Ramos-Ramos v. USA
Filing
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OPINION AND ORDER DENYING ON REMAND Petitioner's § 2255 motion. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief in this court. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 6/27/2011.(mrj)
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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
PEDRO RAMOS-RAMOS,
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Petitioner,
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v.
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Civil No. 09-2270 (JAF)
(Crim. No. 07-453)
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
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On remand by order of the U.S. Court of Appeals for the First Circuit, (Docket No. 26),
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there remains pending before this court Petitioner’s pro-se petition for relief from a federal court
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conviction pursuant to 28 U.S.C. § 2255. (Docket No. 1.) Respondent, the United States of
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America, opposes (Docket No. 5), and Petitioner replies (Docket No. 6).
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I.
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Factual and Procedural History
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On September 10, 2008, Petitioner pled guilty to one count of conspiracy to possess with
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intent to distribute at least one kilogram of heroin, fifty grams or more of cocaine base
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(“crack”); five kilograms or more of cocaine; and an unspecified quantity of marijuana,
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Oxycodone, and Alprazolam, all in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), (b)(2),
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and 860. (Crim. No. 07-453, Docket No. 1254 at 1–2.) He also pled guilty to aiding and
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abetting the use and carrying of firearms during and in relation to a drug trafficking offense, in
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violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(i). (Id.) In exchange, the government agreed to
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recommend dismissal of the remaining counts Petitioner was charged with in the superseding
Civil No. 09-2270 (JAF)
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indictment. (Id.) On December 23, 2008, based on the plea agreement’s recommendation, this
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court sentenced Petitioner to 180 months’ imprisonment, a consecutive term of 60 months for
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the firearms offense, and two supervised release terms of six and five years to be served
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concurrently. (Id., Docket No. 1622.) Petitioner filed the present petition seeking relief under
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§ 2255 on December 22, 2009. (Docket No. 1.)
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Finding that Petitioner had alleged a sufficient claim for ineffective assistance of
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counsel, this court held an evidentiary hearing to adjudicate his petition on July 16, 2010, but
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we declined to appoint counsel for Petitioner. (Docket No. 14 at 1.) Our subsequent opinion
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dismissing the petitioner’s motion under § 2255 was vacated by the First Circuit and remanded
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with instructions to conduct another evidentiary hearing in which Petitioner would be
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represented by appointed counsel. (Docket No. 26.) Petitioner, his newly-appointed counsel,
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and his trial counsel all appeared at the evidentiary hearing held by this court on June 7, 2011.
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(Docket No. 45.)
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II.
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Standard for Relief Under 28 U.S.C. § 2255
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A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner
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is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner
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may challenge his or her sentence on the ground that, inter alia, it “was imposed in violation of
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the Constitution or laws of the United States.” Id. The petitioner is entitled to an evidentiary
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hearing unless the “allegations, accepted as true, would not entitle the petitioner to relief, or
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. . . ‘are contradicted by the record, inherently incredible, or conclusions rather than statements
Civil No. 09-2270 (JAF)
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of fact.’” United States v. Rodríguez Rodríguez, 929 F.2d 747, 749-50 (1st Cir. 1991) (quoting
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Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)); see 28 U.S.C. § 2255(b).
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III.
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Analysis
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Petitioner claims ineffective assistance of counsel, alleging that his counsel not only
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failed to explain the waiver of appeal contained in his plea agreement, but also ignored his
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request for a direct appeal. For the reasons outlined below, we reject Petitioner’s claims and
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dismiss his petition.
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The Sixth Amendment “right to counsel is the right to the effective assistance of
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counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks
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omitted); see U.S. Const. amend. VI. To establish ineffective assistance, a petitioner must show
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both that his counsel’s performance was deficient and that he suffered prejudice as a result of
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the deficiency. Strickland, 466 U.S. at 686–96. To show deficient performance, a petitioner
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must “establish that counsel was not acting within the broad norms of professional
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competence.” Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (citing Strickland, 466
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U.S. at 687–91).
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demonstrate that “there is a reasonable probability that, but for counsel’s errors, he would not
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have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
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59 (1985). In the context of a petitioner’s claim that counsel’s performance deprived him of an
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appeal, “we require the defendant to demonstrate that, but for counsel’s deficient conduct, he
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would have appealed.” Roe v. Flores-Ortega, 528 U.S. 470, 486 (U.S. 2000). A judge
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reviewing a habeas petition who also presided at trial and sentencing is in the best position to
To show prejudice in the context of a guilty plea, a petitioner must
Civil No. 09-2270 (JAF)
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assess potential prejudice, and may “employ the knowledge gleaned during previous
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proceedings and make findings based thereon . . . .” United States v. McGill, 11 F.3d 223, 225
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(1st Cir. 1993).
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A.
