Rosario v. U.S.

• Citation: 164 F.3d 729
• Decision Date: 18 December 1998
• Docket Number: Docket Nos. 97-2747,97-2848 and 97-2751
• Parties: Antonio ROSARIO; Jose Jeres; Antonio Ramirez, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 729

164 F.3d 729

Antonio ROSARIO; Jose Jeres; Antonio Ramirez, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

Docket Nos. 97-2747, 97-2848 and 97-2751.

United States Court of Appeals, Second Circuit.

Argued Sept. 8, 1998.

Decided Dec. 18, 1998.

Anthony R. Cueto, Pollack, Pollack, Isaac & DeCicco, New York, N.Y., for Petitioner-Appellant Antonio Rosario.

James Roth, New York, N.Y., for Petitioner-Appellant Jose Jeres.

Arza Rayches Feldman, Roslyn, N.Y., for Petitioner-Appellant Antonio Ramirez.

Alexandra A.E. Shapiro, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Craig A. Stewart, Assistant United States Attorney, of counsel ), for Respondent-Appellee.

Before: McLAUGHLIN, JACOBS, and SACK, Circuit Judges.

BACKGROUND

McLAUGHLIN, Circuit Judge:

In August 1992, agents of the United States Bureau of Alcohol, Tobacco, and Firearms ("ATF") learned that crack cocaine was being sold out of Apartment 4B at 54 West 174th Street in the Bronx, New York. The agents provided a confidential government informant ("CI") with pre-marked "buy money" to buy cocaine. The CI entered Apartment 4B and returned five minutes later with a small quantity of crack cocaine.

Three days later, at the behest of ATF officials, the CI made another purchase at the apartment. The agents then got a search warrant for Apartment 4B. As the agents approached, Antonio Ramirez was exiting the apartment. When the agents identified themselves, Ramirez fled back inside the apartment and slammed the door. Agents maintaining surveillance outside the apartment building spotted Ramirez, Antonio Rosario, and Jose Jeres running down the fire escape from Apartment 4B to Apartment 2B. ATF agents received permission to enter Apartment 2B where they arrested Ramirez, Rosario, and Jeres.

When ATF agents searched Apartment 2B, they discovered cocaine, a wad of currency (including the pre-marked ATF "buy money"), and an Iver Johnson revolver. A search of Apartment 4B uncovered additional narcotics, narcotics paraphernalia, and a Colt .45.

Ramirez, Rosario, and Jeres were indicted in the United States District Court for the Southern District of New York (Sand, J.), for, inter alia, using and carrying firearms in connection with narcotics trafficking, in violation of 18 U.S.C. § 924(c). On December 10, 1992, pursuant to written plea agreements, each defendant pled guilty to all counts of the indictment. Judge Sand later sentenced Jeres to a term of 106 months' imprisonment, Ramirez to a term of 111 months, and Rosario to a term of 106 months' incarceration.

Four years later, following the decision of the United States Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that "use" of a firearm under 18 U.S.C. § 924(c) requires "active employment" of the firearm, Ramirez filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction. Rosario and Jeres quickly followed suit. All three claimed that the record did not support their § 924(c) pleas under the new Bailey standard for criminal "use" of a firearm.

On May 28, 1997, Judge Sand held an evidentiary hearing on the § 2255 motions. Relying on his personal observations during the arrest, as well as information obtained from the CI, ATF agent Robert Cucinelli testified that Rosario and Ramirez had carried firearms during the August 27, 1992 crack cocaine sale. In addition, the government introduced several reports containing information provided by the CI to Cucinelli immediately after the cocaine sales on August 24, 1992 and August 27, 1992.

By Opinion and Order dated September 29, 1997, the court denied all three motions. Judge Sand initially determined that Agent Cucinelli's recitation of information obtained from the CI constituted hearsay evidence which was not admissible at a § 2255 hearing. Accordingly, Judge Sand expressly declined to consider the hearsay portions of Agent Cucinelli's testimony. However, Judge Sand believed that the information contained in the defendants' plea allocutions and Presentence Reports ("PSR"), coupled with Agent Cucinelli's non-hearsay testimony, provided an adequate factual basis to support each defendant's conviction. Judge Sand held that: (1) Rosario and Ramirez were "carrying" firearms while the sale of crack cocaine was taking place in violation of § 924(c); and (2) Rosario's and Ramirez' visible display of firearms during the narcotics sale was criminally attributable to Jeres, a participant in the criminal conspiracy.

