Rodriguez-Agudo v. USA

Filing 4

OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 10-283) filed by Carlos Rodriguez-Agudo. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order bec ause it plainly appears from the record that Petitioner is not entitled to § 2255 relief from 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 5/3/2013.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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CARLOS RODRÍGUEZ-AGUDO,

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Petitioner.

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v.

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Civil No. 13-1014 (JAF)
(Crim. No. 10-283)

UNITED STATES OF AMERICA,
Respondent.

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OPINION AND ORDER

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Petitioner, Carlos Rodríguez-Agudo, moves to vacate his sentence under 28 U.S.C.

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§ 2255. (Docket No. 1.) He claims that he received ineffective assistance of counsel.

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(Id.) His claims are ill-founded; his motion is dismissed.

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I.

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Background

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On October 28, 2010, Rodríguez-Agudo pled guilty to one count of conspiracy to

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distribute narcotics and one count of conspiracy to import cocaine into the United

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States. We sentenced Rodríguez-Agudo to 210 months on each count, to be served

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concurrently.

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conviction. (Cr. Docket No. 83.) Rodríguez-Agudo now seeks relief under 28

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U.S.C. § 2255. (Docket No. 1.) Respondent opposes. (Docket No. 3.)

(Cr. Docket No. 50.)

The First Circuit affirmed Rodríguez-Agudo’s

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Civil No. 13-1014 (JAF)
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II.

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Standard

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

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

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federal prisoner may challenge his sentence on the ground that, inter alia, it “was imposed in

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violation of the Constitution or laws of the United States.” Id. The petitioner is entitled to

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an evidentiary hearing unless the “allegations, even if true, do not entitle him to relief, or . . .

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‘state

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incredible.’” Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (quoting United States

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v. McGill, 11 F.3d 223, 225–26 (1st Cir. 1993)); see 28 U.S.C. § 2255(b). A petitioner

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cannot be granted relief on a claim that has not been raised at trial or direct appeal, unless he

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can demonstrate both cause and actual prejudice for his procedural default. See United

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States v. Frady, 456 U.S. 152, 167 (1982).

conclusions

instead

of

facts,

contradict

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record,

or

are

inherently

III.

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the

Discussion

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Because Rodríguez-Agudo appears pro se, we construe his pleadings more favorably

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than we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94

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(2007). Nevertheless, Rodríguez-Agudo’s pro-se status does not excuse him from

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complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890

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(1st Cir. 1997).

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Rodríguez-Agudo

claims

his

criminal

history

was

over-represented

at

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sentencing. (Docket No. 1 at 4.) This is essentially an ineffective assistance of counsel

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claim because Rodríguez-Agudo claims his defense counsel should have prevented the over-

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Civil No. 13-1014 (JAF)
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representation of his past offenses. (Id.) Specifically, Rodríguez-Agudo says that two of his

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offenses should have merged for purposes of his criminal history.

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government rightly points out, Rodríguez-Agudo’s offenses were separated by an

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intervening arrest and, thus, did not merge. (Docket No. 3 at 5.) That means the sentences

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were properly counted as separate convictions, and defense counsel could not have been

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ineffective for failing to make the futile argument that the offenses should have

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merged. United States v. Bell, 485 F.3d 54, 59 (1st Cir. 2007) (sentences not consolidated

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where charged separately and given separate sentences); United States v. Correa, 114 F.3d

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314, 317-18 (1st Cir. 1999) (charges based on offenses that are temporally and factually

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distinct should not be regarded as having been consolidated and thus “related” for purposes

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of Sentencing Guidelines, unless original sentencing court entered actual order of

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consolidation). Rodríguez-Agudo’s counsel, therefore, was not ineffective for failing to

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make a futile argument that the offenses should have merged. Vieux v. Pepe, 184 F.3d 59,

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64 (1st Cir. 1999) (stating that counsel's performance is not deficient if he declines to pursue

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a futile tactic). We reject Rodríguez-Agudo’s claim as undeveloped.

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States, 249 F.3d 47, 53 n.6 (1st Cir.2006) (ineffective assistance claim raised in a

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perfunctory manner in a 2255 proceeding is deemed waived).

(Id.)

But, as the

Cody v. United

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IV.

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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 of

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

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petitioner must demonstrate that reasonable jurists would find the district court's assessment

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of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338

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(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Rodríguez-Agudo

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has not yet requested a COA, we see no way in which a reasonable jurist could find our

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assessment of his constitutional claims debatable or wrong. Rodríguez-Agudo 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

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No. 1).

Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary

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dismissal is in order because it plainly appears from the record that Petitioner is not entitled

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to § 2255 relief from this court.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 3rd day of May, 2013.

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