Singleton v. US, Civ. No. 92-1277 (JAF). Crim. No. 88-014.

• Decision Date: 08 April 1992
• Docket Number: Civ. No. 92-1277 (JAF). Crim. No. 88-014.
• Citation: 789 F. Supp. 492
• Parties: James SINGLETON, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

789 F. Supp. 492

James SINGLETON, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 92-1277 (JAF). Crim. No. 88-014.

United States District Court, D. Puerto Rico.

April 8, 1992.

James Singleton, pro se.

Carlos A. Pérez-Irizarry, Asst. U.S. Atty., Daniel F. López-Romo, U.S. Atty., San Juan, P.R., for U.S.

OPINION AND ORDER

FUSTE, District Judge.

This is a pro se 28 U.S.C. § 2255 petition filed by James Singleton. Mr. Singleton was convicted by a jury on May 11, 1988 of having violated 18 U.S.C. § 2 and 46 U.S.C.App. § 1903(a), (c) and (f), aiding and abetting in the possession with intent to distribute marijuana. This court sentenced Mr. Singleton to 360 months. Mr. Singleton appealed his conviction, arguing that this court both improperly dismissed his Fed.R.Civ.P. 29 motion and imposed an unfair sentence. The First Circuit affirmed this court's rulings. U.S. v. Doe, 921 F.2d 340 (1st Cir.1990).¹

Petitioner now raises a number of other issues in his federal habeas corpus petition: (1) that the judge committed reversible error in issuing the jury instructions; (2) that the government failed to issue proper Miranda warnings; (3) that the government failed to prove the necessary elements of the aiding and abetting count; (4) that the government lacked the jurisdiction to impose United States law on the vessel, the Marilyn E; (5) that the government lacked probable cause to board and search the vessel; (6) that the court should have advised petitioner of his right to a separate trial; and (7) that petitioner was denied effective assistance of counsel. Several of these issues have already been resolved by this court and the First Circuit.

Facts

We draw the facts from the circuit opinion. The testimony at trial established that on January 5, 1988, the United States Coast Guard Cutter Dauntless approached a vessel on the high seas off the coast of Cuba. Since the vessel was coming from the direction of Haiti, Ensign Pulver and other officers aboard the Dauntless discussed whether a boarding of the vessel was warranted because of possible immigration law violations. After having sighted the vessel, the Dauntless attempted to establish radio communication on two channels and in three languages. The Dauntless received no reply, and no electronic communication was established. On drawing closer to the vessel, Ensign Pulver saw on the vessel the name Marilyn E and some letters, but he could not see a home port designation or flag. Ensign Pulver and the boarding party boarded a smaller Coast Guard vessel, and drew closer to the Marilyn E. At a distance of about thirty yards, voice contact was established, and someone on the vessel identified it as being from Jamaica.

Ensign Pulver requested and was given permission to board the Marilyn E. He was told by someone on the Marilyn E that there were seven people on board. This proved to be correct as all seven were arrested, although only six were indicted. Upon boarding the vessel, Ensign Pulver asked for the certificate of documentation. In response to his request, he was given a bill of sale, which was improper documentation. A "sweep team" searched the vessel, and Ensign Pulver asked what was in the hold. The master of the vessel replied that there was ice in the hold. Ensign Pulver then requested and was given permission by the master to open the hold.

Upon opening the hold, Ensign Pulver discovered bales up to the top of the hold, and stated that he could tell by the smell that the bales contained marijuana. That the bales contained marijuana was later confirmed by a field test. At trial, other members of the Coast Guard testified that there were 102 bales of marijuana, weighing approximately forty pounds each. Ensign Pulver requested authority from the Commander of the Dauntless to arrest the persons on board the Marilyn E. Since the Coast Guard required the permission of the country of origin to arrest the persons on board the Marilyn E, they were asked if there were flags on board to show a registry. The master first replied that there were no flags on board and then corrected himself saying that he thought there was one forward. Having heard Ensign Pulver's question, Mr. Singleton had apparently located two flags in the forward portion of the boat. Ensign Pulver took the two flags, one yellow and the other a United States flag. The yellow flag was later identified as being a flag from Quebec.