Ramirez, Rosario, and Jeres now appeal, arguing that Judge Sand erred (a) by relying on the hearsay information contained in their PSRs and (b) by finding that there was an adequate factual basis for their § 924(c) convictions.

DISCUSSION

I. Procedural Bar

Significantly, neither Rosario, Ramirez, nor Jeres appealed their convictions following their pleas of guilty. "A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir.1998) (citations omitted); see Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) ("And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review."). Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) "cause for failing to raise the issue, and prejudice resulting therefrom," Douglas v. United States, 13 F.3d 43, 46 (2d Cir.1993); or (2) "actual innocence." Bousley, 118 S.Ct. at 1611.

The defendants, however, are not the only ones who have to hurdle the doctrine of forfeiture or waiver. Having failed to raise the issue of defendants' procedural default either before Judge Sand or in its briefs to this Court, the government too has forfeited or waived the argument. See, e.g., Trest v. Cain, 522 U.S. 87, 118 S.Ct. 478, 480, 139 L.Ed.2d 444 (1997); United States v. Canady, 126 F.3d 352, 359-60 (2d Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1092, 140 L.Ed.2d 148 (1998). We may, nevertheless, raise these issues sua sponte. See, e.g., United States v. Talk, 158 F.3d 1064, 1067 (10th Cir.1998); see also Washington v. James, 996 F.2d 1442, 1448 (2d Cir.1993) (raising defendant's procedural default sua sponte on state prisoner's § 2254 petition). We believe that consideration of these issues is appropriate here for three reasons.

First, it is necessary to protect the finality of federal criminal judgments. See United States v. Allen, 16 F.3d 377, 379 n. 2 (10th Cir.1994) ("the important interests served by the principle of finality [of criminal judgments] cannot always be foreclosed by waiver"); see also United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Raising the issue of defendants' procedural default is particularly appropriate where, as here, the movants pled guilty. We recognize that "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); see Bousley, 118 S.Ct. at 1610. "The impact of inroads on finality is greatest in the context of guilty pleas because the vast majority of criminal convictions result from such pleas and because the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." Lucas v. United States, 963 F.2d 8, 14 (2d Cir.1992) (internal quotation omitted).

In addition, the unique circumstances of this case compel the conclusion that the government was not blameworthy in failing to raise this issue. Because dictum in Triestman v. United States, 124 F.3d 361, 369 n. 8 Finally, the procedural default is manifest from the record and, hence, resolution of this defense does not require further fact-finding. Thus, additional scarce judicial resources need not be expended by remanding this case to the district court. See Washington, 996 F.2d at 1449.

(2d Cir.1997), indicated that a § 2255 movant's Bailey claim could easily hurdle a procedural bar challenge, the government may well have concluded that it would be subject to criticism for raising a frivolous argument. It was only in May 1998--one month after the government submitted its brief in this appeal--that the Supreme Court suggested in Bousley that the Triestman dictum might be incorrect. See De Jesus v. United States, 161 F.3d 99, 102-03 (2d Cir.1998).

Granted, appellate courts should not lightly raise the issue of a defendant's procedural default sua sponte. We are aware that prisoners seeking habeas corpus relief lack the resources available to the government. We should hesitate to lend the weight of the judiciary to this already uneven fight, lest we be cast in the role of a second line of defense, protecting government prosecutors from their errors. We are satisfied, however, that this appeal warrants the exercise of our inherent power to raise the previously unaddressed issue. ¹ We now turn to it.

A. Cause and Prejudice

Ramirez, Rosario, and Jeres cannot now show "cause" for their failure to raise their claims on direct appeal. True it is that in Triestman, 124 F.3d at 369 n. 8, we indicated in dictum that a § 2255 movant could be forgiven for his failure to challenge on appeal the loose pre-Bailey definition of "use" under § 924(c). This was because "the broad definition of 'use' that was subsequently rejected by the Supreme Court in Bailey was well-established in this circuit" and an appeal would have been doomed. Id. As we recently noted in De Jesus, however, the Supreme Court's decision in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 ...