Rosado-Sierra v. USA

Filing 15

OPINION AND ORDER. DENIED 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 02-214.) MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 02-214.) filed by Jorge L. Rosado-Sierra; NOTED 3 Supplemental Mo tion re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255); NOTED AND MOOT 13 MOTION requesting status re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255); NOTED 14 INFORMATIVE Motion regarding status of the case filed by Jorge L. Rosado-Sierra. Signed by Judge Salvador E Casellas on 4/14/2010.(LB)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

J O R G E L. ROSADO-SIERRA Plaintiff v. U N IT E D STATES OF AMERICA D efendant C iv il No. 07-2085 (SEC)

OPINION & ORDER P e n d in g before this Court is Petitioner Jorge L. Rosado-Sierra's ("Rosado" or " P e titio n e r" ) Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.A. § 2 2 5 5 (Dockets ## 1 & 3), in connection with United States v. Jorge L. Rosado-Sierra, C rim in a l Case No. 02-cr-00214-04 (SEC), and the Government's opposition thereto (Docket # 8). After considering the parties' filings, and the applicable law, Petitioner's motion is D E N IE D . F a c tu a l and Procedural Background O n August 22, 2003, Rosado pled guilty to Counts One1 and Two 2 of a superseding In d ic tm e n t, pursuant to a plea and forfeiture agreement under FED. R. CRIM. P. 11(c)(1)(B), a n d sentenced to a term of one hundred thirty two (132) months of imprisonment, supervised re le a s e term of five (5) years, and a special monetary assessment of $100.00. 02-cr-00214-04, D o c k e t # 552. On appeal, Petitioner argued, to no avail, that the district court abused its d is c re tio n in denying his motion to withdraw his guilty plea prior to sentencing, and c h a lle n g e d the sentence imposed pursuant to United States v. Booker, 543 U.S. 220 (2005).

Conspiracy to possess with intent to distribute and at least distribute one but less than three kilograms of heroin in violation of 21 U.S.C. § 846. Forfeiture of property purchased with the proceeds of the criminal activity under 18 U.S.C. § 982(b).
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S p e c if ic a lly, Petitioner averred that the plea was not "knowing" because the Government did n o t inform him prior to entering his plea that he had been identified as a suspect in another d ru g conspiracy. The First Circuit summarily affirmed Rosado's conviction and sentence, f in d in g that there was no abuse of discretion in denying the motion to withdraw the guilty p le a . 02-cr-00214-04, Docket # 730. On this front, the Court noted that "[a] defendant is not n o rm a lly entitled to know about the government's plans in cases not yet prosecuted, even if th e y might affect his decision whether to plead guilty in a case that has been prosecuted." Id. T h e Court further held that Petitioner "did not make a showing of a reasonable probability o f a more lenient sentence under an advisory guideline regime [Booker]." Id. Petitioner now seeks relief under 28 U.S.C. § 2255, claiming that his counsel failed to raise Booker claims on appeal, and alleging prosecutorial misconduct. Docket # 1. A c c o rd in g to Petitioner, he is entitled to a downward departure because the Government f a ile d to warn him about a second pending prosecution. In opposition, the United States a rg u e s that Petitioner's claims are procedurally barred. See Docket # 8. S ta n d a r d of Review F e d e ra l District courts have the jurisdiction to entertain motions under section 2255 o f title 28 of the United States Code when a petitioner is incarcerated by sentence of a federal c o u rt. See 28 U.S.C. §2255. Section 2255 provides four grounds on which a federal prisoner m a y challenge his sentence: (1) the sentence imposed is in violation of the Constitution a n d /o r laws of the United States; (2) the court lacked the jurisdiction to impose the sentence; (3 ) the sentence exceeded the maximum term authorized by law; or (4) the sentence is o th e rw is e subject to collateral review. See id. Should a court find any of these errors, it "shall v a c a te and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. T h e petitioner bears the burden of establishing, by a preponderance of the evidence, th a t he is entitled to relief. United States v. DiCarlo, 575 F.2d 952, 954 (1 st Cir. 1978). With

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re s p e c t to petitions that are "inadequate on [their] face, or although facially adequate, [are] c o n c lu s iv e ly refuted as to the alleged facts by the files and records of the case, summary d is m is s a l is appropriate." (internal citations omitted). A p p lic a b le Law and Analysis T h e First Circuit has consistently held that "[i]ssues disposed of in a prior appeal will n o t be reviewed again by way of a 28 U.S.C. § 2255 motion." Singleton v. U.S., 26 F.3d 233, 2 4 0 (1st Cir. 1994) (citing Dirring v. U.S., 370 F.2d 862, 864 (1st Cir. 1967)). Thus, any issue s e e n on direct appeal by the First Circuit, relating to Crim. No. 02-00214-04 (SEC), is p re c lu d e d from being considered by this Court through the use of a 28 U.S.C. § 2255 motion. S e e id. Non-constitutional claims not raised on direct appeal are likewise precluded "absent e x c e p tio n a l circumstances." Knight v. U.S., 37 F.3d 769, 772 (1 st Cir.1994); see also S in g le to n , 26 F.3d at 239 (deeming petitioner's claim "defaulted" when "it was neither raised b e f o re the trial court nor on direct appeal"); Argencourt v. United States, 78 F.3d 14, 16 n.1 (1st Cir. 1996) (rejecting arguments "not raised in the district court"). T h e "general rule" is that "claims not raised on direct appeal may not be raised on c o lla te ra l review unless the petitioner shows cause and prejudice." Massaro v. United States, 5 3 8 U.S. 500, 504 (2003). This heightened showing comports with the Supreme Court's well e s ta b lis h e d rule that "§ 2255 is not a substitute for direct appeal" Knight, 37 F.3d at 772; see a ls o Stone v. Powell, 428 U.S. 465, 478 n.10 (finding that there has been no change in the e s ta b lis h e d rule with respect to nonconstitutional claims. The writ of habeas corpus and its f e d e ra l counterpart, 28 U.S.C. s 2255, `will not be allowed to do service for an appeal.'") (c itin g Sunal v. Large, 332 U.S. 174, 178 (1947)). Furthermore, "issues adverted to in a p e rf u n c to ry manner, unaccompanied by some effort at developed argumentation are deemed w a i v e d ." U.S. v. Jiminez, 498 F.3d 82, 88 (1st Cir. 2007) (citing United States v. Zannino, 8 9 5 F.2d 1, 17 (1st Cir.1990)). P e titio n e r claims that his counsel's assistance was ineffective, charging more s p e c if ic a lly that his counsel failed to raise Booker claims on appeal. However, a review of

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th e record belies Petitioner's arguments. Specifically, in its Judgment, the First Circuit e x p re s s ly denies Petitioner's Booker challenge to the sentence imposed. Thus this issue was ra ise d by Petitioner's counsel, was disposed of on direct appeal and cannot be revisited by th is Court. Similarly, the Court rejected Petitioner's allegations that the Government was o b l ig a te d to inform him about the possible second prosecution against him. Although P e titio n e r now tries includes this claim under allegations of prosecutorial misconduct, he is m e re ly re-asserting issues that were properly addressed and rejected by First Circuit. Lastly, this Court notes that Rosado acknowledged, and accepted that the parties a g re e d upon a base offense level of 32, and a 2 level downward departure for acceptance of re s p o n s ib ility, resulting in a base offense level of 30, and a guideline range of 121 to 151 m o n th s . 02-00214-04, Docket # 644, p. 6, 7-8. Upon the Court's inquiry, Petitioner stated th a t he understood the plea agreement. Id. at 7-8. He cannot now argue for the first time that h is counsel failed to argue for a 3 level downward departure. More so when he is p ro c e d u ra lly barred from raising sentencing issues at this stage. Conclusion Based on the foregoing, Rosado's § 2255 motion is DENIED. I T IS SO ORDERED. In San Juan, Puerto Rico, this 14 th day of April, 2010. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge