Joaquin Osvaldo GALLO-CHAMORRO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 98-4507.
United States Court of Appeals, Eleventh Circuit.
Nov. 21, 2000.
233 F.3d 1298
Florida rules of criminal procedure require that a motion to vacate, set aside, or correct sentence be under oath. See
Before me, the undersigned authority, this day personally appeared ________ who first being duly sworn, says that he or she is the defendant in the above-styled cause, that he or she has read the foregoing motion for postconviction relief and has personal knowledge of the facts and matters therein set forth and alleged and that each and all of these facts and matters are true and correct.
Id. Alternativеly, the rule allows the defendant to include an unnotarized oath, which states that “[u]nder penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true.” Id.
Hurley does not dispute that his Rule 3.850 motion did not contain the requisite written oath. The court dismissed the motion without prejudice to refile a timely, properly sworn motion. The court even included in its order two examples of oaths sufficient to meet the “properly filed” requirement. Rather than filе a properly sworn motion, Hurley chose to move for rehearing of the denial of the deficient motion. Because Hurley‘s state post-conviction motion was not properly filed according to the state court‘s application of the written oath requirement, the one-year statute of limitations under the AEDPA is not tolled.
Hurley‘s argument that the AEDPA‘s limitations period should be equitably tolled is raised for the first time on appeal and is not properly before this court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.1994), cert. denied, 511 U.S. 1111, 114 S. Ct. 2111, 128 L. Ed. 2d 671 (1994). In any еvent, Hurley‘s case does not warrant equitable tolling because his initial Rule 3.850 motion was dismissed without prejudice and the state court instructed Hurley on how to cure the procedural defect in his motion. Hurley‘s failure to follow the state court‘s instruction precludes his equitable tolling claim.
We conclude that Hurley‘s
AFFIRMED.
Phillip DiRosa, Lisa T. Rubio, David Buckner, Miami, FL, for Respondent-Appellee.
Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
POLITZ, Circuit Judge:
Joaquin Osvaldo Gallo-Chamorro appeals the denial of his
BACKGROUND
Gallo was arrested in Bogota, Colombia on January 9, 1990. The United States made a request for his provisional arrest on January 11, 1990, submitting Diplomatic Note 206 to Colombia on March 9, 1990. The Note requested Gallo‘s extradition on
The [Colombian] Supreme Court of Justice has stated, on several occasions, that the violation of
Title 18, Section 2, of the United States Code does not have an equivalent in Colombia, so therefore the extradition shall not be authorized, either, on account of this definition.
Prior to trial, Gallo filed a Motion to Enforce Rule of Specialty, contending that the government could only prosecute him for the offenses authorized by the extrаdition and could not proceed on any charges based on aid and abet liability under
At trial, the government requested a Pinkerton instruction on the importation count.3 The court gave the instruction over Gallo‘s objection. After a question from the jury about the coverage of the Pinkerton charge, the court gave a supplemental instruction, again over Gallo‘s objection, that the Pinkerton charge applied to the three distribution counts as well as the importation charge. The jury convicted Gallo on the three substantive distribution counts and the importation count, but found him not guilty of conspiracy to distribute cocaine. Gallo unsuccessfully moved for a new trial based on the Pinkerton charge, asserting that it violated the rule of specialty because it was a theory of “constructive liability” akin to aid and abet liаbility.
At sentencing, Gallo informed the court of a diplomatic note sent by the Colombian government to the State Department objecting to the Pinkerton charge in his trial. Gallo could not produce the note, however, and the court overruled the objection. Gallo eventually filed the diplomatic note.4
Gallo invokes
The magistrate judge filed a Report and Recommendation concluding that Gallo lacked standing to assert dual criminality because that doctrine only gives surrendering states the ability to refuse extradition on grounds that the prisoner‘s conduct is not criminal in its jurisdiction. Both parties filed objections. Gallo disputed the finding and the United States requested two additional alternative findings: (1) assuming Gallo‘s standing to raise dual criminality, the Pinkerton instruction did not violate the doctrine because Gallo‘s acts constituted a crime in Colombia, and (2) assuming both standing and a violation, Gallo‘s convictions and sentences on the three distribution counts should be upheld because sufficient evidence existed to сonvict on those counts without the instruction. The government also objected to the magistrate judge‘s failure to rule on Gallo‘s new specialty argument and to bar Gallo from relitigating that issue. The district court adopted the magistrate judge‘s submission, incorporating the alternative holdings requested by the United States. This appeal followed.
