Rodriguez v. USA

Filing 12

ORDER: The petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. Signed by Judge Alvin W. Thompson on 3/29/17. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

-------------------------------EMILIO RODRIGUEZ

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v.
UNITED STATES OF AMERICA
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Civil No. 3:13-cv-1584(AWT)

RULING ON MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Petitioner Emilio Rodriguez, proceeding pro se, has filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence.

For the reasons set forth below, his

motion is being denied without a hearing.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On September 4, 2008, the petitioner was charged with a
single count of conspiracy to possess with intent to distribute,
and to distribute, one kilogram or more of heroin, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846, and five counts
of possession with intent to distribute heroin, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
The petitioner operated a narcotics-trafficking
organization out of his West Hartford, Connecticut residence.
He obtained crack cocaine, cocaine, and heroin from suppliers in
New York and then distributed narcotics, often on credit, to a
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customer base of approximately 15 to 20 individuals who, in
turn, redistributed narcotics to others.
The Drug Enforcement Administration (“DEA”) learned about
the petitioner’s narcotics-trafficking organization in December
2007 from a Confidential Source (“CS-1”).

The DEA was able to

confirm that CS-1 had received narcotics from the petitioner and
a co-conspirator, Nancy Rivera (“Rivera”), who was also in a
relationship with the petitioner.

Some time after May 20, 2008,

it commenced a wiretap investigation of two cell phones utilized
by the petitioner and Rivera.

By the time the DEA commenced the

wiretap investigation, the petitioner had returned to the
Dominican Republic for personal reasons.
During his absence, the petitioner maintained control over
the narcotics-trafficking organization.

When the petitioner

left for the Dominican Republic in May 2008, he gave Rivera a
customer list, the amounts each of his customers owed him, and
the cell phone that his suppliers and customers would call.
A jury was selected on February 9, 2012.

Then, on February

21, 2012, petitioner pled guilty to Count One of the Indictment,
which charged him with conspiracy to possess with intent to
distribute, and to distribute, 1 kilogram or more of heroin.

In

the plea agreement, the government agreed to recommend that the
court reduce petitioner’s Adjusted Offense Level under §
3E1.1(a).

The plea agreement states that “[t]he defendant and
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the Government agree that the drug quantities which form the
basis of the offense to which he is pleading guilty and which
includes the defendant’s relevant and readily foreseeable
conduct, U.S.S.G. § 1B1.3, app. note 1, is 1 kilogram of heroin
and 2 kilograms of cocaine[.]”

Plea Agreement, at 3.

During

the guilty plea proceeding, the petitioner represented that he
had entered into the plea agreement freely and voluntarily,
without threats, force, intimidation or coercion of any kind.
He stated that he was completely satisfied with the
representation and advice received from his attorney.
The presentence report calculated the Base Offense Level
for the petitioner’s offense to be 32 under Guideline §
2D1.1(c)(4) based on the stipulation in the plea agreement that
the drug quantities that formed the basis for the petitioner’s
offense were 1 kilogram of heroin and 2 kilograms of cocaine.
There was a two-level enhancement under § 2D1.1(b) for
possession of a firearm in connection with the offense.

There

was an additional two-level enhancement pursuant to § 3B1.1(c)
based on the petitioner managing and supervising Nancy Rivera.
There was also a two-level reduction for acceptance of
responsibility under § 3E1.1(a), resulting in a Total Offense
Level of 34.
At sentencing, the petitioner objected to (i) the
enhancement pursuant to § 2D1.1(b) for possession of a firearm;
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(ii) the finding that he did not qualify for the safety valve
under Guideline § 5C1.2(a); and (iii) the increase for role
pursuant to § 3B1.1(c).

With respect to the enhancement under

§ 2D1.1(b), the court concluded that it was not necessary to
make a finding with respect to the firearm because the court’s
finding with respect to role in the offense was dispositive on
the question of whether the petitioner was eligible for the
safety valve.

The court found that the evidence established

that the enhancement for role pursuant to § 3B1.1(c) was proper,
and consequently, the petitioner was not eligible for the safety
valve.
The court’s finding that the government had proven that the
enhancement for role in the offense was proper was based on
Rivera’s testimony and wiretap evidence.

There were specific

instances in which the wiretap evidence corroborated Rivera’s
testimony that she operated at the direction of the petitioner
and was his helper.

The court’s finding was as follows:

If I were going to base a finding solely on her testimony, I
would have asked a few more questions. But her testimony is
corroborated by the calls that were played today and are in
the binder that was handed up. For instance, she has testified
that she operated at the command of Mr. Rodriguez and she was
his helper. When we look at Government's Exhibit 23, the
telephone call from July 12, 2008, there's an exchange between
her and Mr. Tisane where they're talking about proceeding and
she says, "All right, wait. Wait for Negrito to call you.
Negrito is going to call you now." And that corroborates her
testimony as to how things worked.

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Also, the call on July 12, 2008, which is Government's
Exhibit 24, it has the exchange between the defendant and Ms.
Rivera where he is saying "When it comes, it's there, you let
me know. There are -- for that you have to throw in four of
them," which corroborates her testimony that he is telling
her how to add a cutting agent.
Then we go to Government's
Exhibit 31, which follows and is paired with Government's
Exhibit 30. That's the three-way call where Mr. Rodriguez
comes on. That was on July 14, 2008. And he comes in and
confirms that Ms. Rodriguez is going to still owe you
something there. I don't know. Which I find also corroborates
her version of events.
Then the call that is really most telling here, which
occurred on August 21, 2008, is between Ms. Rivera and Mr.
Tisane. Ms. Rivera is saying she hasn't been able to get a
hold of that guy and Mr. Tisane is saying, "I told him. Well,
what's up with him?" And Ms. Rivera says, "Now I haven't been
able to get a hold of him, and until I do, there's nothing I
can do because he's the boss." I think that pretty
definitively establishes his role.
2/25/17 Sentencing Tr. 3:08-cr-186 (AWT) (Doc. No. 299) at page
57, line 18 to page 59, line 4.
The petitioner was sentenced to 120 months of imprisonment,
followed by a five-year term of supervised release, and ordered
to pay a $100 special assessment.

The petitioner appealed.

On

appeal, the petitioner contested the “district court’s finding
that he was a supervisor or manager of the drug enterprise, and
therefore was ineligible for safety valve relief from the
applicable mandatory minimum.”

United States v. Rodriguez, 12-

2688-cr at *2 (2d Cir. June 3, 2013), Doc. No. 74.

The Second

Circuit dismissed the petitioner’s arguments, concluding that
the “district court had an ample factual basis on which to
conclude by a preponderance of evidence that Rodriguez was an
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organizer, leader, supervisor or manager of a narcotics
conspiracy, thereby precluding his eligibility for the safety
valve under 18 U.S.C. § 3553(f).”
II.

Id. at *3.

LEGAL STANDARD

A “collateral attack on a final judgment in a criminal case
is generally available under § 2255 only for a constitutional
error, a lack of jurisdiction in the sentencing court, or an
error of law or fact that constitutes a fundamental defect which
inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996)
(internal citation and quotation marks omitted).

Section 2255

provides that a district court should grant a hearing “[u]nless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.”
2255(b).

28 U.S.C. §

However, “[t]he language of the statute does not strip

the district courts of all discretion to exercise their common
sense.”

Machibroda v. United States, 368 U.S. 487, 495 (1962).

In making its determination regarding the necessity for a
hearing, a district court may draw upon its personal knowledge
and recollection of the case.

See Blackledge v. Allison, 431

U.S. 63, 74 n.4 (1997); United States v. Aiello, 900 F.2d 528,
534 (2d Cir. 1990).

Thus, a § 2255 petition, or any part of it,

may be dismissed without a hearing if, after a review of the

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record, the court determines that the motion is without merit
because the allegations are insufficient as a matter of law.
III. DISCUSSION
The petitioner claims that he received ineffective
assistance of counsel.

To prevail on an ineffective assistance

of counsel claim, the petitioner must show that his “counsel's
representation fell below an objective standard of
reasonableness” and that “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, 687–88, 694 (1984).

“The court ‘must

indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance,’ bearing
in mind that ‘[t]here are countless ways to provide effective
assistance in any given case’ and that ‘[e]ven the best criminal
defense attorneys would not defend a particular client in the
same way.’”

United States v. Aguirre, 912 F.2d 555, 560 (2d

Cir. 1990) (quoting Strickland, 466 U.S. at 689).

“The court's

central concern is not with ‘grad[ing] counsel's performance,’
but with discerning ‘whether, despite the strong presumption of
reliability, the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process
that our system counts on to produce just results.’ ” Id. at 560

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(quoting Strickland, 466 U.S. at 696–97) (internal citations
omitted)).
The petitioner claims that his attorney gave him
ineffective assistance by (1) failing to object to the two-level
enhancement under Guideline § 3B1.1(c) for role in the offense;
(2) failing to discredit Nancy Rivera’s testimony as to his
role; (3) failing to object when the court relied on the
stipulation in the plea agreement as to the drug quantity; and
(4) failing to object to a number of other claimed errors.

The

petitioner’s claims are without merit.
A. The Enhancement under Guideline § 3B1.1(c)
The petitioner argues that his counsel gave him ineffective
assistance by failing to object to the two-level enhancement for
role in the offense under Guidelines § 3B1.1(c).
correct.

That is not

This enhancement was objected to and was a subject of

the Fatico hearing.

The petitioner then pursued this issue on

appeal, but was unsuccessful.

“[S]ection 2255 may not be

employed to relitigate questions which were raised and
considered on direct appeal.”
122, 127 (2d Cir.2007).

United States v. Becker, 502 F.3d

Thus, the petitioner’s arguments

contesting the two-level increase under Guideline § 3B1.1(c) may
not be raised here.

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B. Rivera’s Testimony
The petitioner contends that his counsel’s performance in
discrediting Rivera’s testimony was below an objective standard
of reasonableness.

This contention is without merit.

Counsel elicited testimony from Rivera that she had
continued to run the drug business in the petitioner’s absence,
which was intended to support the petitioner’s argument that,
far from him being a leader, she was Rivera’s partner in their
conspiracy.

Counsel also brought out Rivera’s motivation to

testify favorably for the government because of her cooperation
agreement.

Counsel even managed to establish that Rivera had

memory issues.

The petitioner points to his counsel’s failure

to obtain Rivera’s psychiatric record, which the petitioner
argues “speaks volume[s] . . . in regards to her testimony.”
Petitioner’s Reply (Doc. No. 10) at 2 (“Pet’r’s Reply”).
Assuming arguendo that Rivera’s psychiatric record would have
provided additional material for impeachment, the fact that such
cumulative impeachment material was not obtained is no basis to
set aside the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance[.]”
Strickland, 466 U.S. at 689.

There would have been no concern

as to Rivera’s competence, the court having previously taken
Rivera’s guilty plea.

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The petitioner also contends that his counsel failed to
inform “the Court of the spousal relationship between petitioner
and Nancy Rivera . . . which impaired their Constitutional [sic]
protected privity [sic] rights in the spousal relationship”.
Pet’r’s Reply at 3.

He appears to argue that his counsel should

have invoked the martial communications privilege, which
“prevent[s] the revelation of [private marital] communications.”
United States v. Premises Known as 281 Syosset Woodbury Rd.,
Woodbury, N.Y., 71 F.3d 1067, 1070 (2d Cir. 1995).
argument fails for two reasons.

This

First, “this privilege can be

successfully asserted only when there exists a marriage valid at
the time the communication is made.”

In re Witness Before Grand

Jury, 791 F.2d 234, 237 (2d Cir. 1986).
Rivera were never married.

