Malpica-Garcia v. USA
Filing
7
OPINION AND ORDER denying 6 Supplemental Motion; denying 2 Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 04-217) filed by Edwin Roman Malpica-Garcia. Signed by Judge Juan M Perez-Gimenez on 4/26/2012. (JG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
*
*
*
*
v.
*
*
*
UNITED STATES OF AMERICA,
*
Respondent.
*
__________________________________________*
EDWIN ROMAN MALPICA-GARCIA,
Petitioner,
CIVIL NO. 10-1020(PG)
RELATED CRIM. 04-217(PG)
OPINION & ORDER
Before the Court is Petitioner’s 28 U.S.C. Sec. 2255
Habeas Corpus Petition (D.E. 2).1
Respondent filed a
Response to the Petition (D.E. 5) and Petitioner filed a
Supplemental Motion to his 2255 Petition (D.E. 6).
For the
reasons discussed below, the Court finds the Petition shall
be DENIED and the request for evidentiary hearing is also
DENIED; Petitioner’s Supplemental Motion is DISMISSED WITH
PREJUDICE.
I. BACKGROUND
On July 6, 2005, Petitioner, Edwin Román MalpicaGarcía (hereinafter “Petitioner” or “Malpica-García”) and
five
(5)
additional
co-defendants
were
charged
in
a
Superseding Indictment by a Federal Grand Jury (Crim. D.E.
137).2
Petitioner was specifically charged in three (3) of
1
D.E. is an abbreviation of docket entry number.
2
Crim.D.E. is an abbreviation of criminal docket entry.
Civil No. 10-1020(PG)
Page 2
the five (5) counts of the Superseding Indictment.3
Count One (1) charged: From on or about November 28,
2003, up to including May 14, 2004, in the District of
Puerto Rico and within the jurisdiction of this Court, all
six
(6)
co-defendants,
the
defendants
herein,
did
knowingly, wilfully, intentionally, and unlawfully combine,
conspire, confederate and agree with each other and with
other persons to the Grand Jury known and unknown, to
commit an offense against the United States and any agency
thereof, to wit: bank robbery of the BBVA bank, Cataño
Branch, Cataño, Puerto Rico, a federally insured financial
institution, in violation to Title 18, United States Code,
Section 2113, and one or more of such persons did acts to
effect the object of the conspiracy; all in violation of
Title 18, United States Code, Section 371.4 (Crim. D.E.
3
The original Indictment was on May 26, 2004, Petitioner was
also included in said Indictment in all three (3) counts of the
original Indictment (Crim. D.E. 26).
4
Petitioner is included in the following Overt Acts in
furtherance of the conspiracy:
Overt Act Five (5): On or about May 13, 2004, co-defendants
[1] Angel González Méndez, aka “Pito”; [2] Moraima Maldonado
Martínez, aka “Moraima”; [3] Edwin Román Malpica García, aka
“Sombra”; [4] William Valentín Mañón, aka “Wichi”; [5] Alexis
García Heredia, aka “Alex”, aka “Alexis”; [6] Francisco López
Acevedo, aka “Frankie”, met to discuss the planning to commit an
armed bank robbery of the BBVA bank, Cataño Branch, Puerto Rico.
Overt Act six (6): On or about May 14, 2004, co-defendant [1] Angel
González Méndez, aka “Pito”; provided co-defendants [3] Edwin Román
Malpica García, aka “Sombra”; and [4] William Valentín Mañon, aka
“Wichi”; firearms to be used to commit the bank robbery of the BBVA
bank, Cataño Branch, Puerto Rico. Overt Act Seven (7): On or about
May 14, 2004, co-defendant [2] Moraima Maldonado Martínez, aka
“Moraima”; provided co-defendants [3] Edwin Román Malpica García,
Civil No. 10-1020(PG)
Page 3
137).
Count Two (2) charges: On or about May 14, 2004, in the
District of Puerto Rico and within the jurisdiction of this
Court, all six (6) co-defendants, the defendants herein,
aiding and abetting each other and aided and abetted by
others to the Grand Jury known and unknown, did knowingly,
willfully, intentionally, and unlawfully take from the
person and presence of another, by force, and violence, and
intimidation, property and money, that is, Two Hundred
Thirty
Thousand
Seven
Hundred
Forty
Seven
Dollars
($230,747.00), in the custody, control and possession of a
bank, to wit: BBVA bank, Cataño Branch, FDIC Cert. No.
19919-2, located in Cataño, Puerto Rico, an institution
which deposits are insured by the Federal Deposit Insurance
Corporation, and while committing said offense, did assault
persons and put in jeopardy the life of any person by the
use of a dangerous weapon and device; all in violation to
Title 18, United States Code, Sections 2113(a)&(d) and
2.(Crim. D.E. 137).
aka “Sombra”; [4] William Valentín Mañon, aka “Wichi”; [5] Alexis
García Heredia, aka “Alex”, aka “Alexis”; [6] Francisco López
Acevedo, aka “Frankie” a vehicle in order to commit the bank
robbery of the BBVA bank, Cataño Branch, Puerto Rico. Overt Act
Eight (8): On or about May 14, 2004, co-defendants [3] Edwin Román
Malpica García, aka “Sombra”; [4] William Valentin Mañon, aka
“Wichi”; entered the BBVA bank, Cataño Branch, Puerto Rico, using
firearms assaulted two persons and took approximately Two Hundred
Thirty Thousand Seven Hundred Forty Seven Dollars ($230,747.00),
from said financial institution.(Crim. D.E. 137)
Civil No. 10-1020(PG)
Page 4
Count Three (3) charges: On or about May 14, 2004, in
the District of Puerto Rico and within the jurisdiction of
this Court, all six (6) co-defendants, the defendants
herein,
aiding
and
abetting
each
other
and
aided
and
abetted by others to the Grand Jury known and unknown, did
knowingly,
willfully,
intentionally,
and
unlawfully
possess, use and carry firearms, as that term is defined in
Title
18,
United
States
Code,
Section
921(a)(3)
in
furtherance of and during and in relation to the commission
of a crime of violence, as that term is defined in Title
18, United States Code, Section 924(c)(3), that is, an
armed bank robbery in violation to Title 18, United States
Code, Section 2113, as charged in COUNT TWO of the First
Superseding Indictment, an offense which may be prosecuted
in a Court of the United States.
All in violation of Title
18, United States Code, Sections 924(c)(1)(A)(ii) and 2
(Crim D.E. 137).
On August 1, 2005, Petitioner’s Change of Plea Hearing
was held.
Petitioner plead guilty to all three counts of
the Superseding Indictment in which he was charged.5 (Crim.
D.E. 165).
On December 19, 2005, Petitioner’s Pre-Sentence Report
was submitted (Crim. D.E. 214).
On January 11, 2006,
Petitioner’s Sentencing Hearing was held (Crim. D.E. 229).
5
Petitioner entered a “straight plea” meaning there was no
agreement or Plea Agreement between Petitioner and the Government.
Civil No. 10-1020(PG)
Page 5
Malpica-García was sentenced as follows: as to Count One
(1) a term of imprisonment of sixty (60) months, a term of
Supervised
Release
of
three
(3)
years
and
a
Special
Monetary Assessment of one hundred (100) dollars; Count Two
(2) a term of imprisonment of two hundred and eighty (280)
months, said term to run concurrently with that imposed in
Count One, but consecutively with the imprisonment term
imposed as to Count Three (3); a Supervised Release Term of
five (5) years and a Special Monetary Assessment of one
hundred (100) dollars.
Count Three a term of imprisonment
of eighty four (84) months, to be served consecutively to
terms of imprisonment imposed in Counts One (1) and Two
(2), a term of Supervised Release of five (5) years and a
Special Monetary Assessment of one hundred (100) dollars
(Crim. D.E. 231).
On January 13, 2006, Petitioner filed a Notice of
Appeal (Crim. D.E. 234).
On October 19, 2006, the First
Circuit Court of Appeals issued its Judgment in which it
vacated Petitioner’s sentence and remanded the case to the
District Court due to an error in the Sentencing Guideline
calculations
(Crim.
D.E.
324).
On
March
Petitioner’s Re-Sentencing Hearing was held.
2,
2007,
Petitioner
was re-sentenced as follows: As to Count One (1) a term of
imprisonment of sixty (60) months, as to Count Two (2) a
term of imprisonment of two hundred (200) months.
The
terms of imprisonment of Counts One (1) and Two (2) to be
served concurrently with each other.
As to Count Three (3)
Civil No. 10-1020(PG)
Page 6
a term of imprisonment of eighty four (84) months to be
served consecutively to the terms of imprisonment imposed
in
Counts
One
(1)
and
Two
(2),
for
a
total
term
of
imprisonment of two hundred and eighty four (284) months.
A term of Supervised Release of three (3) years was imposed
as to Count One (1), five (5) years as to Counts Two and
Three (3) to be served concurrently with each other; and a
Special Monetary Assessment of one hundred (100) dollars as
to each count for a total of three hundred (300) dollars
(Crim. D.E. 395).
On March 6, 2007, Petitioner filed a Notice of Appeal
(Crim. D.E. 396).
On March 16, 2007, Petitioner’s Amended
Judgment was entered (Crim. D.E. 397).
On March 28, 2007,
Petitioner’s Second Amended Judgment was entered (Crim.
D.E. 409).
On March 29, 2007, Petitioner’s Third Amended
Judgment was entered (Crim. D.E. 411).
On June 6, 2007,
Petitioner’s Fourth Amended Judgment was entered.6 (Crim.
D.E. 437).
On October 15, 2008, the First Circuit Court of
Appeals issued its Judgment affirming Petitioner’s sentence
(Crim. D.E. 468). No petition for certiorari was filed and
Malpica-García’s conviction became final on January 23,
2009.
On November 9, 2009, Petitioner filed a Motion of
Extension of Time to file his 2255 Petition (Crim. D.E.
469).
6
On
November
12,
2009,
the
Court
granted
the
None of the Amended Judgments entered alter the terms of
imprisonment and how they are to be served as imposed by the Court
in Petitioner’s Re-Sentence on March 2, 2007.
Civil No. 10-1020(PG)
Page 7
extension requested (Crim. D.E. 470). On January 14, 2010,
Petitioner filed his 2255 Petition (D.E. 1), the same is
timely.7
II. DISCUSSION
In
his
2255
Petition
Malpica-García
raises
the
following allegations of ineffective assistance of counsel:
(1) counsel was ineffective in that she did not provide
Petitioner with an explanation of the nature of the charges
against him and the consequences of pleading guilty, as
such his plea of guilty was involuntary and coerced; (2)
counsel was ineffective in that she failed to properly
advise Petitioner as to the potential use of the discovery
received in his defense.
Petitioner also asserts a third
allegation that his conviction was obtained by the use of
evidence obtained as a result of an unlawful arrest and a
final allegation of vindictive sentencing for failing to
sign the proposed plea agreement.
A
review
of
the
record
clearly
indicates
that
Petitioner’s claims are either meritless or simply wrong
therefore the same shall be DENIED by the Court.
Ineffective Assistance of Counsel Standard
The standard for an ineffective assistance of counsel
claim is whether counsel’s conduct so undermined the proper
7
Pursuant to the Antiterrorism Death Penalty Act, Petitioner
had one year as of January 23, 2009, the date his conviction became
final, to file a timely 2255 Petition. Therefore even without the
extension of time he requested, the Petition was timely filed.
Civil No. 10-1020(PG)
Page 8
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); Lema v.
United States, 987 F.2d 48 (1st Cir. 1993). In order to
succeed in a claim of ineffective assistance of counsel
Malpica-García must show both incompetence and prejudice:
(1) Petitioner must show that counsel’s representation fell
below an 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, Argencourt v.
United
States,
78
F.3d
14
(1st
Cir.
1996),
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.
Ineffective Assistance of counsel which resulted in an
involuntary and coerced plea of guilty
The first allegation raised by Petitioner relates to
his plea of guilty.
Malpica-Gracía alleges that due to
counsel’s failure in properly explaining the nature of the
charges he faced and the consequences of him pleading
guilty, his plea was coerced and not voluntarily made.
The
record of the Change of Plea Hearing completely contradicts
Petitioner’s argument.
Petitioner appered before the Court on August 1, 2005,
in order to plead guilty (Crim. D.E. 165).
parties
informing
the
Court
that
there
was
Upon the
no
Plea
Civil No. 10-1020(PG)
Page 9
Agreement amongst them, and that Petitioner wished to plead
guilty
to
the
three
counts
he
was
charged
in
the
Superseding Indictment, the Court proceeded with the Change
of Plea Hearing.
Petitioner throughout the Change of Plea
Hearing on numerous occasions was advised and explained the
charges against him by both his counsel and the Court.
Never once in the transcript of the Change of Plea Hearing
does Petitioner state he does not understand the charges.
THE COURT: Do you know what you have been charge
in Count One?
