Ahern v. United States 04-CV-474-SM 04/29/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Crrmrnal No. 00-cr-148-l-SM Opinion No.

Sean Ahern

Sean Ahern, Petitioner

v. Civil No. 04-CV-474-SM

United States of America, Respondent

O R D E R

Sean Ahern was convicted of armed bank robbery. Before the

court are his: (1) motion for a new trial based upon newly

discovered evidence, pursuant to Fed. R. C r i m . P. 33(b)(1); and

(2) petition to vacate convictions and sentence pursuant to

. The government objects to both the motion and the

petition. For the reasons given, Ahern's motion is denied and

his petition is dismissed. Motion for a New Trial (Rule 33)

Under F e d . R. C r i m . P. 33(a), "the court may vacate any

judgment and grant a new trial if the interest of justice so

reguires." In this circuit.

"[a] motion for new trial on the basis of newly discovered evidence will ordinarily not be granted unless the moving party can demonstrate that: (1) the evidence was unknown or unavailable to the defendant at the time of trial; (2) failure to learn of the evidence was not due to lack of diligence by the defendant; (3) the evidence is material, and not merely cumulative or impeaching; and (4) it will probably result in an acguittal upon retrial of the defendant." United States v. Wright,

(1st Cir. 1980). "The defendant must meet all four prongs of the Wright test in order to succeed on a Rule 33 motion. A defendant's new trial motion must be denied if he fails to meet any one of these factors." United States v. Colon-Munoz,

(1st Cir. 2003) (internal guotation marks omitted).

United States v. Rodriguez-Marrero,

(1st Cir.

2004). "The remedy of a new trial is rarely used; it is

warranted 'only where there would be a miscarriage of justice' or

'where the evidence preponderates heavily against the verdict.'"

United States v. Andrade,

(1st Cir. 1996) (guoting

United States v. Indelicato,

) (1st Cir. 1979)).

2 Here, defendant's purported new evidence consists of: (1) an

unsworn, unsigned statement reporting a March 11, 2004,

conversation with Christopher Doucette, a New Hampshire State

Prison ("NHSP") inmate who allegedly overheard fellow inmate

Kevin Gil talking about a bank robbery that he (Gil) had

committed in Portsmouth;1 (2) Gil's unsworn statement about a

bank robbery he claims to have committed in New Hampshire in

"June just after [his] release from Mass. prison;" and (3) an

unsworn, unsigned statement reporting a March 26, 2004,

conversation with Gil, in which Gil admitted to robbing a bank in

Portsmouth, New Hampshire in June.2 Defendant also submits: (1)

an April 4, 2004, note from Gil to defendant's former attorney,

Robert Dimler, in which Gil expressed his concern that he might

need an attorney in the event he was charged in the bank robbery

to which he had confessed; (2) several pages of the transcript of

defendant's trial; (3) a March 31, 2004, letter from Gil to

attorney Dimler, reporting that a potential witness he (Gil) had

1 This statement is presumably that of a private investigator named William Desmond who was hired by defendant or on his behalf.

2 This statement is also presumably that of private investigator Desmond. Neither Gil's statement nor the report of the conversation with Gil gives the year in which Gil claims to have robbed a bank in New Hampshire.

3 tried to contact had died; and (4) a sheet of data, represented

to be FBI bank robbery statistics.

The government objects to defendant's motion, arguing that

defendant's evidence does not meet the first, second, and fourth

prongs of the Wright test.3 Defendant objects to the

government's late filing of its objection to his motion, and

further argues that his motion meets all four prongs of the

Wright test.

Defendant's motion is denied because his purported

exculpatory evidence fails to meet the fourth prong of Wright;

the new "evidence" he has proffered would not "probably result in

an acguittal upon retrial." Wright,

; see also

3 In further support of its objection to defendant's motion, the government submits two additional pieces of evidence: (1) a letter seized from an NHSP inmate discussing a plan to fabricate evidence implicating another person in the commission of the crime for which defendant was convicted (the letter was sealed in an envelope bearing defendant's parents' address as its return address and was addressed to Jim Davis, who was identified through trial testimony as an acguaintance of defendant's); and (2) a letter from another NHSP inmate implicating defendant in a plot to fabricate and plant evidence implicating Kevin Gil in the commission of the crime for which defendant was convicted. The government's proffer, however, plays no part in the court's ruling on defendant's motion.

4 United States v. Gonzalez-Gonzalez,

(1st Cir.

2001) (explaining that fourth prong of Wright reguires "an

'actual probability that an acguittal would have resulted if the

evidence had been available'") (guoting United States v.

Sepulveda,

(1st Cir. 1993)).

As a preliminary matter, all of defendant's new evidence is

unsworn (and exhibits one and three are also unsigned), which

detracts considerably from its reliability. Typically, a

defendant seeking a new trial in circumstances such as these

offers not just statements, but affidavits, see, e.g., Awon v.

United States,

(1st Cir. 2002); United

States v. Montilla-Rivera,

(1st Cir. 1999). The

lack of sworn affirmation has been held to diminish the

credibility of a statement exonerating a convicted defendant,

see, e.g.. United States v. Simmons,

(5th Cir.

1983) ("If the co-defendant in La Duca had little to lose, Bubba

has even less since his statement is not even sworn."). More

importantly, the evidence exhibits a variety of weaknesses which

render it unlikely to have resulted in a different verdict at

trial.

5 For example, it is claimed that Gil said he robbed a bank in

New Hampshire, but no further information is given regarding the

bank's location.4 By contrast, both of the private investigator

statements refer to a bank robbery Gil admits to having committed

in Portsmouth, New Hampshire.5 It is difficult to imagine a jury

being swayed by a self-proclaimed bank robber who cannot place

himself at the scene of his crime.

A more critical problem with defendant's new evidence

concerns the getaway vehicle. At trial, considerable evidence

was introduced showing that the person who robbed the Bank of New

4 The only specific location information in Gil's statement concerns his abandonment of the car he used during his alleged bank robbery. He claims to have abandoned it in a parking lot in Portsmouth. However, the car identified at the scene of the crime as the getaway vehicle in defendant's case was found, with defendant's finger prints on it, in a parking lot in Dover.

5 Defendant attempts to fill the gap in Gil's statement and reconcile the discrepancy between the investigator statements and the trial evidence by referring to FBI statistics showing that no Portsmouth banks were robbed in 2000 and arguing that since no Portsmouth bank was robbed, Gil's reported reference to a Portsmouth bank must be assumed to be a reference to the bank in Dover that defendant was convicted of robbing. Defendant's attempt at rehabilitation is implausible; his evidence is what it is, and in that evidence, Gil is reported by two others as saying the bank he robbed was in Portsmouth, and says himself that he robbed the New Hampshire bank defendant was convicted of robbing, but gives neither its name nor location - information a bank robber would reasonably be expected to know.

6 Hampshire branch on Central Avenue in Dover, New Hampshire, on

June 10, 2000, made his getaway in a car that had been stolen the

day before in Portsmouth, New Hampshire. Gil, however, claims

that he made his getaway in a car that he had stolen in

Lowell/Dracut, Massachusetts. Given the detailed trial testimony

about the getaway car used in the Dover robbery, including

evidence concerning its theft, its use in the robbery, its

abandonment near the scene of the crime, and the presence of

defendant's fingerprints on it, Gil's testimony about robbing a

bank in a different automobile (assuming he would so testify

under oath) would not likely result in a different trial outcome

for defendant.

Finally, there is the guestion of Gil's credibility. On the

one hand, defendant provides no information about Gil, and offers

no reason why a jury might credit his story. On the other hand,

Gil is a prison inmate, and while defendant does not disclose the

crime(s) for which Gil is being incarcerated, Gil himself admits

to being a murderer, which suggests that he is serving a

substantial prison term and, thus, has little or nothing to lose

in the way of additional punishment by "admitting" to another

7 crime. In Awon,

(1st Cir. 2002), the court of

appeals for this circuit affirmed the denial of a motion for a

new trial where the denial was based, in part, on the district

court's determination that an affiant confessing to the

defendant's crime of conviction was not credible,

.

According to the court:

By the time of his affidavit St. Louis had nothing to lose by exonerating Awon. He had already been convicted and sentenced. He was in a position to say whatever he thought might help Awon, "even to the point of pinning all the guilt on [himself], knowing [he was] safe" from any increased punishment for the transaction. United States v. Montilla-Rivera,

(1st Cir. 1999) (guoting United States v. Reyes-Alvarado,

(9th Cir. 1992)). We accept the court's finding that St. Louis's affidavit was not credible.

Awon,

. The new evidence in Awon and Montilla-

Rivera consisted of exculpatory affidavits filed by co­

conspirators. See Awon,

; Montilla-Rivera,

. Gil is not a co-conspirator in this case, but that

is a distinction without a difference. Gil's own statement

suggests he is serving a sentence for murder, and defendant doe

not say how Gil's statement might put him at any risk. That is

like the statements of witnesses whose "stories do not [create] the risk of implicating [them] in other criminal acts,"

Rodriguez-Marrero,

, the statement by Gil, while

implicating him in a criminal act, does not appear to create any

risk of substantially increasing the amount of time he will spend

in prison, given his current incarceration for murder.

Because defendant's purported new evidence consists merely

of unworn statements, and in light of the substantial,

objectively reliable evidence presented against defendant at

trial (i.e., fingerprints, identity of the getaway car used,

location of the bank robbed, bank surveillance photographs

depicting a tell-tale mark on the robber's (and on defendant's)

neck, etc.), much of which is flatly irreconcilable with

defendant's new evidence, and given the gaps and inconsistencies

in that new evidence, and given the inherent unreliability of

Gil's supposed exculpatory statement, defendant's new evidence

would not likely result in a different outcome at trial.

Accordingly, defendant's motion for a new trial based upon newly

discovered evidence is denied. Petition to Vacate Convictions (

)

provides that a federal prisoner may move

the court that sentenced him to "vacate, set aside or correct

[his] sentence" and that the court "shall vacate and set the

judgment aside and discharge the prisoner or resentence him or

grant a new trial or correct the sentence as may appear

appropriate" if

the judgment was rendered without jurisdiction, or . . . the sentence imposed was not authorized by law or otherwise open to collateral attack, or . . . there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . .

Here, petitioner raises seventeen separate challenges to his

conviction and sentence. Claim 1 asserts a violation of

petitioner's Sixth Amendment right to a public trial. Claims 2,

6, 7, 8, and 9 assert violations of his rights under the Sixth

Amendment's Confrontation Clause. Claims 3 and 4 assert that

newly discovered evidence warrants a new trial. Claim 5 asserts

10 a Sixth Amendment Blake1y/Booker/Fanfan6 violation. Claim 10

asserts that the court committed plain error in sentencing

defendant as a career offender. Claims 11 through 16 assert

ineffective assistance of trial counsel. Claim 17 asserts

ineffective assistance of appellate counsel.

1. Claims 1 & 12 - Courtroom Closure

Petitioner claims that he suffered a violation of his Sixth

Amendment right to a public trial because his mother was excluded

from the courtroom just prior to jury selection. He also claims

that his attorney's participation in the exclusion of his mother

constituted ineffective assistance of counsel. The government

responds that the exclusion was reguested by it, and was agreed

to by defense counsel, in accordance with F e d . R. E v i d . 615.

(Rule 615, by its terms, does not apply to the circumstances

described by petitioner.)

According to affidavits filed by petitioner, an Assistant

U.S. Attorney asked petitioner's trial counsel to direct

6 Blakely v. Washington,

, 124 S. C t . 2531 (2004); United States v. Booker, 543 U.S. ,

(2005) .

11 petitioner's mother to leave the courtroom prior to jury

selection. Trial counsel apparently relayed that request in the

form of a directive to petitioner's mother, without first

consulting him. Petitioner's mother complied by leaving the

courtroom during jury voir dire. The government does not

challenge the factual basis of petitioner's claim, other than to

state that it "has no specific recollection as to when

petitioner's mother was asked to leave the courtroom." (Gov.'s

Obj. (document no. 5) at 9.) It is undisputed that the presiding

judge, the undersigned, was not asked to rule on a motion to

exclude petitioner's mother, or any other potential witness, from

the courtroom, and neither the court nor anyone acting on behalf

of the court, directed that petitioner's mother be excluded from

the courtroom.

In Waller v. Georgia,

(1984), the Supreme Court

pointed out that the Sixth Amendment right to a public trial

"extend[s] ... to the voir dire proceeding in which the jury is

selected."

at 45 (citing Press-Enterprise Co. v. Superior

Court,

(1984)). The Waller court also set out a

12 four-part test7 for trial courts to use in determining whether to

grant a party's reguest for a courtroom closure.

at 48

(citing Press-Enterprise,

).

While Waller dealt with a total closure (of a suppression

hearing), five circuits have ruled that the Waller analysis, in

slightly modified form,8 is also applicable to partial courtroom

closures, including the exclusion of specific individuals. See

United States v. Osborne,

(5th Cir. 1995) (applying

modified Waller test when trial judge ordered defendant's sister

to leave courtroom, and barred new spectators from entering,

during testimony of one witness); United States v. Farmer,

(8th Cir. 1994) (applying modified Waller test when

7 Under the Waller test,

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adeguate to support the closure.

