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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
CIRINO GONZALEZ, )
)
Defendant. )) 1:12-cv-375-GZS
v. )
)
UNITED STATES OF AMERICA )
)
UNITED STATES RESPONSE TO DEFENDANTS MOTION UNDER 28 U.S.C.
2255
Cirino Gonzalez was convicted of several counts related to
providing assistance to
Edward and Elaine Brown during their efforts to evade capture by
federal law enforcement after
their convictions for tax evasion. Gonzalez was sentenced to 96
months of incarceration.
Gonzalez filed an appeal which the First Circuit rejected on
July 30, 2010. The United
States Supreme Court denied certiorari on October 3, 2011.
Gonzalez filed a motion under 28
U.S.C. 2255, exactly one year later. While the motion is timely,
it entirely fails on the merits.
Gonzalez has presented a laundry list of undeveloped claims
including that (1) his trial
lawyer was ineffective; (2) his appellate lawyer was
ineffective; (3) the district court was biased
against him in making certain rulings and was complicit in
prosecutorial misconduct; and (4) the
Bureau of Prisons has treated him unfairly pertaining to his
ability to receive mail and make
telephone calls. Gonzalez has the burden of showing that any of
these claims justifies the
granting of relief. David v. United States, 134 F.3d 470, 474
(1st Cir. 1998).
All of these claims can be dismissed without an evidentiary
hearing. A district court
may dismiss a section 2255 petition without holding an
evidentiary hearing if it plainly appears
on the face of the pleadings that the petitioner is not entitled
to the requested relief or if the
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allegations consist of no more than conclusory prognostication
and perfevid rhetoric, Moreno-
Espada v. United States, 666 F.3d 60, 66 (1st Cir. 2012), or if
the key factual averments are
either improbable or contradicted by established facts of
record, United States v. LaBonte,
70 F.3d 1396, 1413 (1st Cir. 1995).
The ineffective assistance of counsel claims should be dismissed
without a hearing
because Gonzalez has not met his burden of demonstrating a
plausible claim. The Sixth
Amendment guarantees a defendant the right to the reasonably
effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant
is entitled to relief under
Strickland where (1) counsels performance fell below the minimum
standards of representation
and (2) that there is a reasonable probability that the
deficiency altered the outcome of the case.
Robidoux v. OBrien, 643 F.3d 334, 338 (1st Cir. 2001). The
defendant bears the heavy
burden of demonstrating both ineffective representation and
resulting prejudice. Bucuvalas v.
United States, 98 F.3d 652, 658 (1st Cir. 1996).
Even assuming that Gonzalez could meet the initial hurdle of
demonstrating that his trial
counsel or appellate counsel made constitutionally cognizable
errors (which is impossible to
discern given the confusing manner in which the allegations of
incompetence are presented),
Gonzalez has not even made an effort to show how any of the
alleged errors would have resulted
in a different outcome in his case. That is, Gonzalez has not
developed any of his ineffective
assistance of counsel claims sufficiently to show how a
different choice by either his trial or
appellate lawyer would have created a reasonable probability of
an acquittal or a retrial. Absent
some developed (and persuasive) argument on this prong of the
Strickland standard, this Court
should dismiss these claims without a hearing because, even if
Gonzalez could demonstrate the
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Respectfully submitted,
Dated: December 20, 2012 JOHN P. KACAVAS
United States Attorney
By: /s/ Seth R. Aframe
Seth R. Aframe
Assistant U.S. Attorney
Mass. Bar No. 643288
53 Pleasant Street, 5th Floor
Concord, NH 03301-3904
(603) 225-1552
[email protected]
CERTIFICATE OF SERVICE
I hereby certify that on this date, a copy of this Objection was
served upon Cirino
Gonzalez via first class, postage prepaid mail, at Phoenix -
FCI, Inmate Mail/Parcels, 37910 N.
45th Avenue, Phoenix, AZ 85086.
/s/ Seth R. AframeSeth R. Aframe, AUSA
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mailto:[email protected]:[email protected]
