Lopez-Capo v. USA
Filing
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OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 09-116) filed by Angel O. Lopez-Capo; FINDING AS MOOT 5 MOTION requesting Order and for Hearing filed by Angel O. Lopez-Capo. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order, it plainly appearing from the record that Petitioner is not entitled to § 2255 relief from this court. Judgment to be entered accordingly. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 9/20/2013.(mrj)
UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
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ANGEL O. LOPEZ-CAPO,
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Petitioner.
Civil No. 13-1150 (JAF)
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v.
(Criminal No. 09-116-05)
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UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER
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Angel López-Capó moves to vacate his sentence under 28 U.S.C. § 2255. (Docket
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No. 1.) He claims that he received ineffective assistance of counsel and that this court
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applied the wrong sentencing guidelines during the penalty phase of his trial. (Id.) Neither
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argument is well-founded; his motion is dismissed.
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I.
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Background
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On November 30, 2009, a jury found López-Capó guilty on one count of conspiracy
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to distribute narcotics and one count of possession with intent to distribute narcotics as a
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result of his participation in a drug point he operated in a public housing project in
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Guayama, Puerto Rico. This court sentenced López-Capó to 360 months on each count, to
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be served concurrently. (Cr. Docket No. 1478.) López-Capó appealed, arguing that we
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erred in applying several sentencing enhancements. The First Circuit denied all of
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Petitioner’s claims on appeal and affirmed his conviction. United States v. Diaz, 670 F.3d
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332 (1st Cir. 2012). On March 1, 2012, López-Capó filed a Motion for the Application of
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Civil No. 13-1150 (JAF)
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the Fair Sentencing Act and Request for Reduction of Sentence Pursuant Amendment 750.
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(Cr. Docket No. 1752.) On June 25, 2012, after several interlocutory proceedings, we
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issued an order granting the motion to reduce sentence. (Cr. Docket No. 1804.) López-
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Capó’s imprisonment term was reduced from 360 to 292 months. (Id.) López-Capó now
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seeks relief under 28 U.S.C. § 2255. (Docket No. 1.) Respondent opposes. (Docket No. 3.)
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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 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
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Civil No. 13-1150 (JAF)
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(2007). Nevertheless, Petitioner’s pro-se status does not excuse him from complying with
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procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
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A.
Ineffective Assistance of Counsel
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The success of an ineffective-assistance-of-counsel claim depends on Petitioner's
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showing not only a deficient performance by his trial counsel, but also a resulting prejudice.
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Peralta v. United States, 597 F.3d 74, 79 (1st Cir.2010). Deficient performance is present
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where the trial counsel’s representation “fell below an objective standard of
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reasonableness,”
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norms.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80
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L.Ed.2d 674 (1984)). Choices made by counsel that could be considered part of trial
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strategy will almost never amount to deficient performance. See Strickland, 466 U.S. at
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690; see also Knight v. Spencer, 447 F.3d 6, 15 (1 st Cir.2006) (holding that performance is
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deficient only where “counsel's choice was so patently unreasonable that no competent
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attorney would have made it” (internal quotations omitted)). Counsel’s decision not to
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pursue “futile tactics” is not considered deficient performance. Vieux v. Pepe, 184 F.3d 59,
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64 (1 st Cir.1999); see also Acha v. United States, 910 F.2d 28, 32 (1st Cir.1990) (stating
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that failure to raise meritless claims is not ineffective assistance of counsel). Prejudice
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exists where “there is a reasonable probability that, but for counsel's unprofessional errors,
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the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
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reasonable probability is a probability sufficient to undermine confidence in the outcome,”
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and said probability is less onerous than a “more likely than not” standard. Id.
a
standard
that
is
informed
by
“prevailing
professional
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López-Capó claims that his counsel was ineffective because he failed “to properly
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advise his client of the consequences between entering the plea bargain or proceeding to
Civil No. 13-1150 (JAF)
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trial.” (Docket No. 1-1 at X.) López-Capó does not contend that his trial attorney advised
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him to reject the government’s plea offer, nor does he claim his lawyer failed to convey the
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terms of a formal plea offer. Instead, López-Capó asserts that counsel failed during the
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stages of plea negotiations because he failed “to approach the court and seek a Presentence
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Investigation Report be completed prior to pleading guilty. López-Capó states that such a
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report “would have resulted in a more open and honest process during the plea bargain
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negotiation.” (Docket No. 1-1 at 14.)
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The preparation and use of a presentence report is governed by 18 U.S.C. § 3552 and
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Fed. R. Crim. P. 32. The principal purpose of a presentence report is to assist the court in
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imposing a sentence and making recommendations for correctional treatment; under Rule
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11(c)(3)(A), the court may also review a presentence report in order to determine whether to
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accept a plea agreement of the type specified in Rule 11(c)(1)(A) or (C). There is nothing in
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either the statute or the rules that authorizes the creation and use of a presentence report for
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any other purpose, such as facilitating a plea agreement. United States v. Alberti, 2007 WL
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2908631 *3 (D. Mass. 2007). Prevailing professional norms do not require counsel to
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obtain a presentence report for the purpose of plea negotiating, and defendant’s counsel
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could not have been constitutionally ineffective for failing to do so. As such, this claim fails.
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B.
Recency Points
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López-Capó’s second claim alleges that since U.S.S.G. §4A1.1(e) has been
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retroactively amended, and the “recency” points eliminated, his correct criminal category is
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Two (II), not Three (III). Consequently, according to López-Capó, we relied on the wrong
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guideline sentencing range. (Docket No. 1-1 at 16-18.) The § 4A1.1(e) recency amendment
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was a matter raised at sentencing and ultimately it was settled on direct appeal. Diaz, 670 at
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Civil No. 13-1150 (JAF)
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353. López-Capó is not entitled to re-litigate on collateral review issues raised and decided
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on direct appeal. Davis v. United States, 417 US 333, 342 (1974); Singleton v. United
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States, 26 F.3d 233, 240 (1st Cir.1993) (issues disposed of in a prior appeal will not be
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reviewed again by way of a 28 U.S.C. §2255 motion). As such, this claim fails.
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C.
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Sentence Reduction Pursuant to U.S.S.G. Retroactive Amendment 750
López-Capó claims that he is entitled to a sentence reduction pursuant to U.S.S.G.
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retroactive Amendment 750.
(Docket No. 1-1 at 18-21.)
However, López-Capó was
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awarded a substantial reduction of sentence pursuant to the retroactive application of
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U.S.S.G. Amendment 750. López-Capó’s present request ignores the outcome of his prior
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motion for reduction of sentence, and is foreclosed by our prior order granting the reduction.
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(Cr. Docket No. 1752, 1804). As such, this claims fails.
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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 Petitioner has not yet
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requested a COA, we see no way in which a reasonable jurist could find our assessment of
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Petitioner’s constitutional claims debatable or wrong. Petitioner may request a COA
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directly from the First Circuit, pursuant to Rule of Appellate Procedure 22.
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Civil No. 13-1150 (JAF)
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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 ahoGoverning § 2255 Proceedings, summary
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dismissal is in order, it plainly appearing from the record that Petitioner is not entitled to
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§ 2255 relief from this court.
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IT IS SO ORDERED.
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San Juan, Puerto Rico, this 20th day of September, 2013.
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