MERCEDES v. UNITED STATES OF AMERICA

Filing 14

OPINION. Signed by Judge William J. Martini on 3/11/15. (gh, )

NOT FOR PUBLICATION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

RAFAEL ALEX MERCEDES,

Civ. No. 14-45 17 (WJM)
Crim No. 03-697 (WJM)

Petitioner,

OPINION

V.

UNITED STATES OF AMERICA,
Respondent,

Petitioner Rafael Alex Mercedes, a prisoner confined at FCI Elkton, has
filed this Petition pursuant to 28 U.S.C. § 2255 for a reduction of his 170-month
sentence. Also currently pending before the Court is a motion to compel
production of an affidavit from Petitioner’s prior counsel. For the reasons set forth
below, the 28 U.S.C. § 2255 Petition and the related motion to compel an affidavit
from prior counsel are denied.
I.

BACKGROUND

Mercedes is a repeat drug offender. He was previously convicted in New
York on a felony drug offense and also served jail time in France for drug crimes.
(See ECF No. 5 at ¶J 4-5). The instant matter arises out of a 2003 New Jersey
indictment for trafficking cocaine.
In February 2003, the Government arrested Mercedes on a Complaint for
drug trafficking. (See id. at ¶J 1-2). He was released on secured bond, but he did
not appear in court pursuant to the terms of his release because he absconded to the
Dominican Republic, allegedly to save his family in the United States from harm.
In June 2003, the Court issued a warrant for his arrest.

I

On September 29, 2003, a federal grand jury issued a three-count
indictment. The first two counts were for violations of 21 U.S.C. § 841 and 846
(drug trafficking offenses), and the third was for a violation of 18 U.S.C. § 3146
(failure to appear). (Id. at ¶ 3). Assistant U.S. Attorney Marion Percell was
assigned to his case.
In 2006, Mercedes was still in the Dominican Republic. The United States
was trying to extradite him without success. (See ECF No. 5-3). Mercedes then
became the victim of an extortion plot perpetrated by the Chief of the Fugitive and
Extraditable Unit at the National Directorate of Drug Control, Ramon de la Cruz
Marte. According to a newspaper report that Mercedes submitted, Marte falsified
a sentence issued by a Dominican Court so that Mercedes would appear
extraditable. In the alleged plot, Marte and an accomplice told Mercedes that if he
did not pay them five million pesos, he would be extradited to the United States.
Mercedes reported the plot, and the Dominican authorities arrested Marte.
Mercedes claims he subsequently faced threats and attempts on his life, so he fled
to Europe. (ECF No. 8-1).
On December 29, 2010, seven and a half years after he absconded from the
United States, Mercedes was arrested in Valencia, France, in the course of
transporting approximately four kilograms of cocaine from Spain to Switzerland.
He was convicted in France, and on May 14, 2011, a French court sentenced him
to four years’ imprisonment. (ECF No. 5 at ¶ 5).
The United States sought Mercedes’s extradition from France. The
extradition request was limited to the first two counts, the two drug counts, because
the extradition treaty between France and the United States does not call for France
to extradite defendants to the United States on charges for failure to appear. (See
id. at ¶ 6). An extradition order was entered on July 22, 2011. (Id.). Initially, the
actual transfer was stayed while Mercedes completed serving the sentence imposed
in France. (Id.). Later, however, the French authorities agreed to a conditional
release under the condition of extradition to the United States. (Id.). The French
authorities turned Mercedes over to the U.S. Marshals Service on August 22, 2012.
(Id.). In the United States, Mercedes was represented in the criminal proceedings
by attorneys Brian J. Neary, David I. Goldstein, and John David Lynch.
Mercedes subsequently entered into a written plea agreement
Government. (ECF No. 5-2). Pursuant to the plea agreement, Mercedes
plead guilty to Counts 1 and 2 of the Indictment (drug trafficking), and
the Government would ask the Court to drop Count 3 (failure to appear).
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with the
agreed to
if he did,
The plea