Knowing Waiver
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In the First Circuit, courts “will enforce knowing and voluntary waivers by defendants
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in plea agreements of their rights to appeal, except when it would work a miscarriage of
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justice.” United States v. Newbert, 504 F.3d 180, 182 (1st Cir. 2007). Petitioner alleges that he
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did not knowingly waive his right of appeal, claiming that his counsel, José A. Suárez-Santa
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(“Suárez”), delivered ineffective assistance by failing to explain the waiver of his right to appeal
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contained in the plea agreement. (Evid. Hrg. Tr. 8, June 7, 2011, Docket No. 45.) Although
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this court explained—and Petitioner confirmed his understanding of—the consequences of the
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waiver during his change-of-plea hearing, Petitioner argues that we should disregard his
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answers because Suárez allegedly “told [him] to say yes to everything the judge said.” (Id. at
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17.) He claims that he did not understand that he was waiving his right of appeal, despite the
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explanation by this court, which was translated into Spanish, and which he claimed to
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understand at the time. (Id. at 9.) We reject this claim.
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Even if Petitioner had intended to simply “tell the Judge yes to whatever he asked” at his
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change-of-plea hearing, his verbal acknowledgment of our explanation of the waiver weighs
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against his claim that he did not understand the waiver. (Id. at 30–31.) Moreover, despite his
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claims of not understanding the majority of the plea agreement terms, Petitioner actually
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rejected the plea agreement as originally drafted because he disagreed with the factual narrative;
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he refused to sign the agreement until revisions were made. (Id.)
Civil No. 09-2270 (JAF)
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Suárez testified under oath that he carefully explained every paragraph of the plea
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agreement to Petitioner, and Petitioner has not provided any credible factual support for his
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claim to the contrary. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (declaring that
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“conclusory allegations unsupported by specifics [are] subject to summary dismissal, as are
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contentions that in the face of the record are wholly incredible”). We find Petitioner’s testimony
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to lack credibility and reject his allegations based on the testimony of the June 7, 2011, hearing,
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the transcript of Petitioner’s change-of-plea hearing, and our recollection of the proceedings.
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(Docket No. 31; see also Crim. No. 07-453, Docket No. 1977 at 14.)
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B.
Failure to File a Direct Appeal
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The Supreme Court has held that an attorney who disregards specific instructions from
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the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. Roe
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v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v. United States, 395 U.S. 327
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(1969)). Petitioner claims that he asked for an appeal, but Suárez ignored him. (Evid. Hrg.
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Tr. 8, June 7, 2011, Docket No. 45) Petitioner testified that he told Suárez that he wanted to
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appeal in early January 2009, when Suárez came to visit him at the Metropolitan Detention
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Center in Guaynabo, Puerto Rico. (Id.) As proof of his desire to appeal, he offers a copy of a
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letter he sent to Suárez on September 21, 2009, about the possibility of an appeal and about
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“issues [Petitioner] was researching so that he would do the appeal for [Petitioner.]” (Id. at 13.)
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Beyond the letter sent over eight months after the date he allegedly requested an appeal,
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Petitioner offers no other evidence to indicate that he requested or attempted to file an
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appeal—when asked why he never sent a letter directly to the court requesting an appeal,
Civil No. 09-2270 (JAF)
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Petitioner stated that he did not have the address and did not have enough legal knowledge to
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send such a letter, despite having sent such a letter to Suárez. (Id. at 14.)
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On the other hand, Suárez testified under oath that Petitioner never asked him to file an
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appeal, and testified that if Petitioner had wanted to file an appeal Suárez “probably would have
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filed a motion for appeal, and requested from the Court of Appeals to appoint some other
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attorney to carry out that appeal,” because after a review of Petitioner’s case he found no non-
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frivolous grounds for an appeal. (Id. at 34–35.) Moreover, Suárez testified that Petitioner
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communicated with him to coordinate the pickup of his file by a member of Petitioner’s family
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following his sentence, and that the topic of an appeal never came up. (Id. at 36.)
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Based on the testimony of the June 7 hearing and our recollection of the proceedings, we
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reject Petitioner’s self-serving testimony for lack of credibility.1 By his own admission,
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Petitioner got the sentence he bargained for, and he has not presented any credible evidence that
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his counsel’s performance was deficient or that any prejudice resulted. (Id. at 24.)
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IV.
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Certificate of Appealability
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In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we
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deny § 2255 relief we must concurrently determine whether to issue a certificate of appealability
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(“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional
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right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that
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Because we do not find Petitioner’s self-serving testimony credible, we need not discuss whether
counsel’s failure to appeal after a defendant unequivocally requests an appeal is “presumed to be prejudicial
under Flores-Ortega.” United States v. Falcon, 2011 U.S. Dist. LEXIS 19578, at *18–*20 & n.9 (D.R.I. Feb. 28,
2011) (citing Flores-Ortega, 528 U.S. 470) (discussing circuit split in applicability of Flores-Ortega to
defendants who waived their right to appeal).
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reasonable jurists would find the district court's assessment of the constitutional claims
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debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v.
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McDaniel, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable jurist could find
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our assessment of Petitioner’s constitutional claims debatable or wrong. Petitioner may request
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a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22.
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V.
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Conclusion
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For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket Nos. 1;
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2; 7). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal
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is in order because it plainly appears from the record that Petitioner is not entitled to § 2255
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relief in this court.
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IT IS SO ORDERED.
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San Juan, Puerto Rico, this 27 th day of June, 2011.
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s/José Antonio Fusté
JOSE ANTONIO FUSTE
U.S. District Judge
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