ROSARIO v. UNITED STATES OF AMERICA
Filing
40
OPINION. Signed by Judge Noel L. Hillman on 9/18/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
RENE ROSARIO,
:
:
Petitioner,
:
Civ. No. 14-5592 (NLH)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
______________________________:
APPEARANCES:
Rene Rosario, No. 64817-050
FCI Fort Dix
P.O. Box 2000
Joint Base MDL, NJ 08640
Petitioner Pro Se
Diana V. Carrig, Esq.
Office of the United States Attorney
401 Market Street
Camden, NJ 08101
Counsel for Respondent
HILLMAN, District Judge
Presently before the Court is the Amended Motion to Vacate,
Set Aside, or Correct Sentence of Rene Rosario (“Petitioner”)
brought pursuant to 28 U.S.C. § 2255 (the “Petition”).
11.
ECF No.
In response to this Court’s Order to Answer, ECF No. 12,
Respondent the United States of America filed its Answer, ECF
No. 30, and Petitioner filed a Reply, ECF No. 35.
Both the
Petitioner and the Respondent also submitted supplemental letter
briefs.
See ECF Nos. 37 (petitioner), 38 (respondent).
1
For the
reasons discussed below, the Court will deny the Petition and
decline to issue a certificate of appealability
I.
BACKGROUND
A.
Criminal Proceedings
In July 2012, a detective with the New Jersey State Police
(“NJSP”) notified an agent with the United States Drug
Enforcement Administration (“DEA”) that Petitioner Rene Rosario
was looking for a source of supply for cocaine.
2.
ECF No. 30 at
Later that summer, on August 24, 2012, Rosario and co-
defendant Winston Womble met with an undercover law enforcement
officer (“UC”) and a confidential source (“CS”) at a Starbucks
in Cherry Hill, New Jersey, to discuss purchasing ten kilograms
of cocaine.
Id. at 2-3.
At the meeting, Petitioner vouched for
Womble, who was meeting the CS and UC for the first time,
stating that Womble was his brother-in-law and that they were
together.
Id. at 3.
Rosario and Womble told the UC that Camden
was suffering from a cocaine shortage, and they had “[s]o many
people waiting that we got lined up” as customers, some of whom
“give us money ahead of time.”
Id.
During the meeting, Petitioner discussed the proposed drug
transaction and made numerous statements such as suggesting that
the UC “[c]heck my name in the streets,” stating that he did not
“rob nobody [or] beat nobody for their money,” and that “[w]e
2
can move a whole lot 5-10 keys.”
Id.
Both Womble and
Petitioner confirmed that “[w]e can handle 10.”
Id.
Petitioner and Womble agreed to buy new phones to be used
for communicating with the UC.
Id. at 4.
phones, they rejoined the UC at Starbucks.
After purchasing the
Id.
Petitioner told
the UC that he and Womble did not want to switch cars to conduct
the transaction as suggested by the UC: “[L]et’s talk a little
bit more real fast. . . . I feel like . . . it’s kind of weird
giving you . . . 320 [presumably, $320,000] . . . taking your
car and taking another car.
You know what I’m saying?”
Id.
The UC suggested that they start off “smaller,” to which
Petitioner responded, “five [kilograms] is fine too . . .
[c]ause the money’s not the problem . . . [we] could probably do
that ourselves.”
Id.
The men agreed to the car switch with the
UC’s brother accompanying Womble with the drugs and Rosario
accompanying the UC with the money until each side was able to
verify the authenticity of the transaction.
Id.
At the
meeting, the UC asked, “who’s responsible if something is not
right.
Am I dealing with you or am I dealing with you?”
Petitioner responded, “You dealing with both of us.”
Id.
On September 25, 2012, Petitioner, Womble, and another
associate of Petitioner’s met with the CS, who recorded the
meeting.
Id.
When Petitioner and Womble arrived, Petitioner
again raised the issue of the logistics of the proposed
3
transaction - the car switch - because Petitioner wanted an
opportunity to check the cocaine before advancing payment.
at 5.
Petitioner discussed proceeding cautiously:
Rosario
stated, “We’re taking more chances than he [the UC] is.
coming up with the cash.
Id.
Id.
We’re
He ain’t gonna beat us or anything.”
Womble confirmed that they had the money for five kilograms
but wanted ten kilograms, and stated “[w]e want as much as we
can get.”
Id.
Petitioner confirmed that, telling the CS,
“[j]ust tell him [UC] that we can get five.
to check the material.
It’s the best way
We gotta agree to that.
established, then work with us after that.”
Once that’s
Id. at 5-6.
Petitioner said that he wanted to move forward with the purchase
“ASAP” and that he preferred not to
keep going to people I’m going to. They too high, and
I don’t feel like tripping to go see these people.
Not the regular people we been dealing with. So right
now, we ready to do some more stuff. So talk to him
[the UC] to try to make something happen.
Id. at 6.
Petitioner also stated that he hoped that the cocaine
would be “really go[o]d product,” that “[w]e’re ready for at
least five [kilograms].
We can do five all day long.
We need
it,” and that, “I’m not rushing him but we can’t stay dry.”
Id.
On October 1, 2012, Petitioner and Womble met the UC and CS
at a restaurant inside the Promenade Shopping Center in Evesham,
New Jersey.
Id. at 7.
The UC had agreed to show Petitioner and
Womble the ten kilograms of cocaine.
4
Id.
They walked to the
UC’s car, where the UC and another undercover officer displayed
ten kilograms of cocaine to Petitioner and Womble.
Id.
Womble
picked up one kilogram of cocaine, cut into it with a knife to
verify its contents, and returned the kilogram to the car.
Id.
Petitioner, Womble, and the UC then returned to the restaurant,
where Petitioner and Womble informed the UC that they would have
the cash for five kilograms of cocaine within two days.
They each shook the UC’s hand and left the restaurant.
Id.
Id.
Shortly after leaving the restaurant, the CS informed the
UC that Petitioner and Womble wanted to talk to the UC again.
Id.
at 8.
restaurant.
The UC directed the CS to tell them to return to the
Id.
They returned to the restaurant and resumed
their conversation with the UC.
Petitioner explained that after
seeing the cocaine, they were ready to proceed with the deal
that day.
Id.
They explained that they only had enough money
to purchase four kilograms of cocaine but that they would return
to purchase the remaining six kilograms in the next few days.
Id.
When the UC asked them when they would purchase the
remaining six, Petitioner replied “[a]s soon as I can contact
the right [person], I can contact the right [person], the next
day.”
Id.
After discussing logistics and confirming the price
of $33,000 per kilogram, Petitioner told the UC that it would be
quicker if they conducted the transaction at Starbucks.
5
Id.
Petitioner arranged to meet the UC later that evening at the
Starbucks in Cherry Hill, New Jersey.
Id.
Petitioner drove Womble in a Ford Escape to the Starbucks,
where they told the UC that they had the money to purchase the
four kilograms of cocaine with them in a separate car.
9.
Id.
at
Petitioner and Womble then left to get the other car, a
Honda, with Petitioner returning in the Ford and Womble
returning in the Honda.
Id.
Petitioner opened the rear of the
Honda to show $130,000.
Id.
The UC then handed Womble a key to
a car he said contained four kilograms of cocaine with
instructions for opening the hidden compartment that contained
the cocaine.
Id.
Petitioner saw a suspicious car and instructed Womble to
drive away.
Id.
The UC retrieved the car key and instructions
from Womble and, after that, gave the command to have them
arrested.
Id.
Law enforcement officers stopped and arrested
Womble and Petitioner in their separate vehicles.
Id.
When
officers searched a concealed compartment in Womble’s Honda,
they found a loaded .40 caliber handgun and approximately
$130,000.
Id.
After his arrest, Petitioner was charged by criminal
complaint with conspiracy to distribute and possession with
intent to distribute in excess of five hundred grams of cocaine
6
in violation of 21 U.S.C. § 846. 1
See No. 13-cr-95, ECF No. 1.
The Court appointed Richard Sparaco, Esquire, to represent
Petitioner.
No. 13-cr-95, ECF No. 3.
The Government provided
discovery including reports, recordings, and transcripts
summarizing each of the three meetings.
30 at 10.
No. 14-cv-5592, ECF No.
Petitioner waived his right to an indictment and
agreed to plead guilty by information to the offense charged in
the criminal complaint.
See No. 13-cr-95, ECF Nos. 9
(information), 10 (waiver of indictment), 12 (plea agreement).
On February 6, 2013, Rene Rosario entered a guilty plea
before the Court to a one count information charging him with
conspiring with Winston Womble and others to distribute and
possess with intent to distribute more than 500 grams of
cocaine, in violation of 21 U.S.C. § 846.
Nos. 11 (minute entry), 26 (transcript).
No. 13-cr-95, ECF
Petitioner’s plea
agreement explained the potential penalties from his plea,
including the five year mandatory minimum sentence and forty
year maximum sentence.
at 1-2.
No. 13-cr-95, ECF No. 12, Plea Agreement
In addition, the plea agreement included a stipulation
pertaining to the possibility that the Court, at sentencing,
1
His co-defendants, Winston Womble and Jerel Clark were also
charged with the same offense in the same complaint. See No.
13-cr-95, ECF No. 1.
7
would find that Rosario was a career offender under U.S.S.G. §
4B1.1.
Id., Sch. A, ¶ 5.
During the guilty plea colloquy, the Court questioned
Petitioner about his understanding and acceptance of the plea
agreement and concluded that Rosario understood and accepted the
plea agreement, and that he knowingly, intelligently, and
voluntarily waived his right to proceed to trial.
cr-95, ECF No. 26.
See No. 13-
The Government then summarized the plea
agreement, including the statutory maximum sentence of up to
forty years’ imprisonment, the mandatory minimum of five years’
imprisonment, and the possible application of the Career
Offender Guideline.
Id. at 9-11.
Petitioner stated that he
understood the plea agreement, reviewed it with Mr. Sparaco, and
then signed it:
THE COURT:
Did you sign it after you reviewed it with
Mr. Sparaco?
THE DEFENDANT: Yeah. He reviewed everything with me.
THE COURT:
Did you sign it after you read it yourself?
THE DEFENDANT: Yes.
THE COURT:
All right.
Did you understand it?
THE DEFENDANT: Yes. He explained each paragraph as we went
along.
THE COURT:
All right. Good.
about it now?
THE DEFENDANT: No.
8
Do you have any questions
Id. at 11-12; 13-14.
The Court advised Petitioner of the
maximum penalties and Petitioner stated that he understood them.
Id. at 18-19.
The Court also explained the Sentencing
Guidelines, including the application of the career offender
provision and that Petitioner would not be able to withdraw his
plea if he received a sentence that was “different than what you
wished for or hoped for or was predicted.”
Id. at 19-24.
Petitioner stated that he understood. Id. at 24.
The Court outlined the elements necessary to prove the
offense charged and Petitioner stated that he understood each
element of the offense.
Id. at 28-29.
The Government then
questioned Petitioner about the factual basis for the offense
charged:
MS. CARRIG:
Mr. Rosario, from in or about August, 2012,
through on or about October 1, 2012, did you
agree with others, including but not limited
to Winston Womble, to participate in the
purchase of approximately four kilograms of
cocaine?
THE DEFENDANT: Yes.
MS. CARRIG:
Did you know that such an agreement violated
federal narcotics laws?
THE DEFENDANT: Yes.
MS. CARRIG:
As part of your agreement, did you introduce
Winston Womble to an individual you believed
could broker the sale of kilograms of
cocaine?
THE DEFENDANT: Yes.
9
MS. CARRIG:
And did that person subsequently introduce
you and Mr. Womble to a person whom you
later learned was an undercover law
enforcement officer?
THE DEFENDANT: Yes.
MS. CARRIG:
On or about August 24th of 2012, did you and
Mr. Womble meet with the undercover officer
at a Starbucks in Cherry Hill, New Jersey?
THE DEFENDANT: Yes.
MS. CARRIG:
And during that meeting, did you and Mr.
Womble discuss purchasing kilogram
quantities of cocaine from the undercover
officer for between $32,500 to $33,000 per
kilogram?
THE DEFENDANT: Yes.
MS. CARRIG:
On or about October 1st of 2012, did you and
Mr. Womble meet with the undercover officer
at a restaurant in the Promenade Shopping
Center in Evesham, New Jersey?
THE DEFENDANT: Yes.
MS. CARRIG:
And during that meeting, did you and Mr.
Womble again talk about buying kilogram
quantities of cocaine from the undercover
officer?
THE DEFENDANT: Yes.
MS. CARRIG:
During that meeting, did you and Mr. Womble
walk out to the parking lot to the
undercover officer’s car and look at
approximately ten kilograms of cocaine that
was contained in the car?
THE DEFENDANT: Yes.
MS. CARRIG:
And while in your presence, did Mr. Womble
reach into one of the undercover officer’s
cars, pick up a kilogram of cocaine and cut
into that kilogram?
THE DEFENDANT: Yes.
10
MS. CARRIG:
Did Mr. Womble cut into that kilogram of
cocaine to ensure that it actually contained
cocaine?
THE DEFENDANT: Yes.
MS. CARRIG:
And shortly thereafter, did you and Mr.
Womble go back into the restaurant and agree
with the UC to buy four kilograms of cocaine
later that evening?
THE DEFENDANT: Yes.
MS. CARRIG:
Later that evening, that’s October 1st of
2012, did you arrange for you and Mr. Womble
to meet with the undercover officer at the
Starbucks in Cherry Hill to make the
purchase?
THE DEFENDANT: Yes.
MS. CARRIG:
And did you and Mr. Womble bring with you
approximately $130,000 in cash?
THE DEFENDANT: Yes.
MS. CARRIG:
. . . . [W]as that [money] contained inside
the black Honda Accord?
THE DEFENDANT: Yes.
MS. CARRIG:
And did you and Mr. Womble bring that money
for the purpose of buying the four kilograms
of cocaine?
THE DEFENDANT: Yes.
MS. CARRIG:
At the undercover officer’s request, did you
show that buy money to the undercover
officer?
THE DEFENDANT: Yes.
MS. CARRIG:
And do you agree that four kilograms of
cocaine is a distribution amount of cocaine
rather than a personal use amount of
cocaine?
THE DEFENDANT: Yes.
11
MS. CARRIG:
And did you do all of these things that I
asked you about willfully, that is,
voluntarily and not by mistake?
THE DEFENDANT: Yes.
MS. CARRIG:
And are you guilty of conspiring with Mr.
Womble and others to distribute and possess
with intent to distribute cocaine as alleged
in the Information?
THE DEFENDANT: Yes, I am.
Id. at 30-33.
The Court concluded that Petitioner’s guilty plea
was knowing, voluntary, and “intentionally entered into with an
independent basis in fact, containing each of the essential
elements of the offense.”
Id. at 35.
Notably, when the Court
asked if Petitioner was satisfied with the performance of his
counsel, he replied “very much.”
Id.
Before sentencing, the Probation Office determined that
based upon Petitioner’s three prior drug trafficking
convictions, Petitioner qualified as a Career Offender within
the meaning of U.S.S.G. § 4B1.1.
15.
