Rodriguez v. Weber, 21264.

Decision Date13 September 2000
Docket NumberNo. 21264.,21264.
Citation617 N.W.2d 132,2000 SD 128
PartiesCirilo RODRIGUEZ, Applicant and Appellant, v. Doug WEBER, as the duly appointed Warden of the South Dakota State Penitentiary, and Robert Dooley, Warden of the Springfield State Prison, Appellee.
CourtSouth Dakota Supreme Court

Gordon D. Swanson of Hansen, Hubbard & Swanson, Sturgis, Attorneys for applicant and appellant.

Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, Attorneys for appellees.

KONENKAMP, Justice

[¶ 1.] Cirilo Martin Rodriguez was convicted of felony possession of marijuana and sentenced to ten years in the penitentiary after a traffic stop and search of the vehicle he was driving uncovered over ninety-four pounds of marijuana in a hidden compartment. In his application for a writ of habeas corpus he contended, among other things, that his trial attorney was ineffective. A urine sample taken after his arrest proved there was no trace of marijuana in his body, but the State failed to disclose this result, and his lawyer, who knew of the test but not the result, failed to pursue it. Other than Rodriguez, trial counsel called no witnesses in support of Rodriguez's claim that he was an innocent dupe in a scheme to transport illegal substances. Habeas relief was denied and he now appeals on multiple grounds, including the failure to disclose the results of the urinalysis, and the denial of effective assistance of counsel. We affirm, as we conclude that there is no reasonable probability that the outcome of the trial would have been different had the errors not occurred.

Background

[¶ 2.] On February 19, 1996, Rodriguez was eastbound on I-90 about five miles east of the Wyoming-South Dakota border. He was driving alone in a 1982 Chevrolet Blazer bearing Washington State license plates. Highway Patrol Trooper Michael Shafer stopped him for speeding. Rodriguez produced an Illinois driver's license issued on December 5, 1995, with the name Cirilo Martin Rodriguez. The vehicle registration showed the owner as Andres Sanchez Lopez of Pasco, Washington. Shafer asked Rodriguez to come back with him and take a seat in his patrol car.

[¶ 3.] Trooper Shafer noticed a bulge in Rodriguez's pocket. When asked what it was, Rodriguez said it was a pager. It was a leased satellite-linked sky pager. He claimed he carried the pager all the time so that his family could contact him. It was later learned that it had been rented only two days earlier, not in the name of Cirilo Rodriquez, but in the name Maria Cuevas, who Rodriquez later said was the wife of a friend. Expert testimony at trial disclosed that those involved in the drug trade often use these pagers to communicate without being traced.

[¶ 4.] Trooper Shafer asked about the person named on the vehicle registration. Rodriguez said Lopez was his brother-in-law and that he was buying the Blazer from him. Rodriguez explained that he was returning to his home in Chicago, Illinois, from a weeklong visit with his brother-in-law in Pasco. He was unable to tell Shafer in what part of Washington Pasco was located, indicating that his brother-in-law had picked him up at the airport and had taken him there. Shafer asked Rodriguez what airport he had flown into, and Rodriguez said, "Washington, D.C." When told that Washington, D.C. is on the eastern seaboard, Rodriguez thought it must have been the airport in Seattle instead. Again Shafer asked about the owner of the Blazer. Rodriguez then declared that he did not know Lopez and that his brother-in-law, Fernando Lara, had "all the papers" on the vehicle. Rodriguez said, "I buy it for him!"referring to Lara.

[¶ 5.] Some of Rodriguez's communication difficulties can be ascribed to his inability to converse well in English. But even repeated questions for clarification only revealed more incongruities. Shafer became suspicious that Rodriguez was a drug courier. After telling Rodriguez that he would be free to go once a warning ticket was written, and then issuing the ticket, Shafer asked if Rodriguez minded if he asked a few more questions. Rodriguez said "Sure." Shafer asked him if he was transporting any guns or narcotics in the vehicle. Rodriguez said "No." Trooper Shafer told Rodriguez, "I'm gonna be honest with you, I'm suspicious." Rodriguez responded, "Do you want to check the vehicle, go ahead." Shafer asked several more questions to be certain Rodriguez understood he was giving permission to search the vehicle, and Rodriguez said, "Go ahead."

[¶ 6.] During the search of the Blazer, Shafer found indications that it was being used to transport drugs, including a roll of duct tape, a container of carpet freshener (often used to mask the pungent odor of marijuana), and signs of a hidden compartment. This compartment appeared to be accessible from underneath the floorboard carpeting. Shafer walked over to Rodriguez and advised him that "there had been some alterations in his vehicle, and asked if there was a compartment in his vehicle." Rodriguez's demeanor changed: he became more nervous, jittery; his voice cracked.

[¶ 7.] Shafer, along with another trooper who had just arrived, ripped out the carpet to find a cutout in the floorboard. They discovered that the fuel tank had been modified so that part of the area ordinarily occupied by the tank had been refitted, creating a container within a container. Thus the gas tank appeared normal to an untrained eye when looking from underneath the vehicle. Trooper Shafer, however, had noticed amateur welds in the gas tank area. The officers retrieved from the hidden compartment thirty-six individually wrapped packages, cumulatively holding just over ninety-four pounds of marijuana. The marijuana had evidently been machine-compressed into extremely hard brick-like forms. The bricks were wrapped in duct tape, and coated with oil. In this condition, the illegal substance was calculated to have a value of $100,000. And once reprocessed and packaged for individual sales, its estimated value increased to $300,000.

[¶ 8.] Rodriguez was indicted on the charge of possession of more than ten pounds of marijuana, in violation of SDCL 22-42-6. At trial, his defense was that he did not know the marijuana was in the vehicle. He was "duped," his lawyer said, "by Fernando Lara, who left him then high and dry." Through a translator, Rodriguez told the jury that he met Fernando Auturo Lara in a park in Ontario, California. Lara was moving to Chicago and needed someone to drive one of his two vehicles. Temporarily out of work, Rodriguez volunteered to help. He was not promised any specific pay. Lara said he would fly Rodriguez back to California and give him "something." Lara, his wife, and Rodriguez alternated driving the Blazer and the other vehicle. The day before they arrived in South Dakota they had spent the night in Santa Fe, New Mexico. Rodriguez testified that when Trooper Shafer stopped him, Lara and his wife passed them and just drove on. Rodriguez explained to the jury that he lied to Officer Shafer because Lara told him to, but he did not know why Lara told him to lie. He assumed it was because the vehicle title had not yet been formally transferred. Despite efforts by the South Dakota DCI, Highway Patrol, and Attorney General, the true ownership of the Blazer could not be traced. [¶ 9.] Other details in Rodriguez's background proved irregular. He had used different dates of birth and different social security numbers. At the time he was stopped, three active driver's licenses were shown as issued to him. One was a license from Illinois, issued December 5, 1995, showing a date of birth of April 15, 1960. Two were California licenses. One showed a date of birth of April 15, 1965. The other was under an assumed name, Miguel Alvizo Rodriguez, date of birth September 29, 1960, issued on June 29, 1992. In the past, license plates had been issued on a vehicle in New Mexico under this false name.

[¶ 10.] Rodriguez, age thirty-one at the time of trial, said that he obtained different identifications in part to evade immigration authorities because he came to this country illegally at age fourteen. Yet he was issued a "green card" (conferring resident alien status) in 1987 making his presence here legal from that time on. When asked why he got a driver's license in 1992 under a false name, he answered, he "just had it ... never used it.... Just to have it."

[¶ 11.] After a jury trial, he was found guilty of the charge and was sentenced to ten years in the state penitentiary. On direct appeal, his conviction was summarily affirmed. See State v. Rodriguez, 570 N.W.2d 246 (S.D.1997). Rodriguez then filed an application for a writ of habeas corpus, listing ten separate grounds for relief. The circuit court denied the application. Rodriguez now appeals that denial, asserting the following issues: (1) Did the State's failure to disclose a negative urinalysis result violate Rodriguez's right to due process of law? (2) Did the State's use of a peremptory challenge to remove a juror of Mexican descent violate Rodriguez's right to a trial by a fair and impartial jury? (3) Was Rodriguez denied his constitutional right to effective assistance of counsel?

Analysis and Decision

[¶ 12.] Habeas corpus is a collateral attack on a final judgment, and therefore our scope of review is limited. Lodermeier v. Class, 1996 SD 134, ¶ 12, 555 N.W.2d 618, 621. A habeas applicant bears the initial burden to establish a colorable claim for relief. Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468. Accordingly, the State has only the burden of meeting the petitioner's evidence. Davi v. Class, 2000 SD 30, ¶ 26, 609 N.W.2d 107, 114. The habeas court's factual findings are reviewed under the clearly erroneous standard, while legal conclusions are reviewed de novo. Meinders v. Weber, 2000 SD 2, ¶ 5, 604 N.W.2d 248, 252 (citations omitted).

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