Since the vessel was originally identified by someone on board as being from Jamaica, the Coast Guard requested that Jamaica grant permission for the arrests. Ensign Pulver wanted to cover all bases, since it was unclear at the time whether the vessel was a United States vessel, as the bill of sale and United States flag indicated, or a Jamaican vessel, as someone had claimed, or a stateless vessel. While waiting for a reply, the persons on board the vessel slept. After several hours, the Coast Guard received permission from the Jamaican government and the commandant of the Coast Guard to make the arrests. The defendants were thereafter transferred to the Dauntless. The Marilyn E was attached to the Dauntless by a towline, and both vessels proceeded toward Puerto Rico.

The testimony also revealed that although the passengers on the Marilyn E claimed that it was a fishing vessel, it was in disrepair and ill equipped for fishing or any other kind of long-term travel. No fishing gear, refrigeration, ice, or back-up equipment was found on board. The vessel leaked and, indeed, during the trip to Puerto Rico, the Marilyn E sank. Mr. Singleton did not testify on his own behalf; however, a codefendant testified that Singleton had asked him for a ride to the Bahamas because Mr. Singleton's girlfriend had destroyed his papers. According to Mr. Gordon, the owner of the boat was the one who gave permission for Mr. Singleton to be on the boat. The First Circuit found that although the evidence against Mr. Singleton was largely circumstantial, it was nevertheless reasonable to find that he knew of the purpose of the trip and aided and abetted in the possession of the marijuana.

Petitioner's Claims

Relief which may not be granted on direct appeal because additional facts need to be established may be pursued via 28 U.S.C. § 2255. U.S. v. Parra-Ibañez, 936 F.2d 588, 593 (1st Cir.1991). However, this does not mandate that the court hold an evidentiary hearing for every section 2255 petition. The rules promulgated by the Supreme Court pursuant to 28 U.S.C. § 2072 and 18 U.S.C. §§ 3771-3772 to govern the procedure for handling section 2255 petitions allow that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified." Rule 4(b). The judge may make this determination without an evidentiary hearing if "petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or if the allegations cannot be accepted as true because `they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990); see also U.S. v. Michaud, 925 F.2d 37, 39 (1st Cir.1991).

This court addressed several of the claims petitioner is raising in an earlier opinion which decided the section 2255 petition of Willie Gordon, one of Mr. Singleton's codefendants.² Mr. Singleton's petition raises several questions that concern nationality of the Marilyn E and the jurisdiction of the Coast Guard over her. These are questions which are common to both defendants and were discussed at length in the earlier order. We continue to find the reasoning of that opinion persuasive and adopt the rulings of the earlier decision on those issues raised by petitioner.

Petitioner raises three questions addressed by the earlier decision: whether the Coast Guard had the jurisdiction to impose U.S. law on a vessel on the high seas whose nationality was unclear; whether the judge improperly took the issue of the vessel's nationality away from the jury; and whether the Coast Guard had probable cause to board and search the vessel. In that decision, this court found that the Coast Guard had jurisdiction over the vessel under Art. 1 § 8 of the Constitution. We found that Congress clearly intended the statute under which petitioner was convicted, 46 U.S.C.App. § 1903,³ to extend to all vessels on the high seas to the extent that there was no conflict with international law. In this respect, the First Circuit has held that international law is satisfied where the foreign flag country consents, as Jamaica did, to the application of United States law on the high seas. United States v. Robinson, 843 F.2d 1 (1st Cir.), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988). Therefore, regardless of the vessel's nationality or lack thereof, the jurisdiction of the Coast Guard was proper. The earlier decision admitted that this court's failure to submit the question of the vessel's nationality to the jury was an error; however, we found it constituted a harmless error. We concluded that the jury would have had to find that the Marilyn E was a United States vessel for the purposes of 46 U.S.C.App. § 1903 as a matter of law. And finally, according to First Circuit law, the Coast Guard may stop vessels on the high seas if it has a reasonable suspicion that the ship is subject to the jurisdiction or to the operation of the law of the United States, i.e., is a stateless vessel. United States v. Potes, 880 F.2d 1475, 1478 (1st Cir.1989). In this case, we found that the suspicion that the vessel was stateless was reasonable given that the Marilyn E answered no attempted radio contact, had no home port designation, and flew no flag. We also found that since the master consented to the search of the hold, the...