Cruz-Maldonado v. USA

Filing 5

OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07282). Signed by Judge Juan M Perez-Gimenez on 4/27/2012. (JG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

*
*
*
*
v.
*
*
*
UNITED STATES OF AMERICA,
*
Respondent.
*
__________________________________________*
ROBERTO COTTO-MALDONADO,
Petitioner,

CIVIL NO. 10-1388(PG)
RELATED CRIM. 07-282(PG)

OPINION & ORDER

Before the Court is Petitioner’s 28 U.S.C. Sec. 2255
Habeas Corpus Petition and Memorandum in Support (D.E. 1).1
Respondent filed a Response to the Petition (D.E. 3) and
Petitioner filed a Reply thereto (D.E. 4).

For the reasons

discussed below, the Court finds the Petition shall be
DENIED and the request for evidentiary hearing is also
DENIED.
I. BACKGROUND
On July 18, 2007, Petitioner, Roberto Cotto-Maldonado
(hereinafter “Petitioner” or “Cotto-Maldonado”) was charged
in a one count Information (Crim. D.E. 2).2
Count One (1) charged: On or about January 12, 2006, in
the District of Puerto Rico and elsewhere and within the
jurisdiction of this Court, Roberto Cotto Maldonado, the
defendant herein, did knowingly possess a stolen firearm,
1

D.E. is an abbreviation of docket entry number.

2

Crim.D.E. is an abbreviation of criminal docket entry.

Civil No. 10-1388(PG)

Page 2

to wit, a .32 caliber Colt Cobra revolver, serial number
B82232, which had been shipped or transported in interstate
or foreign commerce, either before or after it was stolen,
knowing and having reasonable cause to believe the firearm
was stolen, in violation of Title 18, United States Code,
Section 922(j) and 924(a)(2). (Crim. D.E. 2).
On July 18, 2007, Petitioner’s Plea Agreement was filed
with the Court (Crim. D.E. 3).

Pursuant to the terms and

conditions of the Plea Agreement “the parties agree that a
sentence

of

imprisonment

of

seventy

(70)

months

is

a

reasonable disposition for this case”3 (Crim. D.E. 3 at p.
4).

However, the parties expressly declined to stipulate

any assessment as to Cotto-Maldonado’s Criminal History
Category (Crim. D.E. 3 at p. 4).
On July 18, 2007, Petitioner’s Waiver of Indictment and
Change of Plea Hearing was held (Crim. D.E. 4).

Petitioner

waived his right to be indicted by a Federal Grand Jury and
pled guilty, pursuant to a Plea Agreement, to a One Count
Information

(Crim.

D.E.

4).

On

October

18,

2007,

Petitioner’s Pre-Sentence Report was filed (Crim. D.E. 9).
On November 14, 2007, Petitioner, through his counsel,
filed Objections to the Pre-Sentence Report (Crim. D.E.
3

The stipulation was done based on the following calculation:
A total base offense level of twenty three (23) and assuming a
Criminal History Category V the Guideline imprisonment range would
be eighty four (84) to one hundred and five (105) months (Crim.
D.E. 3 at p. 4). This was a Rule 11(c)(1)(A) and (B) Plea
Agreement, therefore the Court was not bound by its stipulations
and the Plea Agreement so reflects it (Crim. D.E. 3).

Civil No. 10-1388(PG)

Page 3

12). The sole objection raised by Petitioner’s counsel was
the

Probation

Officer’s

determination

that

Cotto-

Maldonado’s Criminal History Category was VI and not V as
ventured by the parties in the Plea Agreement (Crim. D.E.
12).
On November 20, 2007, Petitioner’s Sentencing Hearing
was held.

Cotto-Maldonado was sentenced to a term of

imprisonment

of

ninety

two

(92)

months,

a

Supervised

Release Term of three (3) years and a Special Monetary
Assessment of one hundred (100) dollars (Crim. D.E. 15).
On November 26, 2007, Petitioner, through his counsel,
filed a Motion for Correction and Reduction of Sentence
Pursuant

to

Rule

35(a)

(Crim.

D.E.

16).

Petitioner’s

counsel argued that the Court should correct the sentence
of ninety two (92) months imposed upon Petitioner to one of
seventy (70) months as stipulated by the parties in the
Plea Agreement4 (Crim. D.E. 16). Judgment was entered on
November 26, 2007 (Crim. D.E. 17).
Petitioner,

through

his

On November 28, 2007,

counsel,

filed

a

Motion

to

Amend/Correct Objections to the Pre-Sentence Report and
Sentencing5

(Crim.

D.E.

18).

On

December

7,

2007,

4

Petitioner’s counsel’s basis for the argument was that the
Court erroneously applied application note three (3) of Guideline
Section 4A 1.2 and thus determined a Criminal History Category that
was higher than the one assumed by the parties in the Plea
Agreement (Crim. D.E. 16).
5

The sole purpose of this second filing was to advise the
Court that the original motion filed by counsel contained several
typographical errors which in this second motion had been corrected

Civil No. 10-1388(PG)

Page 4

Petitioner, through his counsel, filed a Notice of Appeal
(Crim. D.E. 19).

On December 17, 2007, the Government

filed its Response to both motions to amend or correct the
Pre Sentence Report and Sentence imposed6 (Crim. D.E. 20).
On March 5, 2008, the Court denied Petitioner’s Motion for
Correction and Reduction of Sentence Pursuant to Rule 35(a)
(Crim. D. E. 25).
Government’s

On March 5, 2008, the Court granted the

Response

to

the

two

motions,

filed

by

Petitioner, requesting his Sentence be corrected7 (Crim.
D.E. 28).
Appeals

On June 4, 2009, the First Circuit Court of

issued

its

Judgment

in

the

matter,

affirming

Petitioner’s conviction. United States v. Cotto-Maldonado,
Appeal No. 08-1034 (1st Cir. June 4, 2009). No certiorari
was filed and conviction became final on September 2, 2009.
On May 11, 2010, Petitioner filed his Section 2255 Petition
(D.E. 1) as such the same is timely.8

(Crim. D.E. 18).
6

In its Response the Government advised the Court that it
stood by the provisions and recommendations of the non binding Plea
Agreement. However, the Government acknowledged that the Criminal
History Category of VI as calculated by the Probation Officer and
accepted by the Court was correct, and therefore the sentence
imposed by the Court was correct (Crim. D.E. 20).
7

The Court left Petitioner’s sentence as originally imposed
without changes nor modifications, it stood by its original
sentencing determination.
8

Pursuant to the Antiterrorism Death Penalty Act, Petitioner
had one year as of September 2, 2009, the date his conviction
became final, to file a timely 2255 Petition.

Civil No. 10-1388(PG)

Page 5

II. DISCUSSION
In

his

2255

Petition

Cotto-Maldonado

raises

the

following allegations of ineffective assistance of counsel:
(1)

counsel

was

ineffective

because

he

allowed

the

imposition of a term of imprisonment of ninety two (92)
months which was above the seventy (70) months term of
imprisonment

stipulated

by

the

parties

in

the

Plea

Agreement; (2) counsel was ineffective for failing to
request a psychiatric evaluation of Petitioner; (3) counsel
was ineffective for failure to request a downward departure
based on Petitioner’s mental illness; and (4) appellate
counsel was ineffective for his filing of a Anders9 brief.
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.
A.

28

U.S.C.

Sec.

2255

standards

and

exhaustion

requirements
Title 28 U.S.C. Sec. 2255 allows a federal prisoner to
move

the

court

to

vacate,

set

aside,

or

correct

his

sentence if one of the following events happens:
1.

the sentence was imposed in violation of the
Constitution or laws of the United States...

