Soto v. USA

Filing 19

MEMORANDUM ORDER denying 15 Motion for Reconsideration. Signed by Judge Jose A Fuste on 9/17/2013. (mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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MANOLO SOTO-PEREZ,
Plaintiff,

Civil No. 12-1096 (JAF)

v.

(Crim. No. 07-208)

UNITED STATES OF AMERICA,
Defendant.
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MEMORANDUM ORDER

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Petitioner, Manolo Soto-Pérez (“Soto”), appearing pro se, asks us to reconsider our

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denial of his petition to vacate his sentence under 28 U.S.C. § 2255. (Docket No. 15.) We

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denied his original petition on June 19, 2013. (Docket No. 11.) On August 19, 2013, Soto

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entered a motion for reconsideration. (Docket No. 15.) His motion largely repeats his

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previous claims that: 1) testimony was not obtained from a key defense witness; 2) the

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Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. § 70501 et seq. (2006), is

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unconstitutional; and 3) there was either government misconduct or ineffective assistance of

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counsel in failing to procure the witness. (Docket No. 15.) Because Soto is repeating his

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prior claims, this motion for reconsideration is a second or successive petition requiring

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circuit approval. Soto already entered a Notice of Appeal to the First Circuit on August 20,

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2013, under USCA Case Number 13-2104, but has not received a ruling. (Docket Nos. 16-

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18.) We note the claims that require prior certification and determine that the remaining

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claim of actual innocence fails.

Civil No. 12-1096 (JAF)

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I.

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Background

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On May 23, 2008, Soto and his two codefendants were convicted by a jury of two

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criminal counts in violation of the MDLEA. (Crim. Docket Nos. 14; 149.) Count One

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charged Soto with possession of cocaine with the intent to distribute on board a vessel

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subject to the jurisdiction of the United States, 46 U.S.C. § 70503; and Count Two charged

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Soto with aiding and abetting that crime, 18 U.S.C. § 2. (Crim. Docket No. 14.)

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On September 3, 2008, this court sentenced Soto to two-hundred thirty-five (235)

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months imprisonment for each count, to be served concurrently. (Crim. Docket No. 167.)

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On September 11, 2008, Soto entered a notice of appeal. (Crim. Docket No. 170.) On

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December 1, 2010, the Court of Appeals affirmed Soto’s convictions and sentences. United

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States v. Matos-Luchi, 627 F.3d 1 (1st Cir. 2010). On February 13, 2012, Soto filed a

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petition to vacate his sentence under 28 U.S.C. § 2255. He claimed that: 1) his attorneys

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provided ineffective assistance of counsel; 2) the MDLEA was unconstitutional; and 3) the

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government interfered with a key defense witness, thus violating his right to a fair trial.

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(Docket Nos. 1; 1-1.) We denied his petition on June 19, 2013. (Docket No. 11.) On

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August 19, 2013, Soto submitted the current motion for reconsideration of his 28 U.S.C.

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§ 2255 motion. (Docket No. 15.) He repeats his previous claims that the MDLEA is

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unconstitutional and that there was either government misconduct or ineffective assistance of

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counsel. (Docket No. 15.) This is largely a second or successive petition requiring circuit

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approval that Soto has not received. The only portion we have not previously reviewed is the

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vague witness testimony, which the court assumes is meant to support a claim of actual

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innocence.

Civil No. 12-1096 (JAF)

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Before filing a second or successive motion under Section 2255, a defendant “shall

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move the appropriate court of appeals for an order authorizing the district court to consider

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the application.” 28 U.S.C. § 2244(b)(3)(A); see also, 28 U.S.C. § 2255 (“A second or

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successive motion must be certified as provided in section 2244 by a panel of the appropriate

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court of appeals ...”). A district court lacks jurisdiction over a second or successive petition

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unless the defendant obtains certification from the appropriate court of appeals. Trenkler v.

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United States, 536 F.3d 85, 96 (1st Cir. 2008). Soto entered a Notice of Appeal to the First

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Circuit on August 20, 2013, under USCA Case Number 13-2104, but has not received a

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ruling.

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(Docket Nos. 16-18.)

We note the claims that require prior certification and

determine that the remaining claim of actual innocence fails.

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II.

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Claims

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First, Soto asserts that we have overlooked an email from his private investigator that

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“unequivocally states” that Soto was not aboard any of the boats involved. (Docket No. 15 at

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1.) This amounts to a claim of actual innocence. However, the private investigator only

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stated that when he asked the witness, a Dominican drug enforcement agent, if he believed

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Soto was guilty, the witness said “no.” (Docket No 15-1.) The investigator wrote that he has

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been unable to conduct a full interview and that he doubts his ability to do so. (Docket

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No. 15-1.) If Soto is raising this as a claim of actual innocence, he must show that “in light

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of the new evidence, it is more likely than not that no reasonable juror would have found him

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guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 299 (1995). At Soto’s

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original trial, the government presented video footage; photographs showing Soto and his

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codefendants off-loading drug bales; and a log of ion scans for cocaine residue. (Crim.

