Rossetti v. United States
| Citation | 773 F.3d 322 |
| Decision Date | 09 December 2014 |
| Docket Number | No. 12–1451.,12–1451. |
| Parties | Stephen ROSSETTI, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Derege B. Demissie, with whom Demissie & Church, was on brief, for Appellant.
Aditya Bamzai, Attorney, United States Department of Justice, with whom Carmen M. Ortiz, United States Attorney, and Joseph F. Palmer, Attorney, were on brief, for Appellee.
Before TORRUELLA, DYK,* and KAYATTA, Circuit Judges.
Stephen Rossetti was convicted on federal criminal charges arising from a plot to rob an armored car depot in Eaton, Massachusetts. Having exhausted his direct appeals, Rossetti now seeks collateral review on a petition for a writ of habeas corpus, arguing that he was denied his Sixth Amendment right to counsel and that the district court wrongly refused to modify his sentence after a state court vacated a prior state conviction that had been relied upon to increase his federal sentence. We affirm the district court's denial of Rossetti's petition.
In late 1998, Carmello Merlino and Anthony Romano formed a plan to rob an armored car depot in Eaton, Massachusetts.1 Shortly thereafter, Merlino recruited two other men, David Turner and his friend Rossetti. As it turned out, Romano was an FBI informant who tape-recorded the meetings of the conspirators that he attended. The conversations recorded on those tapes paint Rossetti as an enthusiastic participant in the robbery venture. In eighteen conversations recorded by Romano, Rossetti provided detailed advice about how to conduct the robbery. He explained how to secure masks without pulling out hair that could be used to identify the conspirators, explained how to tie the depot's guards to a pole so that they would choke if they tried to move, advised that the guards would resist violently, and suggested a way for the conspirators to remove video surveillance tapes without making clear that the robbery was an inside job. Rossetti also promised to provide guns, police scanners, walkie-talkies, body armor, and a grenade, boasting that he had “all the hardware” needed for the robbery. Rossetti said that, during the robbery, he would be “ready at the door watching for anyone to come ... [c]ause if they come in I'm taking them down.” Finally, he asked to drive one of the getaway cars, saying that he would “like to drive one of them [vehicles] in case I gotta ... smash guys out of the way or whatever.”
On February 6, 1999, the conspirators met at a garage to finalize details for the robbery, which was planned for the next day. Romano showed the others a stolen minivan to be used in the robbery, and Rossetti confirmed that he would bring weapons and other equipment for the heist. The conspirators planned to meet again at the garage the next morning. The FBI, in turn, planned to arrest them when they arrived.
At the appointed hour the next morning, Rossetti drove with Turner in Rossetti's car toward the garage. FBI agents testified that Rossetti circled the meeting point in a “counter-surveillance manner.” Insteadof stopping at the garage, Rossetti eventually drove to a parking lot where Turner's car was parked. There, they transferred masks, gloves, weapons, bulletproof vests, and walkie-talkies to Turner's car. Rossetti and Turner then drove back to the garage, again appearing to check out the area. At that point, they drove off and, after a brief chase, were stopped and arrested. The FBI agents retrieved four duffle bags and four ski masks from the garage, and the other equipment from Turner's car.
Rossetti was eventually convicted on conspiracy and attempt to affect commerce by robbery in violation of 18 U.S.C. § 1951, carrying a grenade and firearms in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and being a felon in possession of a grenade and firearms in violation of 18 U.S.C. § 922(g)(1). In convicting Rossetti, the jury rejected his defenses that Romano entrapped Merlino and thereby “vicariously entrapped” Rossetti, and that Rossetti withdrew from the robbery plan before he was arrested.
After his conviction, Rossetti was sentenced in December 2002 to 622 months in prison. In August 2006, we vacated that sentence in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On remand, the district court, in August 2007, resentenced Rossetti to 622 months. We affirmed that sentence in October 2008. Rossetti's petition for certiorari was denied in January 2009. Rossetti v. United States, 555 U.S. 1158, 129 S.Ct. 1051, 173 L.Ed.2d 478 (2009). Meanwhile, in August 2008, Rossetti filed a motion in Massachusetts state court for a new trial on a prior state conviction. In January 2010, Rossetti filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, arguing that he received ineffective assistance of counsel in his federal trial, and should therefore be retried. After the state court vacated his prior conviction in February 2011, he amended his section 2255 petition to add an argument that the vacatur of his prior state court conviction entitled him to re-sentencing on counts five and six of his conviction. The district judge thereafter denied his petition but granted him a certificate of appealability on the sentencing issue. On appeal, we allowed his motion to expand the certificate of appealability to encompass both issues.
Rossetti challenges his counsel's conduct at his trial on three main grounds, arguing that counsel: (1) wrongly deterred him from testifying by incorrectly advising him that, if he testified in his own defense, his testimony would undercut counsel's ability to suggest to the jury that Rossetti did not go all the way to the garage as planned because he was withdrawing from the conspiracy; (2) failed to impeach one of his own witnesses and to procure expert testimony concerning a cell phone call relevant to a government theory for why he may not have stopped at the garage the morning of the arrest; and (3) had a conflict of interest that denied Rossetti his Sixth Amendment rights. The district court rejected these arguments, each of which Rossetti properly preserved,2 and so “we review the district court's legal determinations de novo and the court's findings of fact for clear error.” Parsley v. United States, 604 F.3d 667, 671 (1st Cir.2010).
Rossetti's claim that he suffered prejudice as a result of erroneous advice by counsel centers on his defense that he withdrew from the conspiracy at the last moment before the aborted robbery. Rossetti claims that his counsel told him that his testimony would undercut counsel's ability to argue withdrawal, and for that reason Rossetti opted not to testify. He argues now that that advice was wrong, and that because he refrained from testifying, he lost a chance to support his withdrawal defense, and otherwise to enhance his case.
To prove such a claim based on the failings of defense counsel, Rossetti must demonstrate both: “(1) that ‘counsel's performance was deficient,’ meaning that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment’; and (2) ‘that the deficient performance prejudiced the defense.’ ” United States v. Valerio, 676 F.3d 237, 246 (1st Cir.2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In assessing the adequacy of appointed counsel, we “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” see Strickland, 466 U.S. at 689, 104 S.Ct. 2052, finding deficiency only “where, given the facts known [to counsel] at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it.” Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006) (internal quotation marks omitted). And, to establish prejudice, a defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. This review presents “mixed questions of law and fact” in which factual questions predominate and we therefore review largely for clear error. See Turner v. United States, 699 F.3d 578, 584 (1st Cir.2012).3 We begin our review by summarizing the testimony that Rossetti says he would have given.
First, Rossetti says that he only participated in the conspiracy out of fear that Merlino would kill him if he did not participate, and that his detailed advice to the other participants in the conspiracy about how to conduct the robbery was really an unsuccessful ploy to dissuade them from conducting it by demonstrating its difficulties.
Second, Rossetti states that after the meeting of the conspirators on the eve of the planned robbery he learned that two of them were heroin addicts, and that he then decided to withdraw from the conspiracy because of his “strong aversion to heroin addicts” who “can't be trusted.” He claims that he communicated this decision to Turner, who passed along the news to Merlino, who, despite Rossetti's professed fears, eventually took the news well, and, instead of killing Rossetti, agreed to Rossetti's request for a face-to-face meeting the next day.
Third, Rossetti claims he visited his mother's house to deal with an electrical problem after telling Turner of his withdrawal. While he was there he says he told her that he had backed out of a business deal.
Finally, he says that the next morning when the FBI observed him circling the area of the garage, he claims he was actually searching for the minivan of which he had agreed to help Merlino dispose. Having failed to find the minivan, he then proceeded toward a restaurant where he had agreed to meet Merlino, coincidentally again passing the garage...
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