The petitioner and

Second, even if they had been

married, the “partnership in crime” exception to this privilege
“permit[s] the spouse of an accused to testify willingly
concerning their joint criminal activities[.]”
Estes, 793 F.2d 465, 468 (2d Cir. 1986).

United States v.

Thus, the petitioner

was not prejudiced by his counsel’s failure to object to
Rivera’s testimony on the grounds of the marital communications
privilege.
C. The Stipulation as to Drug Quantity
In sentencing the petitioner, the court relied on a drug
quantity of at least one kilogram of heroin and two kilograms of
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cocaine.

The petitioner stipulated to this quantity in his plea

agreement, and was canvassed about it during the guilty plea
proceeding.

As a result, petitioner’s trial counsel acted

reasonably in not objecting to the drug quantity.

See Brown v.

United States, No. CIV. 3:07CV709AWT, 2008 WL 762119, at *1 (D.
Conn. Mar. 20, 2008) (rejecting “defendant’s first contention .
. . that he received ineffective assistance of counsel because
his attorney failed to object to the drug quantity . . .
[because] the defendant himself agreed to the drug quantity
during the change of plea proceeding”).
Additionally, the petitioner was not prejudiced in any way
because his counsel refused to object to the drug quantity at
sentencing.

Here, “there is [no] reasonable probability that,

but for counsel's [purportedly] unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 688.

If the petitioner’s counsel had

argued that the court could only sentence the petitioner based
on the amount of narcotics for which petitioner was personally
responsible, the outcome would not have been different.

Under

Guideline § 1B1.3(a)(1)(B), a defendant involved in a jointly
undertaken criminal activity may be sentenced based on “all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity”, and
the court found that a role enhancement was proper.
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D. The Petitioner’s Additional Arguments
The petitioner makes a number of arguments concerning his
sentencing that are either simply inaccurate or have no bearing
on the issue of ineffective assistance of counsel.

First, the

petitioner argues that the court erred by failing to give him
the one-level reduction under Guidelines § 3E1.1(b).

Guideline

§ 3E1.1(b) allows for a one-level reduction in the offense level
if the defendant demonstrated acceptance of responsibility for
his offense and if the defendant assisted authorities in the
investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of
guilty.

Here, the petitioner failed to meet the latter

requirement; he pled guilty after jury selection.
Second, the petitioner argues that his counsel failed “to
object to the Probation Department (PSR) improperly applying a
weapon enhancement which increase[d] [petitioner’s] sentencing
level[.]”

Pet’r’s Br. (Doc. No. 10) at 10.

This is untrue

because counsel did in fact object to this enhancement, and it
was a subject of the Fatico hearing.

Moreover, ultimately the

court did not apply this enhancement in determining the
petitioner’s Total Offense Level.
Third, the petitioner contends that his counsel rendered
ineffective assistance by failing to object to the court’s
decision to impose a period of supervised release.
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The

petitioner makes this argument based on Guideline § 5D1.1(c),
which states that a court “ordinarily should not impose a term
of supervised release in a case in which supervised release is
not required by statute and the defendant is a deportable alien
who likely will be deported after imprisonment.”

Here, as

reflected in the plea agreement, the statute provided for a
five-year mandatory minimum term of supervised release.
Finally, the petitioner argues that the disparity between
Rivera’s sentence and his sentence violates federal law
requiring courts to consider, inter alia, “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
U.S.C. § 3553(a)(6).

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This factor was considered by the court at

sentencing, and based on all the factors in § 3553, very
different sentences were appropriate.
IV.

CONCLUSION

For the reasons set forth above, the Motion to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No.
1) is hereby DENIED.

The court will not issue a certificate of

appealability because the petitioner has not made a substantial
showing of the denial of a constitutional right.
§ 2253(c)(2).
The Clerk shall close this case.
It is so ordered.
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See 28 U.S.C.

Signed this 29th day of March 2017, at Hartford,
Connecticut.
/s/AWT
Alvin W. Thompson
United States District Judge

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