PEREZ v. UNITED STATES OF AMERICA

Filing 9

OPINION. Signed by Judge Noel L. Hillman on 6/25/2014. (drw)n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSE OCTAVIO PEREZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 11-5339(NLH)

OPINION

APPEARANCES:
Jose Octavio Perez
U.S.P. Big Sandy
Inez, KY 41224
Petitioner pro se
Matthew T. Smith
Assistant U.S. Attorney
District of New Jersey
Camden Federal Building and Courthouse
401 Market Street
Camden, NJ 08101
Counsel for Respondent

HILLMAN, District Judge
Petitioner Jose Octavio Perez, a prisoner currently
confined at the United States Penitentiary Big Sandy in Inez,
Kentucky, has filed this Motion [1], pursuant to 28 U.S.C.
§ 2255, challenging the sentence imposed upon his conviction, on

grounds of ineffective assistance of counsel in connection with
the sentencing proceeding.
No. 08-0593 (D.N.J.).

See United States v. Perez, Crim.

For the reasons stated herein, the

Petition shall be denied.
I.

BACKGROUND

Petitioner was charged in a one-count indictment with being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g).

See U.S. v. Perez, Crim. No. 08-0593 (D.N.J.).

On

December 23, 2008, pursuant to a written plea agreement,
Petitioner pleaded guilty.

Id. (Doc. Nos. 16, 17, 18.)

The

plea agreement specifically left open the question whether a
four-point offense-level enhancement under U.S. Sentencing
Guideline 2K2.1(b)(6), for use or possession of a firearm “in
connection with another felony offense,” applied.
The United States reserves its right to argue that the
defendant used or possessed the firearm ... and
ammunition in connection with another felony offense.
Specifically, the United States reserves its right to
argue that Jose Octavio Perez was in possession of -and attempted to discard during a foot chase with law
enforcement authorities -- forty (40) heat-sealed bags
of a substance that field-tested positive for cocaine,
and therefore reserves its right to seek an increase
of four (4) levels. See U.S.S.G. § 2K2.1(b)(6).[Fn2]
[Fn2] Application Note 14 (B) to U.S.S.B.
§ 2K2.1 states that Subsection (b)(6)
applies “in the case of drug trafficking
offenses in which a firearm is found in
close proximity to drugs, drug-manufacturing
material, or drug paraphernalia.” Moreover,
a “felony offense,” -- here, the
distribution, dispensing, possession with
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intent to distribute a controlled dangerous
substance (cocaine) on or within 500 feet of
the real property comprising a public
housing facility (Abblett Village Apartment
Complex) in violation of N.J.S.A. 2C:35-7.1
-- for purposes of subsection (b)(6) means
“any federal, state, or local offense ...
punishable by imprisonment for a term
exceeding one year, regardless of whether a
criminal charge was brought, or conviction
obtained.”
U.S. v. Perez, Crim. No. 08-0593 (Doc. No. 18, Plea Agreement,
Sched. A, ¶ 4).
Much of Petitioner’s sentencing hearing was devoted to the
question whether the § 2K2.1(b)(6) enhancement should apply.
(Answer, Ex. B, Transcript of Sentencing Hearing on March 30,
2009, and Ex. C, Tr. of Sent. Hrg. on April 9, 2009.)

New

Jersey State Trooper Christopher Provenzano testified that on
the night of January 23-24, 2008, he was assigned to the
Strategic Investigation Unit patrolling the Abblett Village
housing complex, performing a follow-up investigation regarding
a shooting in that area.

Trooper Provenzano described the area

as a high-crime area, including crimes related to drug
trafficking.

When Trooper Provenzano’s vehicle approached a

group of young men, at approximately midnight, Trooper
Provenzano observed that Petitioner had a handgun in his
waistband, which he took out, brandished, and replaced.
Petitioner began to ran, and the Trooper followed him, first in
the vehicle, and then, when he reached a barricade, on foot.
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While Trooper Provenzano and his partner New Jersey State
Trooper Carlos Rodriguez chased Petitioner on foot, Trooper
Provenzano saw Petitioner reach into his pants pocket and
discard a small object, approximately the size of a deck of
cards.

Trooper Provenzano made a mental note of the location

and continued the chase, catching Petitioner less than a minute
later, and arresting him.

After securing Petitioner in a

trooper car, Troopers Provenzano and Rodriguez backtracked the
route of the chase and almost immediately found a small package
of crack cocaine, approximately 5 inches square, in the location
where Petitioner had discarded a small object.
at 15-22, 32, 45-46, 51.)

(Answer, Ex. B

During his testimony, Trooper

Provenzano utilized an aerial photograph of Abblett Village to
mark the locations where he first saw Petitioner, the route of
his vehicle in following Petitioner, the route of the foot
chase, the location where he saw Petitioner discard the small
object and the point where he arrested Petitioner.
at 23-24.)

(Ans., Ex. B

Trooper Provenzano also marked on two photographs

depicting paths travelled in the foot chase the location near a
building where he saw Petitioner discard the small object.
(Ans., Ex. B at 28-30.)

On cross-examination, Trooper

Provenzano testified that the building near where the package of
drugs was found was approximately 20 feet tall and that he was
aware that drug dealers sometimes “roof” their drugs when police
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are nearby.

(Ans., Ex. B at 38-39.)

Trooper Rodriguez also testified as to the events of the
night of January 23-24, 2008, with regard to the chase and
arrest of Petitioner and the recovery of a small package of
cocaine near the location where Petitioner was arrested.
Trooper Rodriguez also marked an aerial photograph with the
locations where he first saw Petitioner, where he followed
Petitioner in a vehicle then chased him on foot, and where he
and Trooper Provenzano arrested Petitioner.

Trooper Rodriguez

testified that, while chasing Petitioner, he saw Petitioner
discard a small plastic bag, like a sandwich bag, which was
smaller than a fist.

He testified that he retraced the route of

his foot chase of Petitioner with other troopers and that they
recovered the bag of drugs within five minutes after arresting
Petitioner.

Petitioner Rodriguez also testified that the area

where Petitioner was arrested is a high drug crime area and that
it is a common practice for drug dealers to throw their drugs
onto the roofs in that complex to avoid being found with drugs
when police are in the area.

(Ans., Ex. C at 7-18, 23-25.)

Finally, Terrell Allen testified that he was a resident of
Abblett Village in January 2008 and that, on the night of
Petitioner’s arrest, around midnight, he was in the area selling
drugs when Petitioner ran past him followed by two vehicles.
Allen testified further that he was opening up a new pack of
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drugs to sell and that, when he saw Petitioner running, followed
by two vehicles, he tried to throw the drugs on the roof of a
nearby building, but they hit the tip of the roof and fell down.
Allen testified that he ran after trying to throw the drugs on
the roof.

Allen testified that he was standing one street over

from the building in the photograph where the troopers found the
packet of drugs.

Finally, Allen testified that the packet of

drugs the police found was the packet of drugs that he had tried
to throw on the roof, as he determined because the drugs he had
thrown were missing when he went back later to look for them.
(Ans., Ex. C at 36-41.)
After hearing this testimony, and argument from counsel,
this Court found that the enhancement should apply.
C at 68, 71-72.)

(Ans., Ex.

In brief, this Court found that all of the

witnesses appeared to be testifying truthfully, and that their
testimony was not inconsistent, but that it appeared,
nevertheless, that Mr. Allen was approximately a block away from
the location where the packet of drugs was recovered, so that
the drugs could not have been his, but must have been
Petitioner’s.

(Ans., Ex. C at 69-71.)

This Court found that the statutory maximum for the offense
was 120 months, and the Guidelines yielded an advisory range of
100 to 120 months.

(Ans., Ex. C at 73.)

Counsel for Petitioner

then argued several factors in mitigation, (Ans., Ex. C at 736

75), and Petitioner addressed the Court directly, (Ans., Ex. C
at 76).

Ultimately, this Court imposed a sentence of 96 months,

slightly below the Guidelines advisory minimum.

(Ans., Ex. C at

82); U.S. v. Perez, Crim. No. 08-0593 (D.N.J.) (Doc. No. 23,
Judgment).
It’s my conclusion that a sentence slightly below
the advisory guideline ranges here advances the
statutory factors. I want to talk a little bit about
the nature of the offense here and the defendant’s
history and characteristics. I’ll say now that I
believe this to be a fair sentence. I would have
exercised my discretion to impose this sentence even
if I am wrong on the issue of the extra four points.
Even if these were not Mr. Perez’s drugs, and I’ve
conclude[d] that it’s more likely than not that there
were two sets of drugs here, the one Mr. Allen
attempted to roof and the one Mr. Perez discarded to
the ground, even if that’s not true and there were
only one set that were recovered, the fact is that Mr.
Perez was out on the street corner at night with a gun
where people were openly selling drugs or had drugs in
an area known for drug dealing. And if there is one
thing that’s known in this city is that drugs and guns
are a deadly combination that are choking and killing
this community. And so this is a serious offense and
it’s a serious offense that Mr. Perez has been
involved in before and received sentences for. So it
would be remiss if I didn’t note where this offense
occurred, when it occurred, the circumstances under
which it occurred, Mr. Perez’s past criminal history,
and the threat guns and drugs pose to the people who
live in that community. And to afford adequate
deterrence both generally for those who become aware
of this sentence and to try to demonstrate to Mr.
Perez, which had not sunk in before, to protect people
from further crimes of this defendant, I believe a
lengthy sentence is warranted here.
That having been said, I don’t view a guideline
sentence in the middle of the range or anywhere in the
range, and I’m not going to vary far, but I believe
that there are a number of things in Mr. Perez’s
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favor.
(Ans., Ex. C at 79-80.)
Petitioner appealed the imposition of the four-point
offense-level enhancement and the U.S. Court of Appeals for the
Third Circuit affirmed.

See U.S. v. Perez, 386 F.App’x 301 (3d

Cir. 2010).
Petitioner timely filed this § 2255 motion.

Here,

Petitioner challenges his sentence on the grounds that his
counsel failed to provide constitutionally adequate
representation during sentencing, because (a) she failed to
argue (unspecified) facts that would have shown that the
sentencing enhancement did not apply, (b) she failed to call to
the stand an unnamed second witness on Petitioner’s behalf,
allegedly because she forgot about the witness, and (c) she
failed to present to the Court a map of the area where the crime
occurred, drawn by Petitioner, that allegedly would have shown
“the consistency in Mr. Allen’s testimony.”

(Petition, ¶ 11.)

The government has answered and this matter is now ready for
decision.
II.

28 U.S.C. § 2255

Title 28 U.S.C. § 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
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jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a).

See generally U.S. v. Thomas, 713 F.3d 165

(3d Cir. 2013) (detailing the legislative history of § 2255).
A criminal defendant bears the burden of establishing his
entitlement to § 2255 relief.

See United States v. Davies, 394

F.3d 182, 189 (3d Cir. 2005).

Moreover, as a § 2255 motion to

vacate is a collateral attack on a sentence, a criminal
defendant “must clear a significantly higher hurdle than would
exist on direct appeal.”

United States v. Frady, 456 U.S. 152,

166 (1982).
This Court is required to construe pro se pleadings
liberally.

See United States v. Otero, 502 F.3d 331, 334 (3d

Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
However, “vague and conclusory allegations contained in a § 2255
petition may be disposed of without further investigation by the
District Court.”

U.S. v. Thomas, 221 F.3d 430, 437 (3d Cir.

2000) (citation omitted).
A district court may summarily deny a § 2255 motion,
without an evidentiary hearing, where the “the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief.”

28 U.S.C. § 2255(b).

generally U.S. v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005);
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See

United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
III.

ANALYSIS

The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.”

U.S. Const. amend. VI.

The right to counsel is “the right to effective assistance of
counsel.”

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)

(emphasis added) (citations omitted), cited in Ross v. Varano,
712 F.3d 784, 797 (3d Cir. 2013).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel’s
performance fell below an objective standard of reasonable
professional assistance and that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
outcome would have been different.
466 U.S. 668, 687, 694 (1984).

Strickland v. Washington,

With respect to the

“performance” prong, there is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.”

Strickland, 466 U.S. at 689.

With

respect to the “prejudice” prong, a “reasonable probability” of
prejudice is “a probability sufficient to undermine confidence
in the outcome.”

Strickland at 694.

Thus, counsel’s errors

must have been “so serious as to deprive the defendant of ... a
trial whose result is reliable.”
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Id. at 687.

More

specifically, when a defendant asserts ineffective assistance of
counsel in connection with sentencing, he must show that, but
for counsel’s deficient performance, there is a reasonable
probability that the sentence would have been less harsh.

See

Glover v. United States, 531 U.S. 198 (2001), cited in U.S. v.
Hankerson, 496 F.3d 303, 310-11 (3d Cir. 2007).

The performance

and prejudice prongs of Strickland may be addressed in either
order, and “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice ... that
course should be followed.”

Id. at 697.

Here, all of Petitioner’s claims of error rest on the
theory that counsel failed to adequately put forth evidence and
argument to establish that the packet of drugs found at the
scene was not his, which he contends would have precluded
application of the four-point offense-level enhancement for use
or possession of the firearm “in connection with another felony
offense.”

However, at sentencing, this Court expressly stated

that it would have imposed the same sentence whether or not the
packet of drugs found at the scene belonged to Petitioner.
Accordingly, Petitioner cannot establish the “prejudice” prong
of the Strickland standard.

Petitioner is not entitled to

relief.
III.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
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or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2255.

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).

“A petitioner

satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)

(citation omitted), cited in U.S. v. Williams, No. 13-2976, 2013
WL 4615197, *2 (3d Cir. Aug. 30, 2013).
Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right.

No certificate of

appealability shall issue.
IV.

CONCLUSION

For the reasons set forth above, the Petition shall be
denied.

An appropriate order follows.

At Camden, New Jersey

Dated:

s/Noel L. Hillman
Noel L. Hillman
United States District Judge

June 25, 2014

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