JIMENEZ v. KERESTES et al

Filing 14

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE OBJECTIONS ARE OVERRULED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED WITH PREJUDICE WITHOUT AN EVIDENTIARY HEARING; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; AND THE CLERK OF COURT IS DIRECTED TO CLOSE THE CASE.. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 4/19/16. 4/19/16 ENTERED AND COPIES E-MAILED TO COUNSEL. (pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
ROCKY JIMENEZ
:
Petitioner,
:
:
v.
:
CIVIL ACTION NO. 14-3995
:
:
JOHN KERESTES, et al.
:
Respondents.
:
ORDER
AND NOW, this 19th day of April 2016, upon careful and independent consideration of
the Petition for Writ of Habeas Corpus, and all related filings, and upon review of the Report and
Recommendation of United States Magistrate Judge Linda K. Caracappa and the objections
thereto, it is hereby ORDERED that:
1.

The Report and Recommendation is APPROVED and ADOPTED1;

2.

The Objections are OVERRULED2;

1

Where, as here, the petition has been referred to a magistrate judge for a report and recommendation
(“R&R”), a district court conducts a de novo review of “those portions of the report or specified proposed findings
or recommendations to which objection is made,” and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
2

Petitioner pleaded nolo contendere in state court to charges of murder in the third degree and criminal
conspiracy to commit criminal homicide, and was sentenced to a term of 20 to 40 years of imprisonment. His
sentence was affirmed on direct appeal, and Petitioner then filed a petition pursuant to the Pennsylvania Post
Conviction Relief Act (“PCRA”), arguing that his counsel had been ineffective because he had told Petitioner that
his sentence would be approximately seven to ten years of imprisonment. The PCRA court held an evidentiary
hearing, and heard testimony from several witnesses including Petitioner, a translator who had been present for
conversations between Petitioner and counsel, and counsel (who testified by telephone from federal prison, where he
was then serving a sentence relating to a conviction for tax evasion). The PCRA court made a credibility
determination that Petitioner had not been promised a certain sentence and denied relief. The Superior Court
affirmed the PCRA court’s ruling, holding that it would not disturb the credibility findings and that Petitioner had
been questioned at the change of plea hearing about whether any promises had been made to him (and about whether
he was satisfied with the representation of his counsel, whose own legal troubles were well-known at the time). The
Superior Court also held that Petitioner could not obtain relief by arguing that he lied during his plea hearing.
Commonwealth v. Jimenez, No. 2433 EDA 2012, 2013 WL 11259325 at * 3 (Pa. Super. Ct. July 3, 2013).
Petitioner, through counsel, objects to the conclusions of the R&R that the state court rulings were not unreasonable
in concluding that Petitioner understood the consequences of his plea and the potential sentence he could receive and
that counsel was not ineffective.

3.

The Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE

and without an evidentiary hearing;
4.

There is no probable cause to issue a certificate of appealability3; and

5.

The Clerk of Court is directed to CLOSE the case.

It is so ORDERED.
BY THE COURT:
/s/Cynthia M. Rufe
____________________
CYNTHIA M. RUFE, J.

In asserting a claim that counsel was constitutionally ineffective, a petitioner must establish that
“counsel’s representation fell below an objective standard of reasonableness” and that petitioner was prejudiced as a
result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). When the state court has squarely addressed the
issue of counsel’s representation, “‘[t]he pivotal question is whether the state court’s application of the Strickland
standard was unreasonable,’ which ‘is different from asking whether defense counsel’s performance fell below
Strickland’s standard.’” Grant v. Lockett, 709 F.3d 224, 231-32 (3d Cir. 2013) (quoting Harrington v. Richter, 131
S. Ct. 770, 785 (2011)). Federal habeas courts must “take a highly deferential look at counsel’s performance” under
Strickland, “through the deferential lens of § 2254(d).” Id. at 232 (internal quotation omitted). In applying this
doubly deferential standard, the Court cannot conclude that the state court’s application of Strickland was
unreasonable, particularly in light of the credibility findings made after a full hearing in the PCRA court, and agrees
with the thorough analysis set forth in the R&R.
3

Petitioner has not made a substantial showing of the denial of a constitutional right; there is no basis for
concluding that “reasonable jurists could debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal citation omitted).

2