OPINION AND ORDER
Petitioner Armando Gómez-Ortiz (“Gómez”) moves the court under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence that we imposed in Criminal No. 09-061.
I.
Background
On February 11, 2009, Gómez and co-defendant Alexis Alverío-Meléndez (“Alverio”) were each indicted on one count of conspirаcy to possess with intent' to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; and one count of aiding and abetting the possession of a machinegun in furtherance of a drug-trafficking crime in violation of 18 U.S.C. §§ 2, 924(c)(1)(A), and 924(c)(l)(B)(ii). (Crim. No. 09-061, ECF No. 14.) On May 4 and 5, 2009, Gómez and Alverio were jointly tried- before a jury; they were convicted of both counts, (Crim. No. 09-061, ECF Nos. 44, 48, 52.) On August 11, 2009, this court sentenced Gómez to cónsecutive prison terms of sixty-three (63) months on the drug-conspiracy count and three-hundred sixty (360) months on the machinegun count, to be followed by concurrent supervised-release terms of four years on the former count and five years on the latter count. This court further sentenced Gómez to a $200 monetary assessment. We also ordered Gómez to forfeit,-to the United States any firearms and ammunition involved or used in the commission of the above offenses. (Crim. No. 09-061, Docket No. 65.)
Gómez appealed, arguing that the trial evidence was legally insufficient to support the- convictions, that the government had committed a Brady violation, and that we had erred when instructing the jury about the machinegun count. United States v. Gómez-Ortiz,
On or about December 27, 2012, Gómez, who was a federal inmate at the time, filed the instant motion by placing it in the prison mail system.
n.
Jurisdiction
Gómez is currently incarcerated in federal prison pursuant to this court’s judgment. To file a timely § 2255 motion, Gómez had one year from the date the judgment became final. 28 U.S.C. §' 2255(f)(1)- The judgment became final when the Supreme Court denied Gomez’s petition for writ of certiorari on'January 9, 20l2. Gómez-Ortiz v. United States, — U.S. --,
HI.
Legal Analysis
Gómez argues that his sentence must be vacated because his trial attorney was ineffective, the trial evidence was legally insufficient to support the machinegun conviction, and the underlying indictment was defective.
A. Ineffective Assistance of Counsel
Gómez claims that his trial attorney was ineffective in several respects. To prove this claim;
[Gómez] must show that his attorney’s performance was deficient, and that the deficient performancé prejudiced his defense. Deficient performance must fall below an objective standard of reasonableness. In determining prejudice, we look to whether there is 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. If a defendant falls short in showing either deficiency or prejudice, the claim fails.
Ortiz-Graulau v. United States,
1. Plea Offer
Gómez alleges that his lawyer did not successfully relay to the government his acceptance of a plea offer carrying only á twelve-year sentence and that, as a result, he instead went to trial, was convicted, and ultimately received a harsher sentence. (ECF Nos. 1-1 at 6-7, 6-1 at 1.) Of course, if Gomez’s attorney had actually failed to communicate to the government his acceptance of an outstanding plea offer, that failure would constitute ineffective assistance of counsel. See Lafler v. Cooper, — U.S.-,-,
At the hearing, both Gómez and his trial attorney, Antonio Bauzá-Torrеs, Esq. (“Bauzá”), testified. Gómez alleged that he had always wanted to plead guilty in this case, but that Bauzá did not inform him of the government’s plea offer until April 29, 2009, only six days before the start of trial. Gómez further alleged thát when he asked Bauzá for some time to consider the plea, Bauzá told him that he had to make a decision immediately. Gómez claims that he- then told Bauzá to inform the government that he wanted to reach an agreement. According to Gómez, when he appeared before this court- on May 4, 2009, he was surprised to learn that he was going to trial that day, instead of accepting the government’s plea offer, but that he then stayed silent about the missed plea deal throughout trial, throughout sentencing, and throughout direct appeal, where he once again retained Bauzá to represent him. On cross-examination, however, Gómez claimed instead that he had met with Bauzá two more times between April 29 and May 4, and that Bauzá had told him, during one of those meetings, that the government did not want to do the plea deal any longer. : ■. ■
Bauzá testified that he has been practicing the law continuously since 1964, except for during his tenure as a local Superior Court judge. His regular practice, when representing criminal defendants, includes discussing plea deals with them and comparing each deal with their post-trial sentencing exposure. In this case, the government e-mailed Bauzá a plea offer for Gómez on March 11, 2009. Bauzá and codefendant. Alyerio’s. attorney . then promptly met .with-Gómez and Alverio to discuss the government’s offers. At that meeting, both Gómez and Alverio rejected their offer. Bauzá recalled that Gómez said ■■ that he would rather serve a life sеntence than plead guilty. Bauzá further stated that Gómez had always been adamant about wanting to go to trial. But Bauzá'still advised Gómez to seriously consider the offer because it was a good one in light of the evidence against him and his post-trial sentencing exposure.
Having personally observed their live testimony and evaluated their demeanor, the court finds Bauzá’-s testimony credible and consistent, and Gomez’s testimony incredible and contradictory. The -court -thus- finds- that when Bauzá properly informed Gómez of the government’s plea offer, Gómez rejected the offer and chose to go to trial instead. Relatedly, the court discredits Gomez’s allegation that he told Bauzá that he wanted to accept the offer. Although Gómez testified that he always wanted to plead guilty to the indictment and accept responsibility for his crimes, the court notes that, in his very next ineffective-assistance point, Gómez argues that he is innocent of the machinegun charge. (See EOF No. 1-1 at 8.) Furthermore, Gomez’s allegation that Bauzá both failed and prejudiced him by neglecting to tell the government of his acceptаnce of the plea offer is belied by his silence about the matter, for three and one-half years, until his filing of this motion and also by his decision to retain Bauzá, once again, as his appellate attorney. Accordingly, the court finds that Bauzá’s assistance to Gómez was not ineffective during the plea-bargaining process.
Gómez asserts that his attorney also rendered ineffective assistance by failing to perform a fingerprint analysis of the machinegun, the possession of which Gómez was convicted of aiding and abetting. Gómez asserts that such an аnalysis would have shown that his “fingerprints were not on the firearm,” thereby proving that he “never possessed, nor constructively possessed,- [it] ” (EOF No. 1-1 at 8) (punctuation added.) But the decision by Bauzá to forgo a fingerprint analysis was neither deficient, nor prejudicial. After., all, the trial evidence supporting Gomez’s machinegun conviction was overwhelming and did not turn on whether his fingerprints were on the weapon. As the First Circuit recounted when upholding the legal sufficiency of that evidence:
Agent Alverio testified at trial that he saw [the] handgun in the “pocket” оf the front passenger door [of the vehicle] when the. defendants were arrested, and that Gómez was in the passenger’s seat. Another government witness testified that the fanny pack that Gómez was wearing when he was arrested contained three .40 caliber bullets and a magazine containing fifteen more .40 caliber bullets, both of which could be used to fire the gun, a Glock .40 caliber pistol, as well as a slide back cover that “is the rear part of the Glock.” Finally, Rodriguez testified at trial that he thought Góméz had a gun based on the way that Gómez was positiоned.
Gómez-Ortiz,
When prosecuting a charge involving the possession or use of a firearm, the government does not have a legal duty to perform а fingerprint analysis of the gun. See id. at 424 (“[T]he police do not have a constitutional duty to perform any particular tests") (quoting Arizona v. Youngblood,
If the government has chоsen not to fingerprint the firearm, perhaps because their non-forensic evidence clearly suffices, that decision does not prejudice the defendant at all. “That there [i]s no fingerprint evidence mean[s] simply that there [i]s no fingerprint evidence,” neither helping, nor hurting,- either side. United States v. Paladino,
Many defendants, however, do not argue that a fingerprint analysis would have yielded someone else’s prints. Instead, like Gómez, they claim that if a latent print from their fingers cannot be found on the gun, it must mean that they never possessed it and thus are innocent of the charge. _ But that claim rests on a number of errors. For example, under the doctrine of constructive possession, defendants do not even have to touch a gun to be guilty of having possessed it. United States v. Diaz,
Even if the gun has not been., treated with a fingerprint-resistant coating, which is used to prevent rust, “[m]ost guns have textured surfaces where one handles the weapon when firing it” to “help the individual keep a firm grip on thе gun.” Hillart Moses Daluz, Fundamentals of Fingerprint Analysis (2015).. But such surfaces “are not suitable for fingerprint development.” Id. Thus, “[a] fingerprint that may be present on a trigger cannot be processed if that trigger is ribbed or textured,” and “[a] palm print cannot be processed on the grip of a gun if it is highly textured.” Id. Moreover, leaving aside those cases where the suspect is able to wipe down the' gun before the police seize it, it is easy to imagine how the rough-and-tumble handling and storage of a gun on the streets would preclude the transfer of usable latent fingerprints. Under the best of сircumstances, even the transfer of patent prints cari be difficult. See Hon. Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann. Rev.Crim. Proc. iv n. 11 (the FBI Special ■ Agent who fingerprinted Judge Kozinski for his background check took ten complete sets of fingerprints because “sometimes they don’t come out so clear,” only to return the next week with ten more
Those are only some of the reasons why fingerprint experts have concluded that “successful development of latent prints on firearms is difficult to achieve” and thаt, “[i]n reality, very few identifiable latent prints are found on firearms.” Paladino,
■ Finally, post-judgment, defendants like Gómez often claim they were prejudiced at trial by the absence of a fingerprint analysis that, they assert, ■ would have shown that their prints were not on the gun. But if the government was able to convict them of possessing or using the firearm without demonstrating that their prints were on it, “[t]he addition of a negative fingerprint analysis would not have aided the defense in any significant way.” United States v. Yarbrough, 1990 U.S.App. LEXIS 2872,
In sum, absent an exceptional circumstance, if the government has not produced fingerprint evidence in a gun case, it does not constitute ineffective assistance for the defense attorney not to produce such evidence either. After all, in the vast majority of cases, the time and money spent on ordering an analysis of the gun will simply yield negative results, thereby leaving the defendant no better' off than where he began — with no fingerprint evidence. See Paladino,
3. Alleged Brady material
■ Gómez also faults his attorney for not acquiring alleged Brady material from the
4. Jury Instruction
Next, Gómez alleges that Bauza, who also represented him on appeal, was ineffective for not claiming on appeal that our jury instruction about confidential in: formants was defective by virtue of .not using the word “caution” when first describing how the jury should, evaluate the testimony of such informants. (ECF No. 1-1 at 14.) Significantly, Gómez does not contest the substance of our. instruction to the jury. (See Crim. No. 09-061, ECF No. 79 at 126-27) (original'jury instruction.) Instead, he focuses solely on the omission of the word “caution” from our original instruction. But when the co-defendant’s lawyer objected at trial to that omission, we immediately responded by further instructing the jury, “You have to be cautious when you receive this testimony, and you have to look at the complete record, at all the evidence, to figure out whether in light of all the other evidence in the case, whether what the confidential informant told you is something you have to rely on.” (Crim. No. 09-061, ECF No. 79 at 128.) When we then asked defense counsel whether they had “[a]nything else” to add, the - codefendant’s lawyer replied, “Not from our part, Your Honor.”' (Crim. No. 09-061, ECF No. 79 at 128.) This response indicated that counsel had found our response sufficient to cure their initial objection. Because our supplemental jury instruction cured the error, if any, in the original instruction, Gomez’s attorney was not ineffective for declining to pursue this claim on appеal. See Acha v. United States,
B. Legal Sufficiency of Trial Evidence
In supplemental papers filed on or about September 9, 2013, Gómez claims that the evidence supporting his machine-gun- conviction under 18 U.S.C. § 924(c)(1) was legally insufficient. Specifically, .he now argues, for the first time, that the trial evidence did not prove his “knowledge [that] the weapon seized had the characteristics of ah automatic weapon.” (ECF No. 6 at 13.) When the First Circuit held the evidence legally sufficient, see Gómez-Ortiz,
Gómez nonetheless argues that the First Circuit’s later ruling in1 United States v. Nieves-Castano,
C. Legal Sufficiency of Indictment
In supplemental papers filed on or about March 19, 2013, Gómez claims, for the first time, that the indictment on which he was tried and convicted was defective because it failed to allege that his criminal conduct, had affected interstate or foreign commerce. (ECF No. 5.) Defendant asserts that affecting commerce is an “element” of each crime charged in the indictment. (ECF No. 5.) Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), Gómez was required to raise this claim in a pretrial motion. By failing to do so, he forfeited his ability to raise it absent a showing of “good cause.” Fed.R.Crim.P. 12(c)(3).' And he 'has not made such a
It is well-settled law that “an indictment ‘must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.’” United States v. Troy,
Instead, Gómez focuses his complaint on the-indictment’s failure to allege that his criminal conduct affected “interstate or foreign commerce.” (EGF -No. 5 at 1.) But, unlike the statutes at issue in United States v. Spinner,
IY.
Certificate of Appealability
When entering a final order denying a motion under 28 U.S.C, § 2255, we must also decide whether to issue a certificate of appealability (“COA”). Rule 11(a) of the Rules Governing Section 2255 Proceedings for the U.S. District Courts. We may grant a' COA only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims dеbatable or wrong.” Miller-El v. Cockrell,
V.
Conclusion
For the foregoing reasons, we hereby DENY Gómez’s § 2255 motion. (ECF No. 1.)
IT IS SO ORDERED.
Notes
. Because Gómez is pro se, we construe his motion liberally. Foley v. Wells Fargo Bank,
. In its judgment remanding the motion, the First Circuit wrote that Gómez had "placed his motion in the prison mail system on December 7, 2012, less than a year” after his certiorari petition had been denied. (ECF No, 13.) That date appears to be in error. In the motion itself, Gómez avers that he placed the motion in the prison mail system on or about December 27, 2012. (ECF No. 1-1 at 17.) The date on the motion’s postage stamp — December 31, 2012 — supports this la