United States District Court, D. New Hampshire
J. McAuliffe United States District Judge.
Beatrice Munyenyezi, seeks relief from her conviction and
sentence under the provisions of 28 U.S.C. § 2255.
Petitioner was convicted by a jury of unlawfully procuring
citizenship or naturalization (18 U.S.C. §§ (a) and
says her appointed defense counsel provided constitutionally
deficient representation; that prosecutorial misconduct
occurred in that the government failed to disclose
exculpatory evidence prior to trial and that she is entitled
to sentence relief under Johnson v. United States,
135 S.Ct. 2551 (2015). None of her claims have merit.
counsel, as noted by the court of Appeals on direct appeal,
provided a thorough, zealous and informed defense. See
United States v. Munyenyezi, 781 F.3d 532 (1st Cir.
2015). They poured over records; reviewed the history of
Rwanda's genocide; researched the aftermath and current
posture of the Rwandan government toward those who
perpetrated atrocities during the months of genocide;
traveled to Rwanda twice to identify and interview potential
defense witnesses and arranged their travel to testify in the
United States; retained an academic expert to support a
defense of Rwandan governmental manipulation of the
prosecution's witnesses; and presented witnesses and
vigorous argument in support of defenses ranging from
complete innocence to mistakes in translation with respect to
the pertinent documents.
says petitioner, counsel should have moved for a change of
venue. But venue was proper in this district, and such motion
would not have been granted. While petitioner thinks that
pretrial publicity counseled in favor of a change in venue,
the jury panel voir dire and individual juror voir dire at
side bar disclosed no basis to conclude that the empaneled
jury was influenced by any negative publicity. Certainly
petitioner has not shown that prejudice existed against her
that was so great that she could not obtain a fair trial.
United States v. Dougar, 748 F.2d 8, 29 (1st Cir.
1984). United States v. Gullion, 575, F.2d 26, 28
(1st Cir. 1978). What publicity occurred before and during
the trial was generally factual, non-hysterical, not
overblown, nor so pervasive and biased as to raise any
concerns regarding the ability to empanel a fair and
impartial jury, and the jury was fair and impartial. It was
well within defense counsel's discretion not to seek a
change in venue. It was hardly error not to do so. And,
failure to seek a venue change did not prejudice respondent
in any way.
petitioner claims that counsel did not adequately prepare for
trial. The record completely belies the claim. Counsel went
well beyond the call of duty in providing an exceptional
defense effort in this case. Petitioner points to nothing
left undone that would have made any material difference in
the outcome, and nothing that would remotely qualify as
deficient performance, or that might have been materially
prejudicial. There are no perfect trials of course; to obtain
relief on grounds of ineffective assistance petitioner must
do more than second guess counsel's performance, she must
show that their performance was so deficient that they were
not functioning as the counsel guaranteed by the Sixth
Amendment and that the deficient performance
prejudiced her defense. Strickland v. Washington,
466 U.S. 668 (1984) . Petitioner cannot begin to make such a
showing on this record.
asserts that counsel should have renewed objections
previously made to questions related to petitioner's
sister's relationship with the alleged head of the
Rwandan secret police. Again, petitioner can show no
prejudice - counsel did object, and the jury understood the
point (facts assumed in questions are not in evidence and the
question itself is not evidence of the assumed fact). The
jury was repeatedly instructed on the point and fully
understood it. Even if additional objections were called for,
there was no prejudicial effect given those instructions and
the jury's clear comprehension, as well as the fact that
the evidence of petitioner's guilt was overwhelming - the
outcome would hardly have been different had counsel
interposed an additional identical objection to the
petitioner criticizes counsels' handling of the
sentencing phase of trial. There can be no legitimate
complaint. Counsel argued vigorously and as effectively as
the record evidence and prevailing circumstances would
permit. Counsel challenged the proposed departure from the
facially applicable Guideline Sentencing Range, argued for
leniency in light of respondent's new life and family
responsibilities, reiterated defense themes related to
mitigation, including argument about the lack of certainty in
the verdict as to the nature of the misrepresentations
underlying the counts of conviction.
representation was not only not deficient, it was
commendable. See Munyenyezi, supra.
sentence was not unreasonable for the reasons fully discussed
on the record at sentencing. Id.
holding in Johnson v. United States, 135 S.Ct. 2551
(2015) does not apply to this case. Petitioner was not
sentenced under the Armed Career Criminal Act, and her crimes
of conviction do not qualify as violent felonies.
to Disclose ...