ALMONTE v. UNITED STATES OF AMERICA

Filing 13

OPINION. Signed by Judge William J. Martini on 3/23/15. (gh, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(Civ. No. 14-00854) (WJM)
(Crim. No. 11-00158) (WJM)

JOSE MANUEL ALMONTE,
Petitioner,

Hon. William J. Martini
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.

This matter comes before the Court on pro se Petitioner Jose Manual Almonte’s
motion for post-conviction relief pursuant to 28 U.S.C. § 2255. There was no oral
argument. For the reasons stated below, the motion is DISMISSED WITH
PREJUDICE and the relief requested therein is DENIED.
I.

BACKGROUND

On March 14, 2011, the Government filed an indictment against Almonte
charging him with two criminal counts: (1) conspiring to manufacture and distribute
100 grams of heroin; and (2) possessing with intent to distribute 100 grams or more
of heroin.
The Government brought its case against Almonte after the Drug
Enforcement Administration (“DEA”) determined that Almonte and his coconspirators 1 were processing and packaging heroin for sale in an apartment in
Union City, New Jersey. Specifically, the DEA conducted a search of the apartment
and discovered physical evidence demonstrating that Almonte and others were
operating a heroin business. Almonte’s co-defendants also informed government
authorities that Almonte and others used the apartment as a stash house.

1

Almonte’s co-defendants, Ramon E. Delorbe (“Delorbe”) and Joselin Reynoso Inoa
each pled guilty to charges arising from their involvement in this case.
1

On April 29, 2011, Almonte filed a motion to suppress the evidence found at
the Union City Apartment. This Court denied Almonte’s motion. Almonte then
proceeded to trial, where he was found guilty on both counts and sentenced to a 60month term of imprisonment and three years of supervised release.
Almonte appealed, arguing that (1) the evidence against him was insufficient
to prove the existence of a conspiracy; and (2) this Court abused its discretion when
it denied Almonte’s motion to suppress. On September 24, 2013, the Third Circuit
affirmed the jury’s convictions of Almonte, finding that there was sufficient
evidence to warrant the finding of a conspiracy. The Third Circuit also concluded
that this Court did not err in denying the motion to suppress. See United States v.
Almonte, 537 Fed. App'x 64 (3d Cir. 2013). Proceeding pro se, Almonte now files
the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255.
II.

DISCUSSION
A. Standard of Review Under § 2255

Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a
sentence “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.” 28 U.S.C. § 2255(a).
Section 2255, however, may not be used “to re-litigate questions which were raised
and considered on direct appeal.” United States v. DeRewal, 10 F.3d 100, 105 n. 4
(3d Cir. 1993) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)).
Additionally, “issues which should have been raised on direct appeal may not be
raised with a § 2255 motion.” United States v. Travillion, 759 F.3d 281, 288 n.11
(3d Cir. 2014). While a court may convene a hearing to assist it with deciding a §
2255 motion, such a hearing is not required where “the files and records of the case
conclusively show that the prisoner is entitled to no relief.” United States v. Padilla–
Castro, 426 Fed.App'x. 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. § 2255(b)); accord
United States v. Day, 969 F.2d 39, 41–42 (3d Cir. 1992).
Almonte’s § 2255 motion primarily relies on the argument that his counsel
was ineffective. He further contends that the Government did not present sufficient
evidence to warrant a conviction and that the Court erred in denying his suppression
motion. The Court will address these arguments in turn.

2

B. Ineffective Assistance of Counsel
Almonte argues that his motion should be granted because he received
ineffective assistance of counsel at trial in violation of the Sixth Amendment. The
Sixth Amendment guarantees the accused the “right ... to have the Assistance of
Counsel for his defense.” U.S. Const. amend. VI. The Supreme Court has held that
the “[Sixth Amendment] right to assistance of counsel is the right to effective
assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). In
Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court set forth a
two-part test to establish ineffective assistance of counsel. First, the defendant must
show “that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed to the defendant by the Sixth Amendment. Id. Second, the
defendant must show that counsel's performance prejudiced the defense, depriving
the defendant of a fair trial. Id. To establish prejudice, the defendant must show
that “there is a reasonable probability that the result of the trial would have been
different absent the deficient act or omission.” Hinton v. Alabama, 134 S.Ct. 1081,
1083 (2014). The defendant claiming ineffective assistance of counsel must satisfy
both prongs of Strickland’s two-part test in order to be entitled to relief. George v.
Sively, 254 F.3d 438, 443 (3d Cir. 2001). Almonte contends in his petition that his
defense counsel provided ineffective assistance by: 1) failing to make a Rule 29
motion for a judgment of acquittal; 2) failing to raise an alleged conversation that
occurred between Almonte’s co-conspirator and a third party; and 3) preventing
Almonte from testifying at trial. For the reasons stated below, all of these arguments
fail.
i. Failure to Make a Rule 29 Motion
Almonte argues that his trial counsel was ineffective because trial counsel
failed to move for a judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure. This argument holds no weight because the trial transcripts
unequivocally show that Almonte’s trial counsel did move for an acquittal and that
the motion was denied.
MR. GIANNETTA: Judge, at this time I move for a judgment of
acquittal.
THE COURT: All right. Clearly there's enough evidence, if the jury
believes it, that that motion is not warranted. So you've made the
motion but the Court will deny it. And if they believe the witnesses,
there's more than enough evidence to establish that the Defendant is
guilty of these crimes

3

Trial Transcript (“Tr.”), September 8, 2011 at 38:8-15. Moreover, the abovequoted portion of the transcript reveals that the Court determined that Almonte was
not entitled to a judgment of acquittal. This is significant because a failure to move
for a judgment of acquittal will not meet Strickland’s prejudice prong if the court
makes clear that it would not have granted the motion anyway. Gov't of V.I. v.
Joseph, 465 Fed.App'x. 138, 142 (3d Cir. 2012). Thus, this portion of Almonte’s
ineffective assistance of counsel claim fails.
ii. Failure to Raise Communication Between Delorbe and
Garcia
Almonte next argues that his trial counsel should have raised in his
suppression motion or at trial a communication between Delorbe and an individual
named Jose Garcia. 2 See ECF No. 10. Specifically, Almonte claims that during a
phone call, “Mr. Delorbe told Garcia that he and the Defendant Jose Almonte had
obtained an apartment in Union City, New Jersey to use it as a ‘stash house,’ for the
purpose of storing future loads of cocaine and processing heroin.” Id. at 1. Almonte
claims that his counsel was ineffective for failing to present this conversation as part
of Almonte’s defense.
This argument fails. First, Almonte has made no showing that trial counsel
seriously erred by not addressing this conversation, which this Court deems to be a
strategic decision. Under Strickland, counsel’s strategic choices are reviewed with
a strong presumption of correctness. U.S. v. Martin, 262 Fed. Appx. 392, 397 (3d
Cir. 2008). The Third Circuit has developed a tiered structure with respect to this
presumption. First, the presumption is that counsel’s conduct was part of a sound
strategy. In cases like this one, where the record does not explicitly disclose trial
counsel’s actual strategy or lack thereof, the presumption can only be rebutted
through a showing that no sound strategy could have supported the conduct.
Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir. 2005).
In this case, Almonte cannot rebut the presumption that his counsel’s conduct
was part of a sound strategy. From the perspective of Almonte’s lawyer, a sound
trial strategy would support a decision not to introduce a conversation that would
only serve to further implicate Almonte in unlawful drug activity. See Mena-Flores
v. Holder, 2015 WL 294629, at *14 (10th Cir. Jan. 23, 2015) (trial counsel can make
a strategic decision not to introduce evidence if there is potentially damaging
information therein). Therefore, Almonte has failed to satisfy the first Strickland
prong.

2

Almonte has not shown how his trial counsel’s failure to raise the communication
affected the outcome of the suppression motion.
4

Even if Amonte could show that his counsel seriously erred, Almonte’s
Strickland claim fails on the prejudice prong. To satisfy the prejudice prong,
Almonte must show “that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.”
Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006). The Court’s review of the
record shows that Almonte was not prejudiced by his counsel’s failure to raise the
conversation between Delorbe and Garcia. The conversation was in no way helpful
to Almonte’s defense. Further, Almonte faced a mountain of incriminating evidence
that could not be explained away by a single phone call. For example, the
Government presented a plethora of evidence corroborating Delorbe’s testimony
that he and Almonte were business associates in an illicit drug scheme. Moreover,
the Government recovered the following evidence from an apartment with the
utilities registered in Almonte’s name: heroin; grinders; a sifter; money hidden in
furniture; and additional drug paraphernalia. Almonte’s claim that his counsel was
ineffective for failing to raise the conversation is therefore without merit.
iii. Preventing Almonte From Testifying
Finally, Almonte contends that his trial counsel did not allow him to testify
at trial and that his defense would be stronger had he taken the stand. “Defense
counsel has a duty to inform defendant of [the right to testify] but a defendant may
nevertheless waive it so long as the decision is ‘knowing and intelligent.’”
Luperella v. United States, No. 06–1360, 2007 WL 2904201, at *3 (D.N.J. Oct.3,
2007) (quoting United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995)).
Additionally, counsel’s conduct in advising that a Defendant not testify at trial is a
tactical decision that does not fall below Strickland’s standard objective of
reasonableness. D'Amario v. United States, 403 F. Supp. 2d 361, 371 (D.N.J. 2005)
(citing Frederick v. Kyler, 100 Fed.Appx. 872, 874 (3d Cir. 2004)). Here, the record
demonstrates that Almonte knew of his right to testify, but on advice of his counsel,
chose not to exercise it. The record further reveals that this choice was voluntary.
THE COURT: Mr. Almonte, I'm sure you've discussed with your
lawyer whether or not you wish to be a witness in your own defense
here in this trial. Is that correct?
THE DEFENDANT: (In English) Correct.
THE DEFENDANT: (Through the Interpreter.) Correct.
THE COURT: You've had ample time to discuss with your
lawyer whether or not to testify in your own behalf?
THE DEFENDANT: (In English) Correct.
THE DEFENDANT: (Through the Interpreter.) Correct.
THE COURT: You understand under the law you have no

5

obligation whatsoever to take the stand and to present any defense
whatsoever? Under the law you have a right to remain silent. You
understand that?
THE DEFENDANT: (Through the Interpreter.) Yes, sir.
THE COURT: You also have a right if you wish to
testify. Do you understand that? Correct?
THE DEFENDANT: (Through the Interpreter.) Yes, sir.
THE COURT: Your lawyer explained to me just now that
you've made the decision that you do not want to testify at this trial.
Is that correct?
THE DEFENDANT: (Through the Interpreter.) Yes, sir.
THE COURT: And you've discussed this thoroughly with your
lawyer?
THE DEFENDANT: (Through the Interpreter.) Correct.
THE COURT: And are you making this decision
voluntarily without anybody forcing you to do it?
THE DEFENDANT: (Through the Interpreter.) Yes, sir.
(Tr., September 8, 2011 at 34:23–35:25). Because Almonte voluntarily chose not
to testify after discussing the topic thoroughly with counsel, his ineffective
assistance of counsel claim must fail.
C. Other Arguments
Almonte’s petition contains two additional arguments.
First, Almonte argues that the physical evidence seized from his apartment
should have been suppressed because he never consented to having the apartment
searched. However, the Third Circuit has already affirmed this Court’s ruling on
Almonte’s suppression motion. U.S. v. Almonte, 537 Fed.Appx. 64, 67 (3d Cir.
2013). “Issues resolved in a prior appeal will not be reviewed by way of a 28 U.S.C.
§ 2255 motion.” U.S. v. DeRawal, 10 F. 3d 100, 105 n.4 (3d Cir. 1993) (quoting
Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)). Thus, Almonte is
foreclosed from using § 2255 to relitigate his suppression argument.
Second, Almonte claims that the Government’s evidence was insufficient to
warrant a conviction because it consisted solely of testimony from cooperating
witness Ramon Delorbe. 3 The Government argues that Almonte is foreclosed from
3

Almonte has attempted to shoehorn this argument into an ineffective assistance of counsel
claim even though it has no bearing on counsel’s performance; in reality, his argument
solely concerns the strength of the Government’s case. The Court will therefore analyze
this part of his motion as a challenge to the sufficiency of the evidence.
6

making this argument because the Third Circuit already rejected it on appeal.
However, the Government is only half-right on this front: in its opinion affirming
Almonte’s convictions, the Third Circuit explicitly noted that it assessed only the
sufficiency of the evidence on the conspiracy count because Almonte did not raise
any arguments regarding the possession with intent to distribute count. Almonte,
537 Fed.Appx. at 67 n.2. Notwithstanding the Government’s oversight, “issues
which should have been raised on direct appeal may not be raised with a § 2255
motion.” Travillion, 759 F.3d at 288 n.11. Here, Almonte may not put forward his
sufficiency of the evidence argument in a § 2255 motion because he has not shown
good “cause” for failing to raise it on direct appeal. See U.S. v. DeRewal, 10 F.3d
100, 105 n. 4 (3d Cir. 1993). 4
D. Certificate of Appealability
No certificate of appealability will issue because Almonte has not made a
substantial showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(1)(B). 5
III. CONCLUSION
For the reasons stated above, Almonte’s petition to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. An appropriate order
follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: March 23, 2015

4

Even if Almonte were not procedurally barred from making his argument, there was
sufficient evidence to convict him of possession with intent to distribute. See Section
II.B.ii, supra.

5

Additionally, a hearing is not required in this case because “the files and records of the
case conclusively show that the prisoner is entitled to no relief.” United States v. Padilla–
Castro, 426 Fed.App'x. 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. § 2255(b))
7