                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2003

USA v. Molina
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1704




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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 03-1704


             UNITED STATES OF AMERICA

                           v.
                  GUSTAVO MOLINA,
                a/k/a GUSTABO MOLINA

                     Gustavo Molina,
                                 Appellant



ON APPEAL FROM THE UNITED STATES DISTRICT COURT
        FOR THE DISTRICT OF NEW JERSEY
                  (D.C. No. 00-cr-00703)
       District Judge: Honorable Kathryn S. Hayden



        Submitted under Third Circuit L.A.R. 34.1(a)
                   September 16, 2003

  Before: ALITO , AMBRO and CHERTOFF, Circuit Judges.

                (Filed: September 25, 2003 )

                   __________________

                        OPINION
                  ____________________


                             1
CHERTOFF, Circuit Judge

       Gustavo Molina was convicted of conspiring to obstruct interstate commerce in

violation of 18 U.S.C. § 1951. On direct appeal from the final judgment of conviction,

Molina alleges that the ineffective assistance of counsel he received in the underlying

proceedings prejudiced him in that he received a sentence at the top of the applicable

guideline range. We will affirm the judgment.

                                             I.

       In or about October 2000, Gustavo Molina, Diego Jaramillo, and Gabino Rivera

conspired to rob an armored truck with force at a Home Depot store in Bloomfield, N.J.

On October 14, the three men executed their plan, but their scheme was foiled by the

armored truck driver. The three men were arrested and convicted for the attempted

robbery. Molina himself pled guilty to a one-count indictment charging him with

conspiracy to commit robbery, in violation of 18 U.S.C. § 1951. He was sentenced to 78

months imprisonment.

       Molina did not file a timely notice of appeal. He moved for habeas corpus relief

under 28 U.S.C. § 2255, for the purpose of seeking to reinstate his right to file a notice of

appeal. The District Court granted the relief, and this appeal from the original judgment

followed.

       Molina now challenges his sentence, asserting that his attorney was ineffective

because counsel was “inattentive” throughout the proceedings and made “inappropriate

                                             2
and inapplicable arguments” at sentencing. In particular, Molina criticizes his counsel’s

decision to challenge the Pre-Sentence Report (P.S.R.) over its suggestion that Molina

attacked the armored car guard with a metal pipe.

                                            II.

       To show ineffective assistance of counsel, a defendant must satisfy the two-prong

standard adopted in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant

must show that counsel’s advice was unreasonable, id. at 690, and not “within the range

of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52,

56-67 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). We must

review a defendant’s ineffectiveness claim under the “strong presumption that the

counsel’s conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689

(internal citations omitted). Second, the defendant must show “prejudice,” i.e., that there

is a “reasonable probability” that the deficient assistance of counsel affected the outcome

of the proceeding at issue. Id. at 694.

       Because they are often highly fact-bound, claims of ineffective assistance of

counsel are generally not considered on direct appeal. United States v. Haywood, 155

F.3d 674, 678 (3d Cir. 1998); see also Massaro v. United States, 123 S. Ct. 1690, 1694

(2003). Instead, “the proper avenue for pursuing such claims is through a collateral


                                             3
proceeding in which the factual basis for the claim may be developed.” Haywood, 155

F.3d at 678, (quoting United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir.

1989)). The preferable course is for defendants to raise their claims of ineffectiveness in

a motion pursuant to 28 U.S.C. § 2255 before the district court. Massaro, 123 S. Ct. at

1694; see also United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002) (citing cases).

       “There is, however, a narrow exception to the rule that defendants cannot attack

the efficacy of their counsel on direct appeal. Where the record is sufficient to allow a

determination of ineffective assistance of counsel, an evidentiary hearing to develop the

facts is not needed.” United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991); see

United States v. Cocivera, 104 F.3d 566, 570-71 (3d Cir.1996).

       Molina’s ineffective assistance claims do not fall within this narrow exception.

Molina argues that by contesting the P.S.R.’s suggestion that Molina had personally

assaulted the guard with a metal pipe, counsel highlighted the violent nature of the

offense, thereby causing the District Court to sentence Molina at the high end of the

applicable Guidelines range. Molina also alleges that counsel was inattentive, as

evidenced by counsel’s alleged contradiction of defendant’s sworn answers during his

Rule 11 hearing, and by counsel’s making downward departure motions that were not

supported by the facts.

       These assertions require a fairly particular factual dissection of both the tactics of

the defense counsel and the supposed prejudice, if any. But the record before us is not


                                              4
sufficiently developed to allow us to undertake that dissection. Indeed, there is a fair

amount of internal contradiction. For example, the District Court held status conferences

prior to defendant’s plea colloquy to address a complaint Molina had about counsel, but

Molina later stated that retained counsel had been attentive. Molina expressed

satisfaction with counsel at both his plea and at sentencing. Molina also admitted

discussing the plea agreement and reviewing the P.S.R. in detail with his counsel.

       To be sure, testimony concerning Molina’s present allegation of ineffectiveness at

sentencing was elicited at his § 2255 hearing seeking to reinstate his notice of appeal.

And the District Judge did make comments about the apparent relationship between

counsel and client. But the focus of the § 2255 hearing was on the failure to file the

notice. The District Court addressed its consideration to that narrow issue, not to the

present allegations about ineffective assistance in general.

       Thus, we are not confident that the record is developed regarding either the

performance or prejudice elements of counsel’s alleged ineffectiveness at plea and

sentencing. Certainly, the District Court did not pass on these broader issues. Without a

fully developed record, we do not believe this appeal falls within the Headley exception.

       We will affirm the District Court’s judgment of sentence without prejudice to the

raising of this ineffectiveness claim in a motion under 28 U.S.C. § 2255.1


       1
              The District Court’s order specifically preserved Molina’s right to file a
new § 2255 petition as a “first filed” petition, in accord with the approach employed in
Solis v. United States, 252 F.3d 289, 295 (3d Cir. 2001).
                                             5
TO THE CLERK:

    Please file the foregoing opinion.



                                         /s/ Michael Chertoff

                                         Circuit Judge
