Negron-Cardona v. USA

Filing 12

OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-453), 2 MOTION requesting Order, AND 7 MOTION requesting Order filed by Jose Negron-Cardona. Judgment shall enter summarily dismissing the pr esent petition because it plainly appears from the record that Petitioner is not entitled to § 2255 relief in this court. Rule 4(b) of the Rules Governing § 2255 Proceedings. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Chief Judge Jose A Fuste on 12/16/2010.(mrj)

Negron-Cardona v. USA

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO J O S E NEGRON CARDONA, 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.

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O P I N I O N AND ORDER P e titio n e r, José Negrón-Cardona, brings this pro-se petition for relief from a federal court c o n v ic tio n pursuant to 28 U.S.C. § 2255. (Docket Nos. 1; 2; 7.) Respondent, the United States o f America, opposes (Docket No. 6.), and Petitioner replies (Docket No. 8). I. F a c tu a l and Procedural History W e draw the following narrative from Petitioner's motion, Petitioner's supporting m e m o ra n d u m , the Government's Response, and Petitioner' Reply. (Docket Nos. 1; 2; 6; 8.) O n November 7, 2008, Petitioner pled guilty to one count of conspiracy to possess with intent to distribute at least (1) kilogram of heroin, fifty (50) grams or more of cocaine base ("crack"); f iv e (5) kilograms or more of cocaine; and an unspecified quantity of marijuana, Oxycodone, a n d Alprazolam, all in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), (b)(2), and 860. (C rim . No. 07-453, Docket No. 1517 at 2.) He also pled guilty to the use and carry of firearms d u rin g and in relation to a drug trafficking offense, in violation of 18 U.S.C. §§ 2 and 9 2 4 (c )(1 )(A )(i). (Id.) In exchange, the government agreed to recommend dismissal of the four

Dockets.Justia.com

Civil No. 10-1601 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 r e m a in in g counts Petitioner was charged with in the superseding indictment. (Id.)

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F e b ru a ry 29, 2009, this court sentenced Petitioner to 211 months' imprisonment, and a s u p e rv is e d release term of ten years. (Id., Docket No. 1721.) Petitioner filed the present p e titio n seeking relief under § 2255 on June 30, 2010. (Docket No. 1.) 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. The petitioner is entitled to an evidentiary h e a rin g unless the "allegations, accepted as true, would not entitle the petitioner to relief, or . . .`are contradicted by the record, inherently incredible, or conclusions rather than statements o f fact.'" United States v. Rodríguez Rodríguez, 929 F.2d 747, 749-50 (1st Cir. 1991) (quoting D z iu rg o t v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)); see 28 U.S.C. § 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). Petitioner argues th a t he suffered from ineffective assistance of counsel during the challenged proceedings.

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P e titio n e r claims ineffective assistance of counsel based on the following alleged errors, n a m e ly that counsel: (1) failed to protest Petitioner's sentence based on the disparity between c ra c k and cocaine recommended sentences in the U.S. Sentencing Guidelines; (2) failed to bring a direct appeal; (3) once again failed to object to the sentencing disparity under 18 U.S.C. § 3553(a); and (4) misled Petitioner as to the consequences of his plea agreement. T h e Sixth Amendment "right to counsel is the right to the effective assistance of c o u n s e l." Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks o m itte d ); see U.S. Const. amend. VI. To establish ineffective assistance, a petitioner must show b o th that his counsel's performance was deficient and that he suffered prejudice as a result of th e deficiency. Strickland, 466 U.S. at 686-96. To show deficient performance, a petitioner m u s t "establish that counsel was not acting within the broad norms of professional c o m p e te n c e ." Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (citing Strickland, 466 U .S . at 687­91). To show prejudice in the context of a guilty plea, a petitioner must

d e m o n s tra te that "there is a reasonable probability that, but for counsel's errors, he would not h a v e pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 5 9 (1985). In the context of a petitioner's claim that counsel's performance deprived him of an a p p e a l, "we require the defendant to demonstrate that, but for counsel's deficient conduct, he w o u ld have appealed." Roe v. Flores-Ortega, 528 U.S. 470, 486 (U.S. 2000). As for a p e titio n e r's claims regarding the sentence imposed, while "he need not show that counsel's d e f ic ie n t conduct more likely than not altered the outcome of his sentencing proceeding, he m u s t establish a probability sufficient to undermine confidence in [that] outcome." Peralta v. U n ite d States, 597 F.3d 74, 80 (1st Cir. 2010) (citations omitted) (internal quotation marks

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o m itte d ). A judge reviewing a habeas petition who also presided at trial and sentencing is in th e best position to assess potential prejudice, and may "employ the knowledge gleaned during p re v io u s proceedings and make findings based thereon without convening an additional h e a rin g ." United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A. F a ilu r e to Object to the Sentencing Disparity Between Crack and Powder Cocaine P e titio n e r has not shown that counsel's failure to make an objection based on the crackc o c a in e sentencing disparity constituted deficient performance or resulted in prejudice. P e titio n e r ignores the fact that the recommended sentence was part of a bargain he struck with th e government. By the time of the sentencing hearing, Petitioner's counsel could not have p ro te s te d the recommended sentence without breaching the terms of his plea agreement, which e x p lic itly prohibited both parties from seeking any further adjustments or departures from the re c o m m e n d e d sentence. (Crim. No. 07-453, Docket No. 1517 at 5­6.) We find that counsel's o b je c tiv e ly reasonable decision--not to breach such an agreement by making a futile objection d u rin g the sentencing phase--did not constitute deficient performance.1 M o re o v e r, Petitioner cannot show his counsel's failure to remind us of the message of K i m b r o u g h and its progeny. We were then, and are now, aware of Kimbrough and that a g u id e lin e s sentence is neither automatically nor presumptively reasonable, and repeatedly re f e rre d to the guidelines during the sentencing hearing as "advisory." (Crim. No. 07-453, D o c k e t No. 1941 at 3, 5). Accordingly, after considering the plea agreement, in the context of th e factors found in 18 U.S.C. § 3553(a), we imposed the recommended sentence, which fell

For a case with similar reasoning, see United States v. Ortiz, 6 Fed. Appx. 46, 48 (1st Cir. 2001) (finding that counsel's "failure to breach the plea agreement could scarcely constitute ineffective assistance" when agreement forbade parties from seeking adjustments).

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w ith in the lower range of the applicable suggested guidelines sentence.2 (Crim. No. 07-453, D o c k e t No. 1941 at 5.) This court warned Petitioner at the change-of-plea hearing that his s e n te n c e was not "guaranteed," and explained that we were not bound by the agreement's r e c o m m e n d e d sentence, and that he might receive a more severe sentence than he expected. (C rim . No. 07-453, Docket No. 1881 at 10.) B. F a ilu r e to File a Direct Appeal P e titio n e r claims that his counsel did not discuss his right of appeal after sentencing, and a ls o alleges that he asked his trial counsel to appeal, but was ignored. (Docket No. 1 at 10.) T h e Supreme Court has held that a lawyer who disregards specific instructions from the d e f e n d a n t to file a notice of appeal acts in a manner that is professionally unreasonable. F lo re s -O rte g a , 528 U.S. at 477(citing Rodriquez v. United States, 395 U.S. 327 (1969)). A d d itio n a lly, counsel's performance may be deemed deficient if he had, and failed to satisfy, a duty to consult with Petitioner about his right of appeal. Id. at 480. In making this inquiry, h o w e v e r, a court must first determine if counsel actually had a duty to consult with Petitioner re g a rd in g his rights to appeal; this duty can arise "when there is reason to think either (1) that a rational defendant would want to appeal . . ., or (2) that this particular defendant reasonably d e m o n s tra te d to counsel that he was interested in appealing." Id. In its post-hoc evaluation, a c o u rt should "take into account all the information counsel knew or should have known;" in the e v e n t of a guilty plea, the information to consider includes factors such as whether the defendant

Petitioner asserts that had his counsel pushed for a "1-to-1" crack-to-cocaine ratio application, it would have resulted in a base level of 16, and a suggested sentence between 27­33 months for the conspiracy count alone, as opposed to 151 to 188 months. Petitioner overlooks the ten-year mandatory minimum sentence ordered by 21 U.S.C. § 841(a)(1), based on the stipulated amount of crack cocaine, which remains unaffected by Kimbrough and its progeny. See 552 U.S. at 106.

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re c e iv e d the bargained-upon sentence or whether the plea contained a waiver of his appeal rig h ts . Id. Petitioner must next establish prejudice by showing that "there is a reasonable p ro b a b ility that, were it not for his counsel's deficient performance, he timely would have a p p e a le d ." Id. at 484. W e first consider whether counsel had a duty to consult with Petitioner about his appeal rig h ts . We find that he did not. This court informed Petitioner that he was waiving his right of a p p e a l as part of his guilty plea. Petitioner then obtained the benefit of his plea bargain, and re c e iv e d the recommended sentence. In the present case, counsel had no reason to think that a reasonable petitioner would have wanted to appeal. See Ryan v. United States, 97 F. Supp.2d 1 9 0 , 195 (D. Mass. 2000) ("That Petitioner pled guilty and received the relatively lenient s e n te n c e s bargained for weighs strongly against a finding that a rational defendant would wish to appeal."). His plea had a waiver of his right to appeal and, in the First Circuit, courts "will e n f o rc e knowing and voluntary waivers by defendants in plea agreements of their rights to a p p e a l, except when it would work a miscarriage of justice." United States v. Newbert, 504 F.3d 1 8 0 , 182 (1st Cir. 2007). N e x t, Petitioner alleges, without giving any details, that he asked his counsel to appeal, b u t was ignored. (Docket No. 1 at 10.) Petitioner did not express any interest in appealing d u rin g his change-of-plea hearing, when this court explained that he was waiving his right to a p p e a l, and has provided no factual basis in support of his self-serving allegation that he re q u e ste d an appeal from his counsel.3 Petitioner's trial counsel, however, has given his sworn

Petitioner filed an appeal pro se over five weeks after the sentencing hearing. (Docket No. 6-1 at 1.) Counsel testified that he first learned of Petitioner's appeal when contacted by the Court of Appeals regarding this appeal. (Docket No. 11 at 12.)

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te s tim o n y that he explained the consequences of the waiver of appeal in the plea agreement to P e titio n e r, and Petitioner never actually asked him to file an appeal. (Docket No. 11 at 9.) P e titio n e r has provided neither factual support for this claim, nor any "other substantial reasons to believe that he would have appealed." Flores-Ortega, 528 U.S. at 486; see also Blackledge v . Allison, 431 U.S. 63, 74 (1977) (declaring that "conclusory allegations unsupported by s p e c if ic s [are] subject to summary dismissal, as are contentions that in the face of the record are w h o lly incredible") . As Petitioner has failed to show that his counsel's performance was d e f ic ie n t, he cannot show that he was prejudiced by his counsel's performance. C. F a ilu r e to Raise Arguments Against Crack-Cocaine Sentencing Disparity Under 18 U .S .C . § 3553(a) P e titio n e r has essentially recycled his first argument, alleging that counsel failed to alert th e court to the disparity in sentencing between crack and cocaine powder as a factor under 18 U .S .C . § 3553. We reject this claim, as we did in Part III.A.1. Counsel's failure to raise such a n argument resulted in neither deficient performance nor prejudice. At sentencing, this court w a s well aware of the advisory nature of the guidelines, the issues surrounding the crackcocaine powder sentencing discrepancy, and Petitioner's family and desire for rehabilitation that c o u n s e l brought to our attention. (See Crim. No. 07-453, Docket No. 1941 at 4, 5.) And, as d isc u s s e d above in Part III.A.1., counsel could not have brought direct challenges to the re c o m m e n d e d sentence without breaching the plea agreement. D. F a ilu r e to Explain Consequences of Guilty Plea W e reject Petitioner's final claim--that counsel led him to plead guilty without u n d e rs ta n d in g the consequences--as lacking a factual basis. During his change-of-plea hearing, th is court clearly outlined the potential sentences Petitioner could face, explaining that the

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lo w e s t recommended sentence of fifteen years remained contingent on Petitioner's criminal h isto ry.4 (Crim. No. 07-453, Docket No. 1881 at 12­13.) Petitioner stated that he understood w h e n this court told him that "if you receive a sentence that is higher than what you expected, th a t by itself will not allow you to withdraw your plea." (Id. at 10.) Petitioner also affirmed that h e had discussed his decision to plead with counsel. (Id. at 4.) Statements by Petitioner made a t "such a hearing, as well as any findings made by the judge accepting the plea, constitute a f o rm id a b le barrier in any subsequent collateral proceedings," and "carry a strong presumption o f verity." Blackledge v. Allison, 431 U.S. at 74. " In our case, there is no indication that the misinformation given to [Petitioner] at the R u le 11 hearing led him to expect a lesser penalty than he actually received. [Petitioner] had a n extensive criminal record and therefore little basis to expect lenient treatment. . . ." United S ta te s v. Raineri, 42 F.3d 36, 42 (1st Cir. 1994). Petitioner cannot sustain his claim of in e f f e c tiv e assistance simply because the plea bargain did not result in a lower sentence, or b e c a u s e Petitioner felt he did not benefit from the bargain.5 United States v. Wright, 873 F.2d 4 3 7 , 441 (1st Cir. 1989). "A defendant's miscalculation--even a gross miscalculation--anent t h e likely length of his sentence does not render a guilty plea unknowing, involuntary, or

At Petitioner's change of plea hearing, this court explained that his sentence depended upon divination of his criminal history. We explained that, in accordance with the plea agreement text, with a criminal history of one, the sentence would "be 121 to 151 months. If your guideline -- if your criminal history is 2, then that increases to 135 to 168 months. And, if it were a 3, it would be 151 to 188 months. To that, you have to add the 60 months for the weapon." (See Crim. No. 07-453, Docket No. 1941 at 12­13.) When asked whether he understood, Petitioner replied "yes." Id. Petitioner did, in fact, benefit from his plea agreement; four charges were dropped and he received a reduction for acceptance of responsibility; and, although charged with conspiracy to possess with intent to distribute a bevy of different substances, his recommended sentence was based on the stipulated amount of crack alone. (Crim. No. 07-453, Docket No. 1517.)
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u n in te llig e n t in any legally cognizable sense." United States v. Torres-Rosa, 209 F.3d 4, 9 (1st C ir. 2000) (citing United States v. Gonzalez-Vazquez, 34 F.3d 19, 22 (1st Cir. 1994)). IV . C ertif ica te of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we d en 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 reas o n able jurists would find the district court's assessment of the constitutional claims debatable o r wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U .S . 473, 484 (2000)). We see no way in which a reasonable jurist could find our assessment o f Petitioner's constitutional claims debatable or wrong. Petitioner may request a COA directly fro m 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 Nos. 1; 2 , 7). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief in this court. I T IS SO ORDERED. S an Juan, Puerto Rico, this 16th day of December, 2010. s/J o s é Antonio Fusté JO S E ANTONIO FUSTE Chief U.S. District Judge