.

8 To evaluate the constitutionality of a partial closure, the first prong of the modified Waller test reguires the judge to articulate a "substantial reason" rather than an "overriding interest" before closing the courtroom. Woods v. Kuhlmann, 977 F .2d 74, 76 (2d Cir. 1992).

13 trial judge ordered all spectators, except rape victim's family,

to leave courtroom during victim's testimony); Woods,

(applying modified Waller test when trial judge excluded all

members of defendant's family during testimony of one witness);

United States v. Galloway,

(10th Cir. 1991)

(applying modified Waller test when trial judge closed courtroom

"to all but the defendant, the relatives of the complaining

witness and the defendant, courtroom personnel, attorneys for the

parties, and the press" during testimony of complaining witness

in kidnapping trial) (citing Nieto v. Sullivan,

(10th Cir. 1989)); United States v. Sherlock,

(9th

Cir. 1992) (applying modified Waller test when trial judge

excluded members of defendants' families during testimony of rape

victim); Douglas v. Wainwright,

(11th Cir. 1984)

(applying modified Waller test when trial judge excluded general

public (but did not exclude press or families of defendant,

victim, and witness) during testimony of one witness). And in

United States v. DeLuca,

(1st Cir. 1998), the court

of appeals for this circuit appears to have held - although it is

a bit difficult to say for certain - that a screening and

identification procedure for trial spectators constituted a

14 partial closure subject to modified Waller analysis.

at 33-

35.

However, not every erroneous partial courtroom closure

warrants relief, or even rises to the level of a constitutional

violation. In Arizona v. Fulminante,

(1991), the

Supreme Court categorized denial of the right to a public trial

as a "structural defect affecting the framework within which the

trial proceeds, rather than simply an error in the trial process

itself,"

, which would seem to suggest that any error

leading to any deprivation of a public trial would be grounds for

a new trial without a showing of actual prejudice. But

"Fulminante's list of examples of violations that have been held

exempt from harmless error review [does not] mean that any

violation of the same constitutional right is a 'structural

defect' regardless whether the error is significant or trivial."

Brown v. Kuhlmann,

(2d Cir. 1998) (guoting

Yarborough v. Keane,

(2d Cir. 1996); citing

United States v. Canady,

(2d Cir. 1997)). To

the contrary, "in order to determine whether a particular error

is structural '[the court] must look not only to the right

15 violated, but also at the particular nature, context, and

significance of the violation.'" Brown,

(quoting

Yarborough,

; citing United States v. Gonzalez,

110 F .3d 936, 946 (2d Cir. 1997)).

In Brown, the court of appeals reversed the district court's

grant of a writ of habeas corpus based upon a state trial judge's

clearing and sealing the courtroom prior to the testimony of an

undercover police officer.

("Even if the

courtroom should not have been closed during the testimony of

Officer Roe, it is unnecessary to set aside the conviction

here."). In doing so, the court of appeals determined that under

the circumstances, the closure of the courtroom was not a

structural defect.

("this case involves a courtroom

closure that was not substantial enough to undermine the values

furthered by the public trial guarantee"). In Yarborough, the

court of appeals affirmed the district court's denial of a

petition for writ of habeas corpus arising out of the defendant's

absence from a hearing, held in the state trial judge's robing

room, to determine whether a prospective witness had been

improperly influenced by testimony he heard while in the

16 courtroom without the prosecutor's knowledge.

.

Because "[t]he absence of the defendant from a hearing under

[those] circumstances [did] not call into guestion the

fundamental fairness of the trial,"

, the court held

that it was not a structural defect, and, conseguently, applied a

harmless error test.

In Braun v. Powell,

(7th

Cir. 2000), a state trial judge erroneously excluded, from the

entire trial, "a member of the jury venire panel [who] had been

excused because he had said that he was friendly to the defense."

. However, the court of appeals held that the

exclusion was not a Sixth Amendment violation because:

There is no reason to believe that Ms. Braun's trial was any less fair, or that the court officers or witnesses took their roles any less seriously, because of the exclusion of this one spectator. Indeed, the exclusion was implemented, albeit mistakenly from what appears in this record, by the trial court to avoid any prejudice to the defendant. Moreover, although the record gives no justification for such action on the part of the trial judge, it is difficult to see any basis for attributing any significant detriment to the integrity of the trial proceedings to it. Mane's presence or absence from the trial does not appear to have had any effect on encouraging witnesses to come forward or on discouraging perjury.

