Riascos-Prado v. U.S.

• Decision Date: 13 September 1995
• Docket Number: RIASCOS-PRAD,No. 1138,P,D,1138
• Parties: Wilbertoetitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 94-2523.
• Court: U.S. Court of Appeals — Second Circuit

Page 30

66 F.3d 30

Wilberto RIASCOS-PRADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 1138, Docket 94-2523.

United States Court of Appeals, Second Circuit.

Argued March 9, 1995.

Decided Sept. 13, 1995.

Richard A. Reeve, Assistant Federal Public Defender, New Haven, CT (Thomas G. Dennis, Federal Public Defender, Michael O. Sheehan, Assistant Federal Public Defender, New Haven, CT, of counsel), for petitioner-appellant.

Carl J. Schuman, Assistant United States Attorney for the District of Connecticut, Hartford, CT (Christopher F. Droney, United States Attorney, Michael E. Runowicz, Assistant United States Attorney, New Haven, CT, of counsel), for respondent-appellee.

Before: MAHONEY, WALKER, and LEVAL, Circuit Judges.

MAHONEY, Circuit Judge:

Petitioner-appellant Wilberto Riascos-Prado appeals from an order entered July 13, 1994 in the United States District Court for the District of Connecticut, Alan H. Nevas, Judge, that dismissed Riascos-Prado's motion to vacate his sentence pursuant to 28 U.S.C. Sec. 2255. The district court ruled that since Riascos-Prado had unsuccessfully contended, on the direct appeal of his conviction, that he had been accorded ineffective assistance of counsel in a number of respects, all claims of ineffective assistance were procedurally barred from subsequent Sec. 2255 consideration because, even if supported by new and different factual allegations concerning ineffectiveness, they did not advance a new "ground" for relief. Accordingly, the district court dismissed the amended Sec. 2255 petition without reaching the merits of its claims.

We disagree with the district court's ruling that all challenges to the performance of counsel constitute a single legal ground, and conclude that one of Riascos-Prado's claims of ineffective assistance of counsel--that due to a conflict of interest, counsel pressured Riascos-Prado to plead guilty--was properly before the district court for resolution. We therefore vacate the dismissal of Riascos-Prado's Sec. 2255 petition and remand to the district court to determine whether the allegations raised in the petition necessitate an evidentiary hearing.

Background

On July 13, 1990, law enforcement agents obtained a warrant to search the apartment of Riascos-Prado and his girlfriend/codefendant, Carmen Berrios, in Manchester, Connecticut. A search of the apartment uncovered over 2.5 kilograms of cocaine, a scale, and two firearms. While the agents surveilled the premises in anticipation of executing the search warrant, they observed a vehicle enter the parking lot, shine its headlights on the group of law enforcement agents, and then slowly exit the lot. Local officers pursued the vehicle and detained it while the search warrant was executed. Riascos-Prado, a passenger in the vehicle, was ultimately arrested.

Following his arrest and after the issuance of Miranda warnings, Riascos-Prado admitted that he, not Berrios, was the owner of the cocaine found in the apartment. Riascos-Prado also stated that it was his practice to buy cocaine in kilogram quantities in New York City and sell it in smaller quantities in the Hartford, Connecticut area. He further admitted that he was the source of a kilogram of cocaine that was seized by federal agents from three individuals one week earlier in Hartford, Connecticut.

On July 24, 1990, Riascos-Prado was charged in a two-count indictment with conspiring to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841. On April 2, 1991, Riascos-Prado pled guilty to the conspiracy count. He was sentenced on July 30, 1991 to 180 months imprisonment, to be followed by four years of supervised release.

Represented by new counsel, Riascos-Prado appealed his conviction and sentence on various grounds. He argued that he was provided ineffective assistance of counsel at the proceedings below because his counsel had: (1) failed to refile a suppression motion regarding Riascos-Prado's detention and postarrest statement; (2) failed to explain to Riascos-Prado the consequences of his guilty plea; and (3) inadequately represented Riascos-Prado at his sentencing hearing. Riascos-Prado also contested the amount of cocaine attributed to him in determining the applicable sentencing guidelines range, the two-level enhancement to his base offense level for possession of a firearm, and the district judge's decision to sentence him at the high end of the guidelines range.

This court affirmed Riascos-Prado's conviction and sentence in an unpublished summary order. United States v. Riascos-Prado, 962 F.2d 2 (2d Cir.1992) (table). We held that based upon the officers' observations, the initial stop and detention of the vehicle and its occupants were reasonable, and therefore counsel's failure to pursue a motion to suppress Riascos-Prado's postarrest statement as the fruit of an unlawful detention did not constitute ineffective assistance of counsel. We also rejected as meritless Riascos-Prado's contention that his attorney failed to inform him of the consequences of his guilty plea, and inadequately represented him at his sentencing proceeding. In addition, we determined that the district judge's decision to attribute seventeen kilograms of cocaine to Riascos-Prado for purposes of sentencing was not clearly erroneous. Last, we affirmed the district court's two-level enhancement to Riascos-Prado's base offense level for possession of a firearm despite his denials of ownership, and that court's imposition of a sentence at the high end of the guidelines range.

On May 26, 1993, Riascos-Prado filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. Sec. 2255. On June 11, 1993, Riascos-Prado was assigned counsel to represent him, and an amended petition was filed on November 18, 1993. In the amended petition, Riascos-Prado again argued that he was provided ineffective assistance of counsel before the district court based upon the following premises: (1) counsel failed to investigate Riascos-Prado's assertion that his postarrest statement was involuntary and coerced, and therefore subject to suppression; (2) a conflict of interest prompted counsel to pressure Riascos-Prado to plead guilty; and (3) counsel did not explain the sentencing guidelines to Riascos-Prado at any time prior to the entry of his guilty plea. Riascos-Prado also asserted that the sentencing hearing was unfair and violative of his constitutional rights in that the government breached its discovery obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by failing to disclose its intent to file a Fed.R.Crim.P. 35(b) motion to reduce Berrios' sentence for her substantial assistance in prosecuting Riascos-Prado if she agreed to testify against Riascos-Prado at his sentencing hearing.

In denying the Sec. 2255 motion, the district court explicitly addressed only the claims of ineffective assistance of counsel, but not the alleged Brady/ Giglio violation. ¹ It ruled that Riascos-Prado could not raise any ineffective assistance of counsel claims in a Sec. 2255 petition because he had previously challenged his counsel's performance on his direct appeal. The district court found that the petition raised factual allegations regarding ineffectiveness that had not been raised or addressed on direct appeal, but concluded that "the factual allegations in the instant petition do not constitute a new 'ground' for relief but merely an effort on the part of the petitioner to relitigate his claim of ineffective assistance of counsel which has already been adversely resolved against him on direct appeal." Riascos-Prado v. United States, Criminal No. H-90-54 (AHN), Civil No. 3:93CV-1079 (AHN), slip op. at 4 (D.Conn. July 12, 1994). The district court accordingly dismissed Riascos-Prado's petition without reaching the merits of the claims that it asserted. Id.

This appeal followed.

Discussion

It is clear that " '[s]ection 2255 may not be employed to relitigate questions which were raised and considered on direct appeal.' " Cabrera v. United States, 972 F.2d 23, 25 (2d Cir.1992) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir.1986) (per curiam)); see also Schlup v. Delo, --- U.S. ----, ---- - ----, 115 S.Ct. 851, 862-63, 130 L.Ed.2d 808 (1995) ("[A] habeas court may not ordinarily reach the merits of successive claims ... absent a showing of cause and prejudice.") (citations and footnote omitted); Douglas, 13 F.3d at 46 ("[A]ny claim raised ... at this point that was also raised in [a] previous Sec. 2255 motion[ ] or on direct appeal of [the petitioner's] conviction is precluded from consideration by this Court."); 28 U.S.C. Sec. 2255 ("The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf on the same petitioner.").

As Riascos-Prado's counsel conceded at oral argument, this rule bars consideration of the ineffectiveness claim based upon prior counsel's asserted failure to pursue a suppression motion, since this issue was thoroughly litigated on Riascos-Prado's direct appeal. The district court invoked Williams v. United States, 731 F.2d 138, 141 (2d Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985), however, to dismiss all of Riascos-Prado's claims of ineffective assistance.

In Williams, we affirmed the district court's denial of a petitioner's successive Sec. 2255 motion without consideration of its merits, finding that the claim raised in the petition was the same as that asserted in the first petition. In both petitions, the defendant sought to set aside his conviction on the ground that his guilty plea was entered involuntarily. In the first petition, the defendant argued that his plea was involuntary...