Case Information
*1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
PEDRO AGUIRRE ZATISAVAL
Petitioner,
Case No. S:O 1 -cr-2 12-T-17TGW S:07-CV-39-T- 17TGW UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING h1OTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE, PURUSUANT TO 28 U.S.C. 6 2255
This cause is berose the Court on Pedro Aguirre Zatisaval's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. 2255 (Dkt. cv-1; cr-249) and t l ~ c attached Memorandum (Dkt. cv-2). The Government filed a response. (Dkt. cv-9). Zatisaval filed a reply. (Dkt. cv-1 1).
PROCEDURAL IISTORY In A u y s t 2001, a grand jury for the Middle District of Florida retunled an indictment charging Zatisaval and four other individuals with hvo counts: 1) while on board a vessel subject to the jurisdiction of thc United Statcs, conspiring to possess with intent to distribute five kilograms or more of cocaine, in violation of 46 App. U.S.C. § 1903 and 21 U.S.C. $ 960; and, 2) while on board a vessel subject to the jurisdiction of the United States, possessing with intent to distribute five kilograms or more of cocaine, in violation of App. U.S.C. $ 1903 and 21 U.S.C. 960. A petit jury found Zatisaval guilty after three-day trial. On October 7, 2002. the court sentenced Zatisaval to 235 months of imprisonment. (Dkt. cr.-124. cr-130).
Zatisaval appealed, raising thc following t h e e issues:
a. The trial judge abused his discretion and denied Zatisaval a fair trial by his conments and jury i~~structions.
b. Given tlic evidence and testimony at trial, a hvo-levcl role reduction was warranted because Zatisaval was nicrely a drug courier and crew member.
c. The n ~ a x i n ~ u m basc ofre~ise lcvel, based on tlie foregoing argument. could be no more than thirty, which would result in a sentencc guideline range of 97 to 121 months imprisonnlent.
The Eleventh Circuit affirmed Zatisaval's conviction and sentence on January 20, 2004. Uiiited Stares v. Rivas, 1 Fed.Appx. 654 (1 1th Cis.). The Supreme Court later vacated Zatisaval's sentence and remanded thc case to tlic Eleventh Circuit for reconsideration of thc sentence in light of the ruling in Uilireci Stcites v. Booker, 543 U.S. 220 (2005). See Rivas rl. Uuited Stares, U.S. 1 105 (2005). On remand, the Elevcnth Circuit reaffirmed Zalisaval's conviction and sentence. Utiited States I). R i ~ u s , 132 Fed.Appx. 8 18. The United States Suprenic Court denied certiorari on January 17, 2006. Rirm U~lited States, S . Ct. 1 158 (2006).
Zatisaval's 2255 motion, signed on January 3, 2007, is timely.
FACTUAL BACKGROUND
On June 10, 2001, the crew of a C- 130 Coast Guard plane, while flying a counter- drug mission over the Pacific Ocean, noticed tlic tvalce of a speedboat. (Dkt. cr-112 at 25-30). Upon descending for a closer look, the crew of the C-130 observed that the 35 foot speedboat was traveling at a high rate of speed and was painted a liglil blue that matched tlic color of the ocean. (Id. at 32-33; Dkt. cr-1 13 at 136; id. at 174). After the plane passed over the speedboat, the speedboat stopped dead in the water; tlie plane's captain observed five individuals on the speedboat and numerous items concealed beneath t a p . (Dkt. cr-112 at 33; id. at 35).
While circling the speedboat, the crew of the C-130 radioed Navy ship U.S.S. Ticonderoga, and the Ticonderoga changed its course toward the speedboat's location. (Dkt. cr- 112 at 37-38). Upon the arrival of the Ticonderoga, tlie speedboat sped away from the ship. (Dkt. cr-112 at 39-4 1 ; Dkt. cr- 13 at 106). The crew of the C- 130 observed as many as three individuals tlu-owing square white bales, which were located bencath the tall>, overboard. (Did. cr-112 at 41-45, 50: cr-113 at 64-65). Ten to fifteen minutes later. the speedboat stopped; tlie C- 130's captain observed smoke coming from the speedboat's engine and thc C- 130's crew noticed that the cargo on the speedboat was conipletcly gone, along with the tarp. (Dkt. cr-112 at 53-55: Dkt. cr-113 at 65, 94). A Navy helicopter was dispatched from the Ticonderoga and the pilot, wlde flying towards the speedboat. observed sixty to seventy while bales floating in the speedboat's debris trail, cach within twenty to thirty yards of the other. (Dkt. cr-113 at 123- 125).
In the meanti~ne, the Ticonderoga sent out a four-member Coast Guard boarding party in a small inflatable vessel. (Dkt. cr- 13 at 139-41). The boarding party hailed the speedboat in both English and Spanish, but received no response. (Dkt. cr-1 13 at 141-42). Oncc the boarding party came alongside the speedboat, an officer asked. in Spanish, tlie five men on thc speedboat. to place their hands on their heads. (Dkt. cr-1 13 at 144). The nien complied and the officer then asked each of the i~ldividuals where lie was from and who o~vned the speedboat. (Dkt. cr-113 at 144). Each individual stated tliat he was from Tumaco, Columbia and that the owucr was not aboard. (Dkt. cr-113 at 145). When asked the purpose of their voyage, each man responded tliat he was "fishing." (Dkt. at 145). The boarding party requested each man to approach. handcuffed him, and gave him lifejacket to wear. (Dkt. at cr-113 at 145-46).
After thrce of the five men had been handcuffed and given lifejackets, the boarding party noticed that the speedboat was flooding with water at a "moderate to rapid" rate because of three small holes in the hull that appeared to be holes whose purpose was to sink the speedboat. (Dkt. cr- 1 13 at 145-46; cr-114 at 19-2 1). In reaction, the boarding party tied the sinking speedboat to the Ticonderoga and brought the "fisher" men aboard the ship. (Dkt. cr-113 at 146). The Spanish-speaking officer asked the men when they had left Columbia and when they expected to return; they all replied that they had left on June 5, 2001. and expected to return on June 15, 2001. (Dkt. cr-113 at 153- 154). Before the speedboat completely sank, the boarding party searched the speedboat for registration papers. (Dkt. cr-113 at 146). They found a cooler with fruit and Gatorade, three fuel filters. empty gas cans, a radio. duffel bags with personal items. a machete, and two chickens in a basket. (cr-1 14 at 22-23). However, the boarding party found no registration, no identification documents, and no fishing gear. bait, fish, or rescue gear. (Dkt. cr- 113 at 146-52). Even though thc boarding party attempted to keep the speedboat from sinking. it sank about an hour later. (Dkt. cr-114 at 23).
Swimnlers dispatched from the Ticonderoga retricved twenty-two square white bales from the debris trail of the speedboat. (Dkt. cr-113 at 169-1 70). Each bale contained twenty- five kilogram packages of cocaine which had a strcet value at the time of behveen fifteen and hventy thousand dollars. (Dkt. cr-113 at 172-1 73; Dkt. cr-114 at 35).
At trial, defense counsel challenged government witnesses on cross-examination concerning their testimony about the white bales allegedly tossed from the boat. The witnesses conceded that they could not clearly identify the men who threw the bales overboard. (Dkt. cr- 12 at 19; cr- 13 at 24, 102. and 1 18). Afier the government rested its case, defense counsel moved for a judgment of acquittal pursuant to Rule 29 of Federal Rules of Criminal Procedure. *5 (Dkt. cr-114 at 37). The court denicd the motion. (Dkt. cr-1 14 at 42-43). Thc court asked defense counsel if he were going to offer any witnesses and counsel replied that he would not present witnesses and that Zatisaval would not testify. (Dkt. 1 14 at 44-48). During his closing argument. Zatisaval's counsel challenged tlie evidence presented as wcll as the credibility of rhc govenment's witnesses. (Dkt. cr-115 at 19-25). Specifically, counsel pointed out variances among testimony of the governn~ent's witnesses concerning the nuniber of individuals observed on the speedboat. Counsel also reiterated lhc fact that none of the witnesses actually observed the cocaine being thrown from the speedboat. (Dkt. cr-115 at 22-23).
DISCUSSION
Zatisaval raises tlu-ce issues in his Motion to Vacate, Set Aside, or Correct Sentence. Pursuant lo 28 U.S.C. tj 2255 (Dkt. cv-1) and the accompanying Memorandum (Dkt. cv-2). First, Zatisaval claims that the government obstructed justice by not introducing at trial videotapes taken from the helicopter that Zatisaval claims would show that he is innocent; second, Zatisaval claims that his counsel was deficient and ineffectivc since he did not present these videotapes at trial; and third, Zatisaval claims that his sentence constitutes plain error in light of Booker/Bltlke[v.
I. INEFFECTIVE ASSIS'I'ANCE 0 1 7 COUNSEL
Zatisaval's main argunent is that his Sixth Amendment right to counsel was violated. Zatisaval argues that he had ineffective assistance of counsel during trial. IHe bases his argument on his counsel's decision not to introduce tlie videotapes at trial (Dkt. cv-2 at 16-19).
A lawyer is pres~umed to bc conipctent to assist a dcfcndant and the burden is on the defendant to demonstrate that his lawyer has been ineffective. U~litetl States Cronic, 466 U.S. 648,658 (1984). A conviction will be vacated on incffectivc assistance of counsel grounds if the *6 defendant can prove (1) thal counsel's perl'ol-mancc fell below an objective standard of rcasonable professional assistance, and (2) the defendant was prejudiced by the deficient perfom~ance. Stricklrnd Washir~gto~r, 668, 687. 694 (1984). A defendant is requircd to prove both prongs of the S~ricklnnd test and a hilure to prove one will result in a rcjection of the claim. Id. at 697.
A counsel's performance is deficient if, given all the circunlstances, his performance falls outside of accepted profcssional conduct. S~ricklcr~itl, 466 U.S. at 690. "Judicial scrutiny of counsel's performance must be highly deferential," and "counscl cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken 'might be considercd sound trial strategy." C/~a~lcIler Uilited Stcctes. 21 8 F.3d 1305. 1313-13 (1 1th Cir. 2000)(quoting St~.i~lil~ild, 466 U.S. at 689 and DLIIYICII V . If/i/ili\tvig/~t, 477 U.S. 168, 186 (1986)). Where a record is incomplete or unclear, counsel's actions are presumed to be an exercise of reasonable profcssional judgment. Cl~crlltller. 2 1 8 F.3d at 13 14- 135 11. 15.
Zatisaval fails to provc that his counsel's pcrfoimance was dcficienl. Zatisaval's counsel is permitted to advance his case based upon reasonable legal strategy, which includes the introduction or non-introduction of evidence for strategic or tactical reasons. Again, Zatisaval admits that both his counsel and he received and reviewed the videotapes before trial. Zatisaval also knew that the videotapcs were not going to bc introduced and failed to object to the decision not to introduce the videotapes at the time of trial. (Dkt. cr-164 at 12-13). The choice not to introduce the videotapes at trial was a stratcgic decision made by Zatisaval and his counsel. Such strategic decisions are not outside acccpted professional conduct. Counsel exercised reasonable professional judgment and followed sound trial strategy. Zatisaval has also failed to show prejudice by not having the videotapes introduced. The strength of eyewitness testimony *7 and other evidence presented at tsial was significant. Therefore, Zatisaval cannot be granted relief on a claini of ineffective assistance of counsel because the claim lacks merit.
11. ACTUAL INNOCENCE
In connection with the ineffective assistance of counsel argument, Zatisaval also claims that the videotapes, if presented at trial, would have shown that he was actually innocent. I11 order to warrant relief under theory of actual innocence. a petitioner lnust show that "'in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him."' Bolwley v. Uiiited Srtrtes, 523 614, 623 (1998)(quoting Schlup Delo, 513 U.S. 298,327-28 (1995)). In order for a claini of actual innocence to be credible, it must be based on reliable evidence not presented at trial. Fortenbe~.,y v. Haley, 297 F.3d 12 13, 1222 (1 1 th Cir. 2002); see also Cu1der.o~ Thonlpsoil, 523 U.S. 538, 559 (1998).
The videotapes, even if introduced at trial, would not have shown Zatisaval's actual innocence. The videotape does not contradict the extensive eyewitness testimony as the petitioner claims it does. The C-130 plane pilot testified that he saw the crew of the speedboat throwing white bales overboard. (Dkt. cr- 12 at 1-42). The fact that the videotapes do not show Zatisaval throwing the cocaine overboard does not alone prove that he is actually innocent. With the extensive eyewitness testimony and other evidence presented at trial, Zatisaval has failed to prove that "it is more likely than not that no reasonable juror would have convicted him." Bolrslq, 523 U.S. at 623. Zatisaval has failed 10 meet his burden of actual innocence and therefore he can bc afforded no relief for this claim.
Ill. BOOKEZUBLAKEL Y ISSUE
Zatisaval raises the Booker issue in order to preserve the issue for review by the Supreme Cour~ in case it is necessary to seek cel.tior.ar.i in the instant case. When a matter on direct appeal *8 is decided adversely to a defendant. then it cannot be re-litigated under 2255. Ui~iled Stares 1.. Nyhuis, 1 F.2d 1340, 1343 (1 I th Cir. 2000).
There is no need for any filrther review under Bookei-/Blalcely. Zatisaval appealed to the Suprenic Court and, in 2005, the Supre~iie Court remanded the case to the Eleventh Circuit instnicting the Eleventh Circuit to reconsider the casc in light of Utiited Strites v. Booliei., 543 U.S. 220 (2005). Rillas v. United States, 543 U.S. 1 1 05 (2005). On remand, thc Elevcnth Circuit affimied Zatisaval's conviction and sentcnce and stated that "any possible claim based on the Suprenle Court's recenl decisions in Bookei- has been abandoned" because he had not raised constitutional challenges to the sentence. Ut~ited States v. Hivns, 132 Fed.Appx. 81 8. The Eleventh Circuit has already decidcd that any Booker issuc that Zatisaval may raisc has been abandoned and therefore the issue cannot be re-litigated under 2255.
Even under an ineffective assistance of counsel theory, the Zatisaval does not have a Booker/Blakely claini. A counsel is not deemed deficient because lie does not raise an issue that lacks merit or lie does not anticipate changes in the law. Pitts Cook, 923 F.2d 1568, 1572-74 (I 1 th Cis. 199 1); Dmis Siilgletaty, 1 19 F.3d 147 1, 1476 (1 1111 Cir. 1997); Spriziotro v. Singletaty. 36 F.3d 1028 (1 lth Cir. 1994). Zatisaval's counsel raised all issues relevant at the time and could not have anticipated the Supreme Court's decision in Bookel-. Zatisaval was sentenced in October of 2002 and Booker was decidcd January 12,2005. Zatisaval's couiisel could not have forescen the Booker decision. Therefore, Zatisaval cannot make a Booker/Blrrlcely claini bascd on a11 ineffcclive assistance ol'counsel theory.
IV. OBSTRUCTION OF JUSTICE
Zntisaval also argues that the govenuiient obstructed justice by failing to introduce the videotapes at trial taken from the Navy helicopter which, he claims, show his innocc~~ce of the *9 Case 8:01-cr-00212-E_K-TGW Document 257 Filed 10/12/07 Page 9 of 11 PageID 533
drug-relatcd charges. (Dkt cv-2 at 1 I). Zatisaval claims that neither of the videotapes shows any evidence that bales of cocaine were on board the speedboat and that the first videotape contradicts various statements made that bales of cocaine were thrown overboard once the Ticonderoga became visible. (Dkt cv-2 at 11). He argues that the tapes would show that there is no way that the bales of cocaine could have come from his speedboat and that by not admitting them at trial, the government obstructed justice. (Dkt. cv-2 at 12- 15). Zatisaval requests an evidentiary healing based on the videotapes. (Dkt. a( 14-1 5).
When requesting an evidentiary hearing, a petitioner has the burden of establishing a need for the hearing. Birt v. Adorrtgo~~~erv, 725 F.2d 587, 591 ( 1 1 tli Cir. 1984); see also Rorrtley Si~rgletruy, 33 F.3d 1279, 1284 (1 lth Cir. 1994). A petitioner may be granted a federal evidentiary hearing if he can show cause for his failure to develop facts in court proceedings and that the failure to develop these facts resulted in actual prejudice. Keeney v. Trcnrayo-Reyes, 504 US. 1, 12 (1992). The Suprcme Court also stated that the narrow exception to the cause-and- prejudice rule is if the petitioner can show that the lack of proper development of the facts in the court proceedings resulted in a "fundamental miscarriage of justice". Id. at 12: see also Towue~rrl Sai~r, 372 (1 963) (holding that petitioner is entitled to an evidentiary hearing only if hc alleges facts which, if proved. would entitle Iiim to relief). If a 2255 motion lacks mesit becausc the allegations, even if proven true, would not afford a petitioner relief, the motion may be sun~niarily dismissed; however, if tlierc is potential merit to the allegatiolis supported by the record, then there must be more than a sunlmary dismissal. B~.oacl\ruter 1). Uititerl Stores, 292 F.3d 1302, 1303-1304 ( 1 th Cir. 2002). When the record establishes that a 2255 claim lacks merit, no cvidentiary hearing is required. See Utriterl States I?. Lagrone, 727 F.2d 1037. 1038 (I th Cis. 1984).
There is no need for an evidentiary hearing regarding the videotapes becausc Zatisaval's claim laclcs nicrit. Zatisaval admits that his counsel reccivcd and watched thc vidcos before trial. (Dkt. cv-1 at 5). As stated previously in this opinion, both Zatisaval's counscl and the government are allowed to malte strategic decisions with regard to what is and is not presented during trial. The testimony at trial was internally consistent and, despite Zatisaval's claim, the videotape does not contradict the testimony. Zatisaval's claim of ineffective assistance of counsel lacks merit because counsel was not deficient and because Zatisaval cannot show prejudice. There is no merit to the allegation of actual innocence and there is no fundaniental miscarriage ofjustice in this case. Since Zatisaval's 5 2255 motion lacks any potential merit. there is no need for an evidentiary hearing. Accordingly it is
OIWEREI) that Zatisaval's Motion to Vacate, Sct Aside, or Corrccl Sentence (Dkt. cv- 1; cr-249) is denicd with prejudice. Thc Clerk is directed to enter judgment against Zatisaval in the civil case and to close that case.
CER'I'IFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORAlA PAUPERIS DENIED IT IS FURTHER ORDERED that Defendant is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of petition. 28 U.S.C. L$ 2253(c)(1). Rather, district court niust first issue a certificate of appealability (COA). Id. "A COA may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at $2253(c)(2). To make such a showing, Defendant "must demonstrate that reasonable jurists could find tlie district court's assessn~ent of tlie constitutional claims debatable or wrong." Te~~~rcit.cl 11. Ilreike, 274, 282 (2004)(quoting Sluck V . hdcDmie1, U . S . 473, (2000)) or that "the issues presented wcre 'adcquatc to dcscrvc encouragement to proceed fi~rther,"' Millw-El 1). Cockrell, U.S. *11 322,335-36 (2003)(quoting Barefoot I? Estelle, 463 U.S 880, 893 n. (1 983)). Defendant has not made the requisite showing in these circiuinstanccs.
Finally, because Defendant is not entitled to a certificate of appealability, he is not entitled to appeal in fornia pauperis. d
ORDERED in chambers at Tampa. Florida on l h i 4 / 2 d n y of October, 2007.