Collazo-Rivera v. USA
Filing
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OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 11-534) filed by Noel Collazo-Rivera. 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. Judgment to enter 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 03/14/2014.(mrj)
UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
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NOEL COLLAZO-RIVERA,
Petitioner,
Civil No. 13-1365 (JAF)
v.
(Crim. No. 11-534-1)
UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER
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Petitioner Noel Collazo-Rivera (“Collazo-Rivera”) comes before the court with a
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motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed in
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Criminal No. 11-534-1. (Docket No. 1.) For the reasons set forth below, we deny the
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motion.
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I.
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Background
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On November 18, 2011, Collazo-Rivera was charged with violating 18 U.S.C.
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§ 922(g)(1), which prohibits possession of a firearm by a convicted felon. (Crim. No. 11-
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534, Docket No. 1.)
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No. 11-534, Docket No. 26.) On May 4, 2012, Collazo-Rivera was sentenced to thirty-
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six months imprisonment and a one-hundred dollar assessment. We also sentenced him
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to three years of supervised release. (Crim. No. 11-534, Docket No. 32.) Collazo-Rivera
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filed a motion for relief under 28 U.S.C. 2255 which he quickly moved to withdraw or
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dismiss. (Crim. No. 11-534, Docket Nos. 35, 36.) We granted his motion. (Crim.
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No. 11-534, Docket No. 37.)
On February 2, 2012, Collazo-Rivera pleaded guilty.
(Crim.
Civil No. 13-1365 (JAF)
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On May 9, 2013, Collazo-Rivera filed the instant 28 U.S.C. § 2255 petition to
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vacate, set aside, or correct his sentence. (Docket No. 1.) On July 24, 2013, the United
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States filed a response in opposition. (Docket No. 6.) On September 9, 2013, Collazo-
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Rivera filed a reply to the government’s response. (Docket No. 8.)
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II.
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Jurisdiction
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We have jurisdiction to hear this case pursuant to 28 U.S.C. § 2255, because
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Collazo-Rivera is currently in federal custody having been sentenced by this district
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court. To file a timely motion, Collazo-Rivera had one year from the date his judgment
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became final. 28 U.S.C. § 2255(f). It became final fourteen days after the entry of the
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judgment. Fed R. App. 4(b)(1)(A)(i). Judgment was entered on May 4, 2012, and
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Collazo-Rivera had until May 18 to file a notice of appeal, which he did not do. (Crim.
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No. 11-534, Docket No. 32.) He filed his habeas petition on May 9, 2013, just less than a
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year after the judgment became final. Therefore, his petition is timely and we have
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jurisdiction.
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III.
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Legal Discussion
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Collazo-Rivera alleges ineffective assistance of counsel on multiple grounds.
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(Docket No. 1.) To prove a claim of ineffective assistance of counsel, Collazo-Rivera
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must show that both: (1) the attorney’s conduct” fell below an objective standard of
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reasonableness;” and (2) there is a “reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Strickland
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v. Wash., 466 U.S. 668, 688-94 (1984).
Civil No. 13-1365 (JAF)
-3-
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First, Collazo-Rivera contends that his counsel was ineffective because he
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“refused to have the nine state counts either charged as federal offenses or have them
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included as televant conduct.” (sic) (Docket No. 1 at 4.) Relatedly, he contends that
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Counsel “stated that the state charges would probably run concurrent with the federal
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charges,” but that they were instead punished consecutively. Id. The doctrine of dual
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sovereignty recognizes that the federal government is not bound by the actions of state
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authorities and that successive state and federal prosecutions are constitutionally
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permissible. Abbate v. United States, 359 U.S. 187 (1959). Therefore, Collazo-Rivera’s
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counsel could not force state prosecutors to transfer charges to the federal prosecutors.
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The state court’s determination to impose a consecutive sentence to the federal conviction
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would be a matter for Collazo-Rivera’s state counsel to argue in the state court. Further,
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pleading guilty to the federal charge before a sentence was imposed at the state level
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could be a wise strategic decision.
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additional convictions which would increase his Criminal History Category for
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sentencing. Counsel is afforded the latitude to make such strategic decisions. Strickland
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466 U.S. at 690 (“strategic choices made after thorough investigation of the law and facts
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relevant to plausible options are virtually unchallengeable”).
In doing so, Collazo-Rivera avoided collecting
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Second, Collazo-Rivera contends that his counsel was ineffective because his
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translator “failed to show up at Petitioner’s sentencing [and the attorney] refused to
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reschedule or Petition the Court for a resentencing.” (Docket No. 1 at 5.) The record
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belies this assertion. The sentencing transcript states that “[t]he services of the court
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interpreter are being provided to the defendant.” (Crim. No. 11-534, Docket No. 41 at 3.)
Civil No. 13-1365 (JAF)
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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
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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)). While
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Collazo-Rivera has not yet requested a COA, we see no way in which a reasonable jurist
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could find our assessment of his constitutional claims debatable or wrong. Collazo-
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Rivera may request a COA directly from the First Circuit, pursuant to Rule of Appellate
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Procedure 22.
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V.
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Conclusion
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For the foregoing reasons, we hereby DENY Collazo-Rivera’s § 2255 motion
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(Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings,
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summary dismissal is in order because it plainly appears from the record that Collazo-
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Rivera is not entitled to § 2255 relief from this court.
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IT IS SO ORDERED.
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San Juan, Puerto Rico, this 14th day of March, 2014.
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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE
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