Sealed Defendant 11 v. USA

Filing 4

OPINION AND ORDER denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 09/05/2014. (TW) Modified to add "opinion &" on 9/17/2014 (su).

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

JOSE PEREZ-PEREZ,
Petitioner,

Civil No. 14-1288 (PG)
v.

(Crim. 10-355 (PG))

UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Petitioner, José Pérez-Pérez, brings this petition under 28
U.S.C. § 2255 for relief from sentencing by a federal court,
alleging that the sentence imposed violated his rights under
federal law.

He requests an order to vacate, set aside, or

correct the sentence imposed in Cr. No. 10-355.

(Docket No. 1.)

I. BACKGROUND
Petitioner, along with ten codefendants, was charged in a
multi-count
including

indictment

conspiring

for

in

a

various
drug

drug-related

conspiracy

and

possessing

firearm in furtherance of a drug trafficking crime.
10-335, Docket No. 3.)

offenses,
a

(Crim. No.

After a four-day jury trial, Petitioner

was found guilty on three counts of the indictment: conspiring
to possess with intent to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. §§841 and 846; aiding and
abetting in the attempt to possess with intent to distribute
five kilograms of cocaine in violation of 21 U.S.C. §§841 and
846 and 18 U.S.C. §2; and possessing a firearm in furtherance of
a

drug

trafficking

crime,

in

violation

of

18

U.S.C.

Civil No. 14-1288 (PG)

§924(c)(1)(A).

Page 2

(Docket

No.

316.)

On

February

9,

2012,

Petitioner was sentenced to a total of 180 months in prison.
(Docket No. 440.)
appeal.

On May 22, 2007, Petitioner filed a notice of

Upon review, the First Circuit affirmed petitioner’s

conviction and sentence.

United States v. Pérez-Pérez, 2013 WL

1026412 (1st Cir. 2013).

On May 20, 2013, the Supreme Court

denied petitioner’s writ of certiorari.
States, 133 S.Ct. 2405 (2013).

Pérez-Pérez v. United

On April 4, 2014, Petitioner

filed a § 2255 motion assisted by counsel.
Docket No. 1.)

The government opposed.

(Civ. No. 14-1288,

(Docket No. 6.)

II. LEGAL STANDARD
A federal district court has jurisdiction to entertain a §
2255

petition

when

the

petitioner

sentence of a federal court.

is

in

custody

under

See 28 U.S.C. § 2255.

the

A federal

prisoner may challenge his sentence on the ground that, inter
alia, it “was imposed in violation of the Constitution or laws
of the United States.”

Id.

A petitioner cannot be granted

relief on a claim that has not been raised at trial or direct
appeal,

unless

he

can

demonstrate

both

prejudice for his procedural default.
Frady,

456

relief

on

available

U.S.

167

collateral
only

unfairness.”
Cir.

152,

1994).

on

a

is

and

actual

See

United States v.

Indeed,

(1982).

review

cause

“[p]ostconviction

an

sufficient

extraordinary

showing

of

remedy,

fundamental

Singleton v. United States, 26 F.3d 233, 236 (1st
Claims

of

ineffective

however, are exceptions to this rule.

assistance
See

of

counsel,

Massaro v. United

Civil No. 14-1288 (PG)

Page 3

States, 538 U.S. 500, 123 (2003) (holding that failure to raise
ineffective assistance of counsel claim on direct appeal does
not bar subsequent § 2255 review).
III. DISCUSSION
Because
pleadings

Petitioner

more

attorney.

favorably

See

Nevertheless,

appears
than

Erickson

v.

Petitioner’s

pro

we

se,

would

Pardus,

we

those

construe
drafted

by

551

U.S.

89,

94

status

pro-se

his

does

not

an

excuse

from complying with procedural and substantive law.

(2007).
him

Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
The

petitioner

alleges

assistance of counsel.

several

species

of

ineffective

To prevail on an ineffective assistance

of counsel claim, a movant must show (1) that his counsel’s
performance fell below an objective standard of reasonableness,
and (2) that there is a reasonable probability that, but for his
counsel’s errors, the result of the proceedings would have been
different.
S.Ct.

2052,

Strickland v. Washington, 466 U.S. 668, 687, 104
80

Strickland

test

assistance.

L.Ed.2d
must

674
be

(1984).

met

to

Both

prongs

demonstrate

of

the

ineffective

Id.

A. Counsel was not ineffective for failing to give Petitioner a
written record of verbal plea offers
Petitioner argues that counsel was ineffective for failing
to present the two verbal plea offers tendered by the government
in writing.

Petitioner’s claim is contradicted by the record.

The minutes of the status conferences held April 5, 2011,
and May 2, 2011,

Civil No. 14-1288 (PG)

clearly

Page 4

reflect

that

Petitioner

refused

to

accept

the

plea

offers tendered by the government.
Further Status Conference held. The parties advised
the

Court

Carlos A.

as

to

the

status

of

this

case…

Counsel

Vazquez for co-defendant Perez-Perez (11)

informed that his client rejected the plea offer, and
will exercise his right to jury trial.
(Crim. Docket No. 199 at 1.)

Petitioner remained steadfast

in his rejection of the government’s plea offer.

On May 2,

2011, counsel once again advised us that the Petitioner
opted to exercise his right to jury trial:
Further Status Conference held. The parties advised
the Court as to the status of this case.… In regards
co-defendant Perez-Perez (11) counsel Carlos Vazquez
informed that his client rejected the plea offer, and
will exercise his right to jury trial.
(Docket

No.

225

at

1.)

Here,

Petitioner

was

offered

the

opportunity to plea twice before the start of trial and on both
occasions firmly rejected the government’s offers.

Therefore,

Petitioner’s claim fails.
B. Counsel was not ineffective for failing to call a witness to
testify
Petitioner argues that counsel was ineffective because he
failed to call one of his co-workers to testify on Petitioner’s
behalf.

The decision to call — or not call — witnesses to

Civil No. 14-1288 (PG)

testify

falls

counsel.

Page 5

within

the

strategic

discretion

exercised

by

Petitioner’s argument, therefore, is misplaced.

A defense lawyer must make reasonable investigations in the
course

of

representation.

Strickland,

466

U.S.

at

691.

However, “strategic choices made after thorough investigation of
law

and

facts

relevant

unchallengeable.”

to

plausible

tactical

declaring

are

virtually

Strickland, 466 U.S. at 690; Cf. Raley v.

Yist, 470 F.3d 792, 799 (9th
counsel’s

options

that

decisions
the

Cir.2006) (a disagreement with

does

not

representation

provide
was

the

basis

for

constitutionally

deficient); Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir.
2002) (same).
Here,

counsel

called

several

witnesses,

Petitioner, who testified on his own behalf.

including

Petitioner’s trial

counsel made a tactical decision not to place on the witness
stand the specific witness desired by Petitioner.

This was a

strategic decision, Hensley v. Roden, 755 F.3d 724, 737 (1st
Cir.

2014)

(in

context

of

ineffective

assistance

of

counsel

claim, decision whether to call a particular witness is almost
always strategic), and any disagreement that Petitioner now has
does

not

provide

assistance.

grounds

for

a

determination

of

ineffective

Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011)

(strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance and represents sound
trial strategy).

Merely asserting displeasure that counsel did

Civil No. 14-1288 (PG)

Page 6

not call a specific witness to testify is plainly insufficient.
The petitioner’s argument fails.
IV. CERTIFICATE OF APPEALABILITY
In accordance with Rule 11 of the Rules Governing § 2255
Proceedings, whenever issuing a denial of § 2255 relief we must
concurrently

determine

whether

appealability (“COA”).

to

issue

a

certificate

of

We grant a COA only upon “a substantial

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

To

demonstrate

that

court's

make

reasonable

assessment

wrong.”

this

Miller-El

of

the

v.

showing,
jurists

“[t]he
would

constitutional

Cockrell,

537

petitioner

find
claims

U.S.

the

must

district

debatable

322,

or

338

(2003)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

While

Petitioner has not yet requested a COA, we see no way in which a
reasonable

jurist

constitutional

could

claims

find

debatable

our
or

assessment

wrong.

of

his

Petitioner

may

request a COA directly from the First Circuit, pursuant to Rule
of Appellate Procedure 22.
V. CONCLUSION
For the foregoing reasons, we hereby DENY Petitioner’s §
2255 motion.
Rules

(Docket No. 1.)

Governing

§

2255

Pursuant to Rule 4(b) of the

Proceedings,

summary

dismissal

is

in

order because it plainly appears from the record that Petitioner
is not entitled to § 2255 relief from this court.

Civil No. 14-1288 (PG)

Page 7

IT IS SO ORDERED.
San Juan, Puerto Rico, this 5th day of September, 2014.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE