Hernandez v. United States of America

Filing 8

MEMORANDUM AND ORDER: Hernandez's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Clerk is directed to close the case captioned Hernandez v. United States, 16 Civ. 8241 (PKC). Hernandez has not made a substantial showing of the denial of a constitutional right and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Blackman v. Ercole, 661 F.3d 161, 163-64 (2d Cir. 2011). His motion was not filed in forma pauperis, and the Court therefore makes no finding pursuant to 28 U.S.C. § 1915(a)(3), and as further set forth herein. (Signed by Judge P. Kevin Castel on 5/19/2017) Copies Mailed By Chambers. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
JOEL A. HERNANDEZ,
Petitioner,

16-cv-8241 (PKC)
12-cr-809 (PKC)

-against-

MEMORANDUM
AND ORDER

UNITED STATES OF AMERICA,
Respondent.
-----------------------------------------------------------x
CASTEL, U.S.D.J.
Petitioner Joel A. Hernandez, who is proceeding on his own behalf pro se, moves
to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In August 2013, a jury
found Hernandez guilty of one count of conspiring to distribute and possess with intent to
distribute heroin. This Court sentenced Hernandez to 78 months’ imprisonment and five years of
supervised release.
Hernandez now asserts that he did not receive the effective assistance of counsel
guaranteed by the Sixth Amendment to the U.S. Constitution. For reasons to be explained, his
motion is denied.
BACKGROUND.
On April 8, 2013, the government filed a single-count superseding indictment
against Hernandez. (12 Cr. 809, Docket # 20.) It charged Hernandez with conspiracy to
distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. §
841(a)(1). (Id.) The controlled substance involved in the offense was one kilogram and more of

Mailed to Mr. Hernandez 5/19/2017

mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. §§
812 and 841(b)(1)(A). (Id.)
Hernandez’s trial commenced on July 29, 2013. The government presented
evidence that Hernandez conspired to distribute heroin in 2012. Co-conspirators Edy Pena and
Jorge Alvarez supplied Hernandez with heroin for resale. Hernandez and Alvarez were arrested
as they attempted to buy one kilogram of heroin from an undercover federal agent. Pena was
arrested separately. Pena testified against Hernandez as a cooperating witness, stating that he
was a heroin wholesaler whose customers included Hernandez and Alvarez.
After a dispute between Pena and Hernandez, Alvarez began looking for another
wholesaler. Alvarez came into contact with an undercover agent who was known to him as
Ceasar Dupree, and the two began to negotiate a heroin purchase. On July 30, 2012, the
undercover agent met Alvarez and Hernandez at a fast food restaurant, to purportedly
consummate a heroin transaction. Hernandez remained in the restaurant with the money to be
used for the purchase, while Alvarez went outside with the undercover agent purportedly to
transfer possession of the heroin. At this point in time police arrested both Hernandez and
Alvarez.
Hernandez briefly recalled one of the government’s witnesses in an attempt to
impeach her and did not present any other evidence.
On August 6, 2013, a jury returned a verdict of guilty as to the single count of the
indictment. On May 27, 2014, this Court sentenced Hernandez to 78 months’ imprisonment.
Hernandez appealed his conviction to the United States Court of Appeals for the
Second Circuit. He argued, among other things, that the court should vacate the judgment
because the district court at trial permitted the government to introduce allegedly improper

-2-

opinion testimony from law enforcement witnesses and allegedly inadmissible hearsay. See
United States v. Hernandez, 604 F. App’x 53 (2d Cir. 2015). The Second Circuit affirmed
Hernandez’s conviction. Id. at 55.
DISCUSSION.
I.

Petitioner’s Claim is Time-Barred
Petitioner’s claim is time-barred under 28 U.S.C. § 2255(f). Section 2255(f)

creates a one-year statute of limitations for motions made under section 2255. The limitation
period begins to run on the latest of the following:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action; (3) the date on
which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral
review; or (4) the date on which the facts supporting the claim or
claims presented could have been discovered through the exercise
of due diligence.
28 U.S.C. § 2255(f).
“Where a defendant does not seek Supreme Court review, a conviction becomes
final when the time to seek such review expires, 90 days from the order affirming the
conviction.” Gonzalez v. United States, 792 F.3d 232, 234 (2d Cir. 2015). The Second Circuit
issued its opinion affirming Hernandez’s conviction on May 15, 2015 and its mandate
terminating the appeal on June 19, 2015. Hernandez did not seek review of his conviction by the
Supreme Court and the judgment became final ninety days later when his time to petition the
Supreme Court for a writ of certiorari expired on September 17, 2015. See Clay v. United
States, 537 U.S. 522, 524-25 (2003); Rule 13, Sup. Ct. R. Hernandez filed his petition on

-3-

October 11, 2016, more than a year later. While Hernandez sent a letter to the Court, received
September 8, 2016, (12 Cr. 809, Docket # 77), that he filed a section 2255 petition “[o]n or about
September 2015,” neither the Court nor the Pro Se Clerk has any record of such a filing and none
was docketed, (see 12 Cr. 809, Docket # 78.) No other subsection of 2255(f) applies to this
claim.
II.

Petitioner’s claim is Meritless
In addition to being untimely, Hernandez’s section 2255 petition has no merit.

Strickland v. Washington, 466 U.S. 668 (1984), requires a two-part showing to establish
ineffective assistance of counsel. First, a defendant must show that “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. To be considered ineffective, the attorney’s performance must fall
below “an objective standard of reasonableness” under “prevailing professional norms.” Id. at
687-88. “Second, the defendant must show that the deficient performance prejudiced the
defense.” Id. at 687. To establish prejudice, the “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694.
“In any case presenting an ineffectiveness claim, the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688.
Moreover, “a defendant claiming ineffective counsel must show that counsel’s actions were not
supported by a reasonable strategy . . . .” Massaro v. United States, 538 U.S. 500, 505 (2003).
Hernandez contends that his counsel was constitutionally ineffective on two
grounds; first, for not adequately pursuing suppression of evidence uncovered during an

-4-

allegedly unconstitutional 2004 traffic stop (ten Ziploc bags containing cocaine and a large
amount of cash), and second, by failing to adequately investigate the case before trial. (Pet. at 5.)
Hernandez’s contentions lack merit. First, his counsel’s decision not to seek to
suppress the evidence from the 2004 traffic stop did not fall below an objective standard of
reasonableness under prevailing professional norms. In order to challenge a search or seizure, a
defendant’s legally cognizable privacy interest “must be established by a declaration or other
affirmative statement of the person seeking to vindicate his or her personal Fourth Amendment
interest in the thing or place searched.” United States v. Ulbricht, No. 14 Cr. 68 (KBF), 2014
U.S. Dist. LEXIS 145553, at *16 (S.D.N.Y. Oct. 10, 2014). Thus, in order to challenge the
admission of evidence related to the 2004 traffic stop, Hernandez would have to admit to being
in possession of the cocaine and cash that was seized. An attorney’s decision to forgo moving to
suppress evidence from the 2004 traffic stop, when such a challenge would entail his client
admitting to possession of the seized cocaine and cash, does not fall below the standards set forth
in Strickland.
Neither did counsel’s failure to move to suppress prejudice Hernandez, as the
government did not introduce any evidence related to the 2004 traffic stop.
Hernandez’s conclusory allegation that his attorney failed “to timely and
adequately investigate the case,” (Pet. at 4), is insufficient to state a claim for relief under section
2255. See Matura v. United States, 875 F. Supp. 235, 237 (S.D.N.Y. 1995) (denying habeas
relief where section 2255 petitioner argued ineffective assistance of counsel, alleging his counsel
“failed to perform an adequate and timely pre-trial factual and legal investigation,” reasoning
that “[p]etitioner’s bald assertion that counsel should have conducted a more thorough pre-trial
investigation fails to overcome the presumption that counsel acted reasonably.”)

-5-

Neither does Hernandez’s cryptic elaboration that the allegedly insufficient
investigation related to “a supposed meeting for [a] drug transaction at a hotel room,” (Pet. at 4),
remedy this deficiency. See Otero v. Eisenschmidt, No. 01 Civ. 2562 (HB), 2004 U.S. Dist.
LEXIS 22439, at *109 n.61 (S.D.N.Y. Nov. 8, 2004) (quoting Parnes v. United States, No. 94
Civ. 6203 (MJL), 1995 U.S. Dist. LEXIS 18881, at *3 (S.D.N.Y. Dec. 21, 1995) (“Vague
allegations do not permit the Court to conclude that the alleged errors of Petitioner’s counsel fell
below ‘prevailing professional norms’ . . . .”).
CONCLUSION.
Hernandez’s motion to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 is DENIED. The Clerk is directed to close the case captioned Hernandez v.
United States, 16 Civ. 8241 (PKC).
Hernandez has not made a substantial showing of the denial of a constitutional
right and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253; see
Blackman v. Ercole, 661 F.3d 161, 163-64 (2d Cir. 2011). His motion was not filed in forma
pauperis, and the Court therefore makes no finding pursuant to 28 U.S.C. § 1915(a)(3).
SO ORDERED.

Dated: New York, New York
May 19, 2017

-6-