Ramos-Ramos v. USA

Filing 7

OPINION AND ORDER GRANTING IN PART and DENYING IN PART Petitioner's 1 MOTION to Vacate, Set Aside or Correct Sentence, filed by Pedro J. Ramos-Ramos. Pursuant to Rule 8(a) of the Rules Governing § 2255 Proceedings, we ORDER the United Sta tes Marshals Service to present Petitioner for a hearing for the sole purpose of determining whether counsel failed to follow Petitioner's explicit request to file a timely notice of appeal. We will also consider whether the waiver of appeal contained in the plea agreement bars the Defendant under the circumstances. Signed by Chief Judge Jose A Fuste on 5/20/2010.(mrj)

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U N I T E D STATES DISTRICT COURT D I S T R IC T OF PUERTO RICO P E D R O RAMOS-RAMOS, P e t i t io n e r , v. U N IT E D STATES OF AMERICA, R e sp o n d e n t.

C i v il No. 09-2270 (JAF) (C rim in a l No. 07-453)

O P I N I O N AND ORDER P e titio n e r, Pedro Ramos-Ramos, brings this pro-se petition for post-conviction relief f ro m a federal judgment pursuant to 28 U.S.C. § 2255. (Docket No. 1.) Respondent, the United S ta te s of America, opposes. (Docket No. 5.) I. F a c tu a l and Procedural History O n October 25, 2007, Petitioner was charged with being a leader of a sixty-three-member co n sp irac y to possess with intention to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 8 4 1 ( b ) ( 1 ) (C ), 841(b)(2), 846, and 860, (1) one kilogram or more of heroin; (2) 50 grams or m o re of crack cocaine; (3) five kilograms or more of cocaine; (4) a detectable quantity of O x yc o d o n e ; and (5) a detectable amount of Alprazolam. (Crim. No. 07-453, Docket No. 3.) T h e indictment charged Petitioner with four additional counts for aiding and abetting others in th e commission of narcotics offenses near public housing, a primary school, and a school for d e a f children in Cataño, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 860. (Id.)

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P e titio n e r was also charged with aiding and abetting the use or carrying of firearms in c o n n e c t i o n with drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Id.) On A u g u s t 22, 2008, Petitioner was charged in a superseding indictment with the same offenses as in the original, but with an additional charge for conspiracy to use or carry firearms in c o n n e ctio n with drug trafficking, in violation of 18 U.S.C. § 924(o). (Crim. No. 07-453, Docket N o . 1131.) O n September 10, 2008, Petitioner signed a plea agreement in which he agreed to plead g u ilty to the first count in the indictment and the additional count in the superseding indictment. (D o c k e t No. 1254.) In exchange, the government recommended a sentence of 180 months for th e first count and a consecutive term of 60 months for the firearms offense. This rec o m m en d atio n was premised upon a base offense level of thirty-two, with a two-point upward a d j u s t m e n t for the crime taking place in a protected location, another two-point increase for P e ti ti o n e r 's leadership role, and a reduction of three points for Petitioner's acceptance of re sp o n sib ility, resulting in a total offense level of thirty-three. The government also agreed to d is m is s the remaining counts against Petitioner. Petitioner further agreed to "waive[] and s u rre n d e r[ ] his right to appeal the judgment and sentence in this case." Although a "Statement o f Facts" is appended to the agreement, Petitioner did not sign this addendum. T h e same day that Petitioner signed the agreement, he appeared before this court at a c h a n g e -o f -p le a hearing to plead guilty to the two counts referenced in the agreement. (Crim. N o . 07-453, Docket No. 1977.) In response to our query, Petitioner testified that he was aware o f the substance of the two charges and that the firearms violation carries with it a mandatory m in im u m sentence of sixty months that must be served consecutively to the term imposed for

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t h e narcotics offense. Petitioner further stated that he was aware that the plea agreement c o n ta in e d a waiver of his right to appeal. We ascertained from Petitioner that he accepted re sp o n sib ility for "at least five kilos, but less than 15 kilos of cocaine" under the agreement. W e proceeded to inquire whether Petitioner was also submitting a written statement of f a cts as the basis for his guilty plea. At this point, Petitioner's counsel, José Suárez-Santa, in te rje c te d to raise the fact that Petitioner had not signed the "Statement of Facts" presented by th e government. We then examined Petitioner on the relevant facts based upon the charges and u n sig n e d statement. We asked Petitioner whether he was pleading guilty to conspiracy to d is trib u te heroin near a school in Cataño and to possession of firearms in relation to a drugtra f f ic k in g crime when he was arrested. Petitioner responded in the affirmative to both. Suárez i n te rje c te d to clarify that Petitioner had not signed the statement because it characterized P e titio n e r as a "fugitive from justice" at the time of his arrest. However, Suárez confirmed that " a t the time [Petitioner] was arrested, he was in possession of the firearms." Lastly, we a s c e rta in e d that no promises extrinsic to the plea agreement induced Petitioner to plead guilty. D u rin g Petitioner's sentencing hearing on December 19, 2008, we stated that the c a lc u l a tio n s for Petitioner's sentence were based on his responsibility for at least five, but less th a n fifteen kilograms of cocaine, and on the location of the crime near a school in a public h o u sin g complex. (Crim. No. 07-453, Docket No. 1978.) Based on the recommendations in th e plea agreement, we sentenced Petitioner to 180 months of incarceration for the drug count a n d a consecutive term of 60 months for the firearms count. On December 23, 2008, we entered jud g m en t pursuant to our findings at sentencing. (Crim. No. 07-453, Docket No. 1622.)

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P e titio n e r allegedly summoned Suárez to meet him in prison after his sentencing. (D o c k e t No. 1-2.) According to Petitioner, he expressed doubts about his sentence and asked S u á re z to file an appeal. Suárez allegedly promised to pursue an appeal but then failed to c o m p ly with Petitioner's request. (Id.) On December 22, 2009, Petitioner moved for a hearing p u rs u a n t to 28 U.S.C. § 2255 to obtain another opportunity to appeal his sentence. (Docket N o . 1.) The government opposed on April 13, 2010. (Docket No. 5.) II. S t a n d a r d Under Section 2255 W e may entertain a § 2255 motion when the petitioner is in custody under the sentence o f a federal court. See 28 U.S.C. § 2255. Section 2255 provides four grounds under which a f e d era l prisoner challenging the imposition or length of his sentence may obtain relief. The p e titio n e r may show that: (1) the court imposed the sentence in violation of the Constitution o r laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3 ) the sentence was in excess of the maximum authorized by law; or (4) the sentence is o th e rw ise subject to collateral attack. § 2255(a). Should a court find any of these errors, it " sh a ll vacate and set the judgment aside and shall discharge the prisoner or resentence him or g ra n t a new trial or correct the sentence as may appear appropriate." § 2255(b). The petitioner b e a rs the burden of establishing, by a preponderance of the evidence, that he is entitled to relief. U n ite d States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).

Civil No. 09-2270 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I I I. A n a ly sis

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B e c a u se Petitioner is pro se, we construe his pleadings more favorably than we would p l e a d in g s drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). His status, h o w e v e r, does not insulate him from the strictures of procedural and substantive law. See A h m e d v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). P etitio n er contends that his sentence violates the Sixth Amendment due to counsel's in e f f e c tiv e assistance. (Docket No. 1.) To establish ineffective assistance, the petitioner must s h o w both that his attorney's performance was deficient and that he suffered prejudice as a re su lt of the deficiency. Strickland v. Washington, 466 U.S. 668, 686-96 (1984). As to d e f ic ie n c y, the petitioner must "establish that counsel was not acting within the broad norms of p ro f e ss io n a l competence." Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (citing S tric k la n d , 466 U.S. at 687-91). "[T]o prove prejudice, a defendant must establish that but for c o u n se l's deficient performance, there is a reasonable probability that the outcome would have b e e n different." Id. at 57-58. P e titio n e r cites his attorney's failure to (1) object to the court's proposal of facts and the e rro n e o u s reference to heroin contained therein; (2) assist the judge in clarifying which right to appeal was waived; (3) object to the two-point adjustment for the protected location because it duplicates the charge under 21 U.S.C. § 860; (4) object to the imposition of a consecutive te rm of imprisonment for the firearms violation; and (5) file an appeal after Petitioner s p e c if ic a lly demanded an appeal of the sentence. (Id.) We discuss each contention in turn.

Civil No. 09-2270 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. In tro d u ctio n of Facts

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P e titio n e r complains that we introduced facts at his change-of-plea hearing on our own a c co rd without objection from counsel. (Docket No. 1.) This charge is false, as counsel interjec ted several times. (See Crim. No. 07-453, Docket No. 1977 at 19-22.) Moreover, P e titio n e r himself assented to the facts suggested to him (id.), and we are unaware of any a u th o rity imposing a duty upon counsel to prevent Petitioner from testifying on his own behalf. F u r th e rm o re , to demonstrate prejudice for a guilty plea, "the defendant must show that th e re is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty a n d would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Although S u á re z failed to raise a specific objection to our erroneous reference to heroin, Petitioner does n o t contend that he would not have pleaded guilty otherwise. (See Docket No. 1.) W e also note that our error did not affect Petitioner's sentence. We calculated

P e titio n e r's sentence on the basis of his acceptance of responsibility for a conspiracy to d is trib u te cocaine, not heroin. (See Crim. No. 07-453, Docket No. 1978 at 5). B. S p e c ific a tio n of Waiver of Right to Appeal P e titio n e r contends that Suárez failed to help us identify the precise right to appeal that P e titio n e r waived under his agreement. (Docket No. 1.) This argument is meritless because we s p e c if ic a lly referenced Petitioner's plea agreement when we inquired as to whether he u n d e rs to o d that he waived his right to appeal the sentence. (See Crim. No. 07-453, Docket N o . 1977 at 14.) Under that agreement, Petitioner waived his right to appeal the judgment and s e n te n c e in the case. (See Docket No. 1254 at 9.) Therefore, counsel committed no error. See U n ite d States v. Torres-Oliveras, 583 F.3d 37, 40-43 (1st Cir. 2009) (upholding waiver of

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a p p e al where text of agreement was clear, court advised defendant of scope of waiver, and d ef en d an t failed to present unambiguous evidence of miscarriage of justice). C. P r o te c te d Location P e titio n e r argues that Suárez should have objected to the two-point upward adjustment in our calculation of the sentence for the commission of a drug crime in a protected place b e c au s e it duplicates one of the charges against him. (Docket No. 1.) Section 2D1.2 of the s e n te n c i n g guidelines specifically provides for a two-point increase of the defendant's offense le v e l for drug offenses and conspiracy to commit such offenses near a protected location. U.S. S e n ten c in g Guidelines Manual § 2D1.2. (2009). The commentary to this provision explicitly re f ere n c es as its statutory authority 21 U.S.C. § 860, which prohibits the distribution of drugs n e a r a school. Id.; see 21 U.S.C. § 860. F irs t, Petitioner misconstrues the recommendations under the sentencing guidelines for th e statutes under which he was convicted. (See Docket No. 1.) There is no duplication of g ro u n d s for enhancing his sentence. (See Crim. No. 07-453, Docket No. 1978.) Second, " [ d ] o u b l e counting is not automatically forbidden." United States v. Beltran, 503 F.3d 1, 3 (1st C ir. 2007). Unless the sentencing guidelines specify otherwise, it is possible to adopt multiple e n h a n c e m e n ts that rely on similar facts. See United States v. O'Brien, 435 F.3d 36, 42 & n.3 (1 st Cir. 2006). We find no fault with Suárez' conduct with regard to this upward adjustment. D. C o n s e c u tiv e Sentence P e titio n e r next argues that his attorney should have objected to our imposition of a c o n s e c u tiv e sentence for his firearms offense. (Docket No. 1.) This argument is meritless. P e t itio n e r's firearms conviction under 18 U.S.C. § 924(c)(1)(A)(i) requires a penal term that

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ru n s consecutively to his sentence for other offenses. See Kimbrough v. United States, 552 U.S. 8 5 , 92 n.1 (2007). Therefore, Suárez could commit no error in this regard. E. A p p e a l Notwithstanding Waiver L a stly, Petitioner argues that his attorney had a duty to appeal his sentence despite the w a iv e r of appeal in the plea agreement. (Docket No. 1.) We agree for the following reasons. " [ C ] o u n se l has a constitutionally-imposed duty to consult with the defendant about an a p p e a l when . . . [the] defendant reasonably demonstrated to counsel that he was interested in a p p e a lin g ." Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Where the attorney fails to c o m p ly with the defendant's explicit instruction to file a timely appeal, prejudice and, hence, in e f f e c tiv e assistance, is established. Id. at 484 (applying Strickland test to lawyer's failure to a p p e al). Prejudice is presumed under such circumstances because the alleged deficient

p e rf o rm a n c e has deprived the defendant of a judicial proceeding. Id. at 483. P e titio n e r allegedly asked counsel to appeal and the attorney allegedly failed to comply w ith this request. (Docket No. 1-2.) Under federal precedents, these averments establish in e f fe c tiv e assistance under Strickland. See Flores-Ortega, 528 U.S. at 484; United States v. P o in d e x te r, 492 F.3d 263, 268 (4th Cir. 2007) (holding that prejudice is presumed where lawyer f a ils to follow defendant's unequivocal instruction to file timely notice of appeal). F u r th e rm o re , because the First Circuit has the inherent power to reject a waiver of appeal in exceptional situations where there is a "miscarriage of justice," United States v. Teeter, 257 F .3 d 14, 25-26 (1st Cir. 2001), Petitioner's appeal would not have been moot despite his waiver. T h e validity of the waiver itself is an issue that must be necessarily addressed. While the First C irc u it probably would have adopted the waiver to bar the appeal, such determination is

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re se rv e d for the appellate court, once we validate the waiver. We, therefore, find that, out of a n abundance of caution, Petitioner is entitled to a hearing to assess his eligibility for another o p p o rtu n ity to appeal his sentence. IV . C o n c lu s io n F o r the foregoing reasons, we hereby GRANT IN PART and DENY IN PART P e titio n e r's § 2255 petition (Docket No. 1). Pursuant to Rule 8(a) of the Rules Governing § 2255 Proceedings, we ORDER the United States Marshals Service to present Petitioner for a hearing for the sole purpose of determining whether counsel failed to follow Petitioner's e x p lic it request to file a timely notice of appeal. We will also consider whether the waiver of a p p e a l contained in the plea agreement bars the Defendant under the circumstances. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 20 th day of May, 2010. s/J o sé Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge