VAZQUEZ v. UNITED STATES OF AMERICA
Filing
23
OPINION. Signed by Judge Noel L. Hillman on 6/24/2015. (tf,n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________:
PEDRO VAZQUEZ,
Civ. No. 12-7020 (NLH)
OPINION
APPEARANCES
Pedro Vazquez, #41352-050
F.C.I. Yazoo City Low
P.O. Box 5000
Yazoo City, MS 39194
Petitioner, pro se
Matthew J. Skahill
U.S. Attorney’s Office
401 Market Street
4th Floor
Camden, NJ 08101
Attorney for Respondent
HILLMAN, District Judge
Petitioner Pedro Vazquez, an inmate currently confined at
Federal Correctional Institution (“FCI”) Yazoo City Low in Yazoo
City, Mississippi has submitted a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255.
For the
reasons set forth below, the Court will deny the Petition.
I.
BACKGROUND
On or about January 25, 2007, Petitioner was arrested and
charged in a criminal complaint with conspiracy to distribute
and possess with intent to distribute cocaine and cocaine base,
in violation of 21 U.S.C. § 846.
On February 27, 2007, a
federal grand jury returned a one-count Indictment charging
Vazquez and his co-defendants with conspiracy to distribute and
possess with intent to distribute cocaine and cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), and in
violation of 21 U.S.C. § 846.
On October 23, 2007, a federal
grand jury sitting in Camden returned a four-count Superseding
Indictment which charged Petitioner in Counts One and Two.
On
November 30, 2007, the Government filed an Enhanced Penalty
Information against Petitioner pursuant to 21 U.S.C. § 851(a).
The Enhanced Penalty Information relied on one of Petitioner’s
prior drug distribution convictions in the State of New Jersey
and subjected him to a mandatory minimum term of 20 years’
imprisonment if convicted on the charges contained in the
Superseding Indictment.
On December 3, 2007, trial commenced in this Court and on
December 14, 2007, the jury convicted Petitioner of Counts One
and Two of the Superseding Indictment.
Following trial, the
Probation Department prepared a Presentence Investigation Report
(“PSR”).
In the PSR, the Court determined that Petitioner had 9
criminal history points.
However, the Probation Office
determined that Petitioner was a career offender within the
meaning of U.S.S.G. § 4B1.1 by relying on two of his prior four
felony convictions.
On September 12, 2008, this Court found that Petitioner was
a career offender under U.S.S.G. § 4B1.1 with a resulting
Offense Level of 37, Criminal History Category of VI and an
advisory Guidelines range of 360 months to life imprisonment.
This Court considered all of the Section 3553(a) factors and
sentenced Petitioner to a term of 360 months’ imprisonment.
Petitioner timely appealed.
The Third Circuit affirmed
Petitioner’s conviction and sentence on November 1, 2011.
The
United States Supreme Court denied a petition for writ of
certiorari on January 9, 2012.
On November 13, 2012, Petitioner filed the instant petition
to vacate, correct or set aside his conviction pursuant to 28
U.S.C. § 2255.
In his Petition, Petitioner alleges ineffective
assistance of counsel based on his counsel’s failure to object
to Petitioner’s classification as a career offender pursuant to
U.S.S.G. § 4B1.1.
Specifically, Petitioner asserts that one of
the predicate offenses in the PSR used to classify him as a
career offender was incorrectly identified and cannot serve as a
predicate offense.
Thus, Petitioner contends that the
Government failed to establish that he is a career offender and
his sentence was improperly enhanced.
Petitioner requests that
he be resentenced without the application of the career offender
enhancement.
Respondent concedes that the second conviction upon which
Petitioner’s career offender status was based cannot serve as a
predicate offense.
Nevertheless, Respondent asserts that
Petitioner remains a career offender under U.S.S.G. § 4B1.1.
Respondent explains that Petitioner was also convicted on
February 24, 1995 in New Jersey Superior Court, Hudson County
for possession with intent to distribute CDS on school property
(the Hudson County Conviction).
Respondent further explains
that the initial conviction did not result in a term of
imprisonment exceeding one year and one month and was not
imposed within ten years of the commencement of the federal
offense at issue in this case; therefore, the Hudson County
Conviction did not receive criminal history points in
Petitioner’s PSR and was not relied upon as a basis for the
career offender enhancement.
However, Respondent contends that on November 12, 1996,
Petitioner pled guilty to a violation of probation with respect
to the Hudson County Conviction (the Probation Violation).
As a
result of this plea, on May 2, 1997, Petitioner’s probation was
revoked and he was sentenced to a term of three years’
imprisonment to run concurrent with the sentences for the other
predicate offenses listed on his PSR.