agreement clearly explained that Mercedes was facing a mandatory minimum of
ten years prison time and that the Court had discretion to sentence him to life
imprisonment.
At sentencing, on July 30, 2013, the Court recognized that, depending upon
the rulings concerning obstruction of justice and acceptance of responsibility (and
consistent with the plea agreement), the total offense level could be 36, 34, or 32.
(ECF No. 5 at ¶ 12). The Court ruled that an upward adjustment for obstruction of
justice was appropriate given Mercedes’s flight from justice in the United States.
On the other hand, despite the fact that “[c]onduct resulting in an enhancement
under USSG § 3C1 .1 (Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted responsibility for his
criminal conduct,” U.S.S.G. § 3E1.1, comment. (n.4), the Court concluded that
petitioner was entitled to credit for acceptance of responsibility. The Court
therefore found that the total offense level was 34. (ECF No. 5 at ¶ 14).
Furthermore, the Court agreed with the assessment of the U.S. Probation
Office that the total of the criminal history points was five, placing petitioner
Mercedes within criminal history category III. (Id. at ¶ 13). Based upon a total
offense level of 34 and a criminal history category of III, petitioner Mercedes’
guideline range would have been 188 to 235 months. (Id.). The Court varied
downward, however, and sentenced petitioner Mercedes based upon criminal
history category II. (Id.). Based upon a total offense level of 34 and a criminal
history category of TI, petitioner Mercedes’s guideline range was 168 to 210
months. (Id. at ¶ 14). Judge Martini sentenced petitioner to 170 months’
imprisonment. (Id. at ¶ 15).
Subsequently, Petitioner submitted the current timely motion to vacate, set
side, or correct his sentence pursuant to 28 U.S.C. § 2255.
Mercedes is capable of understanding English, as evidenced by his use of an
English interpreter during legal proceedings in France, (ECF No. 5-1), his
declining to use a standby interpreter during his plea before this Court, his
representation to this Court that he understands English, and his ability to speak to
the Court at length in English during his sentencing.

II.

PETITIONER’S ARGUMENTS
Construed liberally, the Petition complains that ineffective assistance of
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counsel led to a sentence that was too long because counsel failed to raise the
following issues at the time of sentencing or on appeal:
1.) Mercedes was not offered a fast-track disposition, nor was the lack of a
fast-track disposition offer considered for the purposes of a downward
departure.
2.) Mercedes should have received some time served for his time in French
prison.
3.) Mercedes was the victim of a vindictive prosecution, motivated by his
exposure of local and DEA corruption in the Dominican Republic.
4.) Mercedes claims he only agreed to a sentence of 120 months but received
170 months.
5.) The Court should not have considered Mercedes’s flight to the
Dominican Republic in sentencing him because the extradition was only
based on the drug-trafficking charges.
Petitioner additionally alleges that that each of these factual theories of error
were constitutional violations in their own right. He alleges that considering his
absconding for the purposes of sentencing was also a violation of the doctrine of
specialty, a principle of international law, as well as a violation of his
constitutional rights.
III.

LEGAL STANDARD
A.

28 U.S.C.

§ 2255

28 U.S.C. § 2255 provides that a prisoner in custody serving a sentence
imposed by a federal court may move the court that imposed the sentence to
vacate, set aside, or correct the sentence. 28 U.S.C. § 2255. However, the statute
does not afford a remedy for all errors that may have been made at trial or at
sentencing. Neelv v. United States, No. CIV.A. 09-583 1, 2010 WL 2950616, at *2
(D.N.J. July 22, 2010) (citing United States v. Addonizio, 442 U.S. 178 (1979)).
Errors warranting modification must raise “a fundamental defect which inherently
results in a complete miscarriage ofjustice.” Id. (quoting Hill v. United States, 368
U.S. 424, 428 (1962)).

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A prisoner can challenge his or her sentence on 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; (3) the sentence
was in excess of the maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. Hill v. United States, 368 U.S. 424, 426-27 (1962)
(citing 28 U.S.C. § 2255).
Section 2255 provides that a district court “shall
grant” an evidentiary
hearing “[u]nless 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. The Third
Circuit has noted, “The discretion of the district court summarily to dismiss a
motion brought under § 2255 is limited to cases where the motion, files, and
records ‘show conclusively that the movant is not entitled to relief.” United States
v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969
F.2d 39, 41-42 (3d Cir. 1992)).
.

.

.

In that Mercedes is not an attorney, the Court applies a liberal construction
to his pro se arguments. Haines v. Kerner, 404 U.S. 519 (1972); Mala v. Crown
Bay Marina, 704 F.3d 239 (3d Cir. 2013).
B.

Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution
guarantees that criminal defendants are entitled to the assistance of
counsel in presenting their defense. The United States Supreme Court
has recognized that “the right to counsel is the right to effective
assistance of counsel.” McMann v Richardson, 397 U.S. 759, 771, 90
S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Wells v. Petsock, 941 F.2d 253,
259 (3dCir. 1991).
A defendant seeking to show that his counsel was
constitutionally ineffective must meet a “highly demanding” standard.
Lockhart v. Fretwell, 506 U.S. 364, 378 (1993). A petitioner’s
ineffective assistance claim is governed by the two-part test
established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Under the Strickland test, this Court
should ask whether counsel’s representation “fell below an objective
standard of reasonableness.” Id. at 687-88. This Court should then
ask whether the defendant was prejudiced. To meet the prejudice
prong, the petitioner must demonstrate that there exists a “reasonable
probability that, but for counsel’s unprofessional errors, the result of
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the proceeding would have been different.” Id. at 694. Counsel
renders deficient performance when he makes “errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. at 687. When assessing claims of
deficient performance, this Court “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. “The proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.” Id. at 688. This Court should ask “whether
counsel’s assistance was reasonable considering all the
circumstances.” Id. To establish deficient performance, it is not
enough for the petitioner to show that his attorney’s strategy was
merely wrong, or his actions unsuccessful; he must demonstrate that
the actions his attorney took were “completely unreasonable.” Hoxsie
v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997).
Nickens v. United States, No. CIV. 09-4278 PGS, 2011 WL 4056287, at *4 (D.N.J.
Sept. 12, 2011).
In this case, Plaintiff does not convincingly argue that there were any errors
in his plea or sentencing. Thus, his arguments that he suffered from ineffective
assistance of counsel or a “miscarriage of justice” are wholly without merit.
Because the evidence demonstrates the meritlessness of his claims conclusively, he
is not entitled to a hearing or relief pursuant to 28 U.S.C. § 2255.
IV.

ANALYSIS
A.

Fast-Track Disposition

Mercedes argues that the Court committed a Constitutional violation when it
did not take into consideration the fact that the Government did not offer Mercedes
a fast-track disposition. The argument is meritless. Fast-track disposition in the
District of New Jersey is only available for defendants charged with felony re
entry in violation of 8 U.S.C. § 1326. (Memorandum of James M. Cole, Deputy
Attorney General, ECF No. 12-1, 12-2).
There is no dispute that Mercedes was not charged with criminal re-entry.
He was never eligible for a fast-track disposition. Therefore, he has no rights
related to this sentencing procedure.

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B.

Credit for Time Served in France

Counsel did raise the issue of giving Mercedes credit for time served in
France. The following colloquy occurred at the sentencing:
MR. NEARY: Judge, is he entitled to any credits for the time
he spent while awaiting extradition? I understand he gets credit for
being here in the United States once he gets here.

TIlE COURT: You know, that’s something I think the Bureau
of Prisons would determine better than I would at this point because I
don’t know how long he was in. France.
.

.

MR. NEARY: He was in France awaiting the extradition.
THE COURT: Ms. Percell, unless you know something about
that, I’m going to leave that up to the Bureau of Prisons to compute
how much credit, if any, he should be getting.

MS. PERCELL: I think that’s right, your Honor.
THE COURT:
I’m not in a position to make the
determination, Mr. Neary. I think that’s something you would have to
take up with the Bureau of Prisons and/or the Government if you have
authority that says he’s entitled to that. He was in France serving a
sentence when this extradition process took place, and I don’t know
the details of what occurred there. So that’s something you would
have to make a determination on.
.

.

.

MR. NEARY: I’ll deal with the Bureau of Prisons and may
have to seek the Court’s relief, but we’ll abide that.

The Court’s statements in the colloquy were correct. Because time-served
credit is a challenge to the sentence’s execution, as opposed to a challenge to the
sentence’s validity, he must first exhaust administrative remedies with the Bureau
of Prisons, and only then may he file a habeas corpus petition pursuant to 28
U.S.C. § 2241. “Section 2241 is the only statute that confers habeas jurisdiction to
hear the petition of a federal prisoner who is challenging not the validity but the
execution of his sentence.” United States v. Eakman, 378 F.3d 294, 297 (3d Cir.
2004) (citing Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001)). The statute
relied upon by petitioner Mercedes, Section 2255, in contrast, “is expressly limited
to challenges to the validity of the petitioner’s sentence.” Eakrnan, 378 F.3d at 297
7

(citing Coady, 251 F.3d at 485). Petitioner’s argument that the Bureau of Prisons
should have granted him credit for the time he spent in a French jail awaiting
extradition is a challenge to the execution of the sentence, and it accordingly must
be brought under Section 2241. E.g., Hughes v. Slade, 347 F. Supp. 2d 821, 824
n.3 (C.D. Cal. 2004) (“It is well established that a § 2241 petition is the appropriate
vehicle to challenge the correctness of a jail-time credit determination.”); Chityal v.
Marberry, 2009 WL 3241852, at *2 (W.D. Pa. 2009) (cited by petitioner; see
Petitioner’s Memorandum at 9).
Before filing the Section 2241 petition, Mercedes must first exhaust his
administrative remedies with the Bureau of Prisons. Armstrong v. Grondoisky, 341
Fed. App’x 828, 831 (3d Cir. 2009); Hughes v. Slade, 347 F. Supp. 2d at 824 n.3.
Even if he had done this, however, this Court would not have jurisdiction to hear
the Section 2241 petition because a Section 2241 petition must be brought in the
district where the petitioner is incarcerated. Rumsfeld v. Padilla, 542 U.S. 426,
442 (2004). The petitioner is incarcerated at FCI Elkton, which is in the Northern
District of Ohio, not the District of New Jersey.
C.

Vindictive Prosecution

Mercedes’s argument that the prosecution was a vindictive effort to retaliate
against his exposing corruption in the Dominican Republic has no merit. The
indictment in this case issued on September 29, 2003. Mercedes offered
newspaper clippings proving that he did not expose the corruption in the
Dominican Republic until 2006. (ECF Nos. 8-1, 8-2). It is impossible that
Mercedes’s exposure of corruption in the Dominican Republic in 2006 caused the
issuance of an Indictment in 2003.
D.

Length of Sentence Agreed Upon

The evidence clearly contradicts Mercedes’s argument that he expected his
sentence to be only 120 months. The Plea Agreement, which Mercedes signed, is
explicitly clear that Mercedes was facing a minimal sentence of 120 months, that
the sentence could be significantly longer, and that the ultimate sentence was
entirely up to the discretion of the Court. The relevant excerpts from the Plea
Agreement state:
The violation of 21 U.S.C. § 846 to which Rafael Alex Mercedes
agrees to plead guilty carries a statutory mandatory minimum
sentence of 10 years [and] a statutory maximum prison sentence of
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life
The violation of 21 U.S.C. § 841(a)(l) to which Rafael Alex
Mercedes agrees to plead guilty also carries a statutory mandatory
minimum sentence of 10 years [and] a statutory maximum prison
sentence of life.
The sentence on each count may run
consecutively.
.

.

.

The sentence to be imposed upon Rafael Alex Mercedes is within the
sole discretion of the sentencing judge, subject to the provisions of the
Sentencing Reform Act, 18 U.S.C. § 355 1-3742, and the sentencing
judge’s consideration of the United States Sentencing Guidelines.
The United States Sentencing Guidelines are advisory, not mandatory.
The sentencing judge may impose any reasonable sentence up to and
including the statutory maximum term of imprisonment and the
maximum statutory fine. This Office cannot and does not make any
representation or promise as to what guideline range may be found by
the sentencing judge, or as to what sentence Rafael Alex Mercedes
ultimately will receive.

[Tjhis Office reserves its right to take any position with respect to the
appropriate sentence to be imposed on Rafael Alex Mercedes by the
sentencing judge, to correct any misstatements relating to the
sentencing proceedings, and to provide the sentencing judge and the
United States Probation Office all law and information relevant to
sentencing, favorable or otherwise. In addition, this Office may
inform the sentencing judge and the United States Probation Office of:
(1) this agreement; and (2) the full nature and extent of Rafael Alex
Mercedes’s activities and relevant conduct with respect to this case.
At the time of the plea, Mercedes verbally indicated to the Court that he
understood his sentence was going to be at least 120 months. The relevant
colloquy is as follows:
COURT: [Y]ou understand and speak English. Correct?
MERCEDES: Yes, correct.
COURT: Now, if I accept your plea to those counts you’d be facing
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the following penalty: As to each count, it carries the penalty of a
statutory mandatory minimum principal sentence of 10 years, and a
statutory maximum principal sentence of life. Do you understand
that?
MERCEDES: Yes, your Honor.
COURT: You should also understand that there’s not what’s called
parole in the federal system, which means if you were to receive a
custodial term as a sentence, you’ll actually serve in a facility, in
custody 85 to 90 percent of that custodial term. Do you understand
that?
MERCEDES: Yes.
COURT: Now, have you discussed all of this with your lawyers
before today?
MERCEDES: Yes, your Honor.
COURT: I see that you’re also entering this plea pursuant to a plea
agreement dated February 19th, 2013. Is that your signature on that
agreement on page 6?
MERCEDES: Yes.
COURT: Did you sign it on February 27th, 2013 after you read it
closely discussed it with your lawyers and they answered any
questions you may have had about the information in this document?
MERCEDES: Yes, your Honor

[...]

COURT: Did you sign it voluntarily without anybody forcing,
threatening or coercing you to do that?
MERCEDES: Yes, your Honor.
COURT: All right. Now, it’s all very important but I’m just going to
highlight a few things, first and foremost, you should understand this
is the full and complete agreement between you and the Government,
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and what that means is if somebody, your lawyers or anyone, were to
have promised you or told you something that’s not in this agreement,
whatever that was, is of no binding effect on the Government or you.
Do you understand that?
MERCEDES: Yes I understand that.
COURT: You should also understand when it comes to the sentence
to be imposed in this case, the sentence is up to the Judge, myself.
And while there are what’s called Sentencing Guidelines that I look to
for guidance, the guidelines are not mandatory, they’re advisory. And
what that means is, I could, if I thought it was a reasonable sentence,
impose a sentence up to a life in prison. Do you understand that?
MERCEDES: Yes, your Honor.
It being abundantly clear that Mercedes understood that his sentence would
be anywhere from 10 years to life, his argument that he believed his sentence was
only going to be 120 months is completely baseless and bespeaks no
ineffectiveness of counsel nor constitutional violation.
E.

Consideration of Petitioner’s Absconding in Sentencing

When France extradited Mercedes to the United States, it was only pursuant
to the drug charges, not the failure to appear charges, because the extradition treaty
between France and the United States does not require France to extradite for
failure to appear. Mercedes argues that the doctrine of specialty was violated
because the Court considered Mercedes’s flight as an obstruction ofjustice when it
sentenced Mercedes.
The doctrine of specialty is a principle of international law that an extradited
defendant “may be tried only for the offense for which he was delivered up by the
asylum country.” United States v. Lomeli, 596 F.3d 496, 500 (8th Cir. 2010).
“The doctrine is now commonly included in many U.S. extradition treaties.” Id.
The doctrine of specialty was not violated because Mercedes never faced
trial for Count 3 of the Indictment. He pled guilty to Counts 1 and 2, and the Court
dismissed Count 3 upon the Government’s motion.

11

The dropping of Count 3, however, did not mean the Court was barred from
considering the underlying conduct of flight for the purposes of sentencing. See
United States v. Baird, 109 F.3d 856, 863 (3d Cir.), cert. denied, 522 U.S. 898
(1997)) (“conduct not formally charged. can be considered at sentencing”). Nor
is the doctrine of specialty violated when a court considers uncharged criminal
conduct in increasing an extradited defendant’s sentence. See United States v.
Mangarella, 489 F. App’x 648, 653 (4th Cir. 2012); United States v. Lomeli, 596
F.3d 496, 501 (8th Cir. 2010); United States v. Garrido—Santana, 360 F.3d 565,
578 (6th Cir. 2004); United States v. Lazarevich, 147 F.3d 1061, 1063-65 (9th Cir.
1998). See also United States v. Alvarez-Moreno, 874 F.2d 1402, 1413-14 (11th
Cir. 1989) (noting that the doctrine of specialty does not restrict admissibility of
evidence at trial). Therefore, Mercedes’s counsel made no error when he failed to
appeal on these grounds, and there is no underlying ineffective assistance of
counsel, violation of international law, nor violation of other laws or rights.
.

V.

.

CONCLUSION

Since it is abundantly clear that there was no ineffective assistance of
counsel based upon all documents and allegations before the Court, Mercedes’s
motion to compel his counsel to supply an affidavit is denied. For the reasons
stated in this Opinion, Petitioner’s motion for relief under Section 2255 is denied.
Since the evidence is conclusive, denial is without an evidentiary hearing.
Mercedes has not made a substantial showing of the denial of a constitutional right.
Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. §
2253(c)(1)(B). See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2. An appropriate
Order follows.

March

//

U.S.D.J

,2015

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