Jaume-Suarez v. USA
Filing
6
OPINION AND ORDER denied 1 pro se Motion Under 28 U.S.C. 2255 to Vacate, Set Aside or Correct Sentence. Signed by Judge Carmen C. Cerezo on 7/31/2014. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JASON JAUME-SUAREZ
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
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OPINION AND ORDER
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence (hereinafter “Petition”) filed by petitioner Jason
Jaume-Suarez (“hereinafter “Petitioner” or “Jaume”) (docket entry 1) and the
Response to the Petition filed by respondent United States (docket entry 5).
For the reasons discussed below, the Petition is DENIED.
I.
BACKGROUND
Petitioner and seventy other defendants were indicted on August 5, 2008
and charged with being members of a large-scale conspiracy to distribute
heroin, cocaine, crack cocaine, marijuana, Oxycodone and Alprazolam, within
1,000 feet of a private or public school and/or public housing project and/or a
playground, in violation of Title 21, United States Code, §§ 841(a)(1), 860
and 846. All were charged with predicate substantive offenses, and some also
faced firearms charges. (Crim. No. 08-0281CCC, docket entry 3).
Petitioner entered a plea of guilty to Count One of the indictment, the
conspiracy count, on February 23, 2010 based on a plea agreement pursuant
to Fed. R. Crim. P. 11 (c)(1)(B). (Crim. No. 08-0281CCC, docket entries 1390,
1392, 1429).
Jaume was sentenced on May 17, 2010 to 60 months
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imprisonment and a term of supervised release of eight (8) years. (Crim.
No. 08-0281CCC, docket entry 1578). No notice of appeal was filed.
Petitioner is currently on supervised release and pending revocation
proceedings triggered by a violation of state law. His trial on the state charges
is pending. Nevertheless, because Jaume is under court supervision, he is
considered in custody for purposes of his motion filed under 28 U.S.C. § 2255.
See United States v. Barrett, 178 F.3d 34, 42 (1st Cir. 1999); United States v.
Brown, 117 F.3d 471, 475 (11th Cir. 1997);
cf. United States v.
Collazo-Castro, 660 F.3d 516, 522 (1st Cir. 2011).
In his Petition under 28 U.S.C. § 2255 (docket entry 1), petitioner argues
that the calculation of his base offense level should have been lower because
the drug quantity was not established and there was insufficient proof to justify
the sentence increase. Additionally, petitioner points to a general violation of
his rights under 28 U.S.C. § 2255 but also argues that defense counsel failed
to consult with him in relation to an appeal which he would have filed (docket
entry 1 at p. 8). Petitioner does not ask for an evidentiary hearing or any
specific remedy beyond tracking the statutory language of 28 U.S.C. § 2255.
In response to the section 2255 motion, the government notes that the
Court addressed petitioner at length in relation to his waiver of the right to
appeal, as such waiver appears in the plea agreement. The sentencing
recommendation having been accepted, the waiver of appeal was effectively
triggered. (Docket entry 5). The government concludes that since there was
no specific directive to appeal, no violation of petitioner’s right to adequate
assistance of counsel occurred.
Indeed, the government argues, and it
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appears from the record, that defense counsel had no reason to believe that
petitioner would have wanted to appeal the sentence.
II.
DISCUSSION
Under section 28 U.S.C. § 2255, a federal prisoner may move for post
conviction relief if:
the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack . . . .
28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-27 n.3, 82 S.Ct.
468 (1962); United States v. Sevilla-Oyola, ___ F.3d ___, 2014 WL 2462551
(1st Cir. 2014) at *7; David v. United States, 134 F.3d 470, 474 (1st Cir. 1998).
A claim of ineffective assistance of counsel is one such constitutional violation
that may be raised by way of a section 2255 motion. See United States v.
Fornia-Castillo, 408 F.3d 52, 65 (1st Cir. 2005); United States v. Kayne,
90 F.3d 7, 14 (1st Cir. 1996). To establish a claim of ineffective assistance of
counsel, a petitioner “must show that counsel’s performance was deficient,”
and that the deficiency prejudiced the petitioner. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052 (1984); Peralta v. United States,
597 F.3d 74, 79 (1st Cir. 2010). The defendant bears the burden of proof for
both elements of the test.
See Cirilo-Muñoz v. United States,
404 F.3d 527, 530 (1st Cir. 2005) (citing Scarpa v. Dubois, 38 F.3d 1, 8-9
(1st Cir. 1994)).
Petitioner received the statutory minimum sentence of 60 months after
a very favorable plea agreement was negotiated. Indeed, the sentence was
exactly what was negotiated and petitioner’s ethereal showing does not require
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the Court to develop the record further as to any possible violation of
petitioner’s right to appeal having been violated. As a whole, petitioner’s
arguments are simply inadequate and undeveloped.
See Nikijuluw v.
Gonzales, 427 F.3d 115, 120 n.3 (1st Cir. 2005); United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990); Espinal-Gutierrez v. United States,
887 F. Supp. 2d 361, 378 (D.P.R. 2012). During the plea colloquy, the Court
explained the waiver of appeal clause and petitioner acknowledged
understanding the consequences of the waiver of appeal clause contained in
the plea agreement. A review of his argument reveals no unequivocal
allegation that counsel was given a direct instruction to file a notice of appeal.
Nor do the circumstances of this case lend themselves to the logical conclusion
that there would have been an insistence upon the filing of an appeal. In
reaching this conclusion, the Court does not consider the lack of merit in the
points vaguely raised by petitioner, but rather focuses on petitioner’s failure to
make the necessary showing that he is entitled to relief. See Rodriguez v.
United States, 395 U.S. 327, 89 S.Ct. 1715 (1969); cf. Roe v. Flores-Ortega,
528 U.S. 470, 485-86, 120 S.Ct. 1029 (2000). Furthermore, his protestations
now are firmly contradicted by his statements made under oath during the plea
colloquy. (Docket entry 2265 at 22-25, 28-29). See Porcaro v. United States,
832 F.2d 208, 214 (1st Cir. 1987);
Otero-Rivera v. United States,
494 F.2d 900, 902 (1st Cir. 1974). Finally, the cases cited by Jaume in support
of the motion are readily distinguishable considering the factual posture of this
case. See Parsons v. United States, 505 F.3d 797, 798-800 (8th Cir. 2007);
United States v. Shedrick, 493 F.3d 292, 298-302 (3rd Cir. 2007); United
States v. Snitz, 342 F.3d 1154, 1155-59 (10th Cir. 2003).
CIVIL 11-1076CCC
III.
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CONCLUSION
The Court has conducted a review of the pertinent parts of the record
germane to the issues raised by petitioner. Specifically, if one reads the plea
agreement along with the transcripts of the plea colloquy and sentencing
hearing, only one conclusion can be reached: petitioner’s claim of ineffective
assistance of counsel must fail. Petitioner has not made a showing that his
right to effective assistance of counsel has been violated under either prong of
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
But even assuming
that
counsel’s representation somehow fell below an objective standard of
reasonableness, petitioner would still have to prove that it resulted in prejudice
to his case. See Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007)
(quoting Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. 2052). That
is, there must be a reasonable probability that but for counsel’s actions, the
result of the proceedings would have been different. See Dugas v. Coplan,
428 F.3d 317, 334 (1st Cir. 2005) (quoting Strickland v. Washington, 466 U.S.
at 694, 104 S.Ct. 2052). Petitioner has failed to establish that his counsel’s
representation fell below an objective standard of reasonableness, and was
thus constitutionally deficient. See Id. at 686-87, 104 S.Ct. 2052; United States
v. Downs-Moses, 329 F.3d 253, 265 (1st Cir. 2003). Therefore, there is no
merit to the petition for an extraordinary writ.
In view of the above, the Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence (docket entry 1) is DENIED. Judgment shall be
entered accordingly.
Based upon the above, no certificate of appealability will issue in the
event that petitioner files a notice of appeal, because there is no substantial
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showing of the denial of a constitutional right within the meaning of
Title 28 U.S.C. § 2253(c)(2). Miller-El v. Cockrell, 537 U.S. 322, 336-38,
123 S.Ct. 1029 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.
1595 (2000).
SO ORDERED.
At San Juan, Puerto Rico, on July 31, 2014.
S/CARMEN CONSUELO CEREZO
United States District Judge
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