773 F.3d 322
1st Cir.2014Background
- In 1998–1999 Rossetti joined a plan to rob an armored-car depot; FBI informant Romano recorded multiple meetings in which Rossetti enthusiastically discussed logistics, weapons, and roles.
- On the morning of the planned robbery, Rossetti transported masks, weapons, vests, and radios to co-conspirators; FBI arrested him after surveillance and a brief chase.
- A jury convicted Rossetti of conspiracy, attempted Hobbs Act robbery (18 U.S.C. § 1951), 18 U.S.C. § 924(c) (grenade/firearms in relation to a crime of violence), and being a felon in possession (18 U.S.C. § 922(g)(1)).
- Rossetti was originally sentenced to 622 months; the sentence was vacated under Booker and then reimposed; direct appeals and certiorari were exhausted by January 2009.
- Rossetti filed a § 2255 petition alleging ineffective assistance of counsel (claiming counsel deterred him from testifying, failed to impeach/call experts on cell‑phone evidence, and had a conflict) and later sought resentencing after a state court vacated a prior state conviction that had been used to enhance his federal sentence.
- The district court denied relief (no ineffective‑assistance prejudice; resentencing claim untimely); the First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s advice not to testify was deficient and prejudicial | Rossetti: counsel wrongly deterred him from testifying; his testimony would have supported withdrawal and entrapment defenses | Government: counsel’s advice was reasonable given weak defenses and damaging cross‑exposure; proposed testimony was implausible and would not have changed outcome | Held: No Strickland prejudice; withdrawal and entrapment claims implausible, so not reasonably likely to alter verdict |
| Whether counsel was ineffective for failing to impeach his own witness or retain a phone‑billing expert | Rossetti: trial witness misstated billing practice; an expert could have shown phone unused or tampering, undermining government timeline | Government: the witness’s error actually helped Rossetti; phone evidence was not dispositive given his conduct; expert/ discovery would not have produced material prejudice | Held: No ineffective assistance; failure to pursue phone theory did not create reasonable probability of different result |
| Whether counsel had a conflict (failed to pursue alleged FBI motive via witness Chicofsky) | Rossetti: counsel had a business relationship with Chicofsky and refused to pursue him, creating a conflict that foreclosed an entrapment theory | Government: motive theory irrelevant where predisposition is clear; Chicofsky unlikely to testify (invoked Fifth previously) | Held: No prejudicial conflict; pursuing that defense would not have succeeded |
| Whether Rossetti’s request for resentencing after state vacatur of a prior conviction was timely under 28 U.S.C. § 2255(f) | Rossetti: timeliness measured from discovery of vacatur facts under § 2255(f)(4); he filed within one year after vacatur | Government: final federal judgment (or earlier opportunities) triggered diligence duty; Rossetti delayed unreasonably in seeking state vacatur and then in federal challenge | Held: Petition untimely under § 2255; Johnson controls—diligence obligation begins at federal judgment; Rossetti’s delays were not excused |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (reduction of mandatory Sentencing Guidelines; reason for remand/resentencing)
- Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective‑assistance test)
- Johnson v. United States, 544 U.S. 295 (timeliness under § 2255 and due‑diligence trigger at entry of federal judgment)
- Daniels v. United States, 532 U.S. 374 (permits reopening federal sentence after successful challenge to underlying conviction)
- United States v. Valerio, 676 F.3d 237 (1st Cir. 2012) (applies Strickland standards)
- United States v. Turner, 501 F.3d 59 (1st Cir. 2007) (predisposition and entrapment analysis; evidentiary context)
- United States v. Mangual-Santiago, 562 F.3d 411 (1st Cir. 2009) (withdrawal burden and necessity of affirmative showing)