No. 14-cv-5592, ECF No. 30 at
Specifically, Petitioner had been convicted of the
following drug trafficking felonies:
(1) FIRST FELONY DRUG TRAFFICKING OFFENSE, PSR ¶ 46:
Possession of a controlled dangerous substance (“CDS”)
with the intent to distribute within 1,000 feet of
school property in the New Jersey Superior Court of
Camden County (Camden Co. Ind. No. 95-02-0413), for
which he was sentenced on or about June 30, 1995 to 3
years’ imprisonment. Rosario was released to New
Jersey’s Intensive Supervision Program (“ISP”) on
12
November 30, 1995 and – after having committed the
below described offense (PSR ¶ 48)— was terminated
from the ISP Program and returned to custody for this
offense on or about March 21, 1997. Rosario was
released to home confinement on July 24, 1998, paroled
on November 9, 1998 – approximately 14 years prior to
his commission of the present offense, and terminated
from parole the following year, on November 28, 1999.
(2) SECOND FELONY DRUG TRAFFICKING OFFENSE, PSR ¶ 48:
Distribution of CDS within 1,000 feet of a school zone
in the New Jersey Superior Court, Camden County
(Camden Co. Ind. No. 97-04-0973) for which he was
sentenced on or about August 22, 1997 to five years’
imprisonment. Rosario was released to home
confinement, paroled and terminated from parole on
this offense on the same dates as listed above).
(3) THIRD FELONY DRUG TRAFFICKING OFFENSE, PSR ¶ 50:
Conspiracy to possess CDS with intent to distribute in
the New Jersey Superior Court for Camden County
(Camden Co. Ind. No. 04-07-2659), for which he was
sentenced on or about February 25, 2005 to five years’
imprisonment. Rosario was paroled on this offense on
April 2, 2007.
Id.
Applying the Career Offender Guideline, Probation
determined that Rosario had a total offense level of 31 and a
criminal history category of VI, which corresponded to an
advisory Guidelines range of 188 to 235 months with a statutory
mandatory minimum sentence of five years.
13
Id. at 16.
In his plea agreement, Petitioner reserved the right to
challenge the application of the Career Offender Guideline.
After receiving the draft PSR, he objected to the application of
three criminal history points for the felony drug conviction
described in Paragraph 46 of the pre-sentence investigation
report (“PSR”), but conceded the applicability of the Career
Offender Guideline.
Id. (“Defendant acknowledges that
ultimately his Criminal History Category becomes VI because of
the applicability of the Career Offenders Guideline under §
4B1.1.
Although the plea agreement allows for the defendant to
contest its applicability, after our investigation and review,
the defendant now concedes his qualifies as a Career Offender
under § 4B1.1.”).
The Probation Office responded by referring
to records from the New Jersey State Parole Board, which
confirmed that because Petitioner violated his intensive
supervision program (“ISP”) by committing his second felony drug
offense, his ISP was revoked and he was, in fact, in custody on
the offenses summarized in PSR paragraphs 46 and 48, during the
fifteen-year period preceding his commission of the present
offense.
Id.
In addition, Petitioner’s counsel filed a
sentencing brief in which he sought a downward variance based
upon his lack of a violent criminal history, strong family
support, minor role in the offense, and other factors.
17.
14
Id. at
At the sentencing hearing on September 5, 2013, Mr. Sparaco
withdrew his objection to the application of three criminal
history points for the PSR paragraph 46 conviction, explaining
that Petitioner
was paroled November 9th of 1998. I checked with my
client. He confirmed it. It may have been the summer
of ‘98 which still would have been within 14 years of
the commencement of the present offense.
No. 13-cr-95, ECF No. 25 at 3.
Petitioner did not contest his
counsel’s withdrawal of the objection or the statement that he
confirmed that he was in custody as late as the summer of 1998.
The Court accepted the Probation Department’s determination
that the Career Offender provision in U.S.S.G. § 4B1.1 applied
to Petitioner and, therefore, his offense level was 31 with
Criminal History Category of VI, yielding an advisory range of
188 to 235 months’ imprisonment.
Id. at 9.
Mr. Sparaco argued
for leniency and a downward variance for numerous reasons
including Petitioner’s non-violent history, and Petitioner
himself requested leniency from the Court, speaking about his
children and how they needed him home.
Id. at 10-19.
Petitioner explained his choice to participate in the conspiracy
as follows:
It’s not to justify what I did because I knew exactly what
I was doing. But . . . I didn’t think because I wasn’t
touching anything, I was – I wasn’t going to keep doing it.
I just needed a couple of dollars to hold me off until I
got myself situated again.
15
Id. at 18-19.
During the sentencing hearing, the violent tendencies of
Petitioner’s co-defendant were discussed:
MS. CARRIG:
There are several things that I take issue
with that Mr. Rosario and Mr. Sparaco said,
and I think they are very indicative of drug
trafficking here in Camden in general. In
many respects, Mr. Rosario is a very typical
defendant that we see in these cases. The
guidelines are extraordinarily high. He has
three prior drug trafficking convictions.
He’s done jail time, it hasn’t changed him.
Mr. Sparaco said that Mr. Rosario is not a
violent man, he’s not a violent person. And
it’s true, there’s no criminal history of
violence. But he was running in a very
violent game. He was a high-level drug
trafficker in Camden, and he was the one who
recruited Winston Womble to come into this
drug deal. . . Mr. Rosario had the contact
with the confidential informant and the
undercover officer and he brought in Womble.
Womble is a violent guy. He has a prior for
a weapons possession and he had in his
possession when he was arrested a .40
caliber loaded Smith & Wesson. He had
another gun in his home. And, if you
recall, codefendant Jerel Clark was sent to
Winston Womble’s mother’s house to pick up a
MAC-11 machine gun with two extended clips.
So Womble was a very dangerous man.
And, again, I don’t mean to cast aspersions
on Mr. Rosario with respect to it. The drug
trafficking game in Camden is inherently a
dangerous game, and to run in that circle,
there’s always a potential for violence.
THE COURT:
I believe Mr. Womble’s weapon in the car had
hollow — there was a magazine with hollowpoint bullets as well, if I remember.
16
MS. CARRIG:
I don’t have that detail in my memory, but I
can find it for Your Honor. I do recall
that it was loaded. And he brought it to
the drug deal when he brought $130,000 cash,
which Mr. Rosario also knew about, also a
very dangerous situation to be walking
around with $130,000 cash at a strip mall .
. . .
THE COURT:
To be clear, there is no indication that the
gun was Mr. Rosario’s.
MS. CARRIG:
No indication whatsoever. The gun was Mr.
Womble’s. That gun belonged to Mr. Womble,
and Mr. Womble was the one who brought it
there.
I – I think 188 to 235 months is an
extraordinarily long amount of time. 15 to
almost 20 years in prison is an outrageously
long period of time. . . .
And how much time is enough time, Your
Honor? I think 180 – 188 months is certainly
enough time – is certainly enough time.
Id. at 20-22.
After the Government conceded that Petitioner should only
receive a sentence below or at the low end of the Guideline
range, Mr. Sparaco focused his advocacy on why an even lesser
sentence would still send an appropriate message to Petitioner:
Mr. Sparaco:
I think Ms. Carrig did hit it on the head.
How much is enough? And I think that maybe
a message can be given to my client that
even a slight break on this sentence will
give him some encouragement that there is a
future for him. And if it’s 15-and-a-half
years, it just seems to be just a bit too
much under the circumstances.
Id. at 24.
17
The Court granted Petitioner a two-level downward variance
based upon his lack of a history for violence, his role in the
offense, his attempt to cooperate with the Government, his
difficult upbringing, his lengthy pre-sentencing incarceration,
his role as a father, and his strong family support.
Id. at 28.
Within the newly reduced range of 151 to 188 months, which
corresponded to an offense level of 29 and Criminal History
Category VI, the Court sentenced Petitioner to 168 months’
imprisonment and five years of supervised release.
Id. at 32-
33.
The Court
See also No. 13-cr-95, ECF No. 16 (judgment).
explained that the sentence was necessary to punish Petitioner
and deter others from committing serious drug trafficking
offenses.
The Court also noted the quantity of drugs involved
in the transaction and that “[t]his was not a one-shot deal by a
couple of amateurs . . . and you did it in a place where people
are going about their daily lives, shopping and at a risk
because of the danger inherent in this kind of activity in a
commercial zone.”
B.
No. 13-cr-95, ECF No. 25 at 30-31.
Appeal
Petitioner filed a timely Notice of Appeal on September 11,
2013.
No. 13-cr-95, ECF No. 14.
Sarah Gannett, Esquire, from
the Federal Public Defender’s Office was appointed to represent
Petitioner by order entered October 1, 2013; she entered her
appearance on his behalf on November 5, 2013.
18
No. 13-3864 (3d
Cir.).
Counsel, on behalf of Petitioner, requested his trial
court plea and sentencing transcripts, which were produced on
December 2, 2013.
See id.
Attorney Gannett filed a motion for
voluntary dismissal of the appeal on February 24, 2014.
13-3864 (3d Cir.).
See No.
Petitioner signed that motion, stating, “I,
Rene Rosario, hereby consent to the dismissal of Appeal Number
1303864 for the reasons stated in the foregoing motion.”
Id.
No specific reasons were stated in the motion, other than that
Petitioner had consulted with his attorney regarding the
withdrawal and that Petitioner sought to withdraw the appeal
pursuant to Federal Rule of Appellate Procedure 42(b).
See id.
By Order dated February 24, 2014, the Third Circuit dismissed
Petitioner’s appeal.
C.
Id.
§ 2255 Motion
Petitioner timely filed a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, ECF No. 1, and
thereafter filed an Amended Motion, ECF No. 11.
In the Amended
Petition, Plaintiff alleges that both his trial counsel and
appellate counsel were ineffective.
Specifically, he argues
that his trial counsel was ineffective because (1) trial counsel
failed to correctly inform Petitioner of the factual predicates
for a § 846 conspiracy violation, and such failure rendered
Petitioner’s guilty plea unknowing and unintelligent; (2) trial
counsel failed to investigate the prior crimes used as predicate
19
offenses for a career offender designation and failed to object
to their use in support of such designation; and (3) trial
counsel failed to object to certain statements about
Petitioner’s co-defendant made by the government at sentencing.
ECF No. 11 at 7-11.
As to the prejudice Petitioner has
suffered, he asserts that he would not have pleaded guilty and
would have taken his chances at trial (ground one), that he
would not have been classified as a career offender and his
sentence would have been different (ground two), and that there
is a reasonable probability that his sentence would have been
lower (ground three).
Id.
As to his appellate counsel, Plaintiff argues that she was
ineffective for failing to raise meritorious issues on appeal.
Id. at 11.
Plaintiff states that his appellate counsel should
have raised such issues as the insufficient basis for his guilty
plea and the improper use of a crime as a predicate offense for
his career offender designation.
Instead, Plaintiff asserts
that his appellate counsel urged him not to prosecute the appeal
and to withdraw it voluntarily.
According to Petitioner, if
these issues were raised on appeal, there is a reasonable
probability that the Court of Appeals for the Third Circuit
would have remanded the case for further proceedings.
20
II.
STANDARD OF REVIEW
A prisoner in federal custody under a federal sentence “may
move the court which imposed the sentence to vacate, set aside
or correct the sentence” upon the grounds that (1) “the sentence
was imposed in violation of the Constitution or laws of the
United States,” (2) “the court was without jurisdiction to
impose such sentence,” or (3) “the sentence was in excess of the
maximum authorized by law.”
28 U.S.C. § 2255(a).
The Court, in
considering a § 2255 motion, must accept the truth of a movant’s
factual allegations unless they are frivolous on the basis of
the existing record.
See United States v. Booth, 432 F.3d 542,
545 (3d Cir. 2005).
A court may deny the motion without holding
an evidentiary hearing if “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).
III. DISCUSSION
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel.
Washington, 466 U.S. 668, 685–86 (1984).
See Strickland v.
A defendant who
alleges ineffective assistance must satisfy the two-part test
outlined in Strickland:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
21
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Id. at 687.
To show deficient performance, “the defendant must show
that counsel’s representation fell below an objective standard
of reasonableness . . . under prevailing professional norms.”
Id. at 686–88.
A petitioner must identify the particular acts
or omissions that are challenged as unprofessional.
690.
See id. at
Under this first prong of the Strickland test, scrutiny of
counsel's conduct must be “highly deferential.”
See id. at 689.
Indeed, “[c]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
Id. at 690.
The
reviewing court must make every effort to “eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate
the conduct from counsel's perspective at the time.”
689.
Id. at
If counsel makes “a thorough investigation of law and
facts” about his plausible options, then counsel's strategic
choices are “virtually unchallengeable.”
Gov't of Virgin
Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006) (citing
Strickland, 466 U.S. at 690-91).
22
The second prong of the Strickland test requires the
petitioner to prove prejudice.
See Stickland, 466 U.S at 693.
To demonstrate prejudice, the defendant must show that counsel’s
deficient performance “actually had an adverse effect on the
defense.”
Id. at 693.
“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Id. at 694.
“The
likelihood of a different result must be substantial, not just
conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011).
In the context of a guilty plea, the prejudice prong
requires that defendant “show that there is a reasonable
probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial.”
v. Lockhart, 474 U.S. 52, 59 (1985).
Hill
Only attorney errors that
affect the outcome of a criminal proceeding will be grounds for
habeas relief.
Strickland, 466 U.S. at 691.
The requirement of
prejudice reflects the substantial interest in the finality of
guilty pleas that would be too easily undermined by defendants
seeking a more favorable outcome to challenge a plea after the
fact.
Hill, 474 U.S. at 58.
In the first ground for relief in his Petition, Petitioner
argues that his trial counsel was ineffective by wrongly
23
advising him that “simply referring a drug customer to a
supplier was sufficient to support a conspiracy conviction”
which resulted in an “unknowing and unintelligent guilty plea.”
Am. Pet. at 7-8; Reply at 4-5.
Petitioner cites United States
v. Pressler, 256 F.3d 144, 153 (3d Cir. 2001), in support of his
argument that providing an introduction or referral is
insufficient to establish conspiracy under 21 U.S.C. § 846.
To establish a conspiracy under § 846, the government must
prove (1) that two or more persons agreed to distribute and
possess with the intent to distribute a controlled substance;
(2) that the defendant was a party to or member of that
agreement; (3) that the defendant joined the agreement or
conspiracy knowing of its objectives to distribute and possess
with intent to distribute a controlled substance and intending
to join together with at least one other alleged conspirator to
achieve those objectives (unity of purpose); and (4) that the
scope of the conspiracy involved at least 500 grams of a mixture
and substance containing a detectable amount of cocaine.
See
Third Circuit Model Jury Instructions § 6.21.846B; United States
v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).
The government may
prove these elements entirely by circumstantial evidence.
United States v. McGlory, 968 F.2d 309, 321 (3d Cir. 1992)
See
(citing United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.
1986)).
24
“The existence of a conspiracy ‘can be inferred from
evidence of related facts and circumstances from which it
appears as a reasonable and logical inference, that the
activities of the participants . . . could not have been carried
on except as the result of a preconceived scheme or common
understanding.’”
Id. (quoting Kapp, 781 F.2d at 1010).
“The
government need not prove that each defendant knew all of the
conspiracy's details, goals, or other participants” but it must
demonstrate that each drug transaction in which the defendant
was involved was ‘a step in achieving the conspiracy's common
goal of distributing cocaine for profit.’” Id. (quoting United
States v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir. 1989).
At Petitioner’s guilty plea hearing, the Court explained
the conspiracy charge as well as the elements necessary to prove
conspiracy.
The Government then recited the facts to support
each element of conspiracy, and the Petitioner admitted to his
participation to each and his guilt while under oath.
In Pressler, the case cited by Petitioner in support of his
argument, the Court of Appeals for the Third Circuit held that a
buyer-seller relationship or a simple referral to purchase drugs
is insufficient to establish a conspiracy.
at 153-56.
Pressler, 256 F.3d
Here, however, the predicate facts that establish
the elements of the conspiracy involve neither a buyer-seller
relationship nor a simple referral to purchase drugs.
25
Petitioner was an integral member of the conspiracy, and without
him, the drug deal may not have occurred.
Specifically,
Petitioner identified and made contact with the source of
cocaine, organized the meetings, negotiated the transaction, and
participated in each part of the deal including the final
transaction.
Although Petitioner may have thought his
involvement was only as a referral source or to “vouch” for
Womble, the facts of the transaction prove otherwise.
Further,
Petitioner admitted under oath to his participation in every
element of the conspiracy during his guilty plea hearing, and
the Government had ample evidence to support every element of
conspiracy.
Because the evidence as well as Petitioner’s
admissions establish the elements of conspiracy and not a mere
referral or buyer-seller relationship, Petitioner’s trial
counsel was not ineffective for advising Petitioner that his
actions were sufficient to support a conspiracy conviction.
As
such, there is no merit to Petitioner’s first ground for relief.
Petitioner’s second ground for relief is that his trial
counsel was ineffective because he failed to investigate the
facts of a prior crime used as a predicate offense towards
Petitioner’s career offender designation and also failed to
object to the use of that prior crime for such designation.
At
issue is Petitioner’s conviction for a drug offense in August
1997, for which he remained incarcerated through July 24, 1998,
26
and restricted to home confinement until November 9, 1998.
Petitioner argues that this conviction could not be utilized as
a predicate offense for a career offender designation because he
was released from imprisonment for this conviction in 1997,
before the fifteen year lookback period of the Sentencing
Guidelines.
See ECF No. 11 at 9.
The U.S. Sentencing Commission’s Guidelines provide a
formula to determine a defendant’s criminal history category,
which is utilized in determining a defendant’s sentencing range.
Three points are added for each prior sentence of imprisonment
exceeding one year and one month.
See U.S.S.G. § 4A1.1(a).
The
“applicable time period” for whether a prior sentence “counts”
is defined as follows:
Any prior sentence of imprisonment exceeding one year
and one month that was imposed within fifteen years of
the defendant’s commencement of the instant offense is
counted. Also count any prior sentence of
imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-year
period.
U.S.S.G. § 4A1.2(e)(1).
The Probation Office and the Court correctly counted
Petitioner’s 1997 offense because it falls within the scope of
the U.S. Sentencing Guideline’s “applicable time period.”
Here,
Petitioner was paroled on November 9, 1998, which is within the
fifteen year period preceding Petitioner’s arrest for the
27
instant offense on October 2, 2012.
Therefore, this offense was
properly included and counted towards Petitioner’s career
offender designation because he remained incarcerated on it
during the fifteen year period preceding his arrest pursuant to
U.S.S.G. 4A1.2(e)(1).
Petitioner’s ground for relief thus fails
because it rests upon an unsound factual basis - that he was
released in 1997 and thus his prior offense was beyond the scope
of U.S.S.G. 4A1.2(e)(1)’s lookback period.
Because there is no
merit to Petitioner’s contention - he was not released until
1998, within the lookback period - it was likewise not
ineffective for his trial counsel not to raise it.
See United
States v. Hall, No. 06-cr-2, 2010 U.S. Dist. LEXIS 43754, *8,
2010 WL 1816796, *3 (E.D. Pa. May 4, 2010) (“An attorney cannot
be ineffective for failing to raise a claim that lacks merit.”)
(citing Moore v. Deputy Comm'r of SCI–Huntington, 946 F.2d 236,
245 (3d Cir. 1991)).
Petitioner’s third ground for relief is that his trial
counsel failed to object to and argue against statements made
regarding his co-defendant’s propensity for violence.
11 at 10-11.
ECF No.
The discussion of his co-defendant’s violence
during his sentencing hearing, Petitioner argues, influenced the
Court in its decision to impose a greater sentence than what he
would have otherwise received.
Id.
28
Contrary to Petitioner’s assertion, Petitioner’s trial
counsel argued at length that Petitioner was not a violent
person, had no history of violent crime, and that the proposed
sentencing range - higher than one would ordinarily expect for a
non-violent offense - should be decreased because of
Petitioner’s non-violent history.
10-11.
No. 13-cr-95, ECF No. 25 at
Indeed, even counsel for the Government acknowledged
trial counsel’s effective argument and agreed with the
assessment that Petitioner has no history of violence.
No. 13-
cr-95, ECF No. 25 at 24 (“Mr. Sparaco said that Mr. Rosario is
not a violent man, he’s not a violent person.
And it’s true,
there’s no criminal history of violence.”).
Although the Government identified the inherent danger in
drug trafficking and the violence of his co-defendant, no
violent aspersions were cast upon Petitioner.
During the brief
reference to Petitioner’s co-defendant’s gun, the Court even
noted that “[t]o be clear, there is no indication that the gun
was Mr. Rosario’s.”
The Government agreed and admitted it was
his co-defendant’s, stated that the proposed sentencing
guideline range “is an extraordinarily long amount of time” and
“an outrageously long period of time,” and argued that
Petitioner should receive a sentence at the bottom of or below
the proposed guidelines.
29
In light of the Government’s concession regarding the
length of sentence, Mr. Sparaco continued to advocate for a
below guidelines sentence.
This was a reasonable tactical
decision by Mr. Sparaco, because no dispute existed as to
Petitioner’s non-violent nature and history.
Furthermore, trial
counsel’s arguments regarding Petitioner’s lack of violence and
imposing a sentence below the guidelines range were effective,
because the Court identified Petitioner’s lack of violence as a
reason for granting a two-level downward variance.
Mr. Sparaco’s lack of objection to the statement about
Petitioner’s co-defendant does not constitute conduct outside
the wide range of professionally competent assistance.
Nor was
Petitioner prejudiced by this fact, as an objection would have
had no impact on his sentence issued by the Court.
Even if
Petitioner could demonstrate ineffectiveness on the part of his
trial counsel, any such alleged error could not give rise to the
requisite prejudice needed to sustain Petitioner's claim because
the sentence issued would not have been different.
See
Strickland, 466 U.S. at 691 (“An error by counsel, even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on
the judgment.”); see also United States v. Hall, No. 06-cr-2,
2010 U.S. Dist. LEXIS 43754, *8, 2010 WL 1816796, *3 (E.D. Pa.
May 4, 2010) (“An attorney cannot be ineffective for failing to
30
raise a claim that lacks merit.”) (citing Moore v. Deputy Comm'r
of SCI–Huntington, 946 F.2d 236, 245 (3d Cir. 1991)).
For these
reasons, Petitioner’s third ground for relief will be denied.
Petitioner’s fourth and final ground for relief is that his
appellate counsel was ineffective for failing to raise
meritorious issues on appeal.
Specifically, Plaintiff states
that his appellate counsel should have raised such issues as the
insufficient basis for his guilty plea and the improper use of a
crime as a predicate offense for his career offender
designation, rather than urging him to withdraw his appeal.
“[I]n order to prevail on a claim that appellate counsel
was ineffective, a petitioner must show not only that counsel’s
performance fell below an objective standard of reasonableness,
but also that there was a reasonable probability, but for
counsel’s deficiency in raising the arguments on appeal, that
the conviction would have been reversed on appeal.”
Reid v.
Ricci, No. 07-cv-3815, 2008 WL 2984207, *9 (D.N.J. July 21,
2008) (citing Buehl v. Vaughn, 166 F.3d 163, 173-74 (3d Cir.
1999)).
Petitioner’s fourth ground for relief fails because he
has not identified any meritorious issue for appeal.
As
discussed above in grounds one, two, and three, the issues
Petitioner wishes his appellate counsel would have raised on
appeal have no merit.
Here, Petitioner willingly pled guilty
and admitted to conduct that would establish the elements of
31
conspiracy.
Likewise, his 1997 sentence was properly included
under the Sentencing Guidelines, and his attorney did, in fact,
effectively argue that he was not violent.
It was thus not
objectively unreasonable for his appellate counsel not to raise
these meritless issues on appeal.
*9.
See Reid, 2008 WL 2984207, at
See United States v. Hall, 2010 U.S. Dist. LEXIS 43754, *8,
2010 WL 1816796, *3 (“An attorney cannot be ineffective for
failing to raise a claim that lacks merit.”) (citing Moore, 946
F.2d at 245).
Further, Petitioner cannot demonstrate prejudice
as to this ground, because he has not demonstrated a reasonable
probability that an appeal would have resolved in his favor but
for counsel’s alleged error.
For these reasons, Petitioner’s
final ground for relief will be denied.
IV.
EVIDENTIARY HEARING
An evidentiary hearing is not warranted here because
Petitioner has failed to meet his burden of demonstrating that
he is entitled to relief.
An evidentiary hearing is not
warranted when the files and records of the matter conclusively
show that the petitioner is entitled to no relief.
U.S.C. 2255(b).
See 28
Because Petitioner has failed to show that he
is entitled to relief, the Court will decline to order an
evidentiary hearing.
V.
CERTIFICATE OF APPEALABILITY
32
The Court will deny a certificate of appealability because
Petitioner has not demonstrated “a substantial showing of the
denial of a constitutional right” as required by 28 U.S.C. §
2253(c)(2).
See Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
VI.
CONCLUSION
For the foregoing reasons, the Court will deny the Petition
and decline to issue a certificate of appealability.
An
appropriate order follows.
Dated: September 18, 2018
At Camden, New Jersey
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
33
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