Adorno-Medina 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 Nelson J. Adorno-Medina. Signed by Judge Juan M Perez-Gimenez on 02/21/2012. (JG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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__________________________________________*
NELSON J. ADORNO-MEDINA
Petitioner,
CIVIL NO. 09-1997(PG)
RELATED CRIM. 05-215(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.9). Petitioner filed a Reply
to the Government’s Response (D.E. 10).
For the reasons
discussed below, the Court finds the Petition shall be
DENIED.
I. BACKGROUND
On November 17, 2005, Petitioner, Nelson J. AdornoMedina (hereinafter “Petitioner” or “Adorno-Medina”) and
ten
(10)
additional
co-defendants
were
indicted
in
a
Superseding Indictment by a Federal Grand Jury (Crim. D.E.
25)2.
Petitioner was specifically charged with conspiracy
to import five (5) kilograms or more of cocaine into the
United States from the Dominican Republic, in violation of
Title
21,
United
States
Code,
Sec.
952(a)
and
963;
conspiracy to possess with intent to distribute five (5)
1
D.E. is an abbreviation of docket entry number.
2
Crim.D.E. is an abbreviation of criminal docket entry.
Civil No. 09-1997(PG)
Page 2
kilograms or more of cocaine, in violation of Title 21,
United States Code, Secs. 841 and 846; aiding and abetting
in the attempt to posses with intent to distribute five (5)
kilograms or more of cocaine, in violation of Title 21,
United States Code, Section 841 and 18, United States Code,
Section
2;
and
a
criminal
forfeiture
of
property,
in
violation of Title 21, United States Code, Section 853 and
18, United States Code, Section 982 (Crim. D.E. 25).
On May 19, 2006, on the last day of the jury trial, the
jury returned a verdict as to Adorno-Medina for all the
counts with which he was charged with in the Superseding
Indictment (Crim.D.E. 187).
The jury made a specific
finding as to the particular drug quantity involved in each
of the three counts in which Adorno-Medina was charged
(T.T. 5/19/06, at 3-5).
On September 5, 2006, Petitioner,
through his counsel, filed his Objections to the PreSentence Report3 (Crim.D.E. 254).
On
September
14,
2006,
Adorno-Medina’s
Hearing was held (Crim.D.E. 269).
Sentencing
At that time the Pre-
Sentence Report had been amended to place Adorno-Medina’s
participation in the offense between a minor and a minimal
participant
and
gave
Petitioner
reduction.
Adorno-Medina’s
a
three
counsel
stated
(3)
he
level
had
no
objections to the amended Pre-Sentence Report (S.H.T. of
3
Adorno-Medina was requesting that he be considered a minimal
participant and therefore granted a four (4) level reduction to his
sentencing calculation.
Civil No. 09-1997(PG)
9/14/2006
at
Page 3
4).
The
Court
proceeded
to
sentence
Petitioner to a term of imprisonment of one hundred and
thirty five (135) months, as to each count of conviction to
be
served
concurrently
with
each
other,
a
term
of
Supervised Release of five (5) years as to each count of
conviction, to be served concurrently with each other and
a Special Monetary Assessment of one hundred (100) dollars
as to each count of conviction for a total amount of three
hundred (300) dollars4 (Crim.D.E.277).
On September 22,
2006, Adorno-Medina filed a Notice of Appeal (Crim.D.E.
276).
On March 25, 2008, the First Circuit Court of
Appeals affirmed Adorno-Medina’s conviction.
The Court
stated:
We
have
reviewed
submissions.
the
record
and
the
parties’
We allow the appellant’s motion to
waive oral argument, and we affirm the judgment.
The district court did not err in denying the
motion
for
acquittal.
Adorno-Medina
government
The
(“Adorno”),
failed
to
appellant,
argues
introduce
any
Nelson
that
the
evidence
showing that he was aware that the cargo was
cocaine, and he makes much of the fact that at no
time
throughout
the
recorded
there any mention of “cocaine”.
4
conversations
is
But, given the
The sentence imposed by the Court was the lower end of the
applicable guideline range and that which the Pre-Sentence Report
was recommending.
Civil No. 09-1997(PG)
Page 4
undercover agent’s testimony that members of drug
conspiracies typically use code words, and that he
had never seen a drug supplier send a courier who
was not aware that he was picking up illegal
drugs, the fact that the recorded conversations
never used the words “cocaine” or “drugs” is of
little consequence. Moreover, the jury reasonably
could have inferred that a drug courier would only
send a trusted associate who was fully aware of
the nature of the cargo, given the value of such
a
large
amount
of
cocaine
-
approximately
$1
million– and the need to take steps to avoid
detection while transporting it.
Thus, a rational
fact finder could have found Adorno guilty of the
charges.
See
United
States
v.
Garcia-
Carrasquillo, 483 F.3d 124, 129-30 (1st Cir. 2007),
cert. denied, 128 S.Ct. 338 (2007).
Adorno also argues that the government engaged in
improper vouching during closing argument.
We see
no error which would require a new trial.
We are
not convinced that the remark constituted vouching
at
all,
as
it
appears
that
the
government’s
attorney simply was telling the jury that, in
light
of
the
undercover
agent’s
extensive
experience investigating drug transactions, his
testimony that “everybody who comes to pick up
drugs knows what’s going on” was credible and
Civil No. 09-1997(PG)
Page 5
should be accepted by the jury.
Even if the
remark were an improper expression of counsel’s
personal belief, it does not require reversal.
The remark was an isolated one, and there was
ample evidence which, if accepted by the jury,
tended
to
show
that
Adorno
picking up illegal drugs.
was
aware
he
was
See United States v.
Smith, 982 F.2d 681, 684 (1st Cir. 1993)(citations
omitted).
United States v. Adorno-Medina, Appeal No. 06-2433.
No request for writ of certiorari was filed, and the
conviction became final on June 23, 2008.
Pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996,
Adorno-Medina had until June 23 2009, to timely file his
2255
petition.
Using
the
“prison
mail
box
rule”
as
established by the First Circuit Court in United States v.
Morales-Rivera, 184 F.3d 109 (1st Cir. 1999), the Court
must find Adorno-Medina’s sec. 2255 petition to be timely,
as he signed and certified that he deposited in the prison
mail box said petition on June 7, 20095.
II. DISCUSSION
5
The Court notes that although Adorno-Medina certifies the
date of deposit in the prison mailbox as that of June 7, 2009, the
envelope in which the petition is mailed is postmarked September
22, 2009. That is three and a half months after Adorno-Medina’s
certification and three months after the statute of limitations for
its filing had expired.
Civil No. 09-1997(PG)
Page 6
In his 2255 Petition, Adorno-Medina makes a general
allegation of ineffective assistance of counsel stating that
he was entitled to effective counsel during critical stages
of the prosecution.
critical
stage
he
Petitioner fails to supply which
is
referring
to
or
the
alleged
ineffectiveness of his counsel. The Court will deem waived
this first argument and will therefore delve no further in
the matter. See Cody v. Unites States, 249 F.3d 47 (1st Cir.
2001).
Adorno-Medina further alleges that his counsel was
ineffective
in
participant
role
not
arguing
for
him
guideline calculations.
and
for
obtaining
purposes
of
a
minimal
sentencing
Finally, Petitioner alleges that
his counsel was ineffective in not objecting to the drug
amount he was held responsible for in the Pre-Sentence
Investigation Report.
Both allegations are contrary to the
record and shall be DENIED.
Ineffective Assistance of Counsel Standard
The standard for an ineffective assistance of counsel
claim is whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied upon as having produced a just result Strickland
v. Washington, 466 U.S. 668 (1984). In order to succeed in
a claim of ineffective assistance of counsel Adorno-Medina
must show both incompetence and prejudice: (1) Petitioner
must
show
that
counsel’s
representation
fell
below
an
Civil No. 09-1997(PG)
Page 7
objective standard of reasonableness, and (2) Petitioner
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different, Darden v. Wainwright,
477 U.S. 168 (1986), Lockhart v. Fretwell, 506 U.S. 364
(1993).
Petitioner fails to meet this standard and the
record so reflects it.
Role in the Offense
Petitioner contends that his counsel was ineffective
for failure to argue and obtain a minimal participant role
in the offense; which if granted would have entitled him to
a four (4) level reduction to his base offense level.
The
record contradicts Adorno-Medina.
On September 14, 2006, Adorno-Medina’s counsel filed
objections to the Pre Sentence Report precisely arguing that
he should be given a four (4) point reduction as a minimal
participant in the offense (Crim.D.E. 254).
The original
Pre Sentence Report did not grant Petitioner any reductions
for his role in the offense. Once the Objections were filed
an amended Pre Sentence Report was filed (Crim.D.E. 261).
In the amended report the Probation Officer awarded AdornoMedina a three (3) point reduction for his role in the
offense.
The Probation Officer determined that Adorno-
Medina’s participation fell between a minor and a minimal
role hence the three (3) point reduction (Sentencing Hearing
transcript of September 14, 2006).
During the Sentencing Hearing counsel for Adorno-Medina
Civil No. 09-1997(PG)
Page 8
expressed his satisfaction with the amended report and
stated to the Court that he had discussed the same with his
client (S.H.T. September 14, 2006 at 4-5). It was precisely
due to Petitioner’s counsel argument for minimal role in the
offense that the Probation Officer amended his original
report and granted a three (3) point reduction to AdornoMedina’s sentence computation.
Recommendation which the
Court followed at sentencing.
Clearly, Adorno Medina’s counsel was not ineffective.
To
the
contrary
the
record
reflects
that
due
to
his
objections he was able to obtain a more favorable sentence
than the one originally recommended to the Court.
Adorno-
Medina seems to believe that since his counsel obtained a
three (3) point reduction instead of four (4) points as
requested this deems him ineffective.
from the truth.
Nothing is further
It was thanks to his counsel’s diligence
in the matter that he received the reduction requested and
the record so reflects it.
Adorno-Medina can not meet the
Strickland standard of ineffective assistance of counsel as
to this claim and therefore the same is DENIED.
Drug Amount
Adorno-Medina contends that his counsel was ineffective
because he failed to object to the drug amount he was held
responsible for in the Pre Sentence Report.
Again the
allegation is contrary to the record.
Adorno-Medina was convicted by a jury for conspiracy to
possess and import into the United States from the Dominican
Civil No. 09-1997(PG)
Page 9
Republic sixty (60) kilograms of cocaine which he attempted
to pick up (S.H.T. September 14, 2006 at 6).
was
Adorno-Medina
sentenced in accordance to the findings of the jury as
to drug quantity, there was no plausible objection to be
made by his counsel.
There is no sentencing error when the
sentencing court relies upon amounts that are uncontestedly
obvious from trial testimony, United States v. Cotton, 535
U.S. 625 (2002).
Once again Adorno-Medina is foreclosed from meeting the
Strickland standard of ineffective assistance of counsel as
to this claim and therefore the same is DENIED.
III. CONCLUSION
For
the
reasons
stated,
the
Court
concludes
that
Petitioner NELSON J. ADORNO-MEDINA, is not entitled to
federal habeas relief on the claims.
Accordingly, it is
ordered that petitioner NELSON J. ADORNO-MEDINA’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 an evidentiary hearing
(D.E. 10) 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
Civil No. 09-1997(PG)
Page 10
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 21st of February, 2012.
s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
UNITED STATES DISTRICT JUDGE
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