Civil No. 12-1096 (JAF)

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No. 07-00208, Docket No. 150.) The addition of this barebones testimony does not make it

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“more likely than not” that no juror could find Soto guilty. See Schlup, 513 U.S. at 299.

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Secondly, Soto asserts that his challenge to the constitutionality of the MDLEA

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cannot be procedurally defaulted. (Docket No. 15 at 2.) Because this is an attempt to re-

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litigate prior claims in a second petition, Soto requires prior circuit approval which he has not

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obtained. See 28 U.S .C. § 2244(b)(3)(A); see also, 28 U.S.C. § 2255. In any event, because

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he failed to raise this argument in prior proceedings, the proper standard of review becomes

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plain error, which requires a showing of “(1) error (2) that is plain, and (3) that affects

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substantial rights,” as well as a showing that (4) the error “seriously affect[s] the fairness,

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integrity, or public reputation of the judicial proceedings.” United States v. Nueci-Pena, 711

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F.3d 191, 197 (2013) (quoting Johnson v. United States, 520 U.S. 461, 467(1997)). We find

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this unlikely given the case law supporting the constitutionality of the MDLEA. The First

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Circuit has recently reiterated that Congress was “[i]nvoking its constitutional power ‘[t]o

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define and punish Piracies and Felonies committed on the high seas’” when it made drug

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trafficking illegal under the MDLEA. Nueci-Pena, 711 F.3d at 198 (quoting Matos-Luchi,

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627 F.3d at 3).

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Thirdly, Soto infers either government misconduct or ineffective assistance of counsel

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due to the unavailability of the Dominican drug enforcement agent as a witness. (Docket

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No. 15 at 3.) Soto claims that “the record reveals the government either falsely or wrongly

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assured defense counsel that they would ensure agent Matos-Rodriguez’s appearance at

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trial.” (Docket No. 15 at 3.) This claim is barred because Soto already raised it on direct

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appeal, where it was rejected. See Matos-Luchi, 267 F.3d at 8; Murchu v. United States, 926

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F.2d 50, 55 (1st Cir. 1991). It was also raised in Soto’s prior § 2255 motion. (Docket No. 1-

Civil No. 12-1096 (JAF)

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1 at 1.) This bars review without prior circuit approval. See 28 U.S .C. § 2244(b)(3)(A); 28

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U.S.C. § 2255. Soto further claims that his counsel’s failure to secure the Dominican drug

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enforcement agent as a witness constitutes ineffective assistance of counsel. This claim was

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already raised in his prior § 2255 motion.

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without prior circuit approval. See 28 U.S .C. § 2244(b)(3)(A); 28 U.S.C. § 2255. The only

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new information is an email from a private investigator. The investigator states that when he

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asked the witness if he believed Soto was guilty, the witness simply said “no” without further

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explanation. The investigator has been unable to conduct a full interview and wrote that he

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doubts his ability to do so. (Docket 15-1.) To succeed on a claim for ineffective assistance of

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counsel, Soto must show both: (1) the attorney’s conduct “fell below an objective standard of

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reasonableness;” and (2) a “reasonable probability that, but for counsel’s unprofessional

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errors, the result of the proceeding would have been different.” Strickland v. Wash., 466 U.S.

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668, 688-94 (1984).

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photographs showing Soto and his codefendants off-loading drug bales; and a log of ion

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scans for cocaine residue. (Crim. No. 07-00208, Docket No. 150.) Once the admitted

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evidence is stacked against the witness’ vague assertion, we fail to see a “reasonable

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probability [that] the result of the proceeding would have been different” had this additional

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information been presented at trial. Strickland, 466 U.S. at 694.

(Docket No. 1-1 at 1.) It is, therefore, barred

At Soto’s original trial, the government presented video footage;

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III.

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

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issuing a denial of § 2255 relief we must concurrently determine whether to issue a

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certificate of appealability (“COA”). We grant a COA only upon “a substantial showing

Civil No. 12-1096 (JAF)

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

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“[t]he petitioner must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537

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U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We see no

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way in which a reasonable jurist could find our assessment of Soto’s constitutional claims

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debatable or wrong. He has already requested a COA directly from the First Circuit,

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however, pursuant to Rule of Appellate Procedure 22. (Docket No. 16-18.)

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IV.

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Conclusion

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For the foregoing reasons, we hereby DENY Petitioner’s motion for
reconsideration (Docket No. 15).

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 17th day of September, 2013.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE