Orlando GALLEGO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 97-4485.
United States Court of Appeals, Eleventh Circuit.
May 5, 1999.
1196
Jeanne M. Mullenhoff, Adalberto Jordan, Stephanie K. Pell, Assistant U.S. Attorneys, Miami, FL, for Respondent-Appellee.
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.
RONEY, Senior Circuit Judge:
Defendant Orlando Gallego challenges his drug conviction pursuant to
The charges against Gallego stem from an undercover narcotics investigation in which the federal joint drug task force in Miami, Florida set up a phony import company through which a Colombian cocaine broker could distribute cocaine in the United States. Although the investigation was months long, involving multiple co-defendants, we recite here only the facts germane to Gallego‘s case. On the day of his arrest, agents observed Gallego leave the body shop where he was employed, drive to a cocaine-filled van parked in a shopping center, enter and exit the van and leave again. The agents later observed Gallego return to the shopping center, re-enter the van, and drive it to his sister‘s house, and park it in the garage. When the agents executed a search warrant at the house, they observed that most of the cocaine had been unloaded from the van, removed from burlap sacks and placed into other boxes marked with kilogram amounts.
Defendant and a co-defendant were convicted by a jury of conspiracy to possess with intent to distribute cocaine, in violation of
This Court affirmed the conviction on direct appeal. Gallego then filed his motion to vacate under
On appeal, defendant challenges the district court‘s rejection of his allegations that his counsel failed to properly advise him of his right to testify.
A claim of ineffective assistance of counsel is the proper framework to analyze defendant‘s allegation that his attorney has violated his right to testify. See United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.) (en banc) cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). A criminal defendant has a “fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel.” Teague, 953 F.2d at 1532. Where counsel has refused to accept the defendant‘s decision to testify and refused to call him to the stand, or where defense counsel never informed the defendant of his right to testify and that the final decision belongs to the defendant alone, defense counsel “has not acted ‘within the range of competence demanded of attorney‘s in criminal cases,’ and the defendant clearly has not received reasonably effective assistance of counsel.” Teague, 953 F.2d at 1534 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
In his
With regard to whether Gallego should testify, Hertzberg said he “[m]et with, spoke with him on the telephone, felt his English was marginal, did not think he was comfortable speaking, did not think he would be a good witness at trial.” Hertzberg had no documentation as to what was discussed in any of his pre-trial discussions with Gallego, and nothing other than his own testimony regarding whether he discussed with Gallego his right to testify and that it was his right alone to waive. Hertzberg testified that the right to testify is an issue he discusses in every case and that on at least one or two occasions he spoke with Gallego concerning his right to testify. He denied that Gallego repeatedly requested the opportunity to testify.
For his part, Gallego confirmed that he had only two meetings with Hertzberg and in neither meeting did Hertzberg explain to Gallego his constitutional right to testify. He testified he did not fully understand his right to testify until the Federal Public Defender appointed to represent him at sentencing explained his rights fully.
The magistrate observed that the evidence boiled down to “the defendant‘s word against that of counsel,” and rejected defendant‘s version, stating that “a bare-bones assertion by a defendant, albeit made under oath, is insufficient to require a hearing or other action on his claim that his right to testify in his own defense was denied.” The court relied upon the reasoning in a Seventh Circuit opinion, Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991), and said:
At this time, the Court is mindful of the Seventh Circuit‘s opinion in Underwood, where the Court noted the difficulty in establishing a mechanism for protecting the defendant‘s right to testify without rendering the criminal process unworkable. See 939 F.2d at 475. This Court is also troubled by the system-wide ramifications of the Federal Courts vacating convictions based upon unsubstantiated allegations that a defendant was denied an opportunity to testify, especially when defense counsel testifies under oath to the exact opposite. With this in mind, the Court finds that the defendant has not carried his burden of proving that counsel deprived him of his right to testify.
(emphasis in original).
It is perfectly legitimate for the district court to find, based on all the evidence in the record, that a defendant‘s testimony about his participation in a drug scheme is not credible. The magistrate judge here, however, based the decision on the fact that defendant‘s allegations were unsubstantiated and incorrectly found as a matter of law that defendant could not carry his burden without presenting some evidence in addition to his own word, which is contrary to that of counsel‘s. The magistrate says nothing about the internal consistency of the defendant‘s testimony, or his candor or demeanor on the stand. Indeed, the magistrate does not even state simply why the defendant‘s lawyer is the more credible witness in this case. There is nothing in the report to indicate the magistrate weighed defendant‘s credibility. Compare United States v. Camacho, 40 F.3d 349 (11th Cir.1994)(court made specific findings of fact after an evidentiary hearing regarding defendant‘s credibility), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735(1995). The fact that defendant‘s testimony is uncorroborated is not enough standing alone to support a credibility finding. Counsel‘s testimony was also unsubstantiated by other evidence.
While we appreciate the concerns enunciated in Underwood, we cannot adopt a per se “credit counsel in case of conflict rule,” which allows that in any case where
VACATED AND REMANDED.
HATCHETT, Chief Judge, dissenting:
I respectfully dissent because the magistrate judge obviously made a credibility finding. This is an