
USCA1 Opinion

	




          March 15, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2283                             JORGE HERNANDO HOYOS-MEDINA,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                _____________________               Frank D. Inserni for appellant.               ________________               Jos   A.  Quiles-Espinosa, Senior  Litigation  Counsel, with               _________________________          whom  Daniel F. L pez-Romo, United States  Attorney, was on brief                ____________________          for appellee.                                 ____________________                                 ____________________                    Per  Curiam.   Appellant  Jorge  Hernando  Hoyos-Medina                    ___________          appeals the denial of  his 28 U.S.C.    2255 petition to  reverse          his  conviction.  He claims ineffective  assistance of counsel in          violation   of  the   sixth  amendment   of  the   United  States          Constitution.  For  the reasons  stated below, we  find that  the          district court properly denied the petition.                                      BACKGROUND                                      BACKGROUND                                      __________                    Appellant  was convicted  of  violations  of 21  U.S.C.             952(a), 841(a)(1), 955 for possession and importation into the          United  States,  of 10.4  kilograms  of cocaine.    Appellant was          arrested  while  traveling  from  Bogot ,  Colombia   to  Geneva,          Switzerland on Iberia Airlines.   The plane stopped in  San Juan,          Puerto Rico and  was searched by United States Customs officials.          The  inspectors  isolated  what  was alleged  to  be  appellant's          suitcase  because it was heavy and had irregular stitching on the          outside  that  suggested the  bag had  a  secret compartment.   A          search of its contents revealed a stash of cocaine.  The suitcase          bore  a  baggage claim  ticket; a  plastic  name tag,  written in          appellant's handwriting and  identifying the bag  as his; and  an          Iberia  Airlines control number.  The control number is placed on          the baggage, the airline ticket, and the boarding pass, to insure          that  the passenger who checked-in  a particular piece of luggage          boards  the aircraft.    Every  bag  must  be  accompanied  by  a          passenger  or  it  is removed  from  the  plane  before take-off.          Because the control number  is an antiterrorist safeguard,  it is          attached without  the passenger's knowledge.   Appellant's ticket          and boarding pass corresponded to  the control number attached to          the  suspect  luggage.    Customs  officials  arrested  appellant          primarily on the basis of this matching control number.                    Appellant maintains that he was traveling to Madrid and          Geneva for pleasure, and to purchase dental equipment for the son          of a friend.  While appellant admitted writing the identification          tag, he  denies ownership  of the  suspect  suitcase.   Appellant          claims that when he  approached the Iberia counter in  the Bogot           airport, he  was asked  by the  female attendant  to fill  out an          identification tag for his carry-on bag and to pay the  exit tax.          He  contends  that he  left his  bag  and the  identification tag          unattended at the counter to  get exact change to pay the  tax at          the direction of the Iberia check-in official.  When he returned,          the female attendant had been replaced by another individual, who          instructed appellant  to  hurry to  the gate  since boarding  had          begun.   Appellant argues that  during the mix-up,  while his bag          was  out  of   his  sight,   an  employee  must   have  put   the          identification tag he filled out on someone else's baggage.                    After a  jury convicted appellant,  his court-appointed          trial  counsel moved  to withdraw  from the  case.   The district          court granted the motion, appointed  a federal public defender to          represent  appellant  at   sentencing,  and  sentenced  appellant          according to the guidelines.                      In United States v. Hoyos-Medina, 878 F.2d 21 (1st Cir.                       _____________    ____________          1989), we  affirmed the conviction but allowed appellant to raise          the  ineffective  assistance of  counsel  claim  in a  collateral          proceeding, since it  was not  properly before the  court at  the                                         -3-          time  of the  first appeal.   Appellant  unsuccessfully presented          this  ineffective assistance  of  counsel claim  in the  district          court.  We now turn to the merits of his claim.                                      DISCUSSION                                      DISCUSSION                                      __________                    In Strickland  v. Washington, 466 U.S.  668 (1984), the                       __________     __________          Supreme  Court  established  a  two-prong  test  for  ineffective          assistance  of   counsel  claims.    The   first  prong  requires          petitioners  to demonstrate  that "counsel's  representation fell          below  an objective standard of reasonableness."  Id. at 688; see                                                            ___         ___          also L pez-Nieves v. United  States, 917 F.2d 645, 648  (1st Cir.          ____ ____________    ______________          1990).  This aspect of the test  presents a formidable hurdle, as          the  court begins  with the  presumption that  "counsel's conduct          falls within the wide rage 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.'"   Id.  at 669  (citation omitted).   The                                     ___          second  prong   demands  a   showing  that  defendant   has  been          prejudiced.   More specifically, defendant must  show that "there          is   a   reasonable   probability   that,   but   for   counsel's          unprofessional errors,  the result  of the proceeding  would have          been different."   Id. at 694; see also L pez-Nieves, 917 F.2d at                             ___         ________ ____________          648.                    Appellant alleges  several errors on the  part of trial          counsel.   He contends that counsel improperly (1) failed to seek          a continuance to secure  witnesses and documents that  would have          bolstered  appellant's version  of  the facts;  (2) attempted  to                                         -4-          coerce  appellant  into  pleading  guilty;  and  (3)  acted  with          arrogance towards  appellant and  indifference towards  his case.          We begin  by  analyzing  the  specific pieces  of  evidence  that          appellant claims trial counsel negligently failed  to investigate          and introduce into evidence.                      First,  appellant  maintains  that, had  trial  counsel          sought a continuance, he would have  presented testimony from his          wife and friends regarding his good character.  We note, however,          that counsel reasonably may have  decided not to call appellant's          wife.   The  two were  separated at  the time  of the  trial, and          cross-examination  of   the   wife  might   have  ventured   into          compromising matters for defendant.   Therefore, the decision not          to call her was  within "sound trial strategy."   Strickland, 466                                                            __________          U.S. at 669.                      With  respect to  other character  witnesses, we  admit          that if appellant wished to have  such witnesses testify, counsel          should have  called them.   At the   2255  hearing, trial counsel          offered no  explanation for failing to  call character witnesses.          But, assuming arguendo that such omission constitutes objectively                        ________          unreasonable professional  conduct, we cannot say  that 'but for'          the  failure to  offer  testimony of  good  character, the  trial          probably would have  turned out  differently.   Id. at  694.   In                                                          ___          light  of the strong  evidence linking appellant  to the luggage,          the omission of character witnesses was not prejudicial.                     Second, appellant  claims that he would  have offered a          letter  from  an  official   at  Iberia  Airlines,  stating  that                                         -5-          appellant checked one piece of luggage weighing 21 kilograms  for          which he did not have to pay an overweight charge.  Putting aside          the  question of admissibility,1 such a letter would be of little          assistance to appellant unless the disputed bag weighed in excess          of 21  kilos.  Since the record shows no evidence with respect to          the weight  of the suitcase  seized by the  government, counsel's          failure   to   introduce   the  document   was   not  objectively          unreasonable.  It is unhelpful to argue that trial counsel should          have attempted to get evidence that the disputed suitcase weighed          more than defendant's luggage.   To grant such an  argument would          require that  we reverse  a conviction  based on  the defendant's          unsupported allegation  of the possible  existence of exculpatory          evidence.  In the context of a   2255 collateral attack, in order          to  succeed, appellant  must be  able to  point to  some concrete          evidence that the trial counsel should have presented.                      The defect  in appellant's line of  argument is readily          apparent.    At the  hearing on  this  appeal, counsel  said that          appellant  was not given the opportunity to show that his version          of  the story  was true.   He maintained  that he  filled out the          identification  tag in  front  of a  female  check-in clerk;  was          separated from his  bags at  her direction; and  returned to  the          counter,  only  to  be hustled  off  to  the  gate.   He  further          maintained  that  during  his  absence  the  identification  tag,                                        ____________________          1  The district court opined that much of appellant's documentary          evidence would have been  inadmissible without foundation or live          testimony.   Hoyos-Medina v. United States, No. 92-1373, slip op.                       ____________    _____________          at 4 n.3, 5 n.4 (D.P.R. July 22, 1992).                                         -6-          written in his hand-writing, had been attached to someone  else's          suitcase  filled with cocaine.   When asked by  the court whether          counsel  could  produce  a  witness  to  corroborate  appellant's          version, or whether the record showed whether such a witness ever          existed,  counsel replied  only  that trial  counsel should  have          found  one.  Such a bald  assertion cannot support a reversal for          ineffective assistance of counsel because we  do not know whether          there was a witness that trial counsel unprofessionally failed to          discover.                    Third, appellant claims that counsel failed to obtain a          letter  or  testimony  from  the  son  of a  friend  (who  is  an          orthodontist) corroborating appellant's story that the purpose of          the trip was, in  part, to purchase dental equipment on the son's          behalf.   While  corroboration of  this purpose  would have  been          helpful  to him,  appellant testified  as to  the purpose  of his          trip.  But,  like the  failure to bring  character witnesses,  we          cannot  say that 'but for'  the failure to  solicit and introduce          the letter, there is a  reasonable probability -- one "sufficient          to undermine confidence in the outcome" -- that the verdict would          have been different.  Id. at 694.  Thus, appellant failed to make                                ___          the required showing of prejudice.                      The overall object of  the inquiry at this stage  is to          ensure  that  some significant  piece  of  evidence (which  would          support  appellant's claim  of  innocence) was  not entered  into          evidence because  of trial  counsel's unprofessional errors.   At          this  late  date appellant  has failed  to  show any  evidence to                                         -7-          undermine  the  critical piece  of  evidence linking  him  to the          suspect  baggage:  the control number 145 which connected the bag          with Hoyos-Medina's ticket and boarding pass.                    We  now  turn  to  appellant's  allegations that  trial          counsel attempted to coerce  a guilty plea, and that  counsel was          indifferent towards the case.   Trial counsel purportedly visited          Hoyos-Medina at  the penitentiary  and falsely informed  him that          the judge was "rip roaring mad" at him.  In addition, he promised          that the judge would be lenient if appellant pled guilty and told          him  to  "go to  hell"  when appellant  protested  his innocence.          Evidence  of  counsel's  indifference  includes:  (1) failure  to          vigorously  argue a Rule 29  Motion for Judgment  of Acquittal at          the close of the government's case; and (2) voluntary suppression          of  a  document  from   the  Colombian  Government  attesting  to          appellant's clean criminal record.                    At  the    2255  hearing, trial  counsel admitted  that          "often  times one  has to  prod [defendants]  for the  purpose of          helping them  help themselves, so to speak."  He also stated that          he told Hoyos-Medina  that "if the jury does not  believe you and          if the judge believes that  you have lied, the judge is  going to          screw you."                    To  begin with,  we do  not condone  any  pressure from          defense counsel to plead  guilty.  Defendant's choice of  plea is          entirely   his  own.     Our   criminal  justice   system  exerts          considerable pressure  to  induce guilty  pleas without  improper          influence from court-appointed attorneys charged with the duty to                                         -8-          defend accused.                    Nonetheless, it is unnecessary to delve too deeply into          appellant's final allegations of ineffective assistance.  Because          trial  counsel  was  unsuccessful  in  his  attempt  to  pressure          appellant to  plead  guilty, the  purported  coercion is  but  an          example of  counsel's alleged  negative  or indifferent  attitude          towards his case.   We  find these claims  without merit  because          outward indicia of trial  counsel's effort suggests the contrary.          He  filed the  appropriate motions  in a  timely manner  and kept          abreast  of  appellant's  case.     For  example,  trial  counsel          succeeded  in excluding  a damaging  document that  appellant now          argues  should have been admitted.  Indeed, the document from the          Colombian government regarding appellant's criminal history would          have  shown no convictions, but it also would have indicated that          he  had been tried and  acquitted of extortion.   This seems like          sound  trial  strategy to  us.   Appellant's vague  assertions of          ineffectiveness  and indifference  do not  constitute objectively          reasonable  professional misconduct, nor  do they demonstrate the          necessary  prejudice.    In  this  case,  we  do  not  find  that          ineffective representation caused a break-down of the adversarial          process such that defendant did not receive a fair trial.                    Finally, we  need not  consider appellant's  request to          remand the  case to the district court for a ruling on the merits          of his  Motion Requesting Amendments and Further Findings of Fact          to the Judgment,  submitted pursuant  to Fed. R.  Civ. P.  52(b),          because  the motion  offers substantially  the same  arguments as                                         -9-          appellant's  brief  on appeal.    We have  amply  canvassed these          arguments.                    The district court's decision is affirmed.                    Affirmed.                    ________                                         -10-