ANALYSIS
I. Ineffective Assistance of Counsel
In order to establish an ineffective assistance claim, a defendant must prove both deficient performance on the part of counsel and prejudice as a result.7 Specifically, proof is required “(1) that counsel‘s representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.”8 Defendant must prove deficient performance by a preponderance of competent evidence,9 and the standard is “reasonableness under prevailing professional norms.”10 With regard to the prej-
Applying Strickland teachings, we find Gallo‘s contentions insufficient to establish ineffective assistance of counsel. He first claims that counsel was deficient for failing to object to the Pinkerton instruction on dual criminality grounds. While we find no case law from this circuit directly establishing standing to assert a dual criminality challenge, the mere absence of authority does not automatically insulatе counsel‘s failure to object on that basis. Other circuits have addressed dual criminality charges on the merits, reflecting that an objection on such grounds was not wholly without precedent.12
Here, however, counsel‘s failure to object based on dual criminality does not constitute deficient performance. Counsel‘s decision to focus on specialty constitutes the type of strategic trial decision that falls outside the purview of deficient performance.13 Counsel may well have thought specialty the stronger argument, especially because the aforementioned case law dealt with additional counts or separate factual allegations, not jury instructions on different theories of liability.
We likewise reject Gallo‘s assertion, as a basis for deficient performance, that counsel focused his specialty argument on Pinkerton‘s similarity to aid and abet liability, rather than Colombia‘s specific prohibition of prosecution for conspiraсy to import. While it is accurate to state that Colombia specifically barred prosecution for conspiracy to import,14 we find that counsel‘s failure to object on this basis falls within the broad range of strategic options available. The Resolution prevents conviction on multiple conspiracies, but says nothing about liability for crimes resulting from the one overall conspiracy for which Colombia found sufficient acts by Gallo. Counsel‘s failure to attack the instruction based on conspiracy rather than
II. The Pinkerton Instruction
We next consider whether the district court erred in giving a Pinkerton instruction on the substantive importation count and the three distribution counts. Gallo contends that the court erred because the instruction violated his extradition agreement. We review such an extradition challenge de novo.15
In United States v. Pinkerton, the Supreme Court held that a co-conspirator could be guilty of a substantive offense even though he did no more than join the conspiracy, provided that the offense was reasonably foreseeable and was committed in furtherance of the conspiracy.16 Instructing juries on this concept has come
A. The Specialty Doctrine
The specialty doctrine “stands for the proposition that the requesting state, which secures the surrender of a person, can prosecute that person only for the offense for which he or she was surrendered by the requested state or else must allow that person an opportunity to leave the prosecuting state to which he or she had been surrendered.”17 As noted by various courts of appeals, “specialty is a doctrine based on international comity. Because the surrender of the defendant requires the cooperation of the surrendering state, preservation of the institution of extradition requires that the petitioning state live up to whatever promises it made in order to obtain extradition.”18
Gallo asserts that the Pinkerton instruction violated the doctrine of specialty because the Colombian government failed to authorize a Pinkerton charge in Resolution 235. Gallo also points to Diplomatic Note E-1518, expressly stating that Colombian courts do not recognize Pinkerton because it is “vicarious” in nature.
Our ruling in Gallo‘s direct appeal is controlling herein.19 Gallo was prosecuted only for the crimes for which Colombia granted extradition; there was no spеcialty violation. Rather than mandating exact uniformity between the charges set forth in the extradition request and the actual indictment, “[w]hat the doctrine of specialty requires is that the prosecution be ‘based on the same facts as those set forth in the request for extradition.‘”20 The district court tried Gallo on the facts included in the request for extradition,21 and gave jury instructions in accordance therewith.
We view such reasoning as persuasive, as we did on direct appeal, and conclude that the Pinkerton instruction did not violate the specialty doctrine.
B. Dual or Double Criminality
“The doctrine of dual or double criminality is distinct from the doctrine of specialty.”24 While specialty focuses on the conduct prosecuted, “[d]ouble criminality refers to the characterization of the relator‘s criminal conduct insofar as it constitutes an offense under the lаw of the respective states ... no state shall use its processes to surrender a person for conduct which it does not characterize as criminal.”25 Dual criminality mandates that a prisoner be extradited only for conduct that constitutes a serious offense in both the requesting and surrendering country. Although this presents a slightly closer question, we conclude that Gallo‘s dual criminality arguments ultimately are unpersuasive.
III. Standing
Initially, we address the issue of a defendant‘s standing to raise a dual criminality сhallenge to his prosecution. While it is true, as noted by the magistrate judge and district court, that dual criminality generally is a matter to be decided by the surrendering country, we decline to accept this as a complete bar to raising the issue in the requesting country. The magistrate judge noted that “[o]nce the requested state determines that a defendant is extraditable, the law of dual criminality is no longer an issue. Once extradition is ordered, the requesting country is bound by the law of specialty.”26 We do not agree.
In Puentes, we оbserved that our circuit had not theretofore addressed the issue “whether a defendant has standing to assert a violation of an extradition treaty.” We then answered in the affirmative.27 Although Puentes dealt with specialty, we are persuaded that dual criminality merely constitutes another basis upon which to establish a treaty violation. We therefore join other circuits ruling on the merits of dual criminality claims and hold that a defendant may assert a violation of an extradition treaty on dual criminality grounds.28
IV. Merits
We conclude that the Pinkerton instruction did not violate the doctrine of dual criminality. The Supreme Court has held that the doctrine of dual criminality “does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.”29 Further, that “defenses may be available in the requested state that would not be available in the requesting state, or that different requirements of proof are applicable in the two states, does not defeat extradition under the dual criminality principle.”30
Gallo‘s arguments misconstrue the focus of the dual criminality doctrine and the effect of a Pinkerton instruction. While dual criminality focuses on the characterization of the acts of the defendant, a Pinkerton instruction provides the jury with the legal ramifications of those acts under the laws of the United States. Once the surrendering country determines that thе acts charged constitute a serious offense, the doctrine does not require that “the scope of the liability shall be coextensive” whether convicted in the requesting or surrendering state.31
With respect to Diplomatic Note E-1518,32 we reaffirm our ruling on Gallo‘s direct appeal that “this note has no persuasive or precedential value in this case.”33 As we there noted, “international principles of law cannot be ‘construed to permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state.‘”34
We are mindful of language in some cases which supports giving weight to the views of the surrendering country.35 We conclude, however, that these cases deal primarily with a surrendering state‘s perspective on the criminality of a relator‘s conduct in the first instance, rather than on the theory of liability used to convict a relator for conduct that the surrendering state has viewed as criminal. As Gallo observed in his brief, the government of Colombia subjected the petitions for his extradition to a very careful analysis. Thereafter, it determined that some of the conduct alleged was criminal in Colombia, and it extradited Gallo on the basis of that conduct. Following this extradition, our government may prosecute Gallo for his acts in accordance with the laws of the United States.
Gallo has not established ineffective assistance of counsel. Further, neither the dual criminality doctrine nor the doctrine of specialty render the district court‘s decision to give a Pinkerton instruction for the substantive counts erroneous. The judgment appealed is AFFIRMED.
POLITZ
CIRCUIT JUDGE
Notes
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
[T]he trial judge, the Honorable James C. Paine, pursuant to the prosecution‘s request instructed the jury that it could find Mr. Gallo Chamorro guilty of the substantive offenses charged in the indictment under the “Pinkerton” theory of criminal liability. The Pinkerton theory, which is wholly vicarious in nature is not recognized by Colombia since, like
By instructing the jury that it could find Mr. Gallo Chamorro guilty of the substantive crime charged under a theory of vicarious сriminal liability, not recognized by Colombia, the trial judge violated the extradition Resolution, and other principles of international law....
The terms under which Mr. Gallo Chamorro‘s extradition was granted have not been complied with [sic] the Embassy requests that the appropriate actions be taken to reinstate his rights and comply with the terms of the extradition.
We are mindful that some courts and other authorities state the test as “whether the requested state has objected or would object to prosecution.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 477 cmt. b (1987). See also United States v. Andonian, 29 F.3d 1432 (9th Cir.1994) (stating that the “test for this case is ‘whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited.‘“) (citing United States v. Cuevas, 847 F.2d 1417, 1428 (9th Cir. 1988)). While this language seems to lend importance to the view of the rendering country, the main focus remains on the prosecution and the conduct of the defendant. In this case Colombia authorized the prosecution, based on Gallo‘s conduct, with respect to the charges upon which the district court convicted Gallo. We find no case law reversing a conviction because a rendering country objected after trial to a jury instruction or evidentiary issue. As we stated on direct appeal, the specialty and dual criminality doctrines cannot be “construed to permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state.” Gallo-Chamorro, 48 F.3d at 508 (citing United States v. Archbold-Newball, 554 F.2d 665, 685 (5th Cir. 1977)).