Muniz-Ruberte v. Pereira Castillo et al
Filing
103
OPINION AND ORDER re 60 Amended Complaint filed by Ruben Muniz-Ruberte. Judgment to be entered accordingly. Signed by US Magistrate Judge Camille L. Velez-Rive on 9/29/14.(ljt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
RUBEN MUÑIZ-RUBERTE,
Plaintiff,
CIVIL NO. 09-1235 (CVR)
v.
MIGUEL PEREIRA CASTILLO, et al.,
Defendants.
OPINION AND ORDER
INTRODUCTION
On March 10, 2009, then pro se plaintiff Rubén Muñiz-Ruberté (“Plaintiff”) filed the
instant petition of habeas corpus relief. (Docket No. 2). Plaintiff later filed a voluntary
dismissal to exhaust administrative state remedies. (Docket No. 46). Accordingly, on
September 27, 2010, the instant case was dismissed without prejudice. (Docket No. 49).
On March 13, 2012, Plaintiff filed an informative motion requesting this case be reopened inasmuch as the motion for voluntary dismissal he filed was prepared by a fellow
inmate and Plaintiff was not aware of its content when it was filed because he does not
understand English. (Docket No. 51).
On March 22, 2012, an order was issued by Hon. Judge Gustavo A. Gelpí as follows:
“[t]his case was dismissed without prejudice on 9/27/10 and judgment entered therein
(docket 49). More than one year has elapsed since then, and the judgment has become
final. Notwithstanding, the matter is hereby referred to the FPD to evaluate, and if
necessary, file any necessary pleading(s) on plaintiff's behalf.” (Docket No. 52).
The Federal Public Defender was appointed to represent Plaintiff and an Amended
Complaint was filed on September 23, 2013. In the Amended Complaint, Plaintiff averred
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he does not speak, read or understand the English language and, thus, the voluntary
dismissal in this case was filed without his knowledge. Plaintiff claimed he exhausted the
state administrative remedies. Moreover, Plaintiff stated his trial counsel (attorney Pedro
Rinaldi-Nun) was ineffective for his alleged failure to communicate to him a plea offer, for
failure to evaluate Plaintiff to determine his psychological condition and competency after
Plaintiff informed his counsel of his history of mental health problems and for failure to
appeal the severe sentence handed to Plaintiff. (Docket No. 60).
On December 5, 2013, a motion to dismiss was filed in which Defendants asserted
the ineffective assistance of trial counsel claim was without merit and the claim of
competency to stand trial was procedurally faulty because it was not raised before the state
court prior to the instant case. (Docket No. 73).
On January 17, 2014, Plaintiff filed his response to the motion to dismiss claiming
trial counsel was ineffective by his failure to inform Plaintiff about the plea offer extended
by the prosecution as well as by his failure to address Plaintiff’s mental health problems.
Thus, Plaintiff requested habeas relief be granted based on ineffective assistance of counsel.
(Docket No. 73).
On January 22, 2014, Hon. Judge Gelpí denied the motion to dismiss as follows:
Denied. The court further finds that an evidentiary hearing is warranted to
elucidate the two issues of fact presented, which may or may not warrant
habeas relief as a matter of fact. An evidentiary hearing is hereby set for
February 26, 2014 at 9:00 am. Petitioner's counsel shall coordinate for his
transportation by the Commonwealth Corrections Administration and submit
any form orders no later than February 1, 2014. The parties shall also file a
Joint Informative Motion on or before February 1, 2014 listing all witnesses
and a short proffer of their respective testimony. Petitioner shall present his
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evidence (including his testimony) first. The Commonwealth will go next. All
witnesses will be summoned to appear accordingly and be ready to testify.
The court will not continue the hearing, and if it extends past 5 pm shall
conclude the following day. The undersigned strongly urges the parties to
consider consenting to proceed before a US Magistrate Judge. Accordingly,
they shall file a Joint Informative Motion indicating yes or no on or before
Tuesday, January 28, 2014. If consent is indeed provided the parties may also
agree to a different hearing date with the USMJ.
On January 28, 2014, all parties consented to proceed before a United States
Magistrate Judge for all further proceedings and requested additional time to prepare for
the evidentiary hearing. (Docket 76).
The matter was then referred to the undersigned and several status conferences were
held. (Docket Nos. 78, 79, 81, 84, and 87).
On June 30, 2014, the evidentiary hearing commenced. Plaintiff testified on his own
behalf. Direct and cross-examination were conducted. Several documents were offered and
admitted as Exhibits 1-5.1 (Docket No. 102). After Plaintiff’s testimony, the case was
submitted. Further evidentiary hearing was scheduled for August 21, 2014 for Defendants
to summon counsel Rinaldi. (Docket No. 93).
After granting a continuance, the evidentiary hearing continued on September 25,
2014. Counsel Rinaldi was called by Defendants to the witness stand. Direct and crossexamination were held. (Docket No. 101).
ANALYSIS
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.
No. 104-132, 110 Stat. 1214, federal courts may grant habeas relief after a final state
adjudication of a federal constitutional claim only if that adjudication:
1
The translations of some of the exhibits were later filed at Docket No. 91.
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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding. 28 U.S.C. 2254(d).
This standard applies, however, only to a claim that was adjudicated on the merits
in State court proceedings. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) (noting
that a federal court can hardly defer to the state court on an issue that the state court did
not address); Pike v. Guarino, 492 F.3d 61, 67 (1st Cir. 2007); Teti v. Bender, 507 F.3d 50
(1st Cir. 2007).
Plaintiff claims he has exhausted the state available remedies and, after a review of
the record before us, we find that he has indeed exhausted the state available remedies.
Plaintiff submits allegations of violation to the Sixth Amendment of the United
States Constitution in that his counsel was ineffective for failure to inform him of a verbal
offer by the prosecution for a guilty plea to thirty (30) years of imprisonment, resulting in
seeking trial and being convicted of first degree murder, among other charges, and a ninetynine (99) year imprisonment sentence. Plaintiff further posits his trial counsel was
ineffective for failing to request a mental evaluation of Plaintiff after being informed of his
mental health issues and for failing to appeal his steep sentence.
In a long line of cases, the Supreme Court of the United States has recognized that
the Sixth Amendment right to counsel exists, and is needed, in order to protect the
fundamental right to a fair trial. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963);
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938); Powell v. State of Alabama, 287 U.S.
45, 53 S.Ct. 55 (1932). The Court has recognized that “the right to counsel is the right to the
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effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct.
1441 (1970). Counsel can deprive a defendant of the right to effective assistance, simply by
failing to render “adequate legal assistance.” Cuyler v. Sullivan, 446 U.S. 335, 345-350, 100
S.Ct. 1708 (1980).
The Supreme Court has developed a two (2) prong test for evaluating claims of
ineffectiveness of counsel. First, the petitioner must show that counsel's performance was
deficient. Second, the petitioner must show that the deficient performance prejudiced the
defense. Strickland v. Wahington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). “Unless both
showings are made, it cannot be said that the conviction or ... sentence resulted from a
breakdown in the adversary process that renders the result unreliable.” Id.
In applying this standard, a reviewing court must “indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound [legal] strategy.” ’ Strickland, 466 U.S. at 689
(quoting Michel v. State of Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955)).
The essence of an ineffective assistance claim is that counsel's unprofessional errors
so upset the adversarial balance between defense and prosecution that the trial was
rendered unfair and the verdict rendered suspect. Lockhart v. Fretwell, 506 U.S. 364, 369,
113 S.Ct. 838 (1993); Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574 (1986).
This two (2) prong standard has its justification in the fact that the government is not
responsible for, and hence not able to prevent, attorney's errors that will result in reversal
of a conviction or sentence. Attorney's errors come in an infinite variety and are as likely to
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be utterly harmless in a particular case as they are to be prejudicial. Hill v. Lockhart, 474
U.S. 52, 57, 106 S.Ct. 366 (1985).
As the First Circuit Court of Appeals has emphasized, a strong presumption exists
“that counsel's strategy and tactics fall ‘within the range of reasonable professional
assistance,’ and courts should avoid second-guessing counsel's performance with the use
of hindsight.” Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)(quoting Strickland, 466
U.S. at 689.) “[T]actical decisions, whether wise or unwise, successful or unsuccessful,
cannot ordinarily form the basis of a claim of ineffective assistance.” United States v. Ortiz
Oliveras, 717 F.2d 1, 3 (1st Cir. 1983). Thus, “only where, given the facts known at the time,
counsel's ‘choice was so patently unreasonable that no competent attorney would have
made it,’ that the ineffective assistance prong is satisfied.” Id. (quoting Strickland, 466 U.S.
at 693-94). The record holds no such circumstances here.
1.
Failure to Inform Plaintiff of the Plea Offer.
After considering the testimonies of Plaintiff and of counsel Rinaldi at the
evidentiary hearing, and assessing credibility, we find counsel Rinaldi’s account more
credible when compared to Plaintiff’s self-serving testimony that his counsel was allegedly
ineffective. As such, Plaintiff’s claims of ineffective assistance of counsel are without merit.
We explain.
As testified by counsel Rinaldi, a plea offer was extended to the four (4) defendants
charged in the state court which included Plaintiff and his son, whom counsel Rinaldi also
represented. The plea offer was verbally extended by the prosecution to Plaintiff and his
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son for thirty (30) years of imprisonment for all charges2 and, as to the other two (2) codefendants, the plea offer was for twelve (12) years of imprisonment. The plea offer was
a “package plea” contingent to the four (4) defendants pleading guilty. The plea offer was
never memorialized in writing. The other two (2) co-defendants, who were represented by
two (2) other attorneys, did not accept the plea offer. Thus, the plea offer did not materialize
for any of the co-defendants, including Plaintiff. As such, Plaintiff went to trial.
In addition, counsel Rinaldi testified he informed Plaintiff of the plea offer which was
extended to the four (4) co-defendants including Plaintiff and his son. Thus, counsel Rinaldi
fulfilled his obligation to inform Plaintiff of the plea offer.
Counsel Rinaldi further explained that, since the beginning when Plaintiff visited his
office, counsel informed Plaintiff that he would take his case conditioned to a plea due to
the nature of the charges. As such, the possibility of entering a plea was always on the table
and early contemplated.
The facts as testified by counsel Rinaldi as to the verbal plea offer are corroborated
by Exhibit 1 which is a letter dated May 27, 2008 sent by counsel Rinaldi to the Secretary
of the Puerto Rico Supreme Court in response to an ethical claim filed against him by
Plaintiff. The account in the letter (which was made closer to the events) is consistent with
the testimony provided by counsel Rinaldi at the evidentiary hearing.
Plaintiff’s blanket assertions at the evidentiary hearing that he did not contemplate
a guilty plea at any time, that none of his co-defendants mentioned to him the plea offer
2
The charges filed against Plaintiff were for first degree murder, kidnaping, aggravated damages and weapons
law violations. Plaintiff went to trial before a judge, was convicted and eventually sentenced to ninety-nine (99) years of
imprisonment. The plea offer for thirty (30) years was for a lesser charge of second degree murder.
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made to them and that his counsel did not communicate with him during the whole process
are simply incredible. A plea offer by the prosecution, plea negotiations and, consequently,
the entering of a plea are part of the regular course of events in criminal proceedings.
Moreover, not contemplating a plea offer with the serious charges and steep sentence
Plaintiff was facing is unbelievable.
Plaintiff conveniently testified he learned about the plea offer after he filed the
complaint in this case. This is self-serving testimony which consists of mere assertions of
Plaintiff which are unsupported by any other means. Besides Plaintiff’s testimony, no other
evidence was presented in support of his version of facts. No credible reasons were
presented either to discredit counsel Rinaldi’s testimony that he indeed timely informed
Plaintiff of the plea offer and the reason why the plea did not materialize because the other
co-defendants did not agree with it. As such, counsel Rinaldi’s performance was not
deficient.
Finally, Plaintiff has not proven that the alleged deficient performance of counsel
prejudiced the defense. Having made an offer, the prosecution may withdraw the same
before a defendant accepts it and there is no constitutional violation even when the
government has offered a package deal. Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct.
2543 (1984); United States v. Papaleo, 853 F.2d 16, 19-20 (1st Cir. 1988). There is also no
constitutional right to a plea bargain since the prosecutor need not offer one should he/she
prefer to go to trial. United States v. González-Vázquez, 219 F.3d 37 (1st Cir. 2000). As in
González-Vázquez, even if we consider the verbal plea offer of thirty (30) years had taken
place, it was merely an offer which the government could withdraw before Plaintiff accepted
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the same. Moreover, Plaintiff’s claims are based on an assumption that, if he would have
been informed of the thirty (30) years plea offer, he would have accepted it and avoided
trial.
In view of the foregoing, Plaintiff’s claims as to counsel Rinaldi’s failure to inform
him of the plea offer are unsupported and do not amount to ineffective assistance of
counsel.
2.
Failure to Evaluate Plaintiff to Determine his Mental Health Condition
and Competency.
Defendants aver the issue of mental competency raised by Plaintiff is defaulted
inasmuch as it was not raised at the appeal stages in the state court even though Plaintiff
had multiple opportunities to do so. Although Defendants’ contention seems to be correct,
we entertain this matter in an abundance of caution inasmuch as evidence as to Plaintiff’s
mental health was presented at the evidentiary hearing.
In analyzing a defendant's competency to stand trial, a court must consider whether
defendant: (1) understands “the nature of the proceedings against him,” and (2) is “able to
cooperate with counsel in his defense.” Robidoux v. O'Brien, 643 F.3d 334, 339 (1st Cir.
2011). Because this “is a functional inquiry,” it is possible for a defendant to have a serious
mental illness but still be able to understand the proceedings and rationally assist his
counsel. United States v. Widi, 684 F.3d 216, 220-21 (1st Cir. 2012).
Plaintiff testified at the evidentiary hearing that he was found disabled by the Social
Security Administration after a work related accident he sustained in 1982. This is
corroborated by Exhibit 4 which is the Social Security notice of favorable decision to
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Plaintiff dated April 29, 1983.3 After the accident, Plaintiff’s nervous system was affected.
Plaintiff testified he informed counsel Rinaldi of his mental health and his wife gave
counsel, prior to trial, information related to the consequences of the accident. Plaintiff
indicated counsel Rinaldi did nothing with those documents, did not investigate his mental
health further nor requested a mental evaluation from the state court. Plaintiff testified that
he felt bad at the trial because it was his first time at trial, he did not understand completely
the process, felt sleepy and had lapses in his mind. Plaintiff claimed he did not talk to his
counsel at any time because his counsel would not talk to him. However, Plaintiff testified
on direct examination and on cross-examination that he was able to assist his counsel
during the trial. Therefore, even if we were to take as true Plaintiff’s mental health issues,
he testified under oath that he was able to assist his counsel during trial, thus, showing his
mental competency to stand trial. As such, no prejudice was caused.
It should be noted that no other evidence or medical documentation (besides
Plaintiff’s testimony) was presented to show how Plaintiff’s mental disability affected his
mental state to render him not capable to understand the judicial proceedings and assist
counsel. Because mental competency “is a functional inquiry” it is possible for a defendant
to have a serious mental illness but still be able to understand the proceedings and
rationally assist his counsel. United States v. Widi, 684 F.3d at 220-21.
As to the mental competency of Plaintiff, counsel Rinaldi testified the mental state
of Plaintiff was never an issue and that is why he never requested from the court a mental
3
The decision found that Plaintiff had severe major depressive episode with psychotic features, lumbosacral
discogenic disease, status post fracture left ulnae and of skull, healed. Plaintiff was entitled to a period of disability
commencing on June 30, 1981. (Exhibit 4, p. 5).
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evaluation of Plaintiff. Plaintiff mentioned in one of his visits with counsel that he had a
disability related to his nerves but Plaintiff never indicated that he was mentally disabled.
No written document was provided to counsel Rinaldi to support the alleged disability.
Counsel was always able to communicate with Plaintiff and Plaintiff understood everything.
Counsel Rinaldi described Plaintiff as a “normal” person, who cooperated, participated in
preparing the trial strategy and talked to counsel at all times. Counsel Rinaldi explained
Plaintiff knew the strategy and helped in planning the same. Counsel Rinaldi testified he
never raised the mental insanity defense because Plaintiff understood the process and the
charges and cooperated. When Plaintiff visited counsel Rinaldi to retain him, Plaintiff
explained everything that had happened to counsel. At the time, Plaintiff had not been
charged but was aware of the investigation and that he was a target.
Attempts to impeach the credibility of counsel Rinaldi because he was not paid in full
his legal fees by Plaintiff were not fruitful.
Counsel Rinaldi testified on re-direct
examination that the fact that he was not paid his legal fees in full did not affect in any way
his legal representation of Plaintiff.4
In sum, counsel Rinaldi, in his experience as a seasoned attorney, did not sense that
Plaintiff was incompetent to understand the proceedings and assist his counsel. Counsel
Rinaldi had no reason to doubt Plaintiff’s competency. As such, there was no reason for
counsel to pursue a mental insanity defense or request a mental evaluation. Counsel’s
failure, under the circumstances, does not amount to ineffective assistance of counsel.
4
Counsel Rinaldi is an experienced attorney who has been practicing civil and criminal law in state court in the
area of Ponce, Puerto Rico for twenty-two (22) years. Plaintiff walked into counsel Rinaldi’s office because his brother in
law referred him to counsel Rinaldi. Counsel Rinaldi was retained by Plaintiff.
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3.
Failure to File an Appeal.
Plaintiff also posits counsel Rinaldi failed to appeal the severe imprisonment
sentence handed on Plaintiff. However, counsel Rinaldi testified he only represented
Plaintiff at the trial level. Counsel Rinaldi’s testimony is consistent with Plaintiff’s own
assertions on cross-examination at the evidentiary hearing wherein Plaintiff admitted that
an appeal was in fact filed by another attorney, who was not counsel Rinaldi. Thus,
Plaintiff’s claims that he retained counsel Rinaldi for appeal purposes and he failed to file
an appeal are unsupported.
CONCLUSION
In view of the foregoing, Plaintiff’s claims in the Amended Complaint, under Title
28, United States Code, Section 2254(d), are without merit. As such, all of Plaintiff’s claims
are DISMISSED WITH PREJUDICE.
Judgment to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of September of 2014.
s/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE
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