ROJO v. UNITED STATES OF AMERICA
Filing
21
OPINION filed. Signed by Judge Peter G. Sheridan on 12/15/2017. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
REcE'
vE D
DE(; f· 5 2017
AT 8:30
WILLIAM T. WALSH
CLERK
ERIC ROJO,
M
Civ. Action No. 11-428 (PGS)
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
PETER G. SHERIDAN, District Judge:
This matter comes before the Court on Petitioner Eric Rojo's ("Rojo") Motion Under 28
U.S.C. § 2255 toVacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No.
1); Motion for Appointment of Counsel (ECF No. 2); Respondent's Answer (ECF No. 11 ); Rojo 's
Traverse (ECF No. 12); Statement of Disputed Issues of Material Facts (ECF No. 13); and Motion
for Discovery (ECF No. 14). For the reasons discussed below, an evidentiary hearing is
unnecessary, the motions for appointment of counsel and for discovery 1 are denied, and the§ 2255
motion is denied.
1
Rojo seeks to depose his counsel, James S. Friedman and Kevin F. Carlucci, regarding his
allegations of ineffective assistance of counsel, and for Respondent to produce admissions records
of Hudson County Correctional Center and Passaic County Correctional Center for January 1,
2006 through July 5, 2006, in order to show that Alberto Valencia Mosquera was arrested and
detained prior to July 5, 2006, that Valencia Mosquera was working undercover for Mr. Marroro
prior to July 5, 2006, and to support Rojo's allegation that Valencia Mosquera set Rojo up to try
to reduce his own sentence exposure. (ECF No. 14.) A district court may, for good cause, authorize
a party to conduct discovery in a proceeding under 28 U.S.C. § 2255. See Rule 6, Rules Governing
Section 2255 Proceedings for the United States District Courts. For the reasons discussed in this
Opinion, the Court does not find good cause to permit discovery in this matter because it is unlikely
I. BACKGROUND
A.
The Criminal Proceedings
An Indictment was filed against Rojo on October 11, 2007, charging him with conspiracy
to distribute and to possess with intent to distribute 100 grams or more of heroin, in Hudson
County, July 7, 2006, in violation of 21 U.S.C. §§ 841(a)(l) and (b)(l)(B). U.S. v. Rojo, 07cr827
(PGS) (D.N.J. Oct. 11, 2007) (Indictment, ECF No. 16.) A superseding indictment was filed on
March 19, 2008, charging Rojo and Alberto Valencia-Mosquera, a/k/a "Juan David Montes" with
conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, and
possession with intent to distribute 100 grams or more of heroin. (Id., Superseding Indictment,
ECFNo. 27.)
On September 19, 2008, a jury found Rojo guilty on both counts in the Superseding
Indictment. (Id, ECF Nos. 47-50.) On April 24, 2009, this Court sentenced Rojo to a 78-month
term of imprisonment, and a four-year term of supervised release. (Id., Minutes of Proceedings,
ECFNo. 60.)
Rojo appealed to the Third Circuit Court of Appeals. (Id., Notice of Appeal, ECF No. 59.)
On appeal, the Third Circuit made the following findings of fact:
The case grew from the relationship between Rojo and a coconspirator, Alberto Valencia-Mosquera. Though only Rojo is an
appellant in this case, Respondent originally also charged ValenciaMosquera but he pleaded guilty pursuant to an agreement with
Respondent and testified as a government witness at Rojo's trial.
Accordingly, to a large extent the facts that we describe come from
his testimony.
The evidence showed that Rojo and Valencia-Mosquera, who were
employed at the same appliance store in New York City, had a social
Rojo has not presented specific allegations suggesting that he can demonstrate entitlement to relief
by further development of the facts. See Bracy v. Gramley, 520 U.S. 899, 909 (1997) (discovery
·
under Rule 6 is confided to the discretion of the District Court).
2
relationship during the course of which Valencia-Mosquera, who
was a drug dealer, supplied Rojo cocaine for his use. In June or July
2006 an undercover police detective with the Jersey City, New
Jersey, police department solicited Valencia-Mosquera to sell him
a kilogram of heroin. Inasmuch as Valencia-Mosquera did not have
a driver's license and feared facing difficulties if the police stopped
him while he was driving to a meeting with the purchaser, he asked
Rojo to drive him to the meeting. According to Valencia-Mosquera,
he told Rojo the purpose of the meeting, and, as an inducement to
Rojo to drive him told Rojo that he would pay him $1,000 if the
transaction was completed. Rojo accepted the offer and drove
Valencia-Mosquera to the meeting with the detective which was
held at Liberty State Park. Valencia-Mosquera reached an
agreement at the meeting with the detective for the sale to him of
one kilogram of heroin for $54,000 at a later time.
Valencia-Mosquera subsequently advised Rojo that the sale would
be completed two days later and asked Rojo to take time off from
work to drive him to the meeting. As Valencia-Mosquera requested,
Rojo drove him to the place of the contemplated transaction near the
entrance to the Holland Tunnel in New Jersey. But before they went
to the tunnel they went to a store where Valencia-Mosquera
obtained a child's car seat in which to hide the heroin. Then they
went to the tunnel where Valencia-Mosquera met the detective who,
after looking at the heroin, signaled for other police to assist in
making arrests. Valencia-Mosquera fled and escaped but was
apprehended about a year later. The police, however, arrested Rojo
on the spot.
Rojo testified at the trial and acknowledged that he had driven
Valencia-Mosquera to the two meetings we described above. But
he denied having any knowledge of the drug transaction and said
that he drove Valencia-Mosquera to the meetings as a courtesy to
him. Therefore, there was no real dispute as to what happened.
Rather, the case centered on what Rojo knew of ValenciaMosquera's dealings with the detective.
U.S. v. Rojo, 314 F. App'x. 285, 285-87 (3d Cir. 2010).
Rojo raised two issues on direct appeal (1) admission of FRE 404(b) evidence constituted
reversible error; and (2) the district court erroneously charged the jury on willful blindness. Id. at
285. The Third Circuit affirmed the judgment and convictfon. Id at 288.
B.
Motion to Vacate. Set Aside, or Correct Sentence
3
On January 24, 2011, Rojo filed the present motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255. (ECF No. 1.) Rojo raised four claims for relief, alleging multiple instances
of ineffective assistance of counsel: 1) "Ineffective Assistance of Counsel During The Trial
Process, When Counsel Failed To Bring To The Court's Attention The Fact That The Prosecutor
Passed Documents To The Jury That The Court Ruled Should Not Go To The Jury;" 2) "Ineffective
Assistance of Counsel During the Pretrial And Trial Process, When Counsel Failed To Use
Available Records To Demonstrate That Alberto Valencia Mosquera Was Working For Detective
Marroro Prior to July, 2006;" 3) "Ineffective Assistance of Counsel During the Trial Process,
When Counsel Failed to Bring To The Jury's Attention The Discrepancy Between The Jersey City
Police Report As To the Packages ofNarcotics Seized;" 4) "Ineffective Assistance of Counsel Due
To The Cumulative Impact Of Multiple Deficiencies Or Errors By Counsel During the Pretrial,
Plea, Trial, Sentencing And Direct Appeal Process." (ECF No. 1 at 5-8.)
II.
STANDARD OF REVIEW
A prisoner in custody pursuant to a federal court judgment and conviction may move the
court that imposed the sentence to vacate, set aside or correct the sentence, if the sentence was
imposed in violation of the Constitution or laws of the United States; or if the court was without
jurisdiction to impose such sentence; or if the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). In considering a motion
to vacate a defendant's sentence, "the court must accept the truth of the movant's factual allegations
unless they are clearly frivolous on the basis of the existing record." U.S. v. Booth, 432 F.3d 542,
545 (3d Cir. 2005) (quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.
1989)).
III. DISCUSSION
4
A.
Discovery, Evidentiary Hearing and Appointment of Counsel
"The district court is required to hold an evidentiary hearing 'unless the motion and files
and records of the case show conclusively that the movant is not entitled to relief."' Booth, 432
F.3d at 545. For the reasons discussed below, the records of the case conclusively show that Rojo
is not entitled to relief, and the Court will not hold in evidentiary hearing in this matter.
Appointment of counsel is not required unless an evidentiary hearing is held in a § 225 5
proceeding. See US. v. Iasiello, 166 F.3d 212, 213-14 (3d Cir. 1999) (discussing Rule 8 of th~
Rules Governing§ 2255 proceedings). Rojo's discovery request is also denied. See supra n. 1.
B.
Standard of Review: Ineffective Assistance of Counsel
An ineffective assistance of counsel claim has two components:
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 the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show 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.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Furthermore, the first prong of the test "requires a defendant to show 'that counsel's
representation fell below an objective standard of reasonableness."' Lafler v. Cooper, 132 S.Ct.
1376, 1384 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985) (quoting Strickland, 466 U.S.
at 688)). There is "a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,
under ·the circumstances, the challenged action 'might be considered sound trial strategy."'
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). "The Sixth
Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of
5
hindsight." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citing Bell v. Cone, 535 U.S. 685, 702
(2002); Kimme/man v. Morrison, 477 U.S. 365, 382 (1986); Strickland, 466 U.S. at 689; United
States v. Cronic, 466 U.S. 648, 656 (1984)).
The second prong of the Strickland test, prejudice, requires a defendant to "show that there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is one
'sufficient to undermine confidence in the outcome."' Collins v. Sec. of Pennsylvania Dept. of
Corr., 742 F.3d 528, 547 (3d Cir. 2014) (quoting Strickland, 466 U.S. at 694).
The "ultimate focus" of the prejudice inquiry is on the fundamental fairness of the
proceeding. Strickland, 466 U.S. at 696. "Prejudice is viewed in light of the totality of the evidence
at trial and the testimony at the collateral review hearing.'' Collins, 742 F.3d at 547 (citing Rolan
v. Vaughn, 445 F.3d 671, 682 (3d. Cir. 2006)). A court need not address both components of the
ineffective assistance inquiry. Strickland, 466 U.S. at 697. "If it is easier to dispose of an
ineffectiveness. claim on the ground of lack of sufficient prejudice . . . that course should be
followed." Id.
C.
Analysis
1.
Ground One
In his first ground for relief, Rojo alleged his counsel was ineffective for failing to bring to
the Court's attention "the fact that the prosecutor passed documents to the jury that the court had
ruled should not go to the jury." (ECF No. 1 at 14, ,33.) In support of this ground for relief, Rojo
alleges:
At the end of the trial, the jury requested a copy of a police report
and testimony of Officer Greene and Officer Marroro but AUSA
Beck said that the reports were not in evidence and should not go
back with the jury. Attorney Carlucci agreed and said that testimony
6
could be read back to jury if they wanted. The Court specifically
ordered that the materials was NOT to go back with the jury.
(Transcript 9-19-08, page 40.)
In spite of the ruling by the Court and the concurrence by the AUSA,
the AUSA handed some documents to a juror which appeared to be
the police reports. This was not mentioned in the transcripts and
was contrary to the ruling by the Court. (Appendix, Exhibits I)
(Appendix, Exhibits J).
(Id at 13, ~,20-21.)
Rojo alleged he was prejudiced by his counsel's failure to bring this incident
to this Court's attention and to make a motion for a new trial. (ECF No. 1 at 15, ,, 34-38.) Rojo
submitted affidavits from his mother and wife, each stating they saw the AUSA hand documents
to a juror after the Court ruled the reports could not go to the jury. (ECF No. 1-3 at 94-9)).
In response to Ground One, Respondent stated that on September 19, 2008, the jury
submitted a note asking for copies of certain reports. (ECF No. 11 at 5; Jury note, Ex. 2, ECF No.
11-1 at 2.) Counsel for both parties agreed the reports could not go to the jury because they were
not in evidence, and the Court ruled the reports could not go to the jury. (ECF No. 11 at 5.) AUSA
Matthew E. Beck denied handing the reports to a juror. (Id at 6.) Beck added that AUSA Dennis
Carletta, who was co-counsel for the Government during Rojo' s trial, authorized Beck to represent
that he also denies Rojo' s allegation. (Id) Respondent contends that if this incident had taken
place as Rojo alleges, there were others who would have witnessed it and alerted the Court,
including the Deputy Clerk, court reporter, and a court. security officer. (Id.) Respondent also
asserts that after the Court instructed the jury that it could not have the reports, it is likely a juror
would have brought it to the Court's attention that it was provided with the reports.
Respondent notes Rojo did not raise this issue at sentencing or on direct appeal.
7
(Id. at 7.)
(Id.)
In his traverse, Rojo argues the Court should accept his affidavits in support of Ground
One because "the government attorney has provided no affidavit in opposition to the allegations."
(ECF No. 12 at 14.) Additionally, Rojo "swore" in his traverse:
3.) In spite of the ruling by the Court and the concurrence by the
AUSA, the AUSA handed some documents to a juror which
appeared to be the police reports. This was not mentioned in the
transcripts and was contrary to the ruling by the Court.
4.) I was positioned next to Attorney Carlucci [defense counsel] at
the time of the foregoing event. It was clear that he had also seen
the transfer of the documents to the juror. He stated something to
me like, "I do not know why the prosecutor did that."
5.) I understood that this issue was going to be raised on appeal so
I just waited for my attorneys to raise it. Moreover, I was
represented by counsel so I don't know how I could have made an
"objection" to the Court or raised the issue.
(ECF No. 12 at 14.)
An evidentiary hearing is unnecessary on this ground for relief because it is frivolous on
the basis of the existing record. "In considering a motion to vacate a defendant's sentence, 'the
court must accept the truth of the movant's factual allegations unless they are clearly frivolous on
the basis of the existing record."' U.S. v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting
Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). The court must hold
an evidentiary hearing "unless the motion and files and records of the case show conclusively that
the movant is not entitled to relief." Id.
This Court would have discovered if the reports that it ruled could not go to the jury were
in fact provided to the jury. First, this Court solemnly instructs all juries to report any concerns to
court staff, and jurors have demonstrated time and again their willingness to do so, and yet no juror
came forward about receivfng the reports the Court had just ruled they could not have. Second,
even if docum~nts the Court ruled could not go to the jury were handed to a juror, and the juror
8
did not report it, court staff collects all materials provided to the jury during deliberations at the
conclusion of trial. Staff would have discovered the materials then. Finally, the prosecutor, as an
officer of the Court, has represented that neither himself nor his co-counsel gave the reports to the
jury. Rojo and his wife and mother have declared only that they saw the prosecutor hand something
that looked like the police reports to the jury. Based on the existing record, the Court finds frivolous
the allegation that the prosecutor(s) handed to a juror the reports that this Court ruled could not be
provided to the jury during deliberations. Ground One of the motion is denied without need for
an evidentiary hearing or discovery.
2.
Ground Two
In Ground Two, Rojo argues counsel was ineffective by failing to use available phone
records to show that Alberto Valencia Mosquera was working for Detective Marroro prior to July
2006. (ECF No. 1 at 6.) In support of this claim, Rojo explains that the charges against him arose
from a seizure of heroin hidden inside a child's seat in a vehicle that Rojo was driving on July 7,
2006. (Id at 10, ~4.) Rojo further alleges in the following paragraphs of his§ 2255 motion:
14.) At trial, Government Witness Marroro testified that Restrepo
was his undercover cooperating individual. Mr. Marroro testified
that this phone communications with Alberto Valencia Mosquera
started a week or so before the July 5, 2006 meeting. (Transcript 917-08, pages 13 8-129)
15.) In fact, phone records show that Alberto Valencia Mosquera
and Mr. Marroro were communicating well before the time frame
for which Mr. Marroro testified. (Appendix, Exhibits E-H)
16.) The extensive communications between Mr. Marroro and
Alberto Valencia Mosquera demonstrate that Alberto Valencia
Mosquera was working undercover for Mr. Marroro early on and
outside the time frame testified to by Mr. Matroro. (Appendix,
Exhibits E-H)
17.) The extensive communications between Mr. Marroro and
Alberto Valencia Mosquera demonstrate that Mr. Marroro and
9
Alberto Valencia. Mosquera both committed perjury at trial.
(Appendix, Exhibits E-H)
18.) The extensive communications between Mr. Marroro and
Alberto Valencia Mosquera demonstrate that, in fact, Mr. Marroro
and Alberto Valencia Mosquera "set up" Mr. Rojo and Mr. Rojo in
fact did not know anything about the drugs in this case and had
nothing what-so-ever to do with the drugs or drug business.
((Appendix, Exhibits E-H)
19.) While the phone records demonstrating the foregoing
(Appendix, Exhibits E-H) were available to counsel for crossexamination of Mr. Marroro and Alberto Valencia Mosquera,
counsel did not use the records to impeach them and demonstrate to
the jury that they were committing perjury.
In response, Respondent argued that the phone records were not material to the defense.
(ECF No. 11 at 8.) It was undisputed that a heroin transaction occurred on July 7, 2006, and that
Rojo drove Valencia-Mosquera to the transaction. (Id.) The only question was whether Rojo
knowingly and intentionally participated in the drug transaction, and the phone records do not shed
light on that issue. (Id.) Rojo did not further address this ground for relief in his Traverse or
Statement of Disputed Material facts. (ECF Nos. 12, 13.)
The phone records indicate there were calls between Alberto Valencia Mosquera and Mr.
Marroro beginning June 6, 2006. (ECF No. 11-1 at 45-53.) Rojo asserts Marroro testified that the
calls started "a week or so" before the July 5, 2006 meeting. (ECF No. 1at11, ~14.) It is difficult
to imagine what it would have accomplished for defense counsel to show that the calls started
about a month, rather than "a week or so" before the July 5, 2006 drug transaction.
Rojo's defense was that although he was the driver to the July 5, 2006 drug transaction, he
did not know about the drugs. U.S. v. Rojo, 375 F. App'x at 286-87 ("there was no real dispute as
to what happened. Rather, the case centered on what Rojo knew ofValencia-Mosquera.'s dealings
with the detective.") The fact that the phone calls between Mosquera and Marroro began on June
10
6, 2006 does not support the defense. Rojo has not met his burden to show counsel was ineffective
for failing to cross-examine Marroro abut the phone records. See Sistrunk v. Vaughn, 96 F.3d 666,
670 (3d Cir. 1996) (even if the record does not establish that counsel made an informed strategic
decision, the petitioner must come forward with evidence to the contrary sufficiently probative to
overcome the "strong presumption" required by Strickland) An evidentiary hearing on this issue
is unnecessary, and Ground Two of the motion is denied.
3.
Ground Three
For Rojo' s third ground for relief, he alleges his counsel was ineffective for failing to "bring
to the jury's attention the discrepancy between the Jersey City police report and the federal report
as to the packages and packaging of narcotics seized." (ECF No. 1 at 14, ~48.) In further support
of this claim, Rojo alleges that Valencia·Mosquera testified at trial that there were four cylinders
of drugs seized, and all four cylinders were wrapped in green plastic. (Id., at 11,
~11,
citing
Transcript 9-17-08, pages 55-57.) The Jersey City Police Report, however, showed there were
three cylinders wrapped in green plastic and one wrapped in clear plastic. (Id.,
~12.)
Respondent suggests that Rojo has simply misread the Jersey City Police Department
Report. (ECF No. 11at9.) The report states that the following were placed in evidence: "3 green
plastic wrap disk," "l clear plastic wrap disk," and "l green plastic wrap." (ECF No. 11-1 at 55.)
Respondent asserts that one of the disks of heroin had to be opened to test the substance, therefore,
the green plastic wrap was removed and logged into evidence separately. (ECF No. 11 at 9.)
Respondent's explanation is very persuasive. If defense counsel had raised this issue
before the jury, the jury may have concluded that the defense was desperate to create doubt where
none existed. It would have been a reasonable strategic decision by defense counsel not to raise
11
this issue. Therefore, Rojo has not met the Strickland standard for relief on Ground Three of his
motion.
4.
Ground Four
For his fourth ground for relief, Rojo alleges the cumulative errors of his counsel at all
stages of litigation amounted to ineffective assistance of counsel. (ECF No. I at 8.) Rojo alleged
the following in support of Ground Four:
Counsel unprofessionally failed to timely, properly, and effectively
move for suppression of evidence material to the conviction and/or
sentence of Mr. Rojo and counsel could have but did not timely
move for dismissal of the indictment. But for counsel's
unprofessional error, there is a reasonable probability that the
outcome of the proceeding would have been different.
Counsel unprofessionally failed to investigate or present available,
material exculpatory evidence and testimony at trial and failed to
timely object to the unlawful admission of evidence by the
prosecution. But for counsel's unprofessional error, there is a
reasonable probability that the outcome of the proceeding would
have been different.
Counsel unprofessionally failed to timely request appropriate jury
instructions and to timely object to insufficient instructions. In final
argument, counsel unprofessionally also failed to timely object to
improper argument by the prosecution and/or to timely ask for
curative instructions for the improper argument. But for counsel's
unprofessional error, there is a reasonable probability that the
outcome of the proceeding would have been different.
Counsel unprofessionally failed to investigate or present available
evidence and legal authority material to the sentencing of Mr. Rojo.
Counsel also unprofessionally failed to object to, unlawful, false and
unreliable evidence used to determine Mr. Rojo' s guideline
sentencing range and ultimate sentence. But for counsel's
unprofessional error, there is a reasonable probability that the
outcome of the proceeding would have been different.
Mr. Rojo was prejudiced by the objectively unreasonable
performance of counsel during the sentencing process, when
counsel unprofessionally failed to move for appropriate downward
12
departure or a downward variance under 18 U.S.C. § 3553(a)2 in Mr.
Rojo's case. But for counsel's unprofessional error, there is a
reasonable probability that the outcome of the proceeding would
have been different.
Counsel unprofessionally failed to investigate or present the
strongest issues available to Mr. Rojo for his direct appeal. But for
counsel's unprofessional error, there is a reasonable probability that
the outcome of the proceeding would have been different.
Mr. Rojo' s counsel labored under an actual conflict of interest which
adversely affected their performance during the pretrial, plea, trial,
sentencing and direct appeal process in this case. Counsel owed a
"duty" other than to Mr. Rojo. This duty was in conflict with the
duty owed to Mr. Rojo. Counsel chose between the duties.· This
choice adversely affected the performance of counsel during the
pretrial, plea, trial, sentencing and direct appeal process.
(ECF No. 1at17-19, ~~54-55, 57-61.) Rojo did not elaborate on these claims in his Memorandum
in Support of Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 1-3) or his
Traverse (ECF No. 12) or his Statement of Disputed Issues of Material Facts (ECF No. 13.)
Respondent asserts that because Rojo failed to discuss or substantiate any of the allegations,
Ground Four should be summarily dismissed. (ECF No. 11at10 n.4.)
Not one of the allegations in Ground Four is more than a bare allegation and legal
conclusion. For example, Rojo alleges his counsel failed to move to suppress evidence material
to the conviction or sentence, but he does not say what evidence should have been suppressed or
the basis for suppressing it. Similarly, he alleges counsel failed to present exculpatory evidence,
but he does not identify the evidence, nor does he identify jury instructions that should have been
given, nor specific arguments that should have been raised at sentencing. Finally, Rojo alleges
counsel labored under an actual conflict of interest, but he gives no indication of the substance of
2
18 U.S.C. § 3553(a) identifies seven factors to be considered in imposing a sentence, but Rojo
did not describe which factor his counsel failed to address in support of a downward departure.
13
the conflict of interest. Where the grounds in the petition allege insufficient facts to entitle the
petitioner to relief, the petition may be summarily dismissed. See U.S. v. Thomas, 221 F.3d 430,
437 (3d Cir. 2000) (citing Rule 4(b), Rules Governing Section 2255 Proceedings for the United
States District Courts). Therefore, the Court dismisses Ground Four of the motion.
D. Certificate of Appealability
The Court must assess whether a certificate of appealability should issue. A litigant may
not appeal from a final order in a proceeding under 28 U.S.C. § 2255 without a certificate of
appealability. 28 U.S.C. § 2253(c)(l)(B). A certificate of appealability shall not issue unless there
is a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where
a district court has rejected the constitutional claims on the merits, the showing requiring to satisfy
§ 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel,
529 U.S. 473, 484 (2000)). Based on the discussion above, reasonable jurists would not find it
debatable that defense counsel provided ineffective assistance of counsel that prejudiced the
defense.
IV. CONCLUSION
For the foregoing reasons, the motion to vacate, set aside, or correct the sentence (ECF No.
1) is DENIED, and the Court SHALL NOT ISSUE a certificate of appealability. An appropriate
Order shall follow.
Dated:
IJ~
I(,
'2017
PETER G. SHERIDAN
United States District Judge
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