Robinson-Munoz v. US, Civ. No. 92-2696 (JAF). Crim. No. 90-377.

Decision Date30 March 1993
Docket NumberCiv. No. 92-2696 (JAF). Crim. No. 90-377.
Citation819 F. Supp. 1136
PartiesEduardo ROBINSON-MUÑOZ, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — District of Puerto Rico

COPYRIGHT MATERIAL OMITTED

Eduardo Robinson-Muñoz, petitioner pro se.

Daniel López-Romo, U.S. Atty., D. Puerto Rico, San Juan, PR, for respondent.

OPINION AND ORDER

FUSTE, District Judge.

We consider here the pro se 28 U.S.C. § 2255 petition filed by Eduardo Robinson-Muñoz. Mr. Robinson-Muñoz was convicted by a jury on January 29, 1991, of having violated 46 U.S.C.App. § 1903(a) and 18 U.S.C. § 2 for the possession of marijuana with intent to distribute. This court sentenced Mr. Robinson-Muñoz to one-hundred and twenty months of imprisonment with a five-year term of supervised release. On appeal, the First Circuit affirmed his conviction, upholding the district court's determinations on the admission of a statement by one of his codefendants, the sufficiency of the evidence of intent to possess, and the sufficiency of evidence of jurisdiction of the United States over the vessel. United States v. Robinson-Muñoz, 961 F.2d 300 (1st Cir. 1992).

Petitioner now raises a number of other issues in his first section 2255 petition: (1) the admissibility of his codefendant's statement; (2) the sufficiency of the cautionary instruction; (3) the effect of the subsequent discovery of the same codefendant's limited mental capacity; (4) the sufficiency of the evidence proving intent; (5) the jurisdiction of United States to seize the vessel; (6) the soundness of the chain of custody; (7) the appropriateness of the judge's questions to various witnesses; (8) the constitutionality of the seizure of a non-United States vessel by the United States on the high seas; (9) the interference of the government with one of plaintiff's witnesses; (10) prosecutorial misconduct; (11) the culling of Colombians from the jury; and (12) the ineffectiveness of his counsel. Petitioner may have raised other arguments; however, the petition is so poorly organized that the above-listed arguments are the only ones clear enough to be considered by the court.

I. Facts

On October 13, 1990, a United States Navy plane spotted a vessel heading in a northbound direction about ninety miles from the coast of Colombia. As it was being overflown, the vessel began behaving strangely, eventually making a 180-degree course change. The plane then radioed a Navy vessel, the USS DALE ("DALE"), which proceeded to intercept the vessel. When they came upon the vessel, it was revealed to be a small, rundown, wooden vessel without fishing gear, riding low in the water, and too far out in the ocean for its size — all characteristics which fit the profile for drug-smuggling vessels. It had no flag, but did have the name M/V DELFIN ("DELFIN") painted on a plaque which was nailed to the bow. After attempting for almost an hour to contact the vessel in English, the Coast Guard team aboard the DALE switched to Spanish. After another fifteen minutes, the master of the DELFIN answered, claiming the vessel was of Colombian registry, but that he had no papers on board. The Coast Guard then radioed the Colombian government and requested a statement of no objection to board the vessel. The Colombian officials responded that the Coast Guard could board the vessel, but should refrain from taking any legal action until the Colombian government had verified whether or not the vessel was registered in Colombia.

About two hours after the 550-foot DALE had pulled alongside the 35-foot DELFIN, the boarding party took a semi-rigid inflatable boat and motored out to the DELFIN. Upon boarding, one of the Coast Guard officers, Petty Officer Villamil, testified that he smelled marijuana even before setting foot on the DELFIN. He also testified that after he had boarded, someone, whom he later identified as the master of the vessel, approached him and stated in Spanish that "you've caught us." The master also stated that there was marijuana on board and pointed out burlap-covered bales in the hold. These bales were partially concealed in the largely open hold behind plywood partitions. The burlap-covered bales revealed 2,178 kgs. of marijuana.

The Coast Guard officers were unable to find any indication of registry on the vessel. Identification numbers normally present on all vessels were absent from the DELFIN, indicating that the vessel was most likely homemade. Upon receiving confirmation from the Colombian government that the vessel was not registered in Colombia, the Coast Guard declared the vessel stateless and arrested the master and crew. They were all given Miranda warnings in Spanish, at which point all four stated that they did not wish to make any statements. They were all taken on board the DALE.

