Vazquez-Mendez v. USA

Filing 12

OPINION AND ORDER denying 1 Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. Sec. 2255 filed by Manuel Vazquez-Mendez. Signed by Judge Juan M Perez-Gimenez on 02/22/2012. (JG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

*
*
*
*
v.
*
*
*
UNITED STATES OF AMERICA,
*
Respondent.
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__________________________________________*
MANUEL VAZQUEZ-MENDEZ
Petitioner,

CIVIL NO. 09-1025(PG)
RELATED CRIM. 00-333(PG)

OPINION & ORDER

Before the Court is Petitioner’s 28 U.S.C. Sec. 2255
Habeas

Corpus

Petition

(D.E.1)1.

Respondent

filed

a

Response to the Petition (D.E.2). Petitioner filed a Reply
to the Government’s Response (D.E. 3) as well as Motion for
Evidentiary Hearing (D.E. 7).

For the reasons discussed

below, the Court finds the Petition shall be DENIED and the
request for evidentiary hearing is also DENIED.
I. BACKGROUND
On June 30, 2000, Petitioner, Manuel Vazquez-Mendez
(hereinafter “Petitioner” or “Vazquez-Mendez”) and eighteen
(18) additional co-defendants were indicted by a Federal
Grand Jury (Crim. D.E. 2)2.
charged

with

distribute

conspiracy

multi-kilogram

Petitioner was specifically
to

possess
quantities

with
of

intent

to

controlled

substances, that is to say, in excess of one (1) kilogram

1

2

D.E. is an abbreviation of docket entry number.
Crim.D.E. is an abbreviation of criminal docket entry.

Civil No. 09-1025(PG)

Page 2

of heroin, a Schedule I Narcotic Drug Controlled Substance,
in excess of five (5) kilograms of cocaine, a Schedule II
Narcotic Drug Controlled Substance, in excess of fifty (50)
grams

of

cocaine

base,

a

Schedule

II

Narcotic

Drug

Controlled Substance, in violation of Title 21, United
States Code, Sec. 841(a)(1) (Crim. D.E. 2).
On

February

5,

2001,

Petitioner’s

Hearing was held (Crim.D.E.183).

Change

of

Plea

Vazquez-Mendez entered a

plea of guilty to count one of the Indictment as charged3
(Crim.D.E. 183).

On June 28, 2001, at the Petitioner’s

Sentencing Hearing, Vazquez-Mendez informed the Court that
he wished to withdraw his guilty plea.

The Court accepted

the withdrawal and trial date was set (Crim.D.E. 304).

On

November 20, 2001, after a sixteen day jury trial VazquezMendez was found guilty of count one of the Indictment
(Crim.D.E. 500).
On December 14, 2001, Petitioner, through counsel,
filed his objections to the Pre-Sentence Report (Crim.D.E.
528).

Vazquez-Mendez

specific

objection

was

to

the

additional enhancement to his sentence calculation for his
participation in the murder as described in overt act
fourteen (14) of the Indictment.

Petitioner alleged that

the issue of his involvement in the murder as described in
overt act fourteen (14) should have been submitted to the

3

There was no Plea Agreement between Petitioner and the
Government.

Civil No. 09-1025(PG)

Page 3

jury for their determination on the matter.

As such

Petitioner argued that the cross-reference to murder could
not be applied to his sentencing guideline calculation.
On December 17, 2001, the Court sentenced Petitioner to
a term of imprisonment of life, a Supervised Release Term
of ten (10) years and a Special Monetary Assessment of one
hundred (100) dollars (Crim.D.E. 534)4.

On December 27,

2001, Petitioner filed a Notice of Appeal (Crim.D.E. 555).
On Appeal Vazquez-Mendez once again raised the allegation
of the improper application of the murder cross-reference.
Petitioner alleged that it was a matter for the jury to
determine and that the Government had not presented any
evidence

of

his

involvement

in

the

murder.

In

a

supplemental appeal brief, Vazquez-Mendez alleged that the
imposition of life sentence based on drug quantity was also
an

error

because

the

jury

did

not

make

individual

determinations as to the amount of drugs each defendant was
responsible for (D.E. 2).
On April 11, 2005, the First Circuit Court of Appeals
issued its opinion on the matter.

As to Petitioner’s

involvement in the murder and the alleged lack of evidence
the Court stated:

4

Counsel for defendant raised once again the argument that the
murder cross reference enhancement should not be applied to
Petitioner’s sentence because it was not a matter which the jury
made a finding on. The Government opposed said argument and the
Court denied the Petitioner’s objection. See; Sentencing Hearing
Transcript of December 17, 2001.

Civil No. 09-1025(PG)

“A

Page 4

cooperating

witness,

Joel

Irizarry-Rosario,

made a valid in court identification of Manuel
Vazquez-Mendez, testified that he was involved
with selling drugs at the Tibes Housing Project,
and gave detailed testimony that Manuel VazquezMendez was part of a group that hunted down and
killed a rival drug dealer named Papito who was at
war

with

the

government

Tibes

conspiracy.

submitted

forensic

Further,
evidence

the
that

corroborated Irizarry-Rosario’s testimony about
Manuel

Vazquez-Mendez’s

involvement

in

this

murder.” United States v. Mercado Irizarry, 404
F.3d 497 at 503 (1st Cir. 2005).
Furthermore,
determinations

the

as

First

to

the

Circuit

issue

of

the

made

specific

specific

drug

quantities attributed to each defendant and the alleged
lack of jury finding on the matter.
“We make one comment as to a sentencing claim made
by

defendants

Morega-Vigo,

Hernan

Manuel

Vazquez-Mendez,

Vazquez-Mendez,

Rodríguez Rodríguez.

Eliezer

and

German

In supplemental briefing,

each of these defendants claims that the maximum
penalty he may receive based on the jury verdict
alone

is

twenty

years,

the

default

statutory

maximum derived from the catch-all provision in 21
U.S.C. Sec. 841(b)(1)(c).
because

the

jury

did

This is so, they argue,

not

make

individualized

Civil No. 09-1025(PG)

quantity

Page 5

determinations

as

to

the

type

and

quantity of drugs that were attributable to each
defendant specifically, but rather only determined
drug

type

and

quantity

attributable

to

the

conspiracy as a whole.
This

argument

specified

is

drug

defendant.

mistaken.

type

In

and

addition,

The

indictment

quantity
the

for

district

each
court

instructed the jury that it would be asked to find
beyond

a

quantity

reasonable

doubt

stated

the

in

the

drug

indictment

type
for

and
each

defendant found guilty of joining the conspiracy.
...
Here, since the jury found all defendants guilty
of a conspiracy to distribute greater than one
kilogram of heroin and five kilograms of cocaine,
the relevant statutory maximum penalty would be
the

penalty

set

forth

in

21

U.S.C.

Sec.

841(b)(1)(A) which is life.” Mercado Irizarry at
503-504.
The
appeal.

conviction

of

each

defendant

was

affirmed

on

United States v. Mercado Irizarry, 404 F.3d 497

(1st Cir. 2005).

The sentence for each defendant was

vacated and the cases were remanded for consideration of
the sentence of each defendant in light of the findings in
United States v. Booker, 543 U.S. 220 (2005).
remand, the Court stated as follows:

As to the

Civil No. 09-1025(PG)

Page 6

“The Guidelines are now advisory and the judge is
no longer mandated to impose a life sentence, so
given

the

government’s

appropriate.
what

concession,

remand

is

Of course, we intimate no view on

sentences

should

be

imposed

on

remand.”

Mercado Irizarry, at 503.
On October 30, 2006, Petitioner’s re-sentencing hearing
was

held

(Crim.D.E.

928).

Vazquez-Mendez

was

again

sentenced to a term of life imprisonment (Crim.D.E. 928).
On November 2, 2006, Petitioner filed a Notice of Appeal
(Crim.D.E. 929).

On December 21, 2007, the First Circuit

Court of Appeals issued its Judgment stating: “Having
reviewed the record, we find no plausible grounds for the
defendant’s appeal of his life sentence.

The motion to

withdraw under Anders v. California, 386 U.S. 738(1967), is
allowed,

and

the

judgment

of

the

district

court

is

affirmed.” United States v. Vazquez-Mendez, Appeal No. 062653

(1st

Cir.

December

21,

2007).

No

petition

for

certiorari was filed and judgment became final on March 10,
2008. Accordingly, Vazquez-Mendez’s 2255 Petition filed on
January 13, 2009, is timely (D.E. 1).
II. DISCUSSION
In his 2255 Petition, Vazquez-Mendez alleges that his
sentence is illegal pursuant to United States v. Booker,
543 U.S. 220 (2005).

He further alleges that the First

Circuit Court of Appeals opinions on the Booker error in
this case are erroneous.

Finally Petitioner alleges that

Civil No. 09-1025(PG)

Page 7

because of his ineffective counsel these allegations were
never raised either at the sentencing phase, appeals phase,
re-sentencing or second appeal.
them

for

the

first

time

as

He is therefore raising
part

of

an

ineffective

assistance of counsel claim (D.E. 1 attachment 1).
Not only does the record contradict Petitioner’s claim
but the First Circuit Court already specifically addressed
the issues now raised by Vazquez-Mendez and he is therefore
barred from raising them in his section 2255 motion.
Previously settled claims
A detailed reading of the First Circuit Court’s opinion
in United States v. Mercado Irizarry, 404 F.3d 497, parts
of which are previously transcribed, leave no doubt that
these same allegations were already dealt with at the
appellate level.

There is no room for re-arguing the same

issues.
Claims which have been previously settled in direct
appeal, cannot be revisited through a collateral proceeding
Withrow v. Williams, 507 U.S. 680 (1983)5. Furthermore, the
First Circuit Court has clearly established that a section
2255 petition cannot be used to litigate matters that were
decided on appeal, Singleton v. United States, 26 F.3d 233
(1st Cir. 1993).

Petitioner is trying to circumvent the

system by re-litigating issues that the First Circuit

5

Vazquez-Mendez has not even attempted to make a showing of
actual innocence or cause and prejudice.

Civil No. 09-1025(PG)

Page 8

already resolved; by raising them as ineffective assistance
of counsel of both his trial and appellate attorney. The
same shall not be permitted.
Simply put Vazquez-Mendez must accept the fact that he
was correctly and legally sentenced to a term of life
imprisonment; there is no room for “buyers remorse”.
III. CONCLUSION
For

the

reasons

stated,

the

Court

concludes

that

Petitioner MANUEL VAZQUEZ-MENDEZ is not entitled to federal
habeas relief on the claims.

Accordingly, it is ordered

that petitioner MANUEL VAZQUEZ-MENDEZ’s request for habeas
relief under 28 U.S.C. Sec. 2255 (D.E.1) is DENIED, and his
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. Sec. 2255 is DISMISSED WITH PREJUDICE. Petitioner’s
request for evidentiary hearing (D.E.7) is also DENIED.
IV. CERTIFICATE OF APPEALABILTY
For the reasons previously stated the Court hereby
denies Petitioner’s request for relief pursuant to 28
U.S.C.

Section

2255.

It

is

further

ordered

that

no

certificate of appealability should be issued in the event
that Petitioner files a notice of appeal because there is
no substantial showing of the denial of a constitutional
right within the meaning of 28 U.S.C. 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 22nd of February 2012.

Civil No. 09-1025(PG)

Page 9

s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
UNITED STATES DISTRICT JUDGE