DEFENDANT: Yes.
THE COURT: And do you know what you are being
charged with in Count Two?
DEFENDANT: Yes, I know that, too.
THE COURT: And in Count Three?
DEFENDANT:
Yes. (C.O.P. Tr. of 8/1/2005 at 6).
THE COURT: Mr. Malpica, did your attorney explain
to you what the maximum possible penalty provided
in Count One is?
DEFENDANT: Yes.
THE
COURT:
Do
you
remember
what
was
it
she
explained to you as to that?
DEFENDANT: Yes.
A maximum of 25 years.
THE COURT: In Count One?
DEFENDANT: And Two Hundred and Fifty Thousand
Dollars.
Civil No. 10-1020(PG)
Page 10
THE COURT: In Count One?
Isn’t Count
One
a
conspiracy under 371?
Ms. Doble-Salicrup: Yes, Your Honor.
That would
be a maximum term of imprisonment of five years.
Ms. PLAZA MARTINEZ: That’s correct, Your Honor.
I was mistaking it with Count Two.
THE COURT: Okay.
I’m sorry.
Count One is a maximum of five
years; a fine that could go up to Two Hundred and
Fifty
Thousand
Dollars;
a
term
of
supervised
release of two to three years; and One Hundred
Dollars special monetary assessment.
Is that it?
DEFENDANT: Yes.
THE COURT: And Count Two?
DEFENDANT: A maximum of twenty-five years; a Two
Hundred and Fifty Thousand dollar fine; and a
supervised release of no more than five years.
THE
COURT:
And
a
One
Hundred
dollar
special
monetary assessment.
DEFENDANT: Yes.
THE COURT: And in Count Three?
DEFENDANT: A minimum of five years and a maximum
of ten years.
MS. DOBLE-SALICRUP: Your Honor, it would be a
minimum
of
seven
years,
as
charged
in
the
Indictment.
THE COURT: Is this term to be consecutive to any
other sentence?
Civil No. 10-1020(PG)
Page 11
MS. DOBLE-SALICRUP: That is so, Your Honor.
(C.O.P. Tr. of 8/1/2055 at pp.13-14)
The Court continued to explain to Petitioner, even
using
hypothetical
examples,
as
to
what
sentences mean and how this would affect him.
consecutive
The Court,
in addition, proceeded to explain to Petitioner that having
spoken to his attorney prior to the hearing, Petitioner was
aware
of
his
criminal
record
which
allowed
for
the
possibility of him being considered a career offender.
The
Court then proceeded to explain to Petitioner what the term
career offender means and how that qualification would
affect his sentence (See C.O.P. Tr. of 8/1/2055 at pp. 1921).
Further into the sentence the Court proceeded with
the following questions:
THE COURT: Mr. Malpica, has anybody threatened you
in any way to induce you to plead guilty?
DEFENDANT: No.
THE COURT: Is anybody forcing you in any way to
plead guilty?
DEFENDANT: No.
THE COURT: Has anyone offered you any rewards or
anything of value to get you to plead guilty?
DEFENDANT: No. (C.O.P. Tr. of 8/1/2005 at p. 22).
Further into the Change of Plea Hearing, upon the Court
asking Petitioner if he did what the Government stated
Petitioner did in the Overt Acts of Count One of the First
Superseding Indictment, Petitioner through his counsel,
Civil No. 10-1020(PG)
Page 12
informed the Court that he is not in agreement that he did
not wish to accept the involvement of other people in the
bank robbery, he was only willing to accept his personal
involvement.
This led to a lengthy discussion between the
Court and Petitioner’s counsel as to the charges in Count
One and how Petitioner could not plead half way.
When
Petitioner’s counsel asked that the Court allow Petitioner
to speak on his own behalf, the following ensued:
DEFENDANT: (through the interpreter.) I wanted to
plead
guilty
this
morning
as
far
as
my
own
responsibility is concerned, without mentioning
anybody else.
I’m answering here for what I did.
THE COURT: And what you did is you agreed with
other people who are also charged with you as part
of the conspiracy, to on May 14th go in the bank
and rob the bank.
And that agreement included
that you were going to drive a car that was going
to be provided to you, and you were going to use
weapons.
That’s what you agreed.
Your own acts, as you
mentioned them, your own acts are your agreement
to rob the bank, your agreement to be provided a
car to be used during the bank robbery, and your
agreement to use weapons.
Those are your own
acts,
with
agreements
you
did
other
people,
without giving names, but they are charged in the
indictment; because, otherwise, if you agree with
Civil No. 10-1020(PG)
Page 13
somebody else that is not charged, that’s not
included in the indictment.
So
your
own
acts
-
-
the
problem
is
that,
different from Count Two and Three, Count One is
a conspiracy.
And a conspiracy in and of itself
is an offense.
And the conspiracy is an agreement
that you carried out with other people to rob the
bank.
And
when
agreements
you
have
between,
a
conspiracy,
among
various
you
have
individuals.
All right?
MS. PLAZA MARTINEZ: Your Honor, I believe that
after this discussion with the defendant, the
defendant stands for accepting his guilt as to
Counts Two and Three, but he will not be accepting
his guilt as to Count One, because again - THE COURT: Okay. Then, will the government dismiss
Count One?
MS.
DOBLE-SALICRUP:
No,
Your
Honor.
It’s
a
straight plea.
THE COURT: If we are going to trial, I’ll go to
trial with the three of them, and not with one.
MS. PLAZA MARTINEZ: You see, Your Honor - THE COURT: I see what it is.
MS.
PLAZA
MARTINEZ:
I
see
what
it
is.
The
government wants the defendant to accept something
about the other defendants.
The defendant does
Civil No. 10-1020(PG)
Page 14
not wish to be a witness.
THE COURT: Counsel, if he doesn’t want to plea that
way - - he is pleading a straight plea.
It’s not
a question of the government, it’s a question of
the Court.
basis
in
conspiring
I want to make sure that there is a
fact.
And
if
with
somebody
he
else
tells
is
me
part
he
of
is
the
agreement, but those are not defendants, then for
the purposes of the conspiracy charged in this
count, there is no basis in fact, then.
And if
there is no basis in fact, I cannot accept the
plea of guilty to Count One, which would mean,
then, that he would have to go to trial.
And if
we go to trial, I’m not going to go to trial just
on Count One and not go to trial in Counts Two and
Three.
We may as well go to trial on all of them.
MS. PLAZA MARTINEZ: The defendant doesn’t wish to
go to trial on Counts Two and Three.
THE COURT: Then he has to accept the plea as the
Court is asking for.
Counsel.
He can’t have it both ways,
He either admits to me what he did, or
if he doesn’t want to admit the extent of his
participation with whom.
That’s the end of the
matter; otherwise, I will not make a finding that
there is a basis in fact for the plea. (C.O.P. Tr.
of 8/1/2005 at pp. 36-38).
Civil No. 10-1020(PG)
Page 15
THE COURT: The defendants are being provided with
the best professional advise that they can obtain
from court-appointed counsel.
Now, they are free to follow that advise or not
follow it.
They are free to plea to an agreement;
they are free to plea, based on counsel’s advice,
to a straight plea.
with that.
Fine.
There is no problem
And when there is a straight plea the
government is not intervening in anything.
But the defendants can’t have it the way they want
to.
If they want to plea, fine. I will accept the
plea as long as I make sure that there is a basis
in fact for the plea.... (C.O.P. Tr. of 8/1/2055
at p. 39)
The
Court
made
abundantly
clear
several
things
throughout this discussion with both Petitioner and his
counsel.
First, the exact nature of the charges he was
facing and the specific involvement, his acts, in Count
One.
Second, that it was Petitioner’s sole right to either
plead guilty or go to trial, neither the Court nor his
counsel could force him to plead guilty.
Third, that
although Petitioner had received legal advise and guidance
from his attorney it was within his discretion to choose to
follow it or not.
The record clearly indicates that the
Court patiently and in great detail explained to Petitioner
exactly what he was charged with, his criminal exposure by
pleading guilty and that it was his sole, exclusive right
Civil No. 10-1020(PG)
Page 16
to either plead guilty or go to trial.
After much ado
Petitioner accepted his responsibility.
THE COURT: ...So if he doesn’t want to answer my
questions, that’s fine, that’s a right that he
has.
If he doesn’t want to admit the facts,
that’s a right he has.
But he is not going to put
conditions on my questions.
So we might as well
stop right now and we’ll go to trial. Fine.
DEFENDANT: I understood, and my answer is yes.
THE COURT: Were you provided a vehicle as part of
the agreement you had with other co-conspirators
to drive to the bank?
DEFENDANT: Yes.
THE COURT: Were you provided with weapons as part
of the agreement on May 13th to rob the bank on May
14th, by a co-conspirator?
DEFENDANT: Yes.
THE COURT: And that is as to Count One, the
conspiracy right?
DEFENDANT: Yes. (C.O.P. Tr. of 8/1/2005 at pp. 4142).
The Court then continues with the pertinent questions as to
his involvement in Counts Two and Three which Petitioner
accepted.
There
is
no
doubt
that
Petitioner
was
thoroughly
advised of the charges he was facing and his criminal
liability in the matter.
There is not even a scintilla of
Civil No. 10-1020(PG)
Page 17
evidence that would induce the Court to wonder as to a
possible
coercion,
misinformation,
forcing
or
lack
of
knowledge as to Petitioner and his choice to plead guilty
with all that it entails.
As such Petitioner can not claim
ineffective assistance of counsel, and allegation number
one (1) is DENIED.
Ineffective
assistance
of
counsel
in
her
failure
to
properly advise petitioner as to the evidence provided in
discovery
Malpica-García’s
discovery
which
the
second
allegation
Government
relates
provided
in
to
his
the
case.
Although Petitioner admits his Counsel provided him with
the discovery given he now alleges that she never informed
him how this discovery could have been used in his defense
at trial.
This
allegation
is
raised
by
Petitioner
in
a
perfunctory manner without any reference to the record,
unaccompanied by some effort at developed argumentation as
such it is deemed waived. Trenkler v. United States, 268
F.3d 16 (1st Cir. 2001) citing United States v. Zannino, 859
F.2d,1,17 (1st Cir. 1990).
Furthermore, as prior excerpts
from the Change of Plea Hearing demonstrated, Petitioner
never gave a single indication that he was dissatisfied
with
his
attorney;
nor
his
possible
doubts
about
the
discovery provided by the Government. In fact the record
once again contradicts Petitioner’s blanket allegation.
THE COURT: Did counsel receive discovery from the
Civil No. 10-1020(PG)
Page 18
Government?
MS. PLAZA MARTINEZ: I did, Your Honor.
And a copy was furnished to the defendant.
THE COURT: And you discussed that evidence with
your clients?
MS. PLAZA MARTINEZ: Yes, Your Honor. (C.O.P. Tr.
of 8/1/2005 at p. 50).
THE COURT: And as to your- -having reviewed that
evidence, both of you, do you agree with the
evidence in the possession of the government as to
what each one of you did in this case?
DEFENDANT: Yes, as to my participation. (C.O.P.
Tr. of 8/1/2005 at p. 51).
There
is
no
basis
in
fact
for
Petitioner’s
second
allegation as such the same is DENIED.
Sufficiency of the evidence
Petitioner’s
third
allegation
sufficiency of the evidence.
is
a
question
of
Malpica-García contends that
the evidence used to convict him was obtained as a result
of his unlawful arrest.
Once again this allegation is
raised as a blanket assertion without any development or
basis, the same is deemed waived. Id.
Nevertheless, the Court notes that sufficiency of the
evidence is a federal constitutional claim; the evidence in
support of a conviction must be sufficient to have led a
rational trier of fact to find guilt beyond a reasonable
Civil No. 10-1020(PG)
doubt.
Page 19
See Jackson v. Virginia, 433 U.S. 307, 317 (1979).
Generally, sufficiency of the evidence must be raised on
direct appeal; if not, a Section 2255 petitioner may not
raise it unless extraordinary circumstances compel waiver
of this procedural bar.
F.3d
133, 142-43 (1st
See Awon v. United States, 308
Cir. 2002).
Such extraordinary
circumstances include actual innocence, but the “actual
innocence exception is quite narrow and seldom used” Id. at
143 (citing Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir.
1999); (“The actual innocence exception is reserved for
extraordinary cases of fundamentally unjust incarceration”)
Schulp v. Delo, 513 U.S. 298, 320321 (1995).
Malpica-
García has not even made an attempt to raise a claim of
actual innocence and his conviction is substantiated by the
record.
Petitioner
pled
guilty
and
accepted
his
participation in the bank robbery and the Government’s
version of facts, there is no ineffective assistance of
counsel as such Petitioner’s third allegation is DENIED.
Vindictive Sentencing
Malpica-García’s final allegation is that his sentence
was vindictive in nature because he refused to enter into
a Plea Agreement with the Government in which he would have
had to testify against other co-defendants.
This is yet another baseless allegation raised by
Petitioner without any reference to the record or evidence
to support it.
“The reasons supporting a sentence one
single year above the guideline minimum in Malpica’s case
Civil No. 10-1020(PG)
Page 20
are obvious and cogent, and that suffices.” United States
v. Malpica-García, Appeal No. 07-1556 (1st Cir. Oct. 15,
2008).
Enough
said,
Petitioner’s
final
meritless
allegation is DENIED.
For the reasons previously states this Court deems
Petitioner’s Malpica-García’s 2255 Petition DENIED. The
same fails to meet the Strickland standard of ineffective
assistance of counsel.
Evidentiary Hearing
Malpica-García, as part of his 2255 Petition requested
an evidentiary hearing. However, Petitioner has failed to
meet the requirements for such a hearing to be granted.
In order for Petitioner to prosper in his request, he
must be able to demonstrate to the Court by a preponderance
of the evidence, not only an entitlement to the 2255
Petition for relief, but also entitlement to an evidentiary
hearing, David v. United States, 134 F.3d 470, 477-478 (1st
Cir. 1998); Reyes v. United States, 421 F. Supp. 2d 426,
430 (D.P.R. 2006).
Inasmuch as Petitioner has failed in
his burden as to his 2255 Petition, he has failed as well
in the request for an evidentiary hearing.
Therefore
Petitioner’s request for an evidentiary hearing is DENIED.
The Court now turns its attention to Petitioner’s
filing
of
the
Motion
to
Supplement
Petitioner’s
2255
Petition Pursuant to Federal Rule of Civil Procedure 15
(D.E. 6).
Federal Rule of Civil Procedure 15 governs amendments
Civil No. 10-1020(PG)
Page 21
to habeas petitions in a Section 2255 proceeding, thereby
permitting
otherwise
untimely
pleading
amendments
to
“relate back” to the date of the timely filed original
pleading provided the claim asserted in the amended plea
“arose out of conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading”.
United States v. Ciampi, 491 F.3d 20 at 23 (1st Cir. 2005).
However,
in
the
habeas
corpus
context,
the
Rule
15
“relation back” provision is to be strictly construed, in
light of Congress decision to expedite collateral attacks
by placing stringent restrictions on them. Mayle v. Felix,
545 U.S. 644, 657 (2005).
If claims asserted after the one
year period of limitations for the filing of Section 2255
petitions could be revived simply because they relate to
the same trial, conviction, or sentence as a timely filed
claim,
AEDPA’s
limitation
significance. Id at 662.
period
would
have
slim
Accordingly, amended habeas
corpus claims generally must arise from the “same core
facts” and not depend upon events which are separate both
in time and type from events upon which the original claims
depend Mayle at 664.
A petitioner does not satisfy the Rule 15 “relation
back” standard merely by raising some type of ineffective
assistance in the original petition, and then amending the
petition to assert another ineffective assistance claim
based
upon
an
entirely
misfeasance. Ciampi at 24.
distinct
type
of
attorney
Civil No. 10-1020(PG)
Page 22
In Malpica-García’s supplemental motion filed March 8,
2010, which is after the one year statute of limitations
expired, Petitioner asserts three (3) new claims.
The
first two (2) are allegations of ineffective assistance
counsel of his appellate attorney and the third claim is as
to his classification as a career criminal.
As such they
are completely separate new claims and in no way do they
relate back to the claims raised by Petitioner in his
original, timely filed 2255 Petition. As such Petitioner’s
Supplemental
Motion
is
and
DISMISSED
WITH
Court
concludes
that
untimely
PREJUDICE.
III. CONCLUSION
For
the
reasons
stated,
the
Petitioner EDWIN ROMAN MALPICA GARCIA, is not entitled to
federal habeas relief on the claims.
ordered
that
EDWIN
Petitioner
Accordingly, it is
ROMAN
MALPICA
GARCIA’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 evidentiary hearing is
also
DENIED.
original
2255
Petitioner’s
Petition
Motion
(D.E.
6)
to
Supplement
is
DISMISSED
his
WITH
PREJUDICE.
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
Civil No. 10-1020(PG)
Page 23
certificate of appealability should be issued in the event
that Petitioner files a notice of appeal because there is
no substantial 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 26th of April 2012.
s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
UNITED STATES DISTRICT JUDGE
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