Cruz-Valcarcel v. USA
Filing
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OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-222.), filed by Luis Cruz-Valcarcel. 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. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 4/20/2012.(mrj)
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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
LUIS CRUZ-VALCARCEL,
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Petitioner,
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v.
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Civil No. 11-1696 (JAF)
(Crim. No. 07-453)
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
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Petitioner, Luis Cruz-Valcarcel, brings this pro-se petition for relief from a federal court
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conviction pursuant to 28 U.S.C. § 2255. (Docket No. 1.) Respondent, the United States of
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America, opposes (Docket No. 5), and Petitioner does not respond.
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I.
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Factual and Procedural History
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We draw the following narrative from Petitioner’s motion, the Government’s response,
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and the docket of the related criminal case. On April 4, 2008, Petitioner pleaded guilty to one
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count of conspiracy to possess with intent to distribute at least one kilogram of heroin, fifty
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grams or more of cocaine base (“crack”); five kilograms or more of cocaine; and detectable
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amounts of of marijuana, Oxycodone, and Alprazolam, all in violation of 21 U.S.C. §§ 846,
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841(a)(1), (b)(1)(C), (b)(2), and 860. (Crim. No. 07-453, Docket No. 582 at 2.) He also
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pleaded guilty to aiding and abetting the knowing possession of firearms and ammunition during
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and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Id.)
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In exchange, the government agreed to recommend a sentence of 235 months. (Id. at 5.) On
Civil No. 10-1696 (JAF)
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August 6, 2008, this court sentenced Petitioner to 235 months’ imprisonment, and a supervised
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release term of ten years. (Id., Docket No. 1037.) The First Circuit denied Petitioner’s direct
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appeal on November, 15, 2010, and Petitioner did not file for certiorari. (Docket No. 5 at 3.)
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Petitioner filed the present petition seeking relief under § 2255 on July 18, 2011. (Docket
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No. 1.)
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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. The petitioner is entitled to an evidentiary
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hearing unless the “allegations, accepted as true, would not entitle the petitioner to relief, or
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. . .‘are contradicted by the record, inherently incredible, or conclusions rather than statements
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of fact.’” United States v. Rodríguez Rodríguez, 929 F.2d 747, 749-50 (1st Cir. 1991) (quoting
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Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)); see 28 U.S.C. § 2255(b).
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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). Petitioner argues
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that he suffered from ineffective assistance of counsel in signing the plea agreement, as well as
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ineffective assistance of appellate counsel, who he alleges performed ineffectively because of
Civil No. 10-1696 (JAF)
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his “failure to submit the standard nine paper copies that accompany an appeal brief,” and
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because of his “failure to submit a proper appeal.” (Docket No. 1 at 3.) We discuss each claim
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in turn below.
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A.
Ineffective Assistance Standard
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The Sixth Amendment “right to counsel is the right to the effective assistance of
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counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks
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omitted); see U.S. Const. amend. VI. To prevail on a claim of ineffective assistance of counsel,
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Petitioner must show not only a deficient performance by trial counsel, “but also that the
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deficient performance prejudiced the defense and deprived the defendant of a fair trial.” United
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States v. Manon, 608 F. 3d 126, 131 (1st Cir. 2010) (quoting Strickland, 466 U.S. at 687).
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Petitioner may satisfy the deficient-performance prong by showing that the trial counsel’s
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representation “fell below an objective standard of reasonableness,” a standard that is informed
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by “prevailing professional norms.” Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010)
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(quoting Strickland, 466 U.S. at 688). “The prejudice factor requires the defendant to ‘show
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that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
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the proceeding would have been different.’” Manon, 608 F. 3d at 131–32. (quoting Strickland,
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466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence
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in the outcome.” Strickland, 466 U.S. at 694.
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Claims of ineffective assistance of appellate counsel are also measured under the
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Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To satisfy this stringent
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standard, Petitioner must “show that his counsel was objectively unreasonable . . . in failing to
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find arguable issues to appeal—that is, that counsel unreasonably failed to discover
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nonfrivolous issues and to file a merits brief raising them.” Id. (citing Strickland, 466 U.S. at
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687–91). Appellate counsel need not “raise every non-frivolous claim, but rather selects among
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them to maximize the likelihood of success on the merits.” Lattimore v. Dubois, 311 F.3d 46,
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57 (1st Cir. 2002).
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B.
Appellate Counsel
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Petitioner fails to show that appellate counsel provided ineffective assistance of counsel.
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While it might be true that Petitioner disliked his appellate counsel’s attitude, the allegations
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completely lack merit and a factual basis.
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1.
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We reject Petitioner’s comical argument that appellate counsel’s failure to file the correct
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number of paper copies of his brief resulted in a default judgment against Petitioner. According
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to the record on appeal, appellate counsel does seem to have filed the wrong number of paper
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copies of the brief, prompting the First Circuit to issue an order threatening a default judgment
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upon continued refusal to submit the correct number of copies. Order, United States v. Cruz-
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Valcarcel, No. 08-2146, (1st Cir. Oct. 22, 2010). However, the First Circuit’s order of
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November, 15, 2010, clearly denies his appeal based, not on the number of paper copies, but on
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the merits, finding the waiver of appeal in the plea agreement enforceable and that Petitioner’s
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claims of error did “not rise even to the level of ‘routine reversible error,’ necessary at a
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minimum to trigger” an exception to the waiver. (Crim. No. 07-453, Docket No. 2055.) We,
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therefore, reject Petitioner’s argument as ungrounded in reality.
Failure to Submit the Proper Number of Paper Copies of the Brief
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2.
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Petitioner next argues that because of appellate counsel’s alleged failure to submit a
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proper appeal, his sentence should be “remanded” in light of the Fair Sentencing Act (“FSA”).
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He also uses this opportunity to challenge his sentence under Apprendi v. New Jersey, 530 U.S.
Failure to Submit a Proper Appeal and Challenge his Sentence
Civil No. 10-1696 (JAF)
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466 (2000), and argues that the quantity of drugs to which he pleaded guilty inaccurately
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represented the crimes he actually committed.1
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First, we determine that—regardless of the vagaries in Petitioner’s proposed solution of
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resentencing—the FSA offers Petitioner no relief. This court sentenced Petitioner on August 6,
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2008, and the First Circuit has “held that the FSA does not apply to individuals who were
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sentenced before the FSA was signed into law on August 3, 2010.” United States v. Curet, 670
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F.3d 296 (1st Cir. 2012) (citing United States v. Goncalves, 642 F.3d 245, 252–55 (1st Cir.
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2011). Next, we note that appellate counsel did, in fact, challenge Petitioner’s sentence on
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direct appeal, making lengthy arguments based on Apprendi, Booker, and the sentencing
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guidelines in his brief. Brief for Appellant at 18–26, United States v. Cruz-Valcarcel, No. 08-
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2146 (Aug. 10, 2010). The brief also stated that although, Petitioner “pled guilty to the alleged
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offense in this case[,] . . . he did not consent to the application of the enhancements or admit the
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facts underlying the same.” Id. at 23–24. Thus, Petitioner’s attempted attacks on his sentence
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must fail. Appellant counsel raised, and the First Circuit rejected, these arguments, and
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Petitioner may not relitigate them on collateral review. Singleton v. United States, 26 F.3d 233,
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240 (1st Cir. 1994) (citations omitted).
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Finally, Petitioner finishes stating that “if not for his counsel’s unprofessionalism there
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would have been a proper sentence.” (Docket No. 1 at 8.) Petitioner does not further develop
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his esoteric argument, and claims raised in a perfunctory manner without elaboration are
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deemed waived. See Cody v. United States, 249 F.3d 47, 53 n.6 (1st Cir. 2001) (ineffective
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Petitioner concedes that he did carry a weapon, but he argues that he “was only involved with the sale
of Millenium brand herion [sic] and the orange colored caps of crack sold in Juana Matos [public housing
development],” as opposed to the drug quantities found in the plea agreement. (Docket No. 1 at 7.)
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assistance claim raised in a perfunctory manner in § 2255 proceeding deemed waived).
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Appellate counsel selected meritorious arguments to bring on appeal and, based on the record
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before us, his performance appears far from ineffective. Lattimore v. Dubois, 311 F.3d at 57.
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C.
Trial Counsel
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Because we construe pro-se pleadings generously, we consider one final challenge, not
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made in the § 2255 petition itself, but alluded to in Petitioner’s affidavit of June 30, 2011,
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attached as an exhibit. In this affidavit, Petitioner states that he did not understand the plea
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agreement or waiver, and that he only signed it because he thought his wife would get a lesser
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sentence than she actually did receive. (Docket No. 1-3.) He also states that he tried to appeal
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but his lawyer told him he could not do so because of the waiver of appeal. (Id.) However,
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appellate counsel’s brief did, in fact, contain this argument, complete with the claim that
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connubial considerations caused Petitioner to sign the plea agreement, arguing that this court
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should have allowed him to “withdraw his guilty plea, since the same was not an intelligent one
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within the meaning of Fed. R. Crim. Proc. 11.” Brief for Appellant at 10, United States v. Cruz-
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Valcarcel, No. 08-2146 (Aug. 10, 2010). Thus, Petitioner cannot raise the same challenge again
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in a collateral attack. Singleton, 26 F.3d at 240. Furthermore, to the extent Petitioner is
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attempting to raise new un-waived arguments, we cannot divine them, and they must fail for
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vagueness. Cody, 249 F.3d at 53 n.6.
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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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Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in
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order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief
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in this court.
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IT IS SO ORDERED.
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San Juan, Puerto Rico, this 20th day of April, 2012.
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s/José Antonio Fusté
JOSE ANTONIO FUSTE
U.S. District Judge
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