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JosEe Luis Casiano-JimEe Nez v. United States

United States Court of Appeals, First Circuit

March 29, 2016

JOSÉ LUIS CASIANO-JIMÉ NEZ, Petitioner, Appellant,
UNITED STATES OF AMERICA, Respondent, Appellee

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         David Ramos-Pagá n for petitioner.

         Tiffany 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, for respondent.

         Before Howard, Chief Judge, Torruella and Selya, Circuit Judges.


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          SELYA, Circuit Judge.

          A 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.

         I. BACKGROUND

         We 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).

         In 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.

         The 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.[1] 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.

         On 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

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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.

         The 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.[2] 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) (unpublished order).

         The 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.

         The 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.

         In a 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,[3] and we took the matter under advisement.

         II. ...

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