instances. First, the court must admit polygraph tests into evidence when the parties stipulate prior to the administration of the examination "as to the circumstances of the test and as to the scope of its admissibility." 885 F.2d at 1536. Second, the court must admit the evidence when it is used to corroborate or impeach a witness's testimony at trial, provided that three preliminary conditions are met: the party that introduces polygraph evidence must provide his adversary with adequate notice that the testimony will be introduced; the opposing party must have a reasonable opportunity to administer a substantially similar test using its own expert; and finally, the expert's testimony is still subject to the Federal Rules of Evidence, such as Rule 608.

The polygraph evidence proffered by Elortegui would have been admissible under the second Piccinonna exception.² First, the polygraph evidence would have corroborated Elortegui's and other witnesses' testimony. Second, the government had notice of Elortegui's intention to introduce the polygraph tests. Third, the government was invited by the defendant to administer polygraph tests. Fourth, the tests would appear to be otherwise admissible under the Federal Rules of Evidence,³ although it would be within the trial court's discretion to exclude them under Rule 403.⁴ Nevertheless, despite the apparent relevance of Piccinonna to the Petitioner's motion, the Court may be prohibited from applying Piccinonna retroactively in this collateral challenge to Petitioner's conviction.

B. The Retroactive Application of Piccinonna

In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court redefined the circumstances in which new criminal laws should apply retroactively to final decisions on collateral review. The Court held⁵ that "first, a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague, 109 S.Ct. at 1073 (quoting Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (separate opinion of Harlan, J.). Second, new procedures will be applied retroactively when they meet a two-part test: 1) the procedure must be "implicit in the concept of ordered liberty," that is, it must alter the courts' understanding of the "bedrock procedural elements" necessary for a fair trial, and 2) a violation of the procedure must decrease "the likelihood of an accurate conviction." Teague, 109 S.Ct. at 1075-1077. Absent one of these two exceptions, in which the individual's interest in a trial free of constitutional error prevails, the interests of comity and finality preclude the retroactive application of new constitutional rules after all direct appeals have been exhausted. See Teague, 109 S.Ct. at 1073 (comity and finality must be considered to determine proper scope of habeas review).

Petitioner contends that the rule announced in Teague does not apply to the instant case. Teague, and subsequent decisions by the Supreme Court applying Teague, address the retroactive application of new laws on collateral review of state convictions pursuant to 28 U.S.C. § 2254. Petitioner contends that the case before the Court is distinguishable from those cases. Elortegui is a federal prisoner who moves to vacate his conviction pursuant to 28 U.S.C. § 2255.

Petitioner's contention is not entirely without merit. In his dissent, Justice Brennan explicitly notes that the plurality fails to address whether the Teague rule applies to federal prisoners. Teague, 109 S.Ct. at 1084 n. 1 (Brennan, J., dissenting). Moreover, the balance between an individual's interest in a trial free from constitutional error and the interests of comity and finality is different in federal cases than it is in state cases. Without the interest in comity, the balance shifts favorably to the individual, and it seems probable that the individual's interest in a constitutional trial would outweigh the federal government's interest in finality. But see Hrubec v. United States, 734 F.Supp. 60 (E.D.N.Y. 1990) (Teague analysis applicable to § 2255 proceedings because of government's interest in finality).

Nevertheless, the Court cannot hold today that Teague does not apply to federal prisoners seeking collateral review of their convictions. Although all of the decisions except Hrubec, supra, applying Teague to collateral attacks on federal convictions have done so silently, see United States v. Ayala, 894 F.2d 425 (D.C.Cir.1990); Gilberti v. United States, 731 F.Supp. 576 (E.D. N.Y.1990); United States v. Makaweo, 730 F.Supp. 1016 (D. Hawaii 1990); United States v. Rubio, 722 F.Supp. 77 (D.Del. 1989), at least one obvious reason exists for applying Teague to petitions brought pursuant to § 2255. Exempting federal prisoners from the Teague doctrine of retroactivity would result in the courts treating federal prisoners more favorably than state prisoners. The absence of comity concerns cannot alone justify such unequal treatment of state and federal prisoners on collateral review, and no other reason has been suggested for such disparate treatment. To hold that Teague does not apply to federal prisoners would create the very type of inequity that the Teague decision ostensibly was designed to remedy. 109 S.Ct. at 1072. Therefore, we must hold that Teague applies equally to motions to vacate pursuant to 28 U.S.C. § 2255 and petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Turning to the facts of the instant case, it is clear that the other two conditions necessary for the application of the Teague rule against retroactively are met: Elortegui's conviction was final at the time Piccinonna was decided and Elortegui seeks the application of a new rule.⁶ Determining whether a rule is "new" is, in the words of the Supreme Court, "admittedly often difficult." 109 S.Ct. at 1070. In the instant case, however, the Court need not struggle long...