U.S. v. Mejia-Mesa, MEJIA-MES

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: SCHWARZER
• Citation: 153 F.3d 925
• Parties: 98 Cal. Daily Op. Serv. 6182, 98 Daily Journal D.A.R. 8545 UNITED STATES of America, Plaintiff-Appellee, v. Eduardoefendant-Appellant.
• Docket Number: MEJIA-MES,No. 95-35429,D
• Decision Date: 03 November 1997

Page 925

153 F.3d 925 98 Cal. Daily Op. Serv. 6182, 98 Daily Journal
D.A.R. 8545 UNITED STATES of America, Plaintiff-Appellee,
v.
Eduardo MEJIA-MESA, Defendant-Appellant. No. 95-35429. United States Court of Appeals,
Ninth Circuit. Submitted Nov. 3, 1997. ^*
Decided Aug. 6, 1998.
As Amended Sept. 4, 1998.

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Eduardo Mejia-Mesa, Pro Per, Fort Dix, New Jersey, for the defendant-appellant.

William H. Redkey, Assistant United States Attorney, Seattle, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, District Judge, Presiding. D.C. Nos. CV-94-00986 (JCC), CR-86-00067-1 (JCC).

Before: FLETCHER and O'SCANNLAIN, Circuit Judges, and SCHWARZER, ^** Senior District Judge.

SCHWARZER, Senior District Judge:

FACTS AND PROCEDURAL HISTORY

Eduardo Mejia-Mesa has moved under 28 U.S.C. § 2255 to have his convictions vacated. He was charged with and convicted of conspiring to import cocaine into the United States in violation of 21 U.S.C. §§ 963, 952(a), and 960(b)(1)(B) (count I); importing and aiding and abetting importation of cocaine into the United States in violation of 21 U.S.C. §§ 952, 960(a)(1) and 960(b)(1)(B) (count II); and possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 955a(c), 960(a)(1) and 960(b)(1)(B) (count III). He was sentenced to consecutive ten year terms of imprisonment on counts I and II and to ten years on count III to be served concurrently to the sentences on counts I and II. In addition, a fine of $250,000 was imposed on each count. The conviction was affirmed on appeal.

Six years later, Mejia-Mesa filed the instant motion pro se. The district court denied an evidentiary hearing and dismissed the petition. Mejia-Mesa timely appealed. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 2255 and we have jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

I. Brady Claim

Mejia-Mesa's principal contention is that the government suppressed exculpatory evidence at trial in violation of its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500. The evidence is alleged to consist of a page or pages from the deck log of the M/V Eagle-I-the vessel carrying the cocaine that was seized by U.S. customs officials-giving the vessel's position and other relevant navigation data for January 18, 1986, the date on which counts II and III of the indictment allege the violations occurred. Count II charged violation of 21 U.S.C. § 952 which prohibits importation of drugs "into the customs territory of the United States." ¹ Count III charged violation of

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21 U.S.C. § 955a(c) which prohibits possession of drugs "on board any vessel within the custom waters of the United States." ² Mejia-Mesa claims that the missing pages would show the M/V Eagle-I was outside of United States customs waters on January 18, the date of the offenses. Location of the vessel in United States waters is an element of the offenses charged in counts II and III, see United States v. Velgar-Vivero, 8 F.3d 236, 241 (5th Cir.1993); it is not material to the conspiracy charge. ³ If Mejia-Mesa can sustain his contention, his Brady claim may be meritorious. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (holding that evidence falls within the Brady rule if "it may make the difference between conviction and acquittal").

Mejia-Mesa requested Brady materials during pretrial discovery but did not raise the Brady issue at trial or on direct appeal. As a result, the district court found procedural default under United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), and held the claim barred for lack of any showing of cause and prejudice. The court, therefore, did not reach the merits of Mejia-Mesa's claim.

A. Procedural Default: Cause

To obtain collateral relief under § 2255 based on trial errors to which no contemporaneous objection was made, Mejia-Mesa must show both (1) "cause" excusing his procedural default, and (2) "actual prejudice" resulting from the error of which he complains. See Frady, 456 U.S. at 167, 102 S.Ct. at 1594 (holding erroneous jury instruction claim first raised in collateral attack subject to cause and prejudice requirement); see also Davis v. United States, 411 U.S. 233, 243-44, 93 S.Ct. 1577, 1583, 36 L.Ed.2d 216 (1973) (bias in selection of grand jury claim); United States v. Johnson, 988 F.2d 941, 945 (9th Cir.1993) (insufficient evidence to support conviction) United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir.1985) (error in jury instruction). ⁴

The district court held that Mejia-Mesa failed to show cause for not raising this claim at trial or on appeal: "Despite defendant/petitioner's assertions in his original petition that the basis for his § 2255 motion was recently discovered evidence, none of the claims described above are ones that could not have been raised earlier." In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Supreme Court explained that

the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the ... procedural rule.... [A] showing that the factual or legal basis for a claim was not reasonably available to counsel ... would constitute cause under this standard.

Id. at 488, 477 U.S. 478. Because the court held no hearing, there is no record disclosing the circumstances of Mejia-Mesa's discovery of the alleged Brady violation. All the record shows is that Mejia-Mesa requested disclosure of Brady materials and that the government acknowledged its obligation under Brady but produced nothing. If the government in fact did not comply with its obligation and Mejia-Mesa did not discover the fact until after the conclusion of the appeal, he had cause for his default. In the absence

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of factual findings, it is impossible to determine whether Mejia-Mesa had cause.

B. Procedural Default: Prejudice

To state a claim for relief under § 2255, Mejia-Mesa must further show that his allegations, if proven true, would establish actual prejudice. See Frady, 456 U.S. at 167, 102 S.Ct. at 1594 (ignoring cause and affirming dismissal for lack of actual prejudice). Proof of a Brady violation requires showing that the evidence the government failed to disclose was material. See United States v. Tham, 884 F.2d 1262, 1266 (9th Cir.1989) (citing Bagley, 473 U.S. at 674, 105 S.Ct. at 3379); see also United States v. Hernandez, 94 F.3d 606, 610 (10th Cir.1996) ("There appears to be little or no difference in the operation of the 'materiality' (Brady ) and 'prejudice' (Frady ) tests.").

There can be little doubt that Mejia-Mesa's allegations, if true, would establish prejudice. He contends that the government withheld, suppressed or destroyed a page or pages from the deck log of the M/V Eagle-I, the vessel carrying the cocaine that was seized by U.S. customs officials, that would have shown the vessel to have been outside United States waters at the time it was seized. ⁵ If Mejia-Mesa's allegations are true, the missing page or pages would be exculpatory evidence.

C. Evidentiary Hearing on Brady Claim

The district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief. See United States v. Andrade-Larrios, 39 F.3d 986, 991 (1994). Section 2255, however, requires that "an evidentiary hearing 'shall' be granted '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' " Baumann v. United States, 692 F.2d 565, 570 (9th Cir.1982) (quoting 28 U.S.C. § 2255). "[T]he petitioner need not detail his evidence, but must only make specific factual...