FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO. Hon. José Antonio Fusté, U.S.
Ramos-Pagá n for petitioner.
V. Monrose, Assistant United States Attorney, with whom Rosa
Emilia Rodrí guez-Vé lez, United States
Attorney, and Nelson Pé rez-Sosa, Assistant United
States Attorney, Chief, Appellate Division, were on brief,
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
criminal defendant's right to testify in his own behalf
-- or, conversely, not to testify -- is a critically
important right. Given the salience of the right, a defendant
is entitled to be fully briefed so that he may make an
informed choice. In this case, the defendant did not receive
his due. Consequently, the district court erred in denying
the defendant's petition for post-conviction relief under
28 U.S.C. § 2255.
sketch the factual and procedural terrain in broad strokes.
The reader who thirsts for more exegetic details may slake
that thirst by consulting our opinion rejecting the
petitioner's direct appeal. See United States v.
Angulo-Hernandez, 565 F.3d 2, 4-7 (1st Cir. 2009).
2009, petitioner-appellant José Luis
Casiano-Jimé nez was convicted of conspiring to
smuggle narcotics by ship into the United States. At trial,
the petitioner's defense was based on lack of knowledge:
he maintained that he was unaware that any contraband was
clandestine aboard the ship. None of the seven defendants
(including the petitioner) took the stand to testify. Rather,
they presented a joint defense through a single expert who
examined the vessel and opined that -- based on the hidden
location of the contraband -- it was possible that none of
the crew members were aware that drugs were on board.
jury found the captain and the engineer, along with the
petitioner (whom the government characterized as the
ship's first officer) and one other crew member, guilty
of conspiring to possess controlled substances with intent to
distribute and aiding and abetting. See 18 U.S.C. §
2(a); 46 U.S.C. § § 70503(a)(1), 70506(b). The jury
acquitted three other crew members (all ordinary seamen). The
district court proceeded to sentence the convicted defendants
(including the petitioner) to lengthy prison terms.
direct review, the convicted defendants challenged the jury
verdicts on various grounds, including the alleged
insufficiency of the evidence. We affirmed, though one member
of the panel dissented on the basis that the evidence, though
sufficient to support the verdicts against the captain and
the engineer, did not suffice to show that the other two
convicted defendants (including the petitioner) were aware of
any drugs being on board. See Angulo-Hernandez, 565 F.3d at
13-18 (Torruella, J., concurring in part and dissenting in
part). The petitioner unsuccessfully sought both rehearing en
banc and a writ of certiorari, and his conviction and
sentence became final.
petitioner filed a timeous section 2255 petition for
post-conviction relief that raised, inter alia, a claim that
his trial counsel was ineffective for failing to advise him
of his right to testify in his own behalf. The district
court denied the petition and refused to grant a certificate
of appealability (COA). See 28 U.S.C. § 2253(c)(2). This
court granted a COA, however, limited to the plaint that the
petitioner was entitled to an evidentiary hearing on his
ineffective assistance of counsel claim. By unpublished
order, we then remanded the case to the district court for
such an evidentiary hearing. See Casiano-Jimé nez v.
United States, No. 11-2049 (1st Cir. Nov. 30, 2012)
district court held the evidentiary hearing in March of 2013.
The petitioner and his trial counsel, Frank Inserni, both
testified. They agreed that Inserni had never explained to
the petitioner either that he had a right to testify in his
own behalf or that the decision to do so belonged exclusively
to him. Inserni added that the lawyers for all the defendants
collectively decided that " it would be
detrimental" to have any of the defendants testify. They
chose instead to retain a single expert to present a "
lack of knowledge" defense on behalf of all the
defendants. The lawyers proceeded to communicate this
strategy to the defendants at a group meeting.
petitioner's testimony fit seamlessly with Inserni's
testimony. The petitioner acknowledged that he had spoken to
Inserni about testifying, but confirmed that Inserni had not
advised him of his right to testify. He likewise corroborated
Inserni's version of what was said at the group meeting.
three-page unpublished order, the district court again
rejected the section 2255 petition. It also declined -- as it
had before -- to issue a COA. The petitioner nevertheless
filed a notice of appeal. He then requested and received a
COA from this court. Briefing and oral argument
followed, and we took the matter under