2.

the court was without jurisdiction to impose
the sentence

9

An Anders brief is a brief filed by appellate counsel before
the Court of Appeals asserting the lack of meritorious grounds for
appeal. Anders v. State of California, 386 U.S. 738 (1967).

Civil No. 10-1388(PG)

3.

Page 6

The sentence was in excess of the maximum
authorized by law

4.

The

sentence

is

or...
otherwise

subject

to

collateral attack.
When a prisoner files a motion for relief pursuant to
section 2255, the court may dismiss the motion without an
evidentiary hearing if “the motion and files and records of
the case show conclusively that the movant is not entitled
to relief.” See Rule 4(b), Rules Governing Section 2255
Proceedings, Dziugot v. Luther, 897 F.2d 1222, 1225 (1st
Cir. 1990).
It is well settled law that a section 2255 motion is
not a substitute for an appeal.
must

first

raise

his

claims

Therefore, the defendant
on

direct

appeal

before

bringing the claim in a section 2255 motion. United States
v. Essig, 10 F.3d 968 (3d Cir 1993).

If a defendant fails

to preserve his claim on direct appeal a court may not
consider the claim in a subsequent section 2255 motion,
unless the defendant can establish “cause and prejudice”,
United States v. Frady, 456 U.S. 152, 167 (1982); or a
“fundamental miscarriage of justice”. Murray v. Carrier,
477 U.S. 478, 496 (1986).

The exception to this dogma of

the exhaustion requirement is the allegation of ineffective
assistance of counsel which may be brought for the first
time in a section 2255 motion.

Civil No. 10-1388(PG)

B.

Page 7

Claim of Ineffective Assistance of Counsel
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); Lema v.
United States, 987 F.2d 48 (1st Cir. 1993).
To

establish

ineffective

assistance

of

counsel,

a

defendant must show that:
1.

His attorney’s performance was deficient, and

2.

The

deficient

performance

prejudiced

his

defense. Strickland v. Washington, 466 U.S.
668, 687 (1984).
In

order

to

establish

establish

that

objective

standard

deficiency,

counsel’s
of

a

performance

reasonableness

defendant
“fell
under

must

below

an

prevailing

professional norms.” Strickland 466 U.S. at 688.

Under

Strickland, counsel is presumed to have acted within the
range of “reasonable professional assistance,” and it is
defendant

who

bears

the

burden

of

“overcoming

the

presumption that, under the circumstances, that challenged
action

‘might

Strickland,
defendant

466

must

be

considered

U.S.

sound

trial

at

689.

To

show

establish

that

“there

is

strategy.’”
prejudice,
a

a

reasonable

probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
reasonable

probability

is

a

probability

sufficient

A
to

Civil No. 10-1388(PG)

Page 8

undermine confidence in the outcome.” Strickland, 466 U.S.
at 694; 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

for

allowing

the

imposition of a term of imprisonment of ninety (92) months
instead of the stipulated seventy (70) months
Petitioner’s first allegation revolves around the fact
that he was sentenced to a term of imprisonment that was
higher than what he had expected.

The Court imposed upon

Petitioner a term of imprisonment of ninety two (92) months
when in fact Petitioner expected to be sentenced to a term
of imprisonment of seventy (70) months.
Petitioner alleges that the only reason he chose to
plead guilty and waive his right to trial was because he
was promised a term of imprisonment of seventy (70) months.
Petitioner further alleges that it was his attorney who
provided him with incorrect advise by informing him that
his prior state convictions would be grouped together and
provide for a Criminal History Category of V and not the
Category VI which was later determined by the Probation
Officer and followed by the Court.
both

the

Government

and

the

Petitioner argues that

Court

violated

the

Plea

Agreement and that the Court was without jurisdiction to
impose a sentence of ninety two (92) months because it was
based on a breach of a promise which defense counsel and

Civil No. 10-1388(PG)

Page 9

the Government had made with him.10
It is well settled that the right to the effective
assistance of counsel applies to certain steps before
trial.

The “Sixth Amendment guarantees a defendant the

right to have counsel present at all ‘critical’ stages of
the criminal proceedings.” Missouri v. Frye, 132 S.Ct. 1399
(U.S. Mo., March 12, 2012; cert. denied, Frye v. Missouri,
2012 WL 986837 (U.S. Mo. Mar. 26, 2012); citing Montejo v.
Louisiana, 556 U.S. 778, 786 (2009).

Critical stages

include arraignments, post indictment interrogations, post
indictment lineups, and the entry of a guilty plea, Id. at
5.
The two part Strickland test applies to challenges to
guilty pleas based on ineffective assistance of counsel.
Hill

v.

Lockhart,

474

U.S.

52

at

p.

57

(1985)

The

performance prong of Strickland requires a defendant to
show that counsel’s representation fell below an objective
standard

of

reasonableness.

To

establish

Strickland

prejudice a defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
In the context of pleas a defendant must show the outcome
of

the

plea

process

would

have

been

different

with

competent advice, Lafler v. Cooper, 132 S. Ct. 1376, at

10

The Court notes that Petitioner categorizes this “promise” of
seventy (70) months of imprisonment as being a secret deal amongst
his counsel and the Government.

Civil No. 10-1388(PG)

1384 (2012).

Page 10

Petitioner has failed to meet this showing.

Cotto-Maldonado alleges that he was induced to plead
guilty do to some secret promise between his attorney and
the Government which guaranteed him a seventy (70) month
prison sentence.

This bold allegation is made without any

corroborating evidence and the same is contradicted by the
record.
Petitioner entered into a Plea Agreement with the
Government
Information

by
in

which

he

pled

guilty

exchange

for

a

recommendation.

to

a

one

particular

count

sentencing

From the Plea Agreement itself it is

pellucidly clear that the sentence of seventy (70) months
was precisely a recommendation.
Paragraph Six (6) - Rule 11(c)(1)(A) and (B)
The defendant is aware that the sentence is within
the sound discretion of the sentencing judge and
may

be

imposed

in

accordance

with

the

United

States Sentencing Guidelines, Policy Statements,
Application,
advisory.
has

and

Background

Notes,

which

are

The defendant is aware that the Court

jurisdiction

and

authority

to

impose

any

sentence within the statutory maximum set for the
offense to which the defendant pleads guilty.

If

the Court should impose a sentence up to the
maximum

established

by

statute,

the

defendant

cannot, for that reason alone, withdraw a guilty
plea, and will remain bound to fulfill all of the

Civil No. 10-1388(PG)

Page 11

obligations under this plea agreement. (Crim. D.E.
3 at p. 3)
The Plea Agreement specifically informs petitioner that
regardless

of

the

agreement

entered

into

with

the

Government it is up to the Court to determine his sentence.
The Court has the final say.

Since Petitioner waived his

right to be indicted by pleading guilty to an Information,
during the Waiver of Indictment and Change of Plea Hearing
the Court asked specific questions in order to ensure that
Petitioner was well aware of what he was doing and the
consequences of his decision.
THE COURT: Have you had enough time to discuss
with your attorney?
THE DEFENDANT: Yes, Sir.
THE COURT: And you discussed this procedure that
we

are

going

through

now,

the

filing

of

an

Information by the Government?
THE DEFENDANT: Yes, sir.
THE COURT: And you are satisfied with his services
up to now?
THE DEFENDANT: Yes, sir. (Tr. C.O.P. Hr. of July
18, 2007 at pp. 3-4)

THE COURT: Have you discussed waiving your right
to indictment by a grand jury with your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand the right that you

Civil No. 10-1388(PG)

Page 12

have to indictment by a grand jury?
THE DEFENDANT: Yes, sir.
THE COURT: Have any threats or promises been made
to you to waive indictment by a grand jury?
THE DEFENDANT: No, sir. (Tr. C.O.P. Hr. of July
18, 2007 at p. 5).

THE COURT: Has your attorney explained to you what
the maximum possible penalty provided by statute
is?
THE DEFENDANT: Yes, sir. (Tr. C.O.P. Hr. of July
18, 2007 at p. 9).

THE COURT: Has anybody threatened you in any way
to induce you to plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Is anybody forcing you in any way to
plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Has anybody offered you any rewards or
things of value to get you to plead guilty?
THE DEFENDANT: No, sir. (Tr. C.O.P. Hr. of July
18, 2007 at p. 10)

THE COURT: Now, I have a document in front of me
entitled “Plea Agreement.”

This Plea Agreement

has been signed by you, your attorney, and the

Civil No. 10-1388(PG)

Page 13

attorney for the Government.

Has your attorney

explained

not

to

you

that

I

am

part

of

the

agreement that you have with the Government?
THE DEFENDANT: Yes, sir.
THE COURT: Since I am not part of this agreement,
it means that I am not bound by any sentencing
guideline

calculations,

stipulations,

or

sentencing recommendations contained in the Plea
Agreement.

Do you understand?

THE DEFENDANT: Yes, sir.
THE COURT: It also means that I have authority and
discretion

to

maximum

ten

of

provides.

impose

any

years,

sentence

which

is

up

what

to

the

the

law

Do you understand?

THE DEFENDANT: Yes, sir.
THE COURT: It also means that if I do impose a
sentence that turns out to be higher than the one
you might be expecting, that reason alone would
not be grounds for the Court to allow you to
withdraw your plea of guilty.

Do you understand?

THE DEFENDANT: Yes, sir. (Tr. C.O.P. Hr. of July
18, 2007 at pp. 11-12)
The Court made it perfectly clear that there was
absolutely no guarantee that the sentencing recommendation
of the Plea Agreement, that is seventy (70) months would be
followed by the Court.

Furthermore, the Court ensured that

Petitioner understood that if the Court sentenced him to a

Civil No. 10-1388(PG)

Page 14

term of imprisonment different from what he expected that
within

itself

was

not

cause

for

withdrawing

the

Plea

Agreement.

It was a calculated risk which Petitioner was

willing

take.

to

At

all

times

Petitioner

stated

he

understood and informed the Court that no promises or
offers

had

been

Agreement.

At

made
no

other

time

did

than

those

Petitioner

in

the

state

Plea

that

he

understood that the Court had to sentence him to the
seventy (70) months and in fact was advised otherwise by
the Court.
Clearly once Petitioner received a sentence higher than
what he expected he alleged that his counsel coerced him
and falsely claimed that there was a secret agreement
amongst the parties.
evidence

are

These allegations without further

contrary

to

the

record

and

cannot

be

entertained by the Court.
Petitioner raises the argument that his counsel was
ineffective because he incorrectly advised him that his
prior local criminal convictions could be grouped together
for purposes of establishing his Criminal History Category
and by doing such a grouping his Criminal History Category
would be V.

Both the Court and the Probation Officer

determined that Petitioner’s prior convictions did not stem
from the same acts and could not be grouped which in turn
resulted in Petitioner’s Criminal History Category of VI.
This allowed for the Court’s sentence of ninety two (92)

Civil No. 10-1388(PG)

Page 15

months11.
Assuming that Petitioner’s counsel did in fact advise
him as to the grouping of his prior state convictions and
the effect they would have on his sentence; and assuming
this advise was incorrect Petitioner would have to be able
to show the outcome of the plea process would have been
different

with

competent

advice.

See

Frey

at

1388.

Petitioner can not meet this burden.
To begin with Petitioner has failed to establish that
the advice provided by counsel fell below the standard of
competent
counsel

representation.
clearly

convictions

Furthermore,

understood

should

be

that

grouped

Petitioner’s

Petitioner’s

together.