Thus, Respondent asserts
that, although the initial sentence for the Hudson County
Conviction could not count for application of U.S.S.G. § 4B1.1,
the sentence imposed on May 2, 1997 for the Probation Violation
existed at the time of sentencing in the instant federal offense
and counts as a predicate offense for the career offender
enhancement.
Respondent explains that the Probation Office was unaware
of the Probation Violation because it did not have transcripts
of the violation proceedings at the time the PSR was prepared.
Additionally, Respondent contends that the Hudson County
Superior Court did not issue a judgment for the Probation
Violation contemporaneous with the judgment for the other felony
offenses; therefore although the Probation Office ordered
Petitioner’s certified convictions, it did not receive notice of
the updated Hudson County Conviction judgment which included the
Probation Violation.
Respondent concludes that, despite the
error in the PSR, Petitioner remains a career offender and, if
he were to be resentenced, his Guideline range would remain
unchanged.
For this reason, Respondent asserts that Petitioner
is unable to demonstrate the prejudice required to succeed on an
ineffective assistance of counsel claim.
Petitioner files a reply and argues that Respondent is
precluded from introducing new evidence at resentencing.
Petitioner asserts that information regarding the Probation
Violation was reasonably available at the time of sentencing and
that Respondent has not offered a valid reason for its failure
to present the evidence at the time of sentencing.
Respondent submits a supplementary letter in response and
contends that it would be proper for this Court to consider
Petitioner’s full criminal history, including the Probation
Violation, at a resentencing.
Accordingly, Respondent maintains
that Petitioner remains a career offender despite the error in
the PSR.
Petitioner files a final response and distinguishes the
case at hand from the cases cited by Respondent.
Petitioner
maintains that Respondent had every opportunity and incentive to
investigate Petitioner’s other prior convictions for use in the
PSR, but that it failed to do so and has not provided a valid
reason for this failure.
Accordingly, Petitioner contends that
Respondent has waived the ability to raise this issue at
resentencing.
II.
STANDARD OF REVIEW
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
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 United States 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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).
Finally, this Court notes its duty 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)).
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, 90
S.Ct. 1441, 25 L.Ed.2d 763 (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. Strickland v. Washington, 466
U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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.” 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, 121 S.Ct. 696,
148 L.Ed.2d 604 (2001), cited in United States 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.” Strickland, 466 U.S. at 697.
In this case, Respondent argues that Petitioner cannot
satisfy the prejudice prong of Strickland because, despite
counsel’s failure to notice the error in the PSR, Petitioner
would remain a career offender at resentencing due to the
Probation Violation.
Petitioner argues that Respondent should
be precluded from introducing the Probation Violation at
resentencing.
If Respondent is precluded from doing so,
Petitioner asserts that the prejudice prong of Strickland would
be satisfied because he would not receive a career offender
enhancement at resentencing and his sentence would be less
harsh.
The parties are in agreement that, based on U.S.S.G. §
4B1.1, 1 the Second Predicate Offense listed in Petitioner’s PSR
1
The career offender classification is governed by U.S.S.G §
4B1.1(a), which provides that a defendant is a career offender
if (1) he was at least eighteen years old at the time he
committed the instant offense; (2) the instant offense is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense. U.S. Sentencing Guidelines § 4B1.1(a)
(2002). The Guidelines define a “controlled substance offense”
as “an offense under federal or state law, punishable by
was incorrectly applied to establish Petitioner’s Career
Offender status. 2
Additionally, the existence and validity of
the Probation Violation, and the fact that it could have served
as a qualifying predicate offense at the time of original
sentencing, are not in dispute.
The sole disagreement between
the parties in this case is whether Respondent would be
permitted at resentencing to introduce the Probation Violation
as a qualifying predicate offense to establish that Petitioner
remains a career offender.
As discussed above, the parties
contend that resolution of this issue determines whether or not
Petitioner can demonstrate the prejudice necessary to succeed on
an ineffective assistance of counsel claim.
Petitioner’s argument against the introduction of the new
evidence at resentencing is premised on the idea that Respondent
waived its ability to use this conviction as a predicate offense
when it did not object to the conviction as a non-qualifying
predicate in the PSR. (Pet’r’s Letter 9-10, ECF No. 18).
imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” § 4B1.2(b).
2
Although Petitioner was originally charged with a drug
distribution offense in the Second Predicate Offense, he
actually pled guilty to felony drug possession, which is not a
“controlled substance offense” pursuant to U.S.S.G. § 4B1.1.
Petitioner argues that Respondent had a full and fair
opportunity to notice the error in the PSR and to produce
evidence of the Probation Violation at the time of sentencing;
yet it failed to do so and has not provided a valid excuse for
said failure.
Accordingly, Petitioner asserts that a limited
resentencing is appropriate.
Petitioner urges the Court to limit resentencing and
preclude the introduction of the Probation Violation so as not
to afford Respondent “a second bite at the apple.” Dickler, 64
F.3d at 832 (quoting United States v. Leonzo, 50 F.3d 1086, 1088
(D.C.Cir. 1995)).
Although the court in Dickler held that,
ordinarily, the government’s case should “stand or fall on the
record it makes the first time around[,]” the Dickler court also
stated that “[a]t the same time, [it] perceive[d] no
constitutional or statutory impediment to the district court's
providing the government with an additional opportunity to
present evidence on remand if it has tendered a persuasive
reason why fairness so requires.” Dickler, 64 F.3d at 832
(citing United States v. Ortiz, 25 F.3d 934, 935 (10th Cir.
1994) (holding that an order vacating sentence and remanding for
resentencing contemplates a de novo hearing at which court can
receive any evidence it could have considered during first
sentencing hearing)).
Additionally, there exists ample case law which supports
the notion that, when a sentence is vacated and remanded for
resentencing in § 2255 proceedings, the lower court can conduct
de novo resentencing. See United States v. Johnson, 208 F.3d 216
(6th Cir. 2000); United States v. Jennings, 83 F.3d 145, 151
(6th Cir. 1996); United States v. Moore, 83 F.3d 1231 (10th Cir.
1996); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.
1992); see also United States v. Helm, Civ. No. 08-317, 2010 WL
376142 (S.D.Tex. Jan. 25, 2010).
Also persuasive, the Third
Circuit has permitted the introduction of new evidence on remand
when the government presented an adequate explanation as to why
it was not presented at the original sentencing. See United
States v. Johnson, 587 F.3d 2013 (3d Cir. 2009) (permitting the
government to produce a plea colloquy which it was previously
unable to produce due to personnel turnover in the office that
provides transcription services).
In this case, Respondent explains that the failure to
include the Probation Violation as a qualifying predicate
offense was due to the state’s failure to file the judgment.
Indeed, the judgment was not properly filed in Hudson County
until 2014 when the oversight was brought to the Superior
Court’s attention.
Consistent with the Third Circuit’s holding
in Johnson, this Court determines that the state’s failure to
file the judgment constitutes an adequate explanation for the
error in the PSR in this case.
The fact remains that, if the PSR had contained no errors,
Petitioner would have had the requisite qualifying predicate
offenses to make him a career offender.
dispute this.
Petitioner does not
Instead, he asks the Court to preclude the
introduction of the Probation Violation as a predicate offense
because of a technical reporting error.
As discussed above, the
Court has determined that this technical reporting error is not
due solely to any lack of diligence on the part of the
government or the Probation Office, but instead is the result of
the state’s failure to enter the judgment.
In this situation,
Respondent has “tendered a persuasive reason why fairness so
requires” the introduction of the Probation Violation at
resentencing. Dickler, 64 F.3d at 832.
Because this Court would permit the introduction of the
Probation Violation at resentencing, the issue — as framed by
the parties — appears to be resolved.
Specifically, Respondent
contends, and Petitioner tacitly concedes, that Petitioner can
show no prejudice due to his counsel’s failure to object to the
Second Predicate Offense in the PSR because at resentencing he
would remain a career offender despite the error and be subject
to the same enhancement.
We note, however, that we believe Strickland requires a
more searching inquiry.
Although the parties did not address
the issue in their papers, the Court must decide whether the
entirety of the circumstances — including the ultimate
disposition of the case after resentencing — should be
considered in making a prejudice determination; or whether the
prejudice analysis should be confined to a snapshot of the case
at the moment the ineffective assistance occurred.
In applying a “snapshot” prejudice analysis to this case,
the Court would look only at the effect of the erroneous PSR at
the time of initial sentencing.
But for counsel’s failure to
object, the PSR would have — albeit incorrectly — included only
two qualifying predicate offenses and Petitioner would not have
received a sentence enhancement.
Under this limited view, one
could find prejudice under Strickland because the fact that
Petitioner was truly still a career offender at the time of the
initial sentencing, and the fact that he would again receive
career offender status at the time of resentencing, would not
influence the Court’s prejudice determination.
For the reasons
that follow, this Court concludes that such a result would be
contrary to existing case law and against fundamental principles
of fairness.
In situations like the one presently before the Court, the
prejudice determination cannot be made in a vacuum and the Court
must consider the entirety of the circumstances.
As an initial
matter, Strickland specifically did “not establish mechanical
rules” for determining whether prejudice exits, but instead
instructed that “the ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being
challenged.” Strickland, 466 U.S. at 670, 104 S.Ct. at 2056.
Thus, the Strickland Court contemplated a more fluid approach to
the prejudice test, dependent on the facts and circumstances of
a particular case.
In determining the best approach to the prejudice analysis
in this case, several Supreme Court cases are instructive.
In
Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d
180 (1993), the deficient performance at issue was the failure
of counsel for a defendant who had been sentenced to death to
make an objection that would have resulted in a sentence of life
imprisonment instead.
Case law at the time of sentencing
supported such an objection and, had his counsel acted
accordingly, Defendant Fretwell may very well have received life
imprisonment.
However, by the time Fretwell’s habeas claim
reached the Supreme Court, the case law supporting the objection
had been overruled.
Noting that a finding of prejudice would
permit Fretwell to capitalize on an Eight Circuit decision which
was no longer good law, the Fretwell Court held that,
[A]n analysis focusing solely on mere outcome
determination, without attention to whether the result
of the proceeding was fundamentally unfair or
unreliable, is defective. To set aside a conviction
or sentence solely because the outcome would have been
different but for counsel's error may grant the
defendant a windfall to which the law does not entitle
him.
Fretwell, 506 U.S. at 369-70, 113 S. Ct. at 842-43 (citing
United States v. Cronic, 466 U.S. 648, 653, 104 S.Ct. 2039,
2043, 80 L.Ed.2d 657 (1984)).
Essentially, the Fretwell Court
found that Fretwell had only been “deprived [] of the chance to
have the state court make an error in his favor.” Fretwell, 506
U.S. at 371, 113 S. Ct. at 843 (internal citations omitted).
Because the ultimate result of Fretwell’s sentencing proceeding
was neither unfair nor unreliable, he was not prejudiced.
Likewise, in Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct.
988, 998, 89 L.Ed.2d 123 (1986), the respondent argued that he
received ineffective assistance because his counsel refused to
cooperate in presenting perjured testimony.
The Nix Court
acknowledged that if the respondent presented false testimony,
there might have been a reasonable probability that the result
of the proceeding would have been different.
Nevertheless, the
Court held that a different outcome — even one more favorable to
the petitioner — was insufficient to establish prejudice because
he had received a fair trial.
Case law has established that there are situations, like
those in Fretwell and Nix, “in which the overriding focus on
fundamental fairness may affect the [prejudice] analysis.”
Williams v. Taylor, 529 U.S. 362, 363, 120 S. Ct. 1495, 1497,
146 L. Ed. 2d 389 (2000).
situation.
The facts of this case present such a
Here, it is undisputed that, despite the errors in
the PSR, Petitioner was, in fact, a career offender at the time
of his sentencing.
Thus, the ultimate result of his sentencing
proceeding was neither unfair nor unreliable.
Additionally, Petitioner has no constitutionally protected
right to be sentenced improperly.
“Unreliability or unfairness
does not result if the ineffectiveness of counsel does not
deprive the defendant of any substantive or procedural right to
which the law entitles him.” Fretwell, 506 U.S. at 372, 113
S.Ct. at 844; see also Nix, 475 U.S. at 186, 106 S. Ct. at 1004;
cf. Williams, 529 U.S. at 363, 120 S. Ct. at 1497 (departure
from straightforward application of Strickland not justified
when counsel's ineffectiveness deprived defendant of a
substantive or procedural right to which the law entitled him).
Moreover, as the Court in Strickland noted, a defendant
“has no entitlement to the luck of a lawless decisionmaker[.]”
Strickland, 488 U.S. at 694, 104 S.Ct. 2068.
The likelihood of
a different outcome attributable to the technical reporting
error in the PSR should be regarded as a potential “windfall” to
Petitioner rather than the legitimate “prejudice” contemplated
in Strickland. See Fretwell, 506 U.S. 364, 113 S.Ct. 838.
Therefore, to set aside Petitioner’s sentence solely because the
outcome would have been different but for counsel's error would
grant Petitioner a windfall to which the law does not entitle
him. See id. at 369-70, 113 S. Ct. at 842-43; see also Nix, 475
U.S. 157, 106 S.Ct. 988.
Ultimately, the proceeding challenged by Petitioner by way
of this Petition was not unreliable or unfair.
He was a career
offender and he received an enhanced sentence.
Accordingly, the
Court cannot find that he was prejudiced by his counsel’s
failure to object to the errors in the PSR and he cannot satisfy
the second prong of Strickland.
IV.
His Petition will be denied.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
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 United States v. Williams, 536 F.
App’x 169 (3d Cir. 2013).
Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right.
No certificate of
appealability shall issue.
V.
CONCLUSION
For the reasons set forth above, the Petition shall be
denied.
An appropriate order follows.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: June 24, 2015
At Camden, New Jersey
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