Carreto v. United States of America

Filing 13

MEMORANDUM AND ORDER: Carretos petition, as supplemented by Acostas affidavit, is denied in its entirety. Because Carreto has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c). Chamber's will mail a copy of this memorandum and order to the pro se petitioner by regular mail. Ordered by Senior Judge Frederic Block on 10/19/2011. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOSUE FLORES CARRETO,
Movant,
MEMORANDUM AND ORDER
Case No. 10-CV-5630 (FB)

-againstUNITED STATES OF AMERICA,
Respondent.
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Appearances:
For the Movant:
JOSUE FLORES CARRETO, pro se
70716-053
USP Atwater
Federal Correction Institution
Post Office Box 019001
Atwater, CA 95301

For the Respondent:
LORETTA E. LYNCH, ESQ.
United States Attorney
Eastern District of New York
By: PAMELA K. CHEN, ESQ.
Assistant United States Attorney
147 Pierrepont Street
Brooklyn, NY 11201

BLOCK, Senior District Judge:
Josue Flores Carreto, proceeding pro se, moves to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255 on the grounds that he received ineffective
assistance of counsel and the prosecutor failed to disclose material evidence pursuant to
Brady v. Maryland, 272 U.S. 83 (1963).1 For the reasons that follow, the motion is denied.
I.
From 1991 until his arrest in 2004, Carreto and several members of his
extended family smuggled young Mexican women into the United States, abused them and

1

Carreto additionally claims to “join[] in the arguments of his two codefendants .
. . to the extent they are applicable and beneficial to him,” Mem. in Support of Carreto’s
§ 2255 motion at 31, but neither of his co-defendants has filed a § 2255 motion.

forced them into prostitution. As a result of this conduct, Carreto was charged in a 27count indictment with one count of conspiracy to engage in sex trafficking, 18 U.S.C. § 371;
four counts of sex trafficking, 18 U.S.C. § 1591(a)(1), (2); one count of attempted sex
trafficking, 18 U.S.C. § 1594(a); four counts of forced labor, 18 U.S.C. § 1589(1), (2); four
counts of transportation of individuals for the purpose of prostitution, 18 U.S.C. § 2421; one
count of conspiracy to import aliens for immoral purposes, 18 U.S.C. § 371; four counts of
importation of aliens for immoral purposes, 8 U.S.C. § 1328; four counts of alien smuggling,
8 U.S.C. § 1324(a)(1)(A), (B); and four counts of alien smuggling for commercial advantage
or financial gain, 8 U.S.C. § 1324(a)(2)(B).
Carreto and his two co-defendants rejected the government’s global plea
offer, which was then withdrawn. Nevertheless, the defendants subsequently decided to
plead guilty to the entire indictment. The Court stressed that it would not give defendants
“any promises or guarantees” regarding their sentences, which “might well be more strict
than they hope.” Transcript of 4/5/2005 (“Plea Tr.”) at 10. Carreto’s counsel, Telesforo Del
Valle, Jr., stated that he had explained to Carreto that “the final sentence rests on [the
Court].” Plea Tr. at 11. During the ensuing plea colloquy, Carreto confirmed that he had
gone through the indictment with his attorney in his native language of Spanish and
understood the charges against him. He responded affirmatively when the Court asked
whether he was “satisfied with Mr. Del Valle’s representation.” Plea Tr. at 31. The Court
carefully reviewed the potential sentencing consequences of a guilty plea, emphasizing that
no sentence had been agreed upon, and reminded Carreto that he would “not be able to
withdraw [the] guilty plea” after he gave it. Plea Tr. at 64, 67. Following Carreto’s
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allocution, the Court accepted his guilty plea to all 27 counts in the indictment.
Carreto retained new counsel, Roy Raymond John Kulcsar, for sentencing.
On April 24, 2006, Carreto moved pro se to withdraw his guilty plea. On April 27, 2006,
counsel informed the Court that the defendants had collectively hired a private
investigator, William Acosta, who had obtained transcripts from a Mexican legal
proceeding purportedly containing statements by the victims contradicting their statements
to the government in this case. The Court denied defense counsel’s request to adjourn the
sentencing, and also denied the defendants’ individual motions to withdraw their pleas.
It sentenced Carreto to 50 years’ incarceration and five years’ supervised release.
The Second Circuit affirmed the denial of Carreto’s motion to withdraw his
plea, finding that it was “taken knowingly and voluntarily,” that the exculpatory evidence
from Mexico “did not alter the fact that defendants had knowingly and voluntarily pled
guilty,” and that any ineffective assistance of counsel claims could more appropriately be
raised in a 28 U.S.C. § 2255 petition. See United States v. Carreto, 583 F.3d 152, 157-158 (2d
Cir. 2009).2 The United States Supreme Court denied Carreto’s petition for a writ of
certiorari. See Carreto v. United States, 130 S. Ct. 813, 813 (2009).
On December 6, 2010, Carreto timely filed this § 2255 motion.3
II.

2

The Circuit Court also rejected Carreto’s argument that national origin bias
infected his sentence. See Carreto, 583 F.3d at 159-60.
3

On April 8, 2011, Carreto filed a motion to amend pursuant to Federal Rule of
Civil Procedure 15 seeking to submit an affidavit by William Acosta describing the fruit
of his investigation. Since the motion does not raise any new claims, the Court
construes it as submission of a supplemental affidavit, which it has considered.
3

A.

Ineffective Assistance of Counsel
Carreto claims that his attorneys were ineffective because they (1) failed to

adequately investigate the case; (2) failed to provide him with translations of court
documents; (3) failed to inform him of his consular notification rights; and (4) provided
generally deficient representation.
To prevail on his ineffective assistance of counsel claim, Carreto must
show that: (1) his attorneys’ performance fell below “an objective standard of
reasonableness” as defined by “prevailing professional norms,” and (2) he was
prejudiced by this failure. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also
Hill v. Lockhard, 474 U.S. 52, 57-58 (1985) (holding that the Strickland standard applies to
ineffective assistance claims arising out of a guilty plea). There is “a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance,” and representation is evaluated from “counsel's perspective at
the time.” Strickland, 466 U.S. at 689. Prejudice requires “a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In the plea context, this means “a reasonable probability that, but
for counsel's errors, [the defendant] would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 59.
Several of Carreto’s arguments are framed as ineffective assistance of
counsel but are in reality challenges to the voluntary nature of his plea. The Second
Circuit has already determined that Carreto’s plea was “taken knowingly and
voluntarily” and that this Court did not err in denying his motion to withdraw it.
4

Carreto, 583 F.3d at 157-58. Thus, only challenges based on counsel’s performance will
be entertained.
1.

Failure to sufficiently investigate the case.
Carreto argues that his attorneys failed to adequately investigate the facts

of his case. He claims they should have learned of the information Acosta describes in
his affidavit, namely that several of the victims previously and voluntarily worked as
prostitutes in Mexico and the United States; that several of the victims had prior contact
with law enforcement authorities, but never mentioned their situation; that all of the
victims had freedom of movement and sent money back to their families; that one of the
victims previously gave sworn statements to Mexican authorities contradicting her
claims in this case; that another victim told Acosta she had never been abused by
Carreto; and that witnesses were given beneficial immigration status in exchange for
their cooperation.
Whether a defendant is prejudiced by counsel’s failure to investigate
depends “on the likelihood that discovery of the evidence would have led counsel to
change his recommendation as to the plea. This assessment, in turn, will depend in
large part on a prediction whether the evidence likely would have changed the outcome
of a trial.” Hill, 474 U.S. at 59.
Because Carreto points to no evidence that would likely have caused Del
Valle to change his plea recommendation, this claim fails. As an initial matter, Carreto’s
counsel knew of the victims’ improved immigration status because the prosecution
disclosed it during discovery. Assuming that counsel was ignorant of the remaining
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information, none of it was likely to have changed Del Valle’s prediction regarding the
outcome of a trial. Most of Acosta’s discoveries – that the victims worked as prostitutes,
for example, and that they failed to report their condition to authorities – are consistent
with the prosecution’s theory of the case. His assertions that the women were “free to
roam” and sent their earnings back to their families are entirely unsupported and, if
true, would have been known to Carreto prior to his plea. If one of the victims told
Mexican authorities that she was not under Carreto’s control, any such statements must
have been given prior to the charged crimes here, all of which took place after the
victim was trafficked to the United States. Finally, Acosta maintains that he
interviewed one of the victims in Mexico and she denied being abused. Even if this
woman had recanted, however, Carreto was not charged with any individual acts
victimizing her and she was one of eight victims enumerated in the sex trafficking
conspiracy count; without her testimony there would still be seven victims of the
conspiracy.
2.

Failure to provide Carreto with translated copies of Court documents.
Carreto claims that his attorneys failed to provide him with written

Spanish translations of court documents, rendering him unable to “consult with his
lawyer with a reasonable degree of rational understanding.” United States ex. rel. Negron
v. New York, 434 F.2d 386, 389 (2d Cir.1970) (quoting Dusky v. United States, 362 U.S. 402
(1962)). The Constitution, however, does not entitle criminal defendants to written
translations of all court documents, see United States v. Celis, 608 F.3d 818, 841 (D.C. Cir.
2010), and counsel is not necessarily ineffective for failing to provide such translations,
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see Sanders v United States, 130 F. Supp.2d 447, 449 (S.D.N.Y. 2001) (denying § 2255
motion based on ineffective assistance of counsel where petitioner received no written
translations but could communicate with his attorney and was provided with oral
translations of the indictment, plea agreement, and pre-sentence report).4
The record is clear that Carreto was able to effectively communicate with
his counsel and received oral or written translations of key documents, including the
indictment and pre-sentence report (PSR). Del Valle was a native Spanish speaker who
communicated with Carreto in Spanish, and Carreto confirmed during his plea colloquy
that he had no difficulty communicating with counsel. Kulcsar communicated with
Carreto using a paralegal as translator and he told the court that, in his presence, the
paralegal read the PSR to Carreto in Spanish.
3.

Failure to inform Carreto of his Consular Notification Rights.
Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963,

[1970] 21 U.S.T. 77, 100–101, T.I.A.S. No. 6820, provides that an authority detaining a
foreign national must, among other things, inform the detainee of the “right” to have
his consulate notified and, if the individual so desires, the detaining authority must
contact the consulate. Carreto claims that his attorneys were ineffective for failing to
notify him of these rights. United States Immigration and Customs Enforcement (ICE)
4

Carreto relies entirely on United States v. Mosquera, 816 F. Supp. 168 (E.D.N.Y.
1993), a complex narcotics and money-laundering case in which Judge Weinstein
ordered written Spanish translations of indictments, plea agreements, and pre-sentence
reports to be provided for 18 defendants. That case, however, emphasized that “[i]t is
up to the trial court to decide on the extent and nature of translation services needed by
the defendant,” id. at 174, and has since been limited to its facts. See Celis, 608 F.3d at
841.
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informed Carreto of his consular notification rights, however, and he signed a form
reflecting his decision not to have ICE “notify [his] country’s consular officials.”
4. The General Quality of Counsel’s Representation.
Carreto claims that the general quality of his representation was so poor
that he effectively lacked counsel. With respect to his first attorney, it is evident from
the record – including Carreto’s affidavit – that Del Valle regularly communicated with
his client and kept him appraised of the status of plea negotiations. Moreover, Del Valle
did not deviate from a reasonable standard of professional assistance by advising
Carreto to plead guilty in the hope that the Court would look favorably on the plea at
sentencing. Carreto’s argument that Del Valle did not adequately explain the
consequences of the plea is directly contradicted by his statements during the colloquy.
See Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009) (on a § 2255 motion, “a
district court need not assume the credibility of factual assertions, as it would in civil
cases, where the assertions are contradicted by the record in the underlying
proceeding”).
Carreto’s claim that Kulcsar never discussed the PSR with him is also
contradicted by the record. Kulcsar told the Court that he had reviewed the PSR with
Carreto with the help of a Spanish-speaking paralegal; the report was read to Carreto;
and Carreto understood it. Carreto did not contradict this account. Even if, as Carreto
maintains, Kulcsar did not discuss the PSR with him, Carreto does not suggest that such
discussion would in any way have resulted a more lenient sentence. See United States v.
Mena, 361 Fed.Appx. 242, 244 (2d Cir. 2010).
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B.

Brady Claim
Carreto claims that the prosecution failed to disclose (1) that the victims’

were offered improved immigration status in exchange for their testimony and (2) the
information Acosta discovered in Mexico. The first of these claims is factually incorrect
– the government disclosed the victims’ altered immigration status during discovery.
With respect to the second, as an extension of the government’s obligation to disclose
exculpatory material, see Brady v. Maryland, 373 U.S. 83 (1963), a “prosecutor has a duty
to learn of any favorable evidence known to the others acting on the government's
behalf in the case, including the police,” Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Carreto does not allege, however, that anyone “acting on the government’s behalf”
knew of the information Acosta describes.
III.
Carreto’s petition, as supplemented by Acosta’s affidavit, is denied in its
entirety. Because Carreto has failed to make a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c).

SO ORDERED.
____________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 18, 2011

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