IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

WILSON A. GARCIA : NO. 04-662-2

MEMORANDUM

Bartle, C.J. March 10, 2009

Before the court is the motion of defendant Wilson A.

Garcia for relief under 28 U.S.C. § 2255. Defendant asserts

that he received ineffective assistance of counsel at trial.

On May 10, 2005, a jury found defendants Wilson Garcia

and his brother Fernando Garcia guilty of (1) knowingly and

intentionally distributing or aiding and abetting the

distribution of more than 500 grams of cocaine; and (2) knowingly

and intentionally distributing or aiding and abetting the

distribution of more than 500 grams of cocaine within 1,000 feet

of a public school. See 21 U.S.C. § 841(a)(1) and (b)(1)(B); 21

U.S.C. § 860(a); 18 U.S.C. § 2. On February 24, 2006, the court

sentenced defendant to ten years in prison and eight years of

supervised release. Our Court of Appeals affirmed the conviction

and sentence on August 10, 2007. United States v. Wilson Garcia,

238 Fed. App'x 821 (3d Cir. 2007). The instant petition,

initially submitted on July 28, 2008, is timely.

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 1 of 9
I.

On April 21, 2004, a confidential informant ("CI")

arranged for undercover Philadelphia Police Officer Robertito

Fontan ("Fontan") to purchase a kilogram of cocaine from "two

guys from Reading ... [who] might be coming down" to

Philadelphia. Around 5:00 p.m. the next day, the CI called

Fontan and told him to come to 4430 North 3rd Street,

Philadelphia to make the deal. The house was within 1,000 feet

of Cayuga Elementary School. 

At approximately 6:00 p.m. on April 21, 2004, Fontan

went to the address and was admitted into the house by

defendant's brother, Fernando A. Garcia ("Fernando"). Defendant

was present along with the informant, a male friend of the

informant, and a teenaged woman. In the living room, Fontan

discussed the drug transaction with Fernando in Spanish as

defendant stood two or three feet away and listened. At the end

of the conversation defendant said, "Let's get this over with." 

Fernando then told Fontan to wait inside the house while he left

the residence. Approximately five minutes later, defendant

looked out of the front window of the house, told Fontan to "go

outside to a red minivan," and held open the front door for

Fontan.

Fontan left the house and entered a red minivan parked

across the street, climbing into the second row of seats. 

Fernando was seated in the driver's seat. He informed Fontan

that the kilogram of cocaine was in the third row of seats, at

-2-

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 2 of 9
which point Fontan obtained the cocaine, inspected it, and

announced his satisfaction. Fontan then made partial payment in

the amount of $11,000 and told Fernando that he needed to leave

the minivan in order to retrieve the remainder of the purchase

money from his truck. While at his truck, Fontan called for

backup officers. At that time, he observed the defendant leave

4430 North 3rd Street and walk a half-block away.

Fontan returned to the minivan and handed the $12,000

to Fernando, who was in the process of placing the other $11,000

in the glove compartment. Fernando then noticed a backup officer

who had pulled up his vehicle near the minivan. Fernando swore,

exited the minivan with the $12,000 still in hand, and ran off

down the street. Defendant, who was still a half-block away, got

into the front passenger seat of a parked car, which was then

driven away by another individual. Both Fernando and defendant

were apprehended shortly thereafter. At the time of the arrest,

defendant had in his possession a Pennsylvania driver's license

listing a Reading address. Paperwork found in the minivan showed

that it was owned by defendant.

The court held a hearing on this motion on December 19,

2008 at which both defendant and his trial counsel, Noah Gorson,

testified. Defendant testified that shortly before trial, he met

with both Gorson and counsel for Fernando. The two attorneys

attempted to prepare defendant for trial by subjecting him to

mock cross-examination. Defendant recalled telling the attorneys

that he would testify to a version of events in which his brother

-3-

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 3 of 9
was entirely responsible for the drug transaction at issue, and

that he, defendant, was completely unaware of what was

transpiring. According to defendant, Fernando's counsel

responded by threatening to cross-examine him and "take [him]

down" if he took the stand. Defendant testified that at trial,

he was afraid to tell the court of his desire to testify because

of the statements made by his brother's counsel. Defendant also

stated that Gorson, his own counsel, had told him on two separate

occasions that he "was not going to testify." The first such

occasion allegedly occurred after the meeting described above and

the second, after the government rested at trial.

Gorson, an experienced and well-regarded criminal

defense attorney, told the court at the December 19, 2008 hearing

that he clearly remembered the trial and events leading up to it. 

He specifically recalled informing defendant that he had an

absolute right to testify and that the decision whether to

exercise that right was defendant's alone. He added that he had

warned the defendant that the consequences of a decision to

testify would likely include cross-examination by both the

federal prosecutor and by his brother's counsel. He also stated

that at the conclusion of the government's case he had advised

defendant against taking the stand because he thought "things

were going well" for defendant. Gorson acknowledged the

occurrence of the meeting with defendant and counsel for Fernando

but had no memory of defendant ever telling him that he was too

-4-

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 4 of 9
afraid to testify on the basis of statements made by his

brother's counsel. 

