SEGURA v. UNITED STATES OF AMERICA
Filing
8
OPINION filed. Signed by Judge Mary L. Cooper on 2/14/2017. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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PEDRO NICOLAS SEGURA,
Civil Action No. 15-6821 (MLC)
OPINION
COOPER, DISTRICT JUDGE
Presently before the Court is the Petition of Pedro Nicolas Segura (“Petitioner”) brought
pursuant to 28 U.S.C. § 2255. (Dkt. No. 1.) In response to this Court’s Order to Answer (Dkt.
No. 5), Respondent United States of America (“Respondent”) filed its response (Dkt. No. 7).
Petitioner did not file a reply. For the following reasons, the Court denies the Petition, and declines
to issue a certificate of appealability
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner immigrated illegally to the United States in or around 1986. (Presentence
Investigation Report (“PSR”) ¶ 40.) Approximately five years later, in two separate incidents,
Petitioner was convicted of forging a United States Treasury check and assaulting an individual
with a machete. (Id. ¶¶ 26- 27.) On or about September 13, 1996, Petitioner was convicted in
New Jersey Superior Court for attempted sexual assault of a minor, in violation of N.J.S.A. 2C:51, 2C:14-2b(1), and 2C:14-2b(1). (Id. ¶ 28.) Petitioner completed his prison sentence in March
2001 and was released into immigration custody. (Id.) On or about June 15, 2001, Petitioner was
deported. (Id.)
Despite never having obtained permission to re-enter the United States, on or about
February 27, 2006, Petitioner was found in New Jersey when he attempted to renew his driver’s
license using a fictitious social security card. (Id. ¶ 29.) On or about May 31, 2007, Petitioner
was arrested for failure to register as a sex offender in violation of New Jersey law. (Id. ¶ 30.) On
or about June 11, 2007, he was charged with illegal reentry into the United States, in the District
of New Jersey. (Id. ¶ 31.) Petitioner was convicted of illegal reentry into the United States and
sentenced to forty-five months in custody and three years of supervised release. (Id.) Petitioner
was released by the Bureau of Prisons on September 15, 2010 and deported on or about October
1, 2010. (Id.) At an unknown time, Petitioner once again illegally re-entered the United States
and was found by the police during a traffic stop on or about May 7, 2013. (Id. ¶ 32.) Petitioner
was again charged with illegal reentry on or about November 12, 2013. (United States v. Segura,
Crim. No. 14-498 (MLC), Dkt. Entry No. No. 1.)
On September 3, 2014, Petitioner pled guilty to a one-count information charging
Petitioner with illegal reentry, in violation of Title 8, United States Code, Sections 1326(a) and
(b)(2). (Segura, Crim. No. 14-498 (MLC), Dkt. Nos. 15, 16.) Petitioner was sentenced on
February 5, 2015. (Id. at Dkt. No. 18.)
According to the PSR, Petitioner’s criminal history
category was a VI, and the appropriate guideline imprisonment range was seventy-seven to ninetysix months. (PSR ¶ 64.) At sentencing, the Court granted Petitioner a variance of seven months,
and sentenced him to a prison term of seventy months, and three years of supervised release.
(Segura, Crim. No. 14-498 (MLC), Dkt. No. 19.) Petitioner did not file an appeal.
On September 1, 2015, Petitioner filed the instant Section 2255 Petition and a supporting
memorandum of law. (Dkt. No. 1.) After the Court administratively terminated this action for
failure to use the correct form (Dkt. No. 3), Petitioner filed an Amended Petition (Dkt. No. 4). In
his Amended Petition, Petitioner raises two grounds for relief: (1) “whether or not counsel failed
to provide effective assistance with respect to the fast track early disposition program to reentry
defendant and that program is available in the District of New Jersey and the Third Circuit;” and
(2) “whether or not counsel failed to provide effective assistance of counsel by not requesting to
participate into the ‘fast track’ early disposition program and due to counsel ineffectiveness,
defendant received a longer sentence in comparing with other in the same charge which receives
shortless [sic] sentence.” (Am. Pet. ¶ 12.) Respondent filed its Answer (Dkt. No. 7) and Petitioner
did not file a reply.
II. DISCUSSION
A. Legal Standard
1. 28 U.S.C. § 2255
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). A 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 must “give a liberal
construction to pro se habeas petitions.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010). 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).
2. Ineffective Assistance of Counsel
The Sixth Amendment guarantees each criminal defendant not just assistance but effective
assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
articulated a two-pronged test for demonstrating ineffectiveness.
First, the petitioner must show that counsel’s performance fell below an objective standard
of reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013)
(noting that it is necessary to analyze an ineffectiveness claim in light of all of the circumstances)
(citation omitted). A petitioner must identify the particular acts or omissions that are challenged
as unprofessional. See Strickland, 466 U.S. at 690. 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.” Id. at
689. 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). If, on the
other hand, counsel pursues a certain strategy after a less than complete investigation, his choices
are considered reasonable “to the extent that reasonable professional judgments support the
limitations on investigation.”
Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (citing
Strickland, 466 U.S. at 690-91).
The second prong of the Strickland test requires the petitioner to affirmatively prove
prejudice. See 466 U.S at 693. Prejudice means that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694.
A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d
Cir. 2012). “This does not require that counsel’s actions more likely than not altered the outcome,
but the difference between Strickland’s prejudice standard and a more-probable-than-not standard
is slight and matters only in the rarest case. The likelihood of a different result must be substantial,
not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal quotation marks
and citations omitted). 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court
need not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be
followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
697).
3. “Fast Track” Programs
The Department of Justice’s “fast track” program offers an incentive to defendants in
illegal re-entry cases to plead guilty and waive certain appellate and collateral attack rights in
exchange for a downward departure from the adjusted base offense level. The Third Circuit has
provided the background and history of these “fast track” programs:
They sprang up in federal judicial districts along the Mexican
border, starting in Southern California, in the mid-1990s. Local U.S.
Attorneys instituted these programs as an administrative mechanism
to address the increase in their immigration caseload, such as the
rise in prosecution of illegal reentry offenses, and to create a process
for faster and more efficient disposition of these cases. U.S.
Sentencing Comm’n, Report to Congress, Downward Departures
from the Federal Sentencing Guidelines, at 65 (Oct.2003)
(hereinafter “Sentencing Commission Report”).
In 2003, Congress took note of this growing pattern. Through the
PROTECT Act, it sanctioned these programs under certain
circumstances. PROTECT Act, § 401(m)(2)(B), 117 Stat. at 675;
see also Sentencing Commission Report, at 56, 62. The Act, passed
pre-Booker, was part of a more general effort by Congress to deal
with a perceived increase in the rate of departures from the
Sentencing Guidelines. PROTECT Act, § 401(m)(2)(A), 117 Stat.
at 675; see also Sentencing Commission Report, at 56 (explaining
that Congress amended 18 U.S.C. § 3553(c) (statement of reasons
for imposing a sentence) and § 3742 (review of a sentence) to
facilitate meaningful appellate review of sentences, particularly
departure decisions).
Specifically concerning fast-track districts, the Act directed the
Sentencing Commission to promulgate “a policy statement
authorizing downward departures of no more than 4 levels if the
Government files a motion for such departure pursuant to an early
disposition program authorized by the Attorney General and the
United States Attorney.” PROTECT Act, § 401(m)(2)(B), 117 Stat.
at 675. Shortly thereafter, in October 2003, the Sentencing
Commission created Guideline § 5K3.1, which provides that, “upon
motion of the Government, the court may depart downward not
more than 4 levels pursuant to an early disposition program
authorized by the [Attorney General] and the United States Attorney
for the district in which the court resides.” This language tracks that
of the PROTECT Act essentially verbatim.
United States v. Arrelucea-Zamudio, 581 F.3d 142, 145–46 (3d Cir. 2009).
In response to the PROTECT Act, in 2003, the Attorney General issued a memorandum to
all federal prosecutors discussing Department of Justice policies relating to authorization and
administration of fast-track programs. Id. Thereafter, in 2012, the Department “revis[ed] its fasttrack policy and establish[ed] uniform, baseline eligibility requirements for any defendant who
qualifies for fast-track treatment, regardless of where that defendant is prosecuted.” (Answer, Ex.
B, DOJ Memorandum on Fast-Track Programs, January 31, 2012, Dkt. No. 7-2.) The revised
policy provides in relevant part:
Districts prosecuting felony illegal reentry cases (8 U.S.C. §
1326)—the largest category of cases authorized for fasttrack treatment—shall implement an early disposition
program in accordance with the following requirements and
the exercise of prosecutorial discretion by the United States
Attorney:
A. Defendant Eligibility. The United States Attorney retains
the discretion to limit or deny a defendant’s participation in
a fast-track program based on —
(1) The defendant’s prior violent felony convictions
(including murder, kidnapping, voluntary manslaughter,
forcible sex offenses, child-sex offenses, drug trafficking,
firearms offenses, or convictions which otherwise reflect a
history of serious violent crime);
(2) The defendant’s number of prior deportations, prior
convictions for illegal reentry under 8 U.S.C. § 1326, prior
convictions for other immigration-related offenses, or prior
participation in a fast-track program;
(3) If the defendant is part of an independent federal criminal
investigation, or if he or she is under any form of court or
correctional supervision; or
(4) With supervisory approval, circumstances at the time of
the defendant’s arrest or any other aggravating factors
identified by the United States Attorney.
…
D. Additional Provisions of a Plea Agreement. If the above
conditions are satisfied—including those imposed at the
discretion of the United States Attorney as provided for in
Section C(4)—the attorney for the Government shall move
at sentencing pursuant to Sentencing Guidelines Section
5K3.1 for a downward departure from the adjusted base
offense level found by the District Court (after application
of the adjustment for acceptance of responsibility) as
follows: Four levels for all defendants, except those with a
criminal history category VI or with at least one felony
conviction for a serious violent offense. For the latter
category, if the defendant is not excluded under Section
A(1), the government may only offer a two-level departure,
with supervisory approval and on a case-by-case basis after
considering the interest of public safety.
(Id.) (internal footnotes omitted).
B. Analysis
Though the Petition is not entirely clear, it appears that Petitioner is arguing that counsel
was ineffective for failing to properly advise him about the “fast track” program and for failing to
seek participation for Petitioner in said program. (Pet. ¶ 12.)
Petitioner cannot meet either prong of Strickland for these claims. As discussed above,
one of the factors to consider regarding eligibility for the fast track program is prior violent felony
convictions, including child-sex offenses. Petitioner has a conviction for assault with a machete
and attempted sexual assault of a minor. Another factor to consider is Petitioner’s number of prior
deportations and prior convictions for illegal reentry under 8 U.S.C. § 1326; Petitioner has two
and one of those, respectively. Given Petitioner’s criminal history, it is highly unlikely that he
would have been eligible for the fast track program. Cf. Arrelucea-Zamudio, 581 F.3d at 156 (“to
justify a reasonable variance by the district court, a defendant must show at the outset that he would
qualify for fast-track disposition in a fast-track district. For example, a defendant’s serious
criminal history may disqualify him in most fast-track districts.”). Because Petitioner would not
have been eligible for the fast-track program, it certainly cannot be said that counsel’s alleged
failure to discuss the program with Petitioner, and seek participation, fell below an objective
standard of reasonableness. Strickland, 466 U.S at 688.
With regard to the prejudice prong, the Court notes that Petitioner has not alleged that but
for counsel’s alleged failure to advise him about the “fast track” program, he would not have pled
guilty and would have insisted upon going to trial. See Hill, 474 U.S. at 59. Nor would it have
been rational to do so since Petitioner had clearly re-entered the country without permission after
he had been deported. See Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (citing Roe v. Flores–
Ortega, 528 U.S. 470, 480, 486 (2000)) (“to obtain relief on this type of claim, a petitioner must
convince the court that a decision to reject the plea bargain would have been rational under the
circumstances”); see also United States v. Scott, No. 15-3126, 2016 WL 6574076 (3d Cir. Nov. 7,
2016).
In addition, as discussed above, Petitioner’s criminal history and previous deportations
would render him ineligible for the “fast-track” program.
Because he did not meet the
requirements for the program, Petitioner clearly suffered no prejudice as a result of counsel’s
alleged failure to seek participation and therefore he also cannot meet the second prong of the
Strickland analysis.
III. CERTIFICATE OF APPEALABILITY
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 under 28 U.S.C. §
2253(c)(2). See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
IV. CONCLUSION
For the foregoing reasons, the Court will deny the Petition and decline to issue a certificate
of appealability. An appropriate order follows.
Dated: February 14, 2017
s/ MARY L. COOPER________________
Mary L. Cooper, U.S.D.J.
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