The

prior
record

reflects that he raised this argument in his objections to
the Pre-Sentence Report (Crim. D.E. 12) and in his motion
for correction of sentence (Crim. D.E. 16).

A review of

the Sentencing Hearing transcript also establishes that
Petitioner’s

counsel

sentencing.

This

raised

was

not

the
an

argument

argument

prior

raised

in

to
a

perfunctory manner nor out of left field and the Court so
recognized it.
advised

or

Therefore, it cannot be construed as ill-

falling

bellow

the

applicable

standard

of

competent counsel pursuant to Strickland.

11

The guideline sentencing range applicable to Petitioner was
ninety two (92) to one hundred and fifteen (115) months of
imprisonment (Tr. S. Hr. of November 20, 2007 at p. 10). The Court
sentenced Petitioner to the lower end of the applicable guideline.

Civil No. 10-1388(PG)

THE

Page 16

COURT:

anyway.

Well,

he

has

the

right

to

appeal

Then we might have a clear expression

from the Court of Appeals of the First Circuit of
whether the way I interpret it [referring to the
issue

of

the

grouping

of

convictions]

is

the

correct one or the way that you interpret it
according to the case law you have cited is the
correct one (S. H. Tr. of July 18, 2007 at p. 7).
Petitioner received sound legal advice from his attorney
there is no evidence on the record that contradicts this.
The fact that Petitioner did not receive the sentence he
hoped for is not sufficient for an ineffective assistance
of counsel claim.

“It is, of course, true that defendants

have ‘no right to be offered a plea... nor a federal right
that the judge accept it.” Lafler v. Cooper, 132 S.Ct. 1376
at 1387 (2012).

Such is Petitioner’s case.

Petitioner’s

first allegation of ineffective assistance of counsel is
DENIED.
Ineffective assistance of counsel for failure to request a
psychiatric evaluation
Cotto-Maldonado’s

second

claim

of

ineffective

assistance of counsel is regarding his mental health.
Petitioner alleges that his counsel was ineffective in his
failure to request a psychiatric evaluation.

He alleges

that he has an IQ level below 55, a seventh (7th) grade
education and a prolonged addiction to narcotics which has
left him with certain mental problem.

The record is void

Civil No. 10-1388(PG)

Page 17

of any indication that Petitioner suffers from mental
instability, or that he has a low IQ level or that he has
any difficulty understanding the criminal process he was
involved in.
At the Change of Plea Hearing Petitioner informed the
Court that he understood the process, knew why he was in
Court and was aware of the charges against him.

He also

indicated that he was not taking any medication. (See Tr.
C.O.P. Hr. of July 18, 2007).
Petitioner has provided no evidence to sustain his
allegations of his mental health, or lack thereof, or of
his IQ level and the impact it would have had in his
decision making process. In fact the same are contradicted
by Petitioner’s own statements on the record.

The Court

will not entertain speculative arguments without basis in
fact.

“Judges

are

not

expected

to

be

mind

readers.

Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly, or else forever hold its
peace.” Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Cir. 1988).

Petitioner’s second allegation is DENIED.

Ineffective assistance of counsel for failure to request a
downward departure based on mental illness
Petitioner’s third allegation of ineffective assistance
of

counsel

deficiency.

again

revolves

around

his

alleged

mental

Petitioner contends that his attorney should

have requested a downward departure due to his low IQ, his
continuous drug use and his mental illness as a result of

Civil No. 10-1388(PG)

his

drug

use.

Page 18

Again

the

record

does

not

support

Petitioner’s allegation.12
There was no basis in fact for counsel to request the
downward departure for mental illness or drug abuse as
Petitioner

alleges.

Petitioner

has

not

provided

any

evidence that would tend to indicate that he indeed suffers
from some form of mental illness that would warrant a
departure.

The record provides a picture of an individual

who started committing violent offenses at a very early age
in his life and that has been a drug user for the greater
part of his life, these facts are not conducent to a
downward departure.
Furthermore, 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). Petitioner’s third allegation is

12

During the Sentencing Hearing the Court made the following
finding: “Moreover, as reflected in the pre-sentence report, he has
a long standing drug addiction history, some mental health
treatment through AMSSCA. The Court in considering all these
factors imposes a sentence which is deemed sufficient but not
greater than necessary in order to address the statutory objectives
of just punishment considering the seriousness of the offense,
deterrence, and the protection of the public from further crimes of
this defendant. The Court considers that the defendant must be
provided with a structured environment where he can obtain
effective treatment for his drug addiction and for his
rehabilitation. The Court has not identified any factors that
would warrant sentencing the defendant outside of the guideline.”
(S. Hr. Tr. of November 20, 2007, at pp. 11-12).

Civil No. 10-1388(PG)

Page 19

DENIED.
Ineffective assistance of appellate counsel for filing a
Anders brief
Petitioner’s final allegation of ineffective assistance
of

counsel

is

directed

towards

his

appeal’s

counsel.

Petitioner alleges that by his attorney filing a Anders
brief instead of a formal appeals brief he was ineffective.
Petitioner is mistaken, quite the opposite is true.

If

Petitioner’s counsel had not filed an Anders brief he might
have been deemed ineffective.
Claims of ineffective assistance of appellate counsel
are measured under the Strickland standard, Evitts v. Lucy,
469 U.S. 287(1985).

Appellate counsel is not required to

raise every non-frivolous claim, but rather selects among
them to maximize the likelihood of success on the merits,
Lattimore v. Dubois, 311 F.3d 46 (1st Cir. 2002).
Where appellate counsel is charged with ineffectiveness
for failure to raise a particular claim, “it is difficult
to demonstrate that counsel was incompetent.” Smith v.
Robbins, 528 U.S. 259 at page 288 (2000).
presumption

of

competence

of

To overcome the

appellate

counsel,

a

petitioner must show that the omitted issues were “clearly
stronger” than those counsel chose to assert.

Cotto-

Maldonado has not made such a showing.
The duty of appellate counsel is to “support his
client’s appeal to the best of his ability.” Anders v.
State of California, 386 U.S. 738 at 744 (1967).

Counsel

Civil No. 10-1388(PG)

Page 20

must either proceed with the appeal or, if he believes the
appeal is frivolous, submit a brief “referring to anything
that might arguably support the appeal.” Id.
The allegation that counsel failed to file an appeal
after being required by Petitioner is contradicted by the
record. Petitioner’s counsel submitted an Anders brief and
a

motion

to

withdraw,

asserting

that

there

were

no

meritorious issues to be raised on appeal, pursuant to
Anders v. State of California, 386 U.S. 738, 744 (1967).
Petitioner did not file a separate brief, after being
informed of his right to do so.

As required by Anders, the

Court conducted a full examination of the proceedings,
including the guilty plea and sentencing hearings, and
concluded
appeal.

that

there

were

no

non-frivolous

issues

on

As such his final claim of ineffective assistance

of counsel fails, the same is DENIED.
For the reasons previously stated this Court deems
Petitioner’s Cotto-Maldonado’s 2255 Petition DENIED. The
same fails to meet the Strickland standard of ineffective
assistance of counsel.
Evidentiary Hearing
Cotto-Maldonado, 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

Civil No. 10-1388(PG)

Page 21

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.
III. CONCLUSION
For

the

reasons

stated,

the

Court

concludes

that

Petitioner ROBERTO COTTO-MALDONADO, is not entitled to
federal habeas relief on the claims.

Accordingly, it is

ordered that Petitioner ROBERTO COTTO-MALDONADO’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.
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 showing of the denial of a constitutional
right within the meaning of 28 U.S.C. 2253(c)(2).

Civil No. 10-1388(PG)

Page 22

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 27th of April 2012.

s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
UNITED STATES DISTRICT JUDGE