Passos-Paternina v. U.S., Civil No. 97-1137(JP).

• Decision Date: 26 June 1998
• Docket Number: Civil No. 97-1137(JP).
• Citation: 12 F.Supp.2d 231
• Parties: Emiro PASSOS-PATERNINA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

12 F.Supp.2d 231

Emiro PASSOS-PATERNINA, Petitioner, v. UNITED STATES of America, Respondent.

Civil No. 97-1137(JP).

United States District Court, D. Puerto Rico.

June 26, 1998.

COPYRIGHT MATERIAL OMITTED

Emiro Passos-Paternina, Fort Dix, NJ, pro se.

Assistant U.S. Attorney, Hato Rey, PR, for Defendant.

OPINION AND ORDER

PIERAS, District Judge.

I. INTRODUCTION

Alleging that he was denied his constitutional right to effective assistance of counsel, Petitioner now moves this Court under 28 U.S.C. § 2255 to set aside his conviction. Specifically, Petitioner asserts that his lawyer (1) failed to investigate and/or adduce evidence demonstrating Petitioner's role (or lack thereof) in the offense and (2) undermined Petitioner's right to testify on his own behalf. The Court recites the facts from the United States Court of Appeals for the First Circuit's opinion affirming Petitioner's conviction:

The night of September 3, 1988 was dark and stormy as United States Coast Guard Cutter NUNIVAK went about a routine patrol of the Caribbean waters in and around the Virgin Islands. Several miles south of the island of St. John, a lookout on the NUNIVAK sighted the lights of a vessel some seven miles distant. As the NUNIVAK approached, the lights of the other vessel could no longer be seen, though radar contact was maintained except when obstructed by rising swells in the worsening storm. Approximately forty minutes later the NUNIVAK's searchlight serendipitously illuminated a flagless vessel, her stern bearing the name SHEME but no homeport designation. NUNIVAK attempted radio contact in Spanish and English, but no response penetrated the stormy ether. Instead, the SHEME changed course and began criss-crossing NUNIVAK's bow, nearly occasioning a collision.

Finally, the voice of SHEME's master was heard over NUNIVAK's radio: "Llamando el barco Americano" — "Calling the American ship." Lieutenant Donovan, deck watch officer aboard the NUNIVAK, asked for the official name of the vessel, its last port of call, its next port of call, the number of persons on board, and the type of cargo. The master responded that SHEME's last port of call had been Barranquilla, Colombia, five persons were on board, all Colombian citizens, and that SHEME carried no cargo, as she was en route to Tortola, in the British Virgin Islands, for sale to a new owner. When Lt. Donovan requested SHEME's registration number, the master responded that he was not its owner and would not be able to provide the registration number until he contacted his agent in Colombia the next morning. The master refused to consent to boarding. Lt. Donovan testified that at some point during their radio communications the master stated that the SHEME was a Colombian vessel.

Around midnight the NUNIVAK received permission from Coast Guard headquarters in San Juan to board the SHEME without its consent. The SHEME refused to respond to Lt. Donovan's entreaties to heave to so as to permit a safe boarding in the stormy seas. The NUNIVAK sounded general quarters, manned its guns, and fired across SHEME's bow. The SHEME hove to.

Prior to the boarding, Lt. Donovan instructed SHEME to muster all personnel at her stern. The master stated that SHEME was a Panamanian vessel, again advising that he did not consent to the boarding and wished to contact his agent in Barranquilla in the morning.

The Coast Guardsmen proceeded to board. As Lt. Donovan and five armed seamen came over the gunwales, SHEME's crew was nowhere to be seen. As the boarding party cautiously began to explore the vessel, they came upon four crew members in the cabin wiping copious quantities of grease from their bodies. There were two flags — Colombian and Panamanian — in the cabin. The master was in the pilothouse, near the radio. The master presented Lt. Donovan with an expired Panamanian vessel registration, giving Barranquilla as its homeport, and papers identifying each crew member as a Colombian citizen.

