Camacho-Ramos v. Marrero-Caraballo et al

Filing 59

OPINION AND ORDER re 1 MOTION for Leave to Proceed in forma pauperis filed by Jose L. Camacho-Ramos. Signed by US Magistrate Judge Camille L. Velez-Rive on 5/6/11.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE L. CAMACHO-RAMOS,
Petitioner,
Civil No. 09-1939 (CVR)
v.
LUIS MARRERO-CARABALLO, ET AL.,
Respondent.

OPINION AND ORDER
INTRODUCTION
Petitioner José L. Camacho-Ramos (hereafter “petitioner Camacho-Ramos”) was
found guilty by a state jury at trial of first degree murder, robbery and kidnaping of a
fifteen-year old female. On December 18, 2003, petitioner was sentenced to serve
consecutive sentences of ninety nine (99), sixty (60) and fifty (50) years of incarceration.
Camacho-Ramos filed several pleadings with the state court attempting to have the
conviction and sentence reconsidered through certiorari by the state Appeals Court to no
avail since the court appointed counsel did not timely file an appeal to the conviction.
Camacho-Ramos has exhausted his state remedies upon also having filed a Rule 192.1
motion, a habeas corpus, and reconsideration thereof, in addition to a certiorari before the
Supreme Court of the Commonwealth of Puerto Rico.
On September 16, 2009, petitioner Camacho-Ramos filed a pro-se motion seeking
post-conviction relief under Title 28, United States Code, Section 2254. Petitioner
Camacho-Ramos claimed errors committed by state court upon being tried without

José L. Camacho-Ramos v. Luis Marrero-Caraballo, et al
Civil No. 09-1939 (CVR)
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jurisdiction since the probable cause determination was made in absentia and he was not
duly notified of said hearing. He also avers being convicted on evidence which was either
manipulated or fabricated. Still, petitioner’s main supported averment in this postconviction motion is having received ineffective assistance of counsel for the court
designated attorney failed to submit a timely appeal to his direct conviction even though he
agreed to do so. Furthermore, petitioner Camacho-Ramos has indicated there are witnesses
to testify as to counsel feeling coerced and intimidated by the state prosecution and by
others if he continued with the effective defense of petitioner Camacho-Ramos. Petitioner
submitted a sworn statement of a notary public from New Jersey who could attest to this
conflict of defense counsel, as well as other possible witnesses whose names are provided
and can testify on the matter. (Docket No. 2).
On March 4, 2010, respondent filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)
submitting petitioner Camacho-Ramos had failed to state a claim upon which relief may be
granted because the petition contains conclusory allegations and the sentence and
conviction were not contrary to law. In addition, respondent considered the claim of
ineffective assistance was procedurally defaulted since petitioner did not submit this claim
before the state court as can be assessed from the writ of certiorari before the state Appeals
Court. (Docket No. 27).
Petitioner Camacho-Ramos filed his response in opposition. (Docket No. 29). The
Court had previously referred this case to this Magistrate Judge for which the dispositive
motion to dismiss was entertained via a report and recommendation dated April 5, 2010.

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In said Report and Recommendation, we indicated petitioner Camacho-Ramos did raise
that his counsel had agreed to file the appeal but failed to do so for which he was ineffective.
At least such claim was deemed sufficient at that stage to deny the dismissal requested by
respondent. (Docket No. 30).
After making an independent examination of the record, the Court adopted the above
mentioned Report and Recommendation denying respondent’s Motion to Dismiss. (Docket
No. 32).
Then, petitioner requested the appointment of counsel and the Federal Public
Defender’s Office was appointed to represent petitioner. (Docket Nos. 36 and 37).
On April 14, 2011, both parties consented to jurisdiction of a United States
Magistrate Judge for all further proceedings, including the entry of judgment, which was
approved by the presiding District Judge. (Docket Nos. 52 and 53).
On April 29, 2011, after several procedural matters, the evidentiary hearing was held.
Present were petitioner Camacho-Ramos, his counsel and counsel for respondent. Counsel
for petitioner stated for the record there were some stipulations which were reached by the
parties as to two (2) witnesses’ testimonies, to wit: Mr. Francisco Negrón-Mora (petitioner’s
step-father) and Ms. Frances Rivas-Rodríguez (investigator employed by the Federal Public
Defender’s Office). These stipulations were read in open court. Counsel for petitioner also
requested the Court to take judicial notice of Rule 194 of the Puerto Rico Rules of Criminal
Procedure and Rule 53.1 of the Puerto Rico Rules of Civil Procedure, dealing with the appeal
of cases. Counsel for respondent requested the parties to stipulate that petitioner has

José L. Camacho-Ramos v. Luis Marrero-Caraballo, et al
Civil No. 09-1939 (CVR)
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exhausted all available remedies in State Court and the State Court did not review
petitioner’s allegations as to ineffective assistance of counsel. Counsel for petitioner
stipulated the same and added that petitioner had made said claim since the beginning and
the appeal had not been filed. The Court granted ten (10) days to the parties to file in
writing the joint stipulations. Petitioner Camacho-Ramos was then called to the witness
stand for direct and cross-examination. (Docket No. 57).
On May 5, 2011, both parties filed a “Joint Stipulation of Facts between Petitioner
and Respondent” containing the stipulations of fact reached by the parties. (Docket No.
58). Those stipulations are incorporated herein by reference and made part of this Opinion
and Order.
SUMMARY OF PETITIONER’S TESTIMONY
On direct examination, petitioner Camacho-Ramos testified he is forty-three (43)
years old. On December 4, 2003, petitioner was convicted by a jury of rape, 1st degree
murder and kidnaping. On December 18, 2003, Camacho-Ramos was sentenced to 209
years in prison. Petitioner was present during the jury trial and he was assisted by court
appointed counsel Luis Manuel Torres-Ramos. The jury trial was held between October
2003 and December 2003. During the trial, Camacho-Ramos was able to discuss the
ongoing case with his counsel, including some issues to be raised on appeal which were
discussed the day of the jury verdict. Counsel Torres-Ramos was thus aware of issues which
were to be appealed. Camacho-Ramos was not satisfied with the jury verdict nor with his
sentence. As such, Camacho-Ramos wanted an appeal to be filed and he requested his

José L. Camacho-Ramos v. Luis Marrero-Caraballo, et al
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counsel to file an appeal on the day of the jury verdict. Counsel Torres-Ramos asked
Camacho-Ramos the day of the jury verdict to write down the issues he (Camacho-Ramos)
wanted to raise on appeal. Camacho-Ramos complied and handed to his counsel on the day
of the sentence the statement he (Camacho-Ramos) wrote as to the appeal issues. Counsel
Torres-Ramos never filed the appeal. Camacho-Ramos never waived his right to appeal and
he never retained an attorney, besides Torres-Ramos, to file his appeal because he lacked
the resources to retain counsel.
On February 27, 2004, Camacho-Ramos was able to file his appeal pro-se because
his counsel did not file the appeal. Camacho-Ramos was able to obtain the file of his case
(after the thirty (30) days to appeal had elapsed) and then filed the appeal on February
2004. Camacho-Ramos’ wife (Mrs. Lavinia Román) and step-father (Mr. Francisco
Negrón-Mora) also asked counsel Torres-Ramos to file the appeal the same day of the
verdict and the same week but he failed to file the same.
On cross-examination, Camacho-Ramos testified he has been incarcerated since
September 14, 2002. He was released on December 10, 2002 and went back to prison on
January 23, 2004, were he has remained. Another attorney who was not counsel TorresRamos was appointed to represent Camacho-Ramos originally when he was accused on
September 14, 2002. Counsel Torres-Ramos was appointed as his counsel in September or
October 2002. Counsel Torres-Ramos advised Camacho-Ramos after his conviction of his
right to appeal. Counsel Torres-Ramos told him not to worry because the verdict and the
sentence were going to be appealed. Grounds to be raised on appeal were discussed, and

José L. Camacho-Ramos v. Luis Marrero-Caraballo, et al
Civil No. 09-1939 (CVR)
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counsel Torres-Ramos asked petitioner to write those, which petitioner did and handed to
counsel Torres-Ramos the date of the sentence. Camacho-Ramos’ step-father never told
counsel Torres-Ramos he was going to retain another attorney to file the appeal.
DISCUSSION
The gist of petitioner Camacho-Ramos’ claims of ineffective assistance of counsel
rests on his counsel’s total failure to file an appeal even though he requested his counsel to
do so.
In a total absence of an appeal being filed there is no need to first show that there is
a meritorious appellate issue to grant relief since an appeal from a district court judgment
of conviction is a matter of right. See Rodríguez v. United States, 395 U.S. 327, 89 S.Ct.
1715 (1969) (quoting Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919 (1962).
A respondent may be granted relief for losing the right to appeal, in appropriate cases,
through a motion for post-conviction relief. And, the First Circuit has said, that the “failure
of court-appointed counsel to prosecute an appeal-in the absence of waiver by respondent
or compliance of counsel with Anders v. California, 386 U.S. 738, 744 [87 S.Ct. 1396, 1400,
18 L.Ed.2d 493] (1967) - is a per se deprivation of the right to counsel.” Wilbur v. Maine,
421 F.2d 1327, 1329 (1st Cir. 1970).1

1

Abandonment is a violation of a respondent’s Sixth Amendment right to assistance of counsel. United States
v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984), regardless of whether defendant could have prevailed in his appeal. See
Roe v, Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000). Even an indigent’s right to counsel on appeal requires counsel
wishing to withdraw on the grounds the appeal has no merit to first act as an advocate for the indigent and file a brief
“referring to anything in the record that might arguably support the appeal”. Anders v. California, 386 U.S. at 744-45.
The court is to consider where denial of counsel leaves a defendant completely without representation during appellate
proceedings. Penson v. Ohio, 488 U.S. 75 (1988) .

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In the instant case, it is uncontested that petitioner’s counsel at the state level failed
to file the appeal even though petitioner Camacho-Ramos, his wife and step-father
requested an appeal be filed. This is evidenced not only by petitioner’s testimony under oath
but also by the stipulations reached by both parties. Moreover, it is also uncontested that
Camacho-Ramos exhausted all of his administrative remedies in state court and the state
courts did not review his allegations of ineffective assistance of counsel.
The claim of ineffective assistance of counsel should first address this petitioner’s
non-compliance with the requisites in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 2064, 2068 (1984). The legal standard applicable to the above-captioned petition is
pellucidly clear. Petitioner must show both that counsel's performance fell below an
objective standard of reasonableness and that prejudice resulted. Strickland, 466 U.S. at
687. See also López-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990). Counsel's
performance must be examined "not in hindsight, but based on what the lawyer knew, or
should have known, at the time his tactical choices were made and implemented." United
States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1992). The "range of reasonable professional
assistance" is quite wide. See Strickland, 466 U.S. at 689. Therefore, as the Supreme Court
has noted, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id.
Pursuant to Strickland, 466 U.S. at 688, counsel's performance is ineffective only
if it was objectively unreasonable under prevailing professional norms. In light of the
circumstances, petitioner is required to identify acts or omissions by counsel which need
to be outside the wide range of professional competent assistance.

José L. Camacho-Ramos v. Luis Marrero-Caraballo, et al
Civil No. 09-1939 (CVR)
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In United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665 (1981), the Supreme Court
pronounced that when dealing with Sixth Amendment rights, cases were subject to the
general rule that remedies should be tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on competing interest. Id. at 364, 101 S.Ct.
668. Thus, even certain violations of the right to counsel may be disregarded as harmless
error. Id. at 365, 101 S.Ct. at 668.
“[C]ounsel has a constitutionally-imposed duty to consult with the defendant about
an appeal when ... [the] defendant reasonably demonstrated to counsel that he was
interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Where the
attorney fails to comply with the defendant's explicit instruction to file a timely appeal,
prejudice and, hence, ineffective assistance, is established. Id. at 484 (applying Strickland
test to lawyer's failure to appeal). Prejudice is presumed under such circumstances because
the alleged deficient performance has deprived the defendant of a judicial proceeding. Id.
at 483.
Petitioner Camacho-Ramos asked counsel to appeal and the attorney failed to
comply with this request as has been established without a doubt via the stipulations
reached by both parties and the testimony of Camacho-Ramos at the hearing. Under federal
precedents, these averments establish ineffective assistance under Strickland. See FloresOrtega, 528 U.S. at 484; United States v. Poindexter, 492 F.3d 263, 268 (4th Cir. 2007)
(holding that prejudice is presumed where lawyer fails to follow defendant's unequivocal
instruction to file timely notice of appeal).

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CONCLUSION
In view of the foregoing, petitioner’s allegations as raised in his § 2254 petition, and
re-asserted at the evidentiary hearing, do establish ineffective assistance of counsel.
Accordingly, petitioner Camacho-Ramos’ habeas corpus petition under § 2254 is
GRANTED, his sentence is set aside and remanded to the state court for resentencing2
within a reasonable amount of time, which should not exceed 120 days from the issuance
of the judgment in this case.3
Judgment is to be entered accordingly.
IT IS SO RECOMMENDED.
The parties have fourteen (14) days to file any objections to this report and
recommendation. Amended Fed. R. Crim P. 59 (b)(2). See also Amended Local Rules.
Failure to file same within the specified time waives the right to appeal this order. Henley
Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792
F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d

2

See also Arave v. Hoffman, 552 U.S. 117, 128 S.Ct. 749 (2008) - following state murder conviction, petitioner
brought 2254 federal habeas. The Court of Appeals ordered as relief the petitioner be re-sentenced by state court upon
finding he had received ineffective assistance of counsel during sentencing but not during plea bargaining The Supreme
Court held petitioner's motion to vacate and dismiss appeal with prejudice so that petitioner could proceed with resentencing ordered by the district court mooted petitioner's claim of ineffective assistance of counsel during plea
negotiations.

3

Petitioner should be entitled to have the right to a direct appeal reinstated, as a consequence of relief being
granted in this §2255 petition by means of a re-sentencing. See Rodríguez v. United States, 395 U.S. 327, 89 S.Ct. 1715
(1969) (quoting Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919 (1962)).

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985, 991 (1st Cir. 1988) (“Systemic efficiencies would be frustrated and the magistrate’s role
reduced to that a mere dress rehearser if a party were allowed to feint and weave at the
initial hearing, and save its knockout punch for the second round”).
In San Juan, Puerto Rico, this 6th day of May of 2011.
s/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE