Rivera-Gomez v. USA

Filing 6

OPINION AND ORDER DENYING 5 MOTION for Hearing filed by Juan A. Rivera-Gomez, DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-453), filed by Juan A. Rivera-Gomez. Pursuant to Rule 4(b) of the Rules Governing & #167; 2255 Proceedings, judgment shall enter summarily dismissing this case, it plainly appearing from the record that Petitioner is not entitled to § 2255 relief from this court. Signed by Chief Judge Jose A Fuste on 11/30/2010.(mrj)

Rivera-Gomez v. USA

Doc. 6

1 2 3 4 5 6 7

U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO J U A N A. RIVERA-GOMEZ, P e titio n e r , v. U N IT E D STATES OF AMERICA, R e s p o n d e n t.

C iv il No. 10-1098 (JAF) (C rim . No. 07-453)

8 9 10 11 12 13 14 15 16 17 18 19 20 21

O P I N I O N AND ORDER P e titio n e r, Juan A. Rivera-Gómez, brings this pro-se petition under 28 U.S.C. § 2255 for r e l ie f from sentencing by a federal court, alleging that the sentence was imposed in violation o f his constitutional rights. (Docket No. 1-2.) The Government opposes. (Docket No. 3.) P e titio n e r replies (Docket No. 4) and moves for an evidentiary hearing (Docket No. 5). I. F a c tu a l and Procedural Summary W e draw the following narrative from Petitioner's motion, the Government's response, a n d Petitioner's reply. (Docket Nos. 1; 3; 4.) Petitioner was indicted on seven charges relating to his role as leader in a narcotics conspiracy. (Crim. No. 07-453, Docket No. 3.) Count one c h a rg e d Petitioner with conspiracy to possess with intent to distribute one kilogram ("kg") or m o re of heroin, fifty grams or more of cocaine base ("crack"), five kg or more of cocaine, and u n s p e c if ie d quantities of marijuana, oxycodone, and alprazolam, all in violation of 18 U.S.C. § § 841, 846, 860. (Id.) Count six charged Petitioner with aiding and abetting the possession

Dockets.Justia.com

Civil No. 10-1098 (JAF)

-2 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

o f a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). ( Id .) P e titio n e r agreed to plead guilty to counts one and six, in exchange for the Government's re c o m m e n d a tio n for dismissal of the other five counts. (Crim. No. 07-453, Docket Nos. 570; 1 6 4 9 .) As part of his plea agreement, Petitioner stipulated that he was liable for conspiring to p o s s e ss at least one but less than three kg of heroin, at least five but less than fifteen kg of c o c a in e , and at least 150 but less than 500 grams of crack. (Id.) Petitioner was sentenced to 156 m o n th s ' imprisonment and ten years' supervised release for count one. (Crim. No. 07-453, D o c k e t No. 1828.) He was sentenced to sixty months' imprisonment and an additional sixty m o n th s ' supervised release for count six. While the terms of imprisonment were sentenced to ru n consecutively, the terms of supervised release were to be concurrent. P e titio n appealed our judgment but Petitioner's appellate counsel filed a motion seeking to withdraw from representation, in compliance with Anders v. California, 386 U.S. 738 (1967). P e titio n e r then filed a pro-se brief before the First Circuit. (Docket No. 3-3.) He argued that th e indicted conduct was beyond the statute of limitations, that appellate counsel was ineffective in counseling him to plead guilty to count six where there was insufficient evidence Petitioner h a d handled a firearm, and that the sentencing enhancement for distributing drugs in a protected lo c a tio n "[was] not jurisdictional[ly] applicable." The First Circuit summarily affirmed our d e c is io n , finding that Petitioner's arguments were frivolous. (Crim. No. 07-453, Docket N o . 1958.)

Civil No. 10-1098 (JAF)

-3 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

II. S ta n d a r d for Relief Under 28 U.S.C. § 2255 A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner m a y challenge his or her sentence on the ground that, inter alia, it "was imposed in violation of th e Constitution or laws of the United States." Id. T h e petitioner is entitled to an evidentiary hearing unless the "allegations, even if true, d o not entitle him to relief, or . . . the movant's allegations need not be accepted as true b e c a u s e they state conclusions instead of facts, contradict the record, or are inherently in c re d ib le ." Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (internal quotation marks o m itte d ) (quoting David v. United States,134 F.3d 470, 477 (1st Cir. 1998)); see also § 2255(b). III. A n a ly s is B e c a u s e Petitioner appears pro se, we construe his pleadings more favorably than we w o u ld those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). N e v e rth e le s s , Petitioner's pro-se status does not excuse him from complying with procedural a n d substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). W e first note that grounds four and five, as enumerated by Petitioner in his § 2255 m o tio n , were previously raised on direct appeal: (4) trial counsel was ineffective in counseling P e titio n e r to plead guilty to the § 924(c) firearms charge; and (5) the sentencing enhancement f o r drug distribution in a protected location suffered from a "jurisdictional" infirmity. We c a n n o t adjudicate a claim under § 2255 that was previously brought on direct appeal unless

Civil No. 10-1098 (JAF)

-4 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

e q u ita b le considerations like actual innocence or cause and prejudice weigh in favor of c o lla te ra l review. See Conley v. United States, 323 F.3d 7, 22 (1st Cir. 2003) (citing Withrow v . Williams, 507 U.S. 680, 721 (1993) (Scalia, J., concurring)). Petitioner has made no d e m o n s tra tio n of actual innocence or of cause and prejudice that may have affected his prior litig a tio n of this claim on direct appeal. For this reason, we will not consider these two grounds. P e titio n e r's remaining claims are that trial counsel allegedly provided ineffective a s sis ta n c e in the following ways: (1) failing to move to dismiss the indictment based on charged c o n d u c t occurring outside the five-year statute of limitations, see 18 U.S.C. § 3282; (2) advising P e titio n e r to plead guilty to a larger amount of cocaine than charged; and (3) failing to object to the fifteen-year term of supervised released imposed at sentencing. T h e success of a claim of ineffective assistance of counsel under § 2255 depends on a p e titio n e r's showing both a deficient performance by his trial counsel and a resulting prejudice. P e ra lta v. United States, 597 F.3d 74, 79 (1st Cir. 2010). Deficient performance is present w h e re the trial counsel's representation "fell below an objective standard of reasonableness," a standard that is informed by "prevailing professional norms." Id. (quoting Strickland v. W a s h in g to n , 466 U.S. 668, 688 (1984)). Choices made by counsel that could be considered part o f a reasonable trial strategy rarely amount to deficient performance. See Strickland, 466 U.S. a t 690. Counsel's decision not to pursue "futile tactics" will not be considered deficient p e rf o rm a n c e . Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999); see also Acha v. United States, 9 1 0 F.2d 28, 32 (1st Cir. 1990) (stating that failure to raise meritless claims is not deficient p e rf o rm a n c e ) . To succeed on a claim of ineffective assistance of counsel, a petitioner must o v e rc o m e the "strong presumption that counsel's conduct falls within the wide range of

Civil No. 10-1098 (JAF)

-5 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

re a s o n a b le professional assistance." Strickland, 466 U.S. at 689. This inquiry into counsel's p e rf o rm a n c e is "highly deferential" and rejects comparisons to "perfect advocacy judged with th e benefit of hindsight." Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (quoting Y a rb o ro u g h v. Gentry, 540 U.S. 1, 8 (2003)). Prejudice exists where "there is a reasonable p ro b a b ility that, but for counsel's unprofessional errors, the result of the proceeding would have b e e n different." Strickland, 466 U.S. at 694. A. S ta tu te of Limitations P e titio n e r claims that the charged conduct fell outside the statute of limitations and his tria l counsel was ineffective by not moving to dismiss the indictment. At the outset, we note th a t the First Circuit has previously denied Petitioner's argument that the statute of limitations re n d e re d the indictment defective. (Crim. No. 07-453, Docket No. 1958.) In general, crimes th a t are not capital offenses must be indicted within five years from the commission of the o f f e n s e . See 18 U.S.C. § 3282. In conspiracy cases, the statute of limitations runs from the date o f the last overt act in furtherance of the conspiracy. See Grunewald v. United States, 353 U.S. 3 9 1 , 396­97 (1957); United States v. Keohane, 918 F.2d 273, 275 (1st Cir. 1990). Furthermore, c o n s p ira c ie s that "contemplate[] a continuity of purpose and a continued performance of acts" a re presumed to exist until an affirmative showing that they terminated. United States v. Piper, 2 9 8 F.3d 47, 53 (1st Cir. 2002) (quoting United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir. 1 9 9 3 )). The indictment charged a conspiracy beginning in 1998 and continuing through the re tu rn of the indictment in 2007. Absent some indication that Petitioner had actively withdrawn f ro m the conspiracy prior to 2002, Petitioner's trial counsel lacked a basis to argue that the

Civil No. 10-1098 (JAF)

-6 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

in d ic tm e n t violated § 3282. Therefore, we find that trial counsel's decision to forgo a meritless s ta tu te -o f -lim ita tio n s argument was not an example of deficient representation of Petitioner. B. D r u g Quantity P e t itio n e r next argues that his trial counsel was ineffective in recommending a plea a g re e m e n t in which "the stipulated amount of drug quantity completely change [sic] excessively w h e re no lab reports of drug seizure was [sic] ever present or confiscated." (Docket No. 1-2 a t 5.) He further argues that Government witnesses at the trial of his codefendants "never e s ta b lis h e d any transaction or quantity of heroin as the Government presented in [the] plea a g re e m e n t." (Docket No. 4 at 3.) A s s u m in g , for the sake of argument, that trial counsel never received any lab reports s p e c if yin g weights of narcotics seized, Petitioner still has not demonstrated deficient p e rf o rm a n c e by his trial counsel. Lab reports are only one way in which the Government may e s ta b lis h the quantity of drugs distributed by a conspiracy. In the trial of Petitioner's

c o d e f e n d a n ts , an unindicted coconspirator testified that Petitioner was in charge of processing b e tw e e n three-fourths and one kg of crack per week as early as 2004 and as part of a conspiracy th a t lasted through late 2007. (Crim. No. 07-453, Docket No. 1406 at 28­33.) Petitioner's plea s tip u la te d to possession of only 150­500 grams of crack. As to the amount of heroin, the G o v e rn m e n t produced the testimony of a coconspirator that the conspiracy had distributed at le a s t one kg of heroin. For these reasons, we find the alleged lack of lab reports would not re n d e r deficient counsel's advice in favor of the plea agreement. E v e n if we broadly construe Petitioner's argument to be an allegation that trial counsel f a ile d to properly investigate the Government's case before recommending acceptance of the

Civil No. 10-1098 (JAF)

-7 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

p le a offer, the Petitioner fails to demonstrate prejudice to his case. When claiming ineffective a s sis ta n c e of counsel in accepting a plea offer, a petitioner's defense is not prejudiced unless h e can show a reasonable probability that, were it not for counsel's error, he would not have p le a d e d guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1 9 8 5 ). In this case, Petitioner has not claimed that he would have rejected the plea offer in f a v o r of a trial. As one of the leaders of a large drug-distribution conspiracy operating over e ig h t years, and processing nearly a kilogram of crack each week from 2004 onward, Petitioner e x p e rie n c e d a considerable benefit by stipulating to a relatively-small quantity of drugs and re c e iv in g the adjustment for acceptance of responsibility. Given the amounts of crack Petitioner a n d his organization were distributing, we find it improbable that he would have passed on this d e a l simply because there were no lab reports specifying quantities of narcotics. C. S u p e r v ise d Release F in a lly, Petitioner argues that trial counsel was ineffective in not filing a sentencing m e m o ra n d u m in objection to the presentence report's recommendation for supervised release. H e claims that his "15 years supervised release . . . is excessive" and moves us to vacate. First, w e must clarify that Defendant was sentenced to a ten-year term of supervised release for count o n e and a five-year term of supervised release for count six. The terms, however, are being s e rv e d concurrently. Second, the supervised release term for count one was mandated by s ta tu te . The quantity of drugs Petitioner stipulated to in count one mandated a five-year term o f supervised release. See 21 U.S.C. 841(b)(1)(A). Furthermore, because the crime was c o m m itte d in a public housing project, the five-year term of supervised release prescribed by § 841 must be doubled. See 21 U.S.C. § 860 (a). An objection to these statutorily-mandated

Civil No. 10-1098 (JAF)

-8 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

te rm s would have been futile and, therefore, the absence of such objection is not demonstrative o f deficient performance of trial counsel. A s for the supervised-release term imposed for count six, this sentence was within the c o u r t ' s discretion. While counsel may have argued for a shorter term of supervision by s u b m ittin g a sentencing memo, Petitioner was not prejudiced by the lack of such argument b e c a u s e this five-year term of supervision runs concurrently with the mandatory ten years of s u p e rv is io n sentenced for count one. IV . C e r tific a te of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we d e n y § 2255 relief we must concurrently determine whether to issue a certificate of appealability (" C O A " ). We grant a COA only upon "a substantial showing of the denial of a constitutional rig h t." 28 U.S.C. § 2253(c)(2). To make this showing, "[t]he petitioner must demonstrate that re a s o n a b le jurists would find the district court's assessment of the constitutional claims d e b a ta b le or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. M c D a n ie l, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable jurist could find o u r assessment of Petitioner's constitutional claims debatable or wrong. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. V. C o n c lu s io n F o r the foregoing reasons, we hereby DENY Petitioner's § 2255 motion (Docket No. 1) a n d motion for an evidentiary hearing (Docket No. 5). Pursuant to Rule 4(b) of the Rules

Civil No. 10-1098 (JAF)

-9 -

1 2 3 4 5 6 7

G o v e rn in g § 2255 Proceedings, summary dismissal is in order because it plainly appears from th e record that Petitioner is not entitled to § 2255 relief from this court. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 30th day of November, 2010. s/J o s é Antonio Fusté JO S E ANTONIO FUSTE Chief U.S. District Judge