The master, Abel Rojas, was eventually revealed to be a displaced Cuban citizen who had at one point lived in Indiana. He had been living in Colombia, after having left the United States upon the expiration of a prison term for possession of marijuana. The crew were three fishermen from Devulla, Colombia: Eduardo Robinson-Muñoz, Lázaro Pérez-Redondo, and Alberto Sabán-Gutiérrez. They had been recruited by Abel Rojas, who often bought fish from Mr. Sabán-Gutiérrez. According to the testimony of Mr. Sabán-Gutiérrez, they were offered approximately $1,000 each to make the trip. He also testified that they had no idea of the nature of the trip. Mr. Rojas testified that he had allowed them to think that they would be smuggling goods like alcohol and tobacco. Two days before the DELFIN was stopped, Rojas had taken the three fishermen to the DELFIN in a speed boat. There they had taken turns steering the boat. The gear of the crew was found in areas of the vessel from which the marijuana bales were visible. To start the engine, it was necessary to have access to the engine which was behind several bales. However, the bedding was in an area separate from the bales and the bales were partially concealed.

One of the defendants, Sabán-Gutiérrez, made a statement to one of the Coast Guard officers during the voyage to Puerto Rico, the nearest U.S. port. This statement became the center of much controversy at trial. One evening, returning from the bathroom, Sabán-Gutiérrez broke down and began to cry. When Petty Officer Villamil asked him what was wrong, Sabán-Gutiérrez told him that he was thinking of his family. He said that his wife had asked him not to get involved in trafficking. When the government attempted to have Petty Officer Villamil testify to this statement, all the defendants objected. All the defendants, except Abel Rojas, who pled guilty, were being tried together. No motion for severing the trials had ever been made. This judge admitted the statement. However, he cautioned the jury that this statement only applied to Sabán-Gutiérrez and no inference should be drawn to the other defendants. The First Circuit found that the statement did not have any impact upon the rights of the other defendants. Robinson-Muñoz, 961 F.2d at 303-04.1

Aside from this dispute, the trial of the three codefendants proceeded smoothly. There was talk of contacting the Colombian consul, Teresa de Berardinetti, and asking her to testify. However, the record does not reflect whether the petitioner's attorney was ever able to contact her. Petitioner claims she arrived at the court to testify, but was excluded from the courtroom by U.S. Marshals.

Petitioner was convicted along with his two codefendants. Petitioner appealed his conviction; however, the district court was affirmed. From his correspondence with his attorney, we note that petitioner had a strong interest in the progress of his defense. However, he appears to have had considerable difficulty contacting his attorney and learning about the nature of his appeal. Petitioner appears convinced that he was unjustly and involuntarily brought into the United States to be tried, a belief which has resulted in the petition we now have before us.

II. Section 2255

The more recent trend in the development of section 2255 jurisprudence has been for the Supreme Court to narrow the scope of the relief available through habeas corpus.2 Section 2255 allows for an opportunity to attack a final judgment; however, it should not undermine the mechanisms for review which exist as part of the original proceedings. See U.S. v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979); Hill v. United States, 368 U.S. 424, 428-29, 82 S.Ct. 468, 471-72, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed.2d 1982 (1947). "When Congress enacted section 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review." U.S. v. Addonizio, 442 U.S. at 184, 99 S.Ct. at 2240. For this reason, in a section 2255 petition, where there has been a procedural default, i.e., a petitioner has failed to properly raise an issue in trial or on appeal, a petitioner may be barred from bringing a collateral attack unless he shows cause for the failure and prejudice from the failure. Coleman v. Thompson, ___ U.S. ___, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).3 In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), where the dissent by Justice Brennan pointed out that section 2254 and section 2255 constituted significantly different settings, the Supreme Court wrote that "the Federal Government, no less than the States, has an interest in the finality of its criminal judgments," and proceeded to apply the "cause and prejudice" standard in a petition brought under section 2255.

The First Circuit does appear to have accepted Frady as conclusive evidence that the "cause and...

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