Ayala-Lugo v. USA

Filing 14

ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 7-453) filed by Joshua Ayala-Lugo. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 8/30/2011.(mrj)

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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
JOSHUA AYALA-LUGO,

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Petitioner,

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v.

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Civil No. 10-1389 (JAF)
(Crim. No. 07-453)

UNITED STATES OF AMERICA,
Respondent.

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OPINION AND ORDER

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Petitioner, Joshua Ayala-Lugo, brings this pro-se petition under 28 U.S.C. § 2255 for

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relief from sentencing by a federal court, alleging that the sentence was imposed in violation

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of his constitutional rights. (Docket No. 1.) The Government opposes (Docket No. 4), and

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Petitioner replies (Docket No. 5). An evidentiary hearing was held on August 3, 2011.

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I.

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Factual and Procedural Summary

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On September 9, 2008, Petitioner entered into an agreement with the Government to

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plead guilty to one count of conspiracy to possess with intent to distribute narcotics. (Crim.

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No. 07-453, Docket No. 1233.) In exchange for Petitioner’s plea, the Government agreed to

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recommend a sentence at either the statutory minimum or the lower end of the guidelines,

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depending on Petitioner’s criminal history. (Id.) The plea agreement included a waiver of

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direct appeal. (Id.) During the colloquy at his change-of-plea hearing, Petitioner acknowledged

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the waiver of his right to appeal:

Civil No. 10-1389 (JAF)
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THE COURT: You are waiving your right to appeal
as part of this plea bargaining process. There will be
no appeal. The judgment that I will enter will be the
final judgment. Do you understand that?
THE DEFENDANT: Yes.
(Crim. No. 07-453, Docket No. 2119 at 13.)

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At the sentencing hearing on December 18, 2008, Petitioner again was informed that he

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had waived his right to appeal by entering the plea bargain. (Id., Docket No. 2118 at 6.) We

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sentenced Petitioner to the 120-month term recommended in the plea agreement, and we entered

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final judgment on December 18, 2008. (Id., Docket No. 1610.) On May 11, 2010, Petitioner

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filed his § 2255 petition—over four months after the one-year statute of limitations expired, see

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§ 2255(f).

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Petitioner raised a single claim for § 2255 relief: Ineffective assistance of counsel arising

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from the failure to file a direct appeal. (Docket No. 1-2.) The Government replied and asserted

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the § 2255(f) time bar as a defense. (Docket No. 4.) Petitioner responded, claiming that

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equitable tolling is applicable to his case. (Docket No. 5.)

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We appointed counsel for Petitioner and held an evidentiary hearing on August 3, 2011,

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to hear further evidence on the merits of Petitioner’s claim. At the hearing, both Petitioner and

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his trial attorney, Vladimir Mihailovich Nikolich, testified. Mihailovich stated that he had

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explained the waiver of appellate rights to Petitioner multiple times prior to the change of plea.

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He explained that Petitioner had been hesitant to enter the plea bargain because Petitioner

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disagreed with the Government’s characterizing his role in the conspiracy as a runner instead

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of a seller. Mihailovich further stated that, after sentencing, Petitioner did not ask him to file

Civil No. 10-1389 (JAF)

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an appeal. Furthermore, he stated that, in his view, there was no reasonable basis for filing an

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appeal.

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Petitioner testified that Mihailovich had presented the plea agreement to him and

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explained the waiver of appellate rights. He also claimed, however, that during the plea

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colloquy he did not understand the waiver of appeal as explained to him but had affirmed his

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understanding only because Mihailovich instructed him to answer “yes” to all questions. When

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asked during his testimony if he would have answered “yes” to a request in the colloquy to

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throw himself down a hill, Petitioner responded that he would not. Furthermore, Petitioner

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testified that after sentencing he asked Mihailovich to file an appeal but that Mihailovich told

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him he would not file an appeal on his behalf because he was no longer his lawyer and was not

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required to file an appeal. Finally, when asked on what grounds he sought to appeal his

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sentence, Petitioner stated that he believed he should have been held responsible for a smaller

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amount of narcotics.

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II.

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Standard for Relief Under 28 U.S.C. § 2255

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A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner

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is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner

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may challenge his or her sentence on the ground that, inter alia, it “was imposed in violation of

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the Constitution or laws of the United States.” Id.

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In general, a petitioner cannot be granted relief on a claim that was not raised at trial or

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on direct appeal, unless he can demonstrate both cause and actual prejudice for his procedural

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default. See United States v. Frady, 456 U.S. 152, 167 (1982). Claims of ineffective assistance

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of counsel, however, are exceptions to this rule. See Massaro v. United States, 538 U.S. 500

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(2003) (holding that failure to raise ineffective assistance of counsel claim on direct appeal does

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not bar subsequent § 2255 review).

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III.

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Analysis

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Because Petitioner appears pro se, we construe his pleadings more favorably than we

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would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Nevertheless, Petitioner’s pro se status does not excuse him from complying with procedural

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and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

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Petitioner claims that both his inability to speak English and delays by the Federal

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Bureau of Prisons in forwarding his legal documents warrant the application of equitable tolling

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to his claim. A district court may choose to sidestep an equitable tolling inquiry and decide the

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substantive claims in a § 2255 petition when it is clear that the Government would prevail on

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the merits. See Ramos-Martínez v. United States, 638 F.3d 315, 324–25 (1st Cir. 2011).

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Having heard evidence of the underlying ineffective assistance of counsel claim, we find it

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proper to resolve this case on the merits.

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The success of a claim of ineffective assistance of counsel under § 2255 depends on a

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petitioner’s showing both a deficient performance by his trial counsel and a resulting prejudice.

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Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010). Deficient performance is present

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where the trial counsel’s representation “fell below an objective standard of reasonableness,”

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a standard that is informed by “prevailing professional norms.” Id. (quoting Strickland v.

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Washington, 466 U.S. 668, 688 (1984)). To succeed on a claim of ineffective assistance of

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counsel, a petitioner must overcome the “strong presumption that counsel’s conduct falls within

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the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Choices

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made by counsel that could be considered part of a reasonable trial strategy rarely amount to

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deficient performance. See id. at 690. Counsel’s decision not to pursue “futile tactics” will not

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be considered deficient performance. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999); see also

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Acha v. United States, 910 F.2d 28, 32 (1st Cir. 1990) (stating that failure to raise meritless

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claims is not ineffective assistance of counsel). Prejudice exists where “there is a reasonable

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

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been different.” Strickland, 466 U.S. at 694.

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Petitioner fails to demonstrate that Mihailovich’s performance was deficient.

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Mihailovich was credible in his testimony that Petitioner did not ask him to file an appeal.

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Petitioner’s testimony, by contrast, was incredible and contradictory. In his initial filing,

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Petitioner had stated that after instructing Mihailovich to file an appeal, he was under the

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impression that it had been filed and did not learn otherwise until the time to appeal had expired.

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Yet in his testimony at the evidentiary hearing, Petitioner stated that Mihailovich told him he

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would not file an appeal. Also, given the numerous times Petitioner was informed of the waiver

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and his testimony that he understood the waiver of appeal when explained to him by

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Mihailovich, we find it unlikely that he then ordered Mihailovich to file an appeal.

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Finally, we note that Petitioner attempted to raise at his evidentiary hearing, for the first

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time, a claim that his plea was not knowing and voluntary. We do not credit Petitioner’s

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testimony that he did not understand that he had agreed to waive his right to direct appeal. He

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testified that the waiver was explained to him by Mihailovich and that he understood its

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meaning prior to the change of plea. It is incredible that he later lost this understanding and yet

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represented to the court at the change-of-plea hearing that he understood the right and its

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waiver.

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IV.

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Certificate of Appealability

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In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we

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deny § 2255 relief we must concurrently determine whether to issue a certificate of appealability

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(“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional

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right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that

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reasonable jurists would find the district court's assessment of the constitutional claims

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debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v.

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McDaniel, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable jurist could find

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our assessment of Petitioner’s constitutional claims debatable or wrong. Petitioner may request

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a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22.

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V.

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Conclusion

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For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket No. 1).

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 30th day of August, 2011.

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s/José Antonio Fusté
JOSE ANTONIO FUSTE
United States District Judge