Case 1:12-cv-00375-GZS Document 14 Filed 12/20/12 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE CIRINO GONZALEZ, Defendant. v. UNITED STATES OF AMERICA ) ) ) ) ) ) ) )

1:12-cv-375-GZS

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, MorenoEspada 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 2

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truth of any of this allegations, he would still not be entitled to relief. The claims of bias and other misconduct against the district court also fail. The defendant has simply generated a list of rulings with which he disagrees and then asserts that these rulings were the result of bias or evidence of complicity with the prosecutorial misconduct. Noticeably missing from Gonzalezs pleading is any explanation, based on fact, as to why he believes that this is so. A district court need not proceed further with a 2255 motion based on gauzy generalities or . . . self-serving hints that a constitutional violation lurks in the wings. David, 134 F.3d at 478. Since Gonzalezs claims about judicial bias and complicity in prosecutorial misconduct amount to nothing more than unsupported assertions, they should be summarily dismissed. Lastly, Gonzalez complains that the Bureau of Prisons has unfairly limited his access to mail and telephone privileges. These claims are not cognizable by a way of a Section 2255 motion. They relate to the conditions of Gonzalezs confinement and thus may only be pursued by way of a Bivens action against the officers involved in their individual capacities. Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999); see also Moore v. Hollingsworth, 2012 WL 3553936, at *1 (7th Cir. Aug. 20, 2012). Accordingly, these claims against the Bureau of Prisons fail as a matter of law and should be dismissed on this basis. For these reasons, Gonzalezs 2255 motion does not require an evidentiary hearing and should be denied because his claims are frivolous or are not cognizable under 28 U.S.C. 2255.

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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 seth.aframe@usdoj.gov

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. Aframe Seth R. Aframe, AUSA