Defendant also testified at the December 19, 2008

hearing as to the second basis for his current motion, that is,

that Gorson did not adequately inform him of the mandatory

minimum sentence he faced at trial. Defendant stated that in the

months leading up to trial, he was aware of the five-year

mandatory minimum sentence carried by crimes charged in the

indictment. On the day before trial commenced, however, the

government filed notice with the court pursuant to 21 U.S.C.

§ 851(a)(1). As a result of this filing, the government was

permitted to seek increased punishment on the basis of

defendant's prior drug felony conviction. In this case, the

notice increased the applicable mandatory minimum sentence from

five years to ten years. Defendant testified that Gorson had not

told him before the filing of the notice that the government

could seek an increased mandatory minimum sentence on those

grounds. He testified that had he known of that possibility, he

would have accepted the government's earlier offer to recommend

to the court imprisonment of 63 months.

Gorson recalled on the stand that both defendants and

their attorneys had recognized and discussed long before trial

the possibility that the government would file a notice under

§ 851. He stated that defendant had refused the government's

plea offer of 63 months largely because he was reluctant to

provide the government with any information surrounding his

-5-

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 5 of 9
participation in the crime. He further testified that Fernando

had expressed a desire to plead guilty on the basis of the

possible ten-year sentence but that defendant had dissuaded him

from doing so.

II.

To establish a claim of ineffective assistance of

counsel under the Sixth Amendment to the United States

Constitution, a defendant must demonstrate that: (1) "counsel's

representation fell below an objective standard of

reasonableness," and (2) "there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland v. Washington,

466 U.S. 668, 687, 694 (1984). The United States Supreme Court

has refused to "articulate specific guidelines for appropriate

attorney conduct" and has instead emphasized that the proper

measure of attorney performance "remains simply reasonableness

under prevailing professional norms." Wiggins v. Smith, 539 U.S.

510, 521 (2003). In addition, the Supreme Court has cautioned

that courts must "indulge a 'strong presumption' that counsel's

conduct falls within the wide range of reasonable professional

assistance because it is all too easy to conclude that a

particular act or omission of counsel was unreasonable in the

harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702

(2002) (quoting Strickland, 466 U.S. at 689). 

Defendant first claims that his Sixth Amendment rights

were violated because his counsel denied him the right to testify

-6-

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 6 of 9
in his own defense. See Ortega v. O'Leary, 843 F.2d 258, 261

(7th Cir. 1988). He alleges that this occurred when his attorney

twice told him that he "was not going to testify," and second,

because he was intimidated into remaining silent at trial by a

threat that his brother's counsel would "take [him] down" if he

took the stand and attempted to place the blame on his brother.

We credit the testimony of defendant's trial counsel

over the unsubstantiated, self-serving testimony of defendant

himself. Gorson expressed great familiarity with the obligations

he owes to a client charged with a crime in federal district

court. More importantly, he demonstrated a vivid and internally

consistent recollection of the events at issue. He testified

squarely that he informed defendant that the right to testify was

defendant's alone. The fact that he advised defendant against

testifying after the government's case-in-chief does not bolster

defendant's claim in the slightest. We will deny relief to

defendant on this basis. Defendant's associated claim, that he

was cowed into silence at trial due to a threat of crossexamination made by his co-defendant's counsel, is not credible

and likewise fails to merit relief.

Defendant also asserts that his counsel did not tell

him that the government could seek a mandatory minimum sentence

of greater than five years on the basis of defendant's criminal

history. He asserts that in the absence of counsel's failure in

this regard he would have accepted the government's plea offer of

63 months in prison rather than face a mandatory minimum sentence

-7-

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 7 of 9
of ten years if convicted at trial. Defendant is correct that

these assertions, if correct, might serve as the basis for a

successful claim of ineffective assistance of counsel. See

United States v. Day, 969 F.2d 39, 43-45 (3d Cir. 1992).

Again, we are faced with a direct contradiction between

the testimony of defendant and his counsel. We find the

testimony of Gorson on this point to be credible and that of

defendant not credible. On the record before us, we have no

doubt that defense counsel timely informed his client of his

exposure to a ten-year mandatory minimum sentence.

We find defendant's remaining arguments meritless. 

Accordingly, we will deny the motion of Wilson Garcia for relief

under 28 U.S.C. § 2255. Because defendant has not made a

"substantial showing of the denial of a constitutional right," 28

U.S.C. § 2253(c)(2), we will not issue a certificate of

appealability.

-8-

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 8 of 9
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

WILSON A. GARCIA : NO. 04-662-2

ORDER

AND NOW, this 10th day of March, 2009, for the reasons

set forth in the accompanying Memorandum, it is hereby ORDERED

that:

(1) the motion of Wilson Garcia for relief under 28

U.S.C. § 2255 is DENIED; and

(2) a certificate of appealability is not issued.

BY THE COURT:

/s/ Harvey Bartle III 

C.J.

Case 2:04-cr-00662-HB Document 110 Filed 03/11/09 Page 9 of 9