17

.9

The absence of petitioner's mother from the courtroom during

voir dire falls comfortably within the universe of courtroom

exclusions found by other courts to be sufficiently insignificant

to gualify for harmless error review, rather than warranting the

automatic retrial occasioned by an inherently prejudicial

structural defect. Brown involved a total clearing of the

courtroom rather than the absence of a single spectator;

Yarborough involved the exclusion of the defendant rather than a

spectator; and Braun involved the exclusion of a spectator from

the entire trial rather than just a part of it. As in those

cases, "[t]he brief courtroom closure here did not affect the

9 In its analysis, the Braun court spoke of "the many factual circumstances that a court must analyze in assessing whether the closure at issue in a particular case is one that implicates the constitutional guarantee of a public trial,"

, and then cited with approval Peterson v. Williams,

(2d Cir. 1996), for distilling the four basic reasons behind the right to a public trial:

1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perj ury.

Braun,

(citation omitted).

18 fairness of the trial or alter its outcome. Nor can it be said

to have seriously undermined the most frequently cited

considerations underlying the Public Trial Clause of the Sixth

Amendment." Brown,

. Thus, the absence of

petitioner's mother from voir dire did not constitute a

structural defect in petitioner's trial.

As noted, the court was not notified of any issue related to

excluding petitioner's mother from voir dire. And petitioner has

identified no precedent, nor has the court found any, suggesting

that a criminal defendant's public trial right is violated by a

courtroom exclusion effected by means other than a court order.

Petitioner's Claim 1 is without merit. Absent a court order of

closure to review, there is simply no way to conduct a meaningful

Waller analysis.

Claim 12, petitioner's assertion that he suffered from

ineffective assistance of trial counsel because his attorney

failed to object to - and in fact acquiesced in - the

government's request to exclude petitioner's mother from the

19 courtroom, is equally unavailing.10 Because the absence of

10 A similar argument was raised, and rejected, in Girtman v. Lockhart,

(8th Cir. 1991). In that case, "Girtman argue[d] that his defense attorney was ineffective, because he (1) agreed to examine prospective jurors in the trial judge's chambers without consulting Girtman . . ."

. "Girtman argue[d] that his defense attorney's failure to protect his right to a public trial, or to consult him before waiving this right, constituted ineffective assistance of counsel."

The court of appeals disagreed:

Undoubtedly, Girtman's attorney should have consulted Girtman before waiving his right to a public trial. However, we fail to see how Girtman's defense was impaired by the closed voir dire. We therefore find that the defense attorney's closure of voir dire was not prejudicial to Girtman's defense, and that the attorney's error did not constitute ineffective assistance of counsel. See Strickland v. Washington,

(1984) (counsel ineffective only if his or her errors "prejudicial to the defense").

(parallel citations omitted). Girtman, however, is not on all fours with this case, because in Girtman, there was evidence in the record that the defense attorney's closure of the voir dire was a calculated trial strategy.

("The defense attorney later explained that 'he always attempts to close the voir dire because he does not want the entire panel to be tainted by what is said [by one prospective juror], particularly in "out of county" cases such as this one, where he does not know any of the people.'"). Here, however, there is no suggestion that petitioner's counsel agreed to the exclusion of petitioner's mother from voir dire as part of a carefully considered trial strategy; rather, all indications point toward inadvertence or misunderstanding on the part of the government and/or petitioner's counsel. This seems especially likely, given the government's uncertainty as to precisely when petitioner's mother left the courtroom, and its reliance upon F e d . R. E v i d . 615, which does not, literally, support the exclusion of a potential witness from voir dire.

20 petitioner's mother from the courtroom did not constitute a

structural defect, his counsel's contribution to her absence was

not ineffective assistance per se, but, rather, must be

considered under the standard two-part test established by

Strickland, under which "[a] claim of ineffective assistance

requires a showing that the attorney turned in a constitutionally

deficient performance that prejudiced the defendant's substantial

rights." United States v. Moran,

(1st Cir. 2004)

(citing Strickland,

). Prejudice, in turn,

consists of a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Allison v. Ficco,

(1st Cir.

