Ramirez-Fuentes v. USA

Filing 1

OPINION AND ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge Philip P Simon on 3/24/2016. (cc: Ramirez-Fuentes)(rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JUAN C. RAMIREZ-FUENTES,
Defendant.

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No. 2:10CR158-PPS
and
No. 2:13CV495-PPS

OPINION AND ORDER
Defendant Juan C. Ramirez-Fuentes was convicted at trial of one count of possession
with the intent to distribute more than 500 grams of methamphetamine and one count of
possession of firearms in furtherance of that drug trafficking crime. [DE 91.] Originally
I sentenced Juan to an aggregate term of 295 months’ imprisonment. [DE 119.] But I later
reduced the sentence to 248 months after granting Ramirez-Fuentes’ motion under 18
U.S.C. §3583(c)(2) based on a retroactive change to the Sentencing Guidelines applicable
to drug crimes. [DE 177, 179.]
Acting pro se, Ramirez-Fuentes has filed a motion to vacate, correct, or set aside his
sentence pursuant to 28 U.S.C. §2255 [DE 150].1 After the pro se motion was briefed, I
determined that an evidentiary hearing and oral argument were warranted on several of
Juan’s grounds for relief, and appointed counsel to represent him. Following the hearing,
Juan has moved to withdraw all of his grounds for relief but one, and the parties have filed
Juan’s brother Jaime Ramirez-Fuentes was indicted with Juan in the case. Jaime entered a plea of
guilty to the drug distribution charge in Count 1, and received the dismissal of all other charges. Jaime was
sentenced to the mandatory minimum sentence of 120 months. Intending no disrespect but to distinguish
between the defendants and avoid confusion, I will refer to the movant here as “Juan.”
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additional briefs. The matter is ripe for ruling on the remaining claim of Juan’s motion to
vacate.
In the only remaining claim, Juan makes an ineffective assistance of counsel
argument based on his trial counsel’s advice to him concerning plea negotiations with the
government. Criminal defendants’ Sixth Amendment right to the effective assistance of
counsel “extends to the plea-bargaining process,” during which defendants are entitled to
competent counsel. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012). Claims that counsel did not
render such effective assistance are subject to the familiar two-part test from Strickland v.
Washington, 466 U.S. 668 (1984). The first prong of the test requires a showing that counsel’s
representation fell below an objective standard of reasonableness. Id. at 688. The second
prong of the Strickland test generally requires a defendant to demonstrate a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceeding
would have been different. Id. at 694.
“The reality is that plea bargains have become so central to the administration of
the criminal justice system that defense counsel have responsibilities in the plea bargain
process, responsibilities that must be met to render the adequate assistance of counsel that
the Sixth Amendment requires in the criminal process at critical stages.” Missouri v. Frye,
132 S.Ct. 1399, 1407 (2012). One of defense counsel’s responsibilities is “to communicate
formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused.” Id. at 1408. Another is to give reasonably competent advice
concerning the ramifications of a plea offer. Padilla v. Kentucky, 559 U.S. 356, 369-70 (2010)
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(regarding counsel’s “critical obligation” to advise the client of a plea agreement’s
advantages and disadvantages and citing Libretti v. United States, 516 U.S. 29, 50-51 (1995));
Pidgeon v. Smith, 785 F.3d 1165, 1172 (7th Cir. 2015); Ward v. Jenkins, 613 F.3d 692, 698 (7th Cir.
2010).
Here is what Juan says his lawyer’s failings were:
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trial counsel did not advise him that the government made three separate
plea offers;

•

the attorney misrepresented Juan’s total sentencing exposure;

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counsel failed to advise Juan that his motion to suppress had been denied
and the impact of that on his trial defense; and

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Juan’s attorney “essentially guaranteed that he would be exonerated at trial
and never properly apprised him of the strength of the case against him.”

[DE 203 at 3.] At the evidentiary hearing, I heard the testimony of Juan and his wife, as
well as both of Juan’s trial counsel and an assistant warden of the Lake County Jail, where
Juan was housed during a portion of his pretrial detention. Based on the evidence and
record in this case, I make the following findings of fact relevant to the determination of
Juan’s ineffective assistance of counsel claim.
Juan was arrested on the charges in this case on August 25, 2010. [DE 4.] On August
27, attorney Gal Pissetzy entered his appearance for Juan, having been hired by Juan’s wife.
[DE 8.] Mrs. Ramirez speaks English fluently, but Juan speaks Spanish and is not proficient
in English. Pissetzky is not proficient in Spanish but often works as co-counsel with
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attorney John DeLeon, who speaks fluent Spanish. Mrs. Ramirez had met with both
Pissetzky and DeLeon, and in the course of the representation, Pissetzky never met with
Juan alone, without DeLeon to interpret. As a pretrial detainee in this case, Juan was
housed at the Porter County Jail from August 25, 2010 to December 2, 2010. On December
2, Juan was transferred to the Lake County Jail, where he remained until after his trial.
Because Pissetzky undertook the representation on a flat fee basis, he did not create
itemized billing statements and so did not maintain records of his time spent on the case
or the dates and times of meetings with his client. On October 26, 2010, Pissetzky filed a
motion to suppress evidence. [DE 26.] In order to assert facts about the search in the
motion, Pissetzky must have met with Juan prior to filing the motion to suppress, although
Pissetzky doesn’t specifically remember the date of doing so and the records of the Porter
County Jail do not reflect a visit prior to October 26. At that meeting, Pissetzky and
DeLeon had Juan sign his name multiple times on a legal pad as signature exemplars in
connection with Juan’s dispute that he had signed the consent to search form.
Pissetzky recalled that from early on in the case, Juan insisted on his innocence.
Counsel were with Juan in court on November 16, when a hearing on the suppression
motion was set. [DE 31.] The hearing ended up being continued to December 10. [DE 32.]
The Porter County Jail’s visitor logs reflect that Pissetzky and DeLeon visited Juan on
November 26, 2010, prior to the new suppression hearing setting. After that visit, Pissetzky
asked the government for a plea offer. On December 6, Pissetzky filed an unopposed
motion to continue the suppression hearing again, representing that the defense had
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received a plea agreement that counsel needed time to review it with Juan in hopes of
resolving the case short of trial. [DE 35.] The motion was granted and the suppression
hearing was reset for January 18, 2011. [DE 36, 37.]
The first tendered plea agreement, received by defense counsel on December 2,
represented a guilty plea to the drug count and the dismissal of the gun count brought
under 18 U.S.C. § 924(c). [DE 186-1 at 4, 5.] This was a significant concession by the
government given the five year mandatory minimum sentence required under § 924(c). The
agreement contained the government’s recommendation for a sentence at the minimum
of whatever Sentencing Guideline range was found to apply to his case. The proposed
agreement also contemplated Juan’s cooperation. [Id. at 5.] Because Pissetzky did not want
the Guidelines minimum to function as a floor below which the sentence would not go
even with Juan’s cooperation, he asked the government to remove the sentencing
recommendation. The government agreed and produced an amended plea agreement on
December 3, from which the recommendation for a minimum Guidelines sentence had
been removed at Pissetzky’s request. [DE 186-2 at 5.]
Attorneys Pissetzky and DeLeon both met with Juan at the Lake County Jail to
review the two plea agreements on December 21, 2010. Pissetzky spoke to Juan via
DeLeon’s Spanish interpretation. Counsel went over the drug calculations under the
Sentencing Guidelines, explained the mandatory minimum sentence of 10 years on Count
1, and explained the sentencing impact of pleading guilty versus being convicted at trial.
Those ramifications included credit under the Sentencing Guidelines for accepting
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responsibility, and that in exchange for the guilty plea the government would drop the gun
charge, which, as noted, carried a mandatory five-year consecutive term of imprisonment.
Handwritten notations in the margins of the draft plea agreement reflect Pissetzky’s
explanation of the total offense level and the potential imprisonment range under the
Guidelines. [DE 189-1 at 18-19.] Pissetzky also discussed the possible ramifications of
deportation based on a conviction in the case, whether at trial or by a guilty plea. As a
result, Juan understood that the only sure way to avoid deportation was to win at trial.
These findings are supported by the credible testimony of both counsel and by Pissetzky’s
affidavit. [DE 162.]
Juan rejected the plea agreement and maintained his innocence. As is their
occasional practice, Pissetzky and DeLeon had defendant sign the following statement
handwritten in English and Spanish on the last page of one of the plea agreements: “I have
been explained this plea agreement and choose to reject it and go to trial.” [DE 189-1 at 22.]
DeLeon and Pissetzky signed as witnesses. [Id.] Pissetzky testified that he takes this step
when a client denies any responsibility and claims his innocence though the discovery
indicates otherwise, so that he as counsel is in a position to prove that his client refused the
plea agreement that was presented to him. The signatures on the handwritten notation are
dated and confirm that this conference with counsel occurred on December 21, 2010. The
jail’s visitor logs do not reflect Pissetzky or DeLeon’s visit that day, and so are obviously
not entirely accurate in reflecting every time attorneys visit their clients in the jail.
Pissetzky conveyed his client’s refusal to the government, which offered a third plea
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agreement without cooperation in it, but with the provision for the government’s
recommendation of a minimum Guidelines sentence reinserted.

[DE 186-3.] Counsel

presented that plea offer but Juan again refused, remaining adamant that he would not
plead guilty to something he did not do.
On February 23, 2011, I issued an order denying the motion to suppress. [DE 43.]
DeLeon believes he advised Juan of the ruling during a telephone conversation initiated
by Juan, who would occasionally call the office collect from jail. Pissetzky and DeLeon
later visited Juan in jail to advise him of the suppression ruling. Pissetzky showed Juan my
opinion as well as a newspaper article about the ruling that Pissetzky believed reflected
counsel’s good work on the motion. [DE 189-3.] With the encouragement of Juan’s wife,
who wanted Juan to take a guilty plea, Pissetzky continued plea negotiations with the
government but Juan was steadfast in denying his involvement, attributing all culpability
to Jaime, his co-defendant and brother. Months later, only days prior to trial, Pissetzky
inquired of the government whether any other plea agreement was possible, and was told
that the only possibility was for Juan to plead in the blind to both counts.
Consistent with these findings, I reject each of Juan’s factual contentions concerning
his counsel’s performance as outlined above. [Supra p. 3.] I flatly disbelieve Juan’s claim
that Pissetzky or DeLeon encouraged Juan to go to trial and made assurances that they
would definitely “win” the case. I also disbelieve Mrs. Ramirez’s claim that Pissetzky told
her he would get her husband “out.” Pissetzky and DeLeon are experienced criminal
defense attorneys with more than fifty years of practice between them that is 95% or more
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in criminal defense. It is frankly beyond belief that experienced criminal defense attorneys
would give such assurances. To the contrary, DeLeon credibly testified that whenever he
is asked by his clients if he can win at trial, he responds that only God knows the future but
that counsel will fight as hard as they can to protect the client’s every right. Also
Pissetzky’s persistence in negotiating plea agreements with the government is at odds with
the stance Juan attributes to Pissetzky. The request Pissetsky filed to continue the
suppression hearing [DE 35] reflected that the was hopeful for a plea agreement, not hellbent on trial. Similarly, Juan’s claim that Pissetzky advised him that 15 years was his
maximum sentencing exposure is not credible, in a case where counsel knew that the
statutory minimum sentence was 15 years (10 years on Count 1 plus a mandatory
consecutive 5 years on Count 2).
Juan’s credibility is further diminished by the inconsistencies in his inherently
unpersuasive factual assertions. In his brief, Juan alleges that in reviewing the first two
plea offers with him during the December 21 jail visit, counsel told him “if [he] signed the
plea he would be deported and therefore they needed to take the case to trial.” [DE 186
at10.] In his hearing testimony, Juan said he didn’t remember any such advice. Juan’s
brief also contends that his counsel advised him “that there was no sense in cooperating
because the Government never gives a break to a Defendant who cooperates.” [Id.] Such
advice is so obviously wrong as to be unbelievable, and at the hearing Juan gave no
testimony in support of his earlier assertion that this advice had been given to him.

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For another reason, Juan’s own testimony defeats §2255 relief on his claim
concerning the plea negotiations. To support his claim that his trial counsel’s
ineffectiveness caused him to reject a beneficial plea offer, Juan must show “not only that
[counsel] acted in error, but also that [with competent advice] there is a reasonable
probability that the plea offer would have been presented to the court, that the court would
have accepted it, and that the conviction or sentence or both would have been less severe
than the judgment imposed.” Foster v. United States, 735 F.3d 561, 566 (7th Cir. 2013)
(emphasis added). Juan testified at the hearing on his §2255 motion that he would have
pled guilty to a “good deal” even though he wasn’t really guilty. If Juan was unwilling to
admit the facts establishing the elements of the offense of possession with intent to
distribute, I could not have taken a plea of guilty from him.
For all these reasons, I conclude that Juan Ramirez-Fuentes has not established that
his trial counsel offered unreasonably deficient performance in negotiating or advising him
concerning a possible guilty plea, nor that Juan was prejudiced by any of counsel’s conduct
in this regard. Juan’s other grounds for relief are being withdrawn, and I will deny his
motion to vacate on this sole remaining claim, which I find to be without merit.
“The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” RULES GOVERNING SECTION 2255 PROCEEDINGS 11(a).
“A certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). To obtain a certificate
of appealability, Juan must show that reasonable jurists could debate whether his petition
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should have been resolved differently. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Because I find that Juan’s one remaining ground for relief does not present even a
debatable basis for relief from his conviction or sentence, I will deny a certificate of
appealability.
ACCORDINGLY:
Defendant Juan C. Ramirez-Fuentes’s Motion Withdrawing Certain Issues Raised
in Preliminary §2255 Filing [DE 203] is GRANTED.
Defendant Juan C. Ramirez-Fuentes’s Motion to Vacate, Correct, or Set Aside His
Conviction under 28 U.S.C. §2255 [DE 150] is DENIED. The Clerk shall enter judgment
accordingly.
A certificate of appealability is DENIED.
SO ORDERED this 24th day of March, 2016.
/s/ Philip P. Simon
Chief Judge

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