A preliminary search disclosed no contraband. The vessel was shipshape throughout, except for the grease-covered inspection plates on the fresh-water drinking tanks. The boarding party proceeded to open one of the inspection plates and found that the tanks were filled with water. While removing the plate, however, the Coast Guardsmen noticed another inspection plate, previously overlooked, located on a bulkhead originally believed to be the inner wall of the SHEME's transom. The plate was heavily laden with grease, several bolts were loose and several were missing. The removal of the inspection plate exposed a hidden storage compartment, containing nearly four hundred styrofoam containers wrapped in green tape; some had been opened and emptied. The white crystalline contents from one package field-tested as cocaine. Later chemical analysis indicated that the entire cocaine cargo consisted of 386.2 kilograms of 94 percent pure cocaine.

United States v. Passos-Paternina, 918 F.2d 979, 980-81 (1st Cir.1990).

II. ANALYSIS

A. FAILURE TO INVESTIGATE AND/OR ADDUCE EVIDENCE

In Petitioner's eyes, the government's case against him depended primarily upon the grease that linked the crewmembers to the secret compartment and, thereby, to the cocaine. Indeed, the First Circuit relied heavily on the grease connection in affirming Petitioner's conviction and rejecting his argument that the government had failed to adduce sufficient evidence to support his conviction. See id. at 986. Petitioner argues that his lawyer failed to investigate his claims that the "grease" found on his clothes was not the same "grease" found on the other crew members. Petitioner posits the following scenario: He is a diesel mechanic; he was hired solely to keep the SHEME's engines ship-shape. On the night of September 3, the SHEME's engines were malfunctioning. Petitioner, as the ship's mechanic, was down in the engine room making repairs. It was while he was in the engine room that the other crew members were attempting to conceal the contraband. As a result of being in the engine rooms, Petitioner was befouled by engine oil and grime, not with the grease found on the other defendants and used by the government to link the crew members to the contraband. Moreover, because Petitioner was below in the engine room when the Coast Guard boarded the SHEME, he came on deck only after hearing a commotion and only to determine what was causing that commotion. Only after the Coast Guard officers confronted him and ordered him to the stern did he proceed to clean the engine oil and grease from his hands. Petitioner maintains that an investigation of this story would have uncovered exculpatory evidence "delinking" him from the tell-tale grease. Specifically, his attorney should have obtained an analysis of Petitioner's clothing to demonstrate that it was covered with engine oil, not grease, and he should have verified that the engine had been repaired just prior to the Coast Guard boarding. According to Petitioner, his counsel's failure to procure the analysis of his clothes and/or to verify that the SHEME's engines had just been repaired "prevented [Petitioner] from explaining his presence and [providing] powerful evidence [that Petitioner] was not amongst those attempting to remove, conceal, or destroy the contraband prior to the arrival of the authorities."

Petitioner's ineffective assistance claim regarding his attorney's failure to investigate must be analyzed under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to sustain a claim of ineffective assistance under Strickland's two-prong test, Petitioner must demonstrate first, that his attorney's performance was deficient, and second, that the deficiency in his attorney's performance prejudiced his defense. 466 U.S. at 687, 104 S.Ct. 2052. In considering Strickland's first prong, the habeas court must remember that although the Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel, id., it "does not guarantee a defendant a letter-perfect defense or a successful defense; rather the performance standard is that of reasonably effective assistance under the circumstances then obtaining." Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993) (quotations and citations omitted). As the Lema court explained:

"The habeas court must evaluate the challenged conduct from counsel's perspective at the time [citations omitted], considering the totality of the circumstances before it [citations omitted], and making every effort to eliminate the distorting effects of hindsight. [citations omitted]. It must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." [citations omitted].

Id.

"The Court finds¹ that Petitioner has failed to rebut the `strong presumption' that his attorney's decision not to conduct a chemical analysis of the substances found on Petitioner's clothing and not to inspect the SHEME's engines fell within the wide range of reasonable professional assistance. As the Supreme Court observed in Strickland, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ... a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 690-91, 104 S.Ct. 2052. In the case at bar, all five defendants pursued the same defense based on the premise that the government could not prove each element of its case beyond a reasonable doubt. All five defendants disputed knowing that the cocaine was aboard the vessel and argued that the government failed to adduce evidence from which a jury could find that requisite element of...