2004) (quoting Strickland,

). Here, petitioner

does not argue - nor could he - that the result of his trial

would have been different had his mother been present for voir

dire. Thus, Claim 12 also fails.

2. Claims 2 & 8 - Confrontation

Petitioner asserts that his Sixth Amendment confrontation

right was violated by: (1) the government's reference, during its

opening statement, to the proposed testimony of Jason Markievitz,

21 who ultimately did not testify (Claim 2); and (2) James Steele's

testimony regarding what he and his roommate (who did not

testify) saw from their apartment window prior to the robbery

(Claim 8). In petitioner's view, his confrontation clause rights

were violated because he had no opportunity to cross-examine

either Markievitz or Steele. He also asserts ineffective

assistance of counsel (Claim 14), based upon his trial counsel's

failure to object to the government's reference to Markievitz,

and Steele's reference to his roommate. The government argues

that both Claims 2 and 8 are procedurally defaulted by virtue of

petitioner's failure to raise them on direct review.

"Where a defendant has procedurally defaulted a claim by

failing to raise it on direct review, the claim may be raised in

habeas only if the defendant can first demonstrate either 'cause'

and actual 'prejudice,' or that he is 'actually innocent.'"

Bousley v. United States,

(1998) (citing Murray

v. Carrier,

(1986); Wainwright v. Sykes,

(1977); Smith v. Murray,

(1986)). Because defendant relies upon the "actual innocence"

prong of Bousley, but has failed to establish his actual

22 innocence, his procedural default is not excused, and Claims 2

and 8 must be dismissed.

Moreover, as the government correctly points out, even if

Claims 2 and 8 were not procedurally defaulted, they would fail

on the merits. Regarding Claim 2, "[t]he confrontation clause

does not come into play where a potential witness neither

testifies nor provides evidence at trial." United States v.

Porter,

(1st Cir. 1985) (citing United States v.

Coven,

(2d Cir. 1981); Houser v. United States,

(8th Cir. 1974); Turnbough v. Wyrick,

(E.D. Mo. 1976), aff'd

(8th Cir. 1977)).

Because Markievitz did not testify at petitioner's trial, no

right of confrontation ever arose as to him. Regarding Claim 8,

neither the confrontation clause nor the case of Crawford v.

Washington,

, 124 S. C t . 1354 (2004), is implicated

because Steele testified to what his roommate saw (not what he

said) thus raising no issue of testimonial evidence or hearsay

from the roommate.

23 Finally, because Claims 2 and 8 are both meritless,

petitioner's trial counsel did not provide ineffective assistance

by failing to raise objections based upon those claims at trial

(Claim 14), and petitioner's appellate counsel did not provide

ineffective assistance by failing to raise similar claims on

appeal (Claim 17).

3. Claims 3 & 4 - New Evidence

Petitioner claims that he is entitled to habeas relief based

upon two different pieces of newly discovered evidence: the

confession of Kevin Gil (Claim 4), and several newspaper

photographs that allegedly call into guestion the reliability of

the surveillance photographs introduced at trial (Claim 3). For

the reasons given in the denial of petitioner's Rule 33 motion

for a new trial, the alleged confession of Gil does not entitle

petitioner to habeas relief.

Petitioner's photographic "new evidence" consists of two

still photographs, taken from bank surveillance tapes and

published in local newspapers shortly after the bank robbery.

Petitioner contends that the newspaper photographs do not show a

24 black mark on the robber's neck, which calls into question the

accuracy and/or authenticity of the government's trial exhibits

nine through twelve, photographs from the bank surveillance tape,

which showed a robber who did have a black mark on his neck. In

petitioner's view, the fact that photographs published before he

became a suspect showed a robber with no black mark on his neck

makes it likely that the jury, had it been presented with those

photographs, would have found him not guilty. The government

argues that petitioner's "new" evidence was published in local

newspapers in June 2000, eighteen months before his trial, and

that petitioner has given no good reason why a claim based upon

those photographs was not raised on direct review.

While the court of appeals for this circuit has "not

decide[d] whether newly discovered evidence is a cognizable

ground for obtaining a new trial in proceedings under § 2255,"

Moreno-Morales v. United States,

(1st Cir.

2003) (citing Barrett v. United States,

(1st

Cir. 1992); Cruz-Sanchez v. Rivera-Cordero,

(1st Cir. 1987)), it has "stated that 'at a minimum, petitioner

would be required to meet the conventional criteria for obtaining

25 a new trial on the ground of newly discovered evidence.'" Moreno-

Morales,

(quoting Barrett,

).

According to the Moreno-Morales court's articulation of the

Wright test, petitioner is required to prove four elements: "(1)

the newly discovered evidence was unknown or unavailable at the

time of trial; (2) the defendant was duly diligent in trying to

discover it; (3) the evidence was material; and (4) the evidence

was such that it would probably result in an acquittal upon

retrial."

(quoting Awon,

).

Here, petitioner's "newly discovered" evidence was plainly

available at the time of trial, having been published eighteen

months beforehand. While the newspaper photographs may not have

been known to defendant, it is difficult to characterize

something published in a newspaper as "unknown." Moreover, only

modest diligence would have been necessary to uncover that

evidence prior to trial. But more fundamentally, the weight of

the evidence in this case is such that even had petitioner

discovered the newspaper photographs and introduced them at

trial, it is highly unlikely that their introduction would have

led to a different result. Perhaps petitioner's claim would be

26 stronger if his "new evidence" consisted of photographs from

which trial evidence had been derived, rather than consisting of

photographs that were themselves derived from the same source as

the trial evidence, i.e., the bank surveillance tape. But even

if petitioner were able to create some doubt regarding the

reliability of the photographs introduced at trial, it is not

likely that introduction of the newspaper photographs (which,

after all, were simply stills taken from the bank video tape)

would have resulted in acguittal, given the persuasive evidence

against petitioner and the fact that the newspaper photographs

were at least one generation further removed from the

surveillance tape that produced them than were the stills

introduced by the government at trial. Because petitioner's

newly discovered photographic evidence fails to satisfy three of

the four prongs of Wright, Claim 3 is dismissed.

4. Claim 5 - Blakey/Booker/Fanfan

Petitioner claims that sentencing enhancements for being a

career offender, for robbing a financial institution, and for

stealing more than $10,000, as well as the court's restitution

order and its recommendation of intensive drug treatment are all

27 invalid because they are the result of judicial factfinding, in

violation of the Supreme Court's recent holding in United States

v. Booker,

, 125 S. C t . 738 (2005). Petitioner's

conviction became final on December 15, 2003, when the United

States Supreme Court denied certiorari. Ahern v. United States,

(2003). The Booker decision can only apply to

petitioner's case if its holding is retroactive. It is not. See

Cirilo-Mutoz v. United States, No. 02-1846 (1st Cir. Ap r . 15,

2005). The new rule announced in Booker is procedural rather

than substantive in nature. Moreover, the rule does not gualify

as a "watershed rule" that implicates "the fundamental fairness

and accuracy of the criminal proceeding." Saffle v. Parks,

(1990). And, as the court of appeals for this

circuit has held, "the use of judge-made findings at sentencing

does not undermine 'accuracy' (in terms of substantially

different outcomes) or undermine fundamental fairness." Cirilo-

Mutoz slip op. at ___ . Accordingly, Booker does not apply

retroactively to final convictions such as petitioner's. See

McReynolds v. United States,

(7th Cir.

2005); Schriro v. Summerlin,

, 124 S. C t . 2519, 2523-

26 (2004); Sepulveda v. United States,

, (1st Cir.

28 2003). Accordingly, Claim 5 is dismissed as is that portion of

Claim 17 (ineffective assistance of appellate counsel) pertaining

to the issue raised in Claim 5.

5. Claims 6, 7 & 9 - Confrontation

Petitioner claims that his Sixth Amendment right to confront

witnesses against him was violated by: (1) being compelled to

show his hands and teeth to the jury after the government had

called its last witness (Claim 6); (2) introduction of a tape

recording of a telephone conversation which also purportedly

contained, in the background, the sounds of money being counted

(Claim 7); and (3) the government's explanation, during closing

argument, of a discrepancy between the testimony of two witnesses

regarding the direction in which the eventual getaway car was

driven immediately after it was initially stolen (Claim 9). All

three arguments were raised, and rejected, on direct appeal. See

United States v. Ahern,

(1st Cir. 2003) .

Because all three claims were decided against petitioner on

direct appeal, they may not be relitigated in this habeas

petition. See Argencourt v. United States,

, 16 n.l

(1st Cir. 1996) (citing United States v. Michaud,

, 6

29 (1st Cir. 1990) (per curiam)). Accordingly, Claims 6, 7, and 9

are dismissed, as is Claim 14, which asserts ineffective

assistance of trial counsel based upon counsel's alleged failure

to protect petitioner's right to confrontation.

6. Claims 10 & 13 - Sentencing as a Career Offender

Petitioner claims that the court committed plain error by

considering two prior state convictions for assault to be crimes

of violence for purposes of classifying him as a career offender

(Claim 10), that his trial counsel provided ineffective

assistance by not challenging the court's reliance upon those two

convictions at sentencing (Claim 13), and that his appellate

counsel provided ineffective assistance by failing to raise the

substance of Claim 10 on appeal (Claim 17). More specifically,

petitioner contends that his prior convictions for second degree

assault should not have counted as violent felonies because he

was convicted of "reckless assault," which offense lacks the

necessary mens rea to gualify as a crime of violence. The

government counters that Claim 10 was procedurally defaulted by

petitioner's failure to raise it on appeal.

30 Because petitioner did not argue, on appeal, that his two

assault convictions were not crimes of violence, he is

procedurally defaulted from raising them here unless he can

"demonstrate either 'cause' and actual 'prejudice,' or that he is

'actually innocent,'" Bousley,

(citations

omitted). As noted above, petitioner has failed to demonstrate

his actual innocence. Moreover, he was not prejudiced by the

failure to raise this argument, because the argument is legally

incorrect; it is well established that a felony involving

recklessness can be a violent felony for purposes of the

sentencing guidelines. See, e.g.. United States v. Hernandez,

(7th Cir. 2002) (guoting United States v.

Rutherford,

(7th Cir. 1995) ("we have noted that

reckless conduct may properly be characterized as a crime of

violence if it presents 'a serious potential risk of physical

injury to another.'"); c f . United States v. Matthews,

(6th Cir. 2002) (rejecting defendant's claim that

"prior conviction . . . for reckless aggravated assault does not

count as a 'violent felony' such that he is eligible for

sentencing under the Armed Career Criminal Act"). Petitioner's

convictions for assault were correctly characterized as crimes of

31 violence. Thus, the issue was procedurally defaulted, and he was

not actually prejudiced by counsel's failure to raise the issue

at trial. Moreover, because the claim was meritless, neither his

trial counsel nor his appellate counsel provided ineffective

assistance by failing to raise it; counsel are not obligated to

raise issues with no merit. Accordingly, Claims 10 and 13, and

that portion of Claim 17 pertaining to this issue, are all

dismissed.

7. Claim 11 - Ineffective Assistance of Trial Counsel

Claim 11 does not appear to be a separate claim but, rather,

a general discussion of and introduction to petitioner's specific

claims of ineffective assistance of trial counsel. As such, it

reguires no further comment.

8. Claims 15 & 16 - Ineffective Assistance of Trial Counsel

Petitioner claims that his trial counsel provided

ineffective assistance by failing to: (1) object to the

government's fingerprint evidence (Claim 15); and (2) conduct a

proper investigation into the factual basis for Jennifer Wilson's

testimony, retain a DNA expert to testify at trial, and call

32 certain exculpatory witnesses (Claim 16). Petitioner argues, in

essence, that if his trial counsel had done the various things he

is accused of failing to do, additional reasonable doubt may have

been injected into the case. Because petitioner has failed to

demonstrate that, but for his trial counsel's alleged errors, the

result of his trial would have been different, see Allison,

(guoting Strickland,

), Claims 15 and

16 are necessarily dismissed.

9. Claim 17 - Ineffective Assistance of Appellate Counsel

Because the various grounds for petitioner's claim of

ineffective assistance of appellate counsel have already been

dismissed as meritless, appellate counsel did not provide

ineffective assistance by failing to raise them on appeal.

Conclusion

For the reasons given, Ahern's motion for a new trial based

upon newly discovered evidence (document no. 102 in No. 00-cr-

148-01-SM) is denied, as is his motion for appointment of counsel

(document no. 104). Because the court's decision does not rely

in any way on the arguments and materials contained in the

33 government's supplemental objection (document no. 107), Ahern's

motion for an extension of time to file a reply to that objection

(document no. 112) is denied, as is his motion for discovery

(document no. 109).

In addition, for the reasons given, Ahern's petition under

(No. 04-cv-474-SM) is dismissed. Accordingly,

the clerk of the court shall enter judgment in accordance with

this order and close that case.

SO ORDERED.

Steven J. McAuliffe Chief Judge

April 29, 2005

cc: Sean Ahern Donald A. Feith, Esg. U.S. Probation U.S. Marshal

34