United States v. Rondon, CASE NO. 8:06-cr-326-T-23TGW

• Decision Date: 18 March 2015
• Docket Number: CASE NO. 8:10-cv-2928-T-23TGW,CASE NO. 8:06-cr-326-T-23TGW
• Court: U.S. District Court — Middle District of Florida
• Parties: UNITED STATES OF AMERICA v. RAFAEL RONDON

UNITED STATES OF AMERICA v. RAFAEL RONDON

CASE NO. 8:06-cr-326-T-23TGW

CASE NO. 8:10-cv-2928-T-23TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

March 18, 2015

ORDER

Rondon's motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the validity of his one conviction for conspiring to commit armed bank robbery, his six convictions for armed bank robbery,¹ and his six convictions for carrying and using a firearm during the commission of the six bank robberies, for which he serves 1,794 months imprisonment. Rondon presents three grounds challenging the district court's subject matter jurisdiction, twelve grounds of ineffective assistance of trial counsel, and two grounds of ineffective assistance of appellate counsel.² Each ground lacks merit.

I. PRIOR RESOLUTION

Ground Fifteen

Rondon contends that his trial counsel rendered ineffective assistance by not requesting an instruction on each firearm charge to require the jury to find that the firearm had the ability to discharge a projectile as defined in 18 U.S.C. § 921(a)(3). Rondon presented on direct appeal his challenge to the jury instruction as a claim of trial court error. (Doc. 11, attach. A, pp. 47-50) The United States Court of Appeals for the Eleventh Circuit decided the issue adversely to Rondon.³ Repeating the claim under the guise of ineffective assistance of counsel adds no new fact justifying a different result. United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). See also Hobson v. United States, 825 F.2d 364, 366 (11th Cir. 1987) (finding that a movant is not entitled to review in a Section 2255 motion of a claim raised and considered on the merits on direct appeal), vacated on other grounds, 492 U.S. 913 (1989); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (stating that a defendant may not "recast, under the guise of a collateral attack, questions fully considered by this court [on direct appeal]"). Ground fifteen warrants no relief.⁴

II. MERITS

Rondon's remaining grounds are reviewed on the merits.

INEFFECTIVE ASSISTANCE OF COUNSEL

Rondon claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).

Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding anineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.

Rondon must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Rondon must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.

Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonableprecisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Rondon cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial . . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable . . . . [T]he issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Ground Ten

Rondon contends that his trial counsel rendered ineffective assistance by not moving for the magistrate judge to recuse himself after the judge stated at a pre-trial hearing that Rondon was "guilty as heck."⁵ Rondon claims thatcounsel's failure to move for recusal based upon the magistrate judge's allegedly biased and prejudicial remark resulted in a denial of due process.

A judge's remarks or "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994). Only personal bias, not judicial bias, is sufficient to justify recusal of a judge. Jaffree v. Wallace, 837 F.2d 1461, 1465 (11th Cir. 1988). Such bias must "'stem from personal, extrajudicial sources' unless 'pervasive bias and prejudice is shown by otherwise judicial conduct.'" First Alabama Bank of Montgomery, N.A. v. Parsons Steel, Inc., 825 F.2d 1475, 1487 (11th Cir. 1987) (citation omitted), cert. denied, 484 U.S. 1060 (1988). See also Liteky, 510 U.S. at 555 ("[J]udicial rulings alone almost never constitute [a] valid basis for a bias or partiality motion.").

The magistrate judge's statement and the resulting rejection of Rondon's motion for reconsideration of bail were based on (1) the testimony the magistrate judge heard at Rondon's preliminary hearing, (2) the search warrants, and (3) the complaints in the criminal case. (Doc. 181 in 8:06-cr-326, pp. 7-8) The adverseruling is insufficient to show judicial bias. 28 U.S.C. § 455.⁶ Rondon neither presents evidence showing that the magistrate judge's opinion about the case was formed based upon extrajudicial sources nor shows actual bias by the magistrate judge. See Hamm v. Members of the Bd. of Regents, 708 F.2d 647, 651 (11th Cir. 1983) ("The general rule is that bias sufficient to disqualify a judge must stem from extrajudicial sources . . . . Neither a trial judge's comments on the lack of evidence, rulings adverse to a party, nor friction between the court and counsel constitute pervasive bias."). Rondon shows neither deficient performance nor prejudice resulting from trial counsel's failure to move for recusal. Strickland, 466 U.S. at 691-92. Ground ten warrants no relief.

Ground Eleven

Rondon contends that his appellate counsel rendered ineffective assistance by not challenging on direct appeal the magistrate judge's failure to sua sponte recuse himself. The Strickland standard of review applies to a claim of ineffective assistance of appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991), cert. denied, 502 U.S. 1077 (1992). To establish this claim, Rondon mustshow that appellate counsel performed deficiently and that the deficient performance resulted in prejudice. To demonstrate deficient performance, Rondon must show that appellate counsel's failure to discover a non-frivolous issue and to brief the merits of that issue fell outside the range of professionally acceptable performance. Smith v. Robbins, 528 U.S. 259, 285 (2000). To demonstrate prejudice, Rondon must show a reasonable probability exists that, but for appellate counsel's unreasonable failure to brief the merits of a non-frivolous issue, he would have prevailed on appeal. Smith, 528 U.S. at 285-86.

As discussed in ground ten, supra, Rondon fails to establish that the magistrate judge harbored actual bias or prejudice that required recusal. Rondon shows neither that appellate counsel unreasonably elected not to raise this issue on...