Morales-Torres v. USA

Filing 7

OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 12-095) filed by Osvaldo Morales-Torres; DENYING 5 MOTION for Default Entry as to USA filed by Osvaldo Morales-Torres. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because 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 07/20/2015.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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OSVALDO MORALES-TORRES,
Plaintiff,

Civil No. 15-1293 (JAF)

v.

(Crim. No. 12-95-4)

UNITED STATES OF AMERICA,
Defendant.
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OPINION AND ORDER

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Petitioner Osvaldo Morales-Torres (“Morales-Torres”) comes before the court

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with a habeas corpus petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct

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the sentence we imposed in Criminal No. 12-95-4. (ECF No. 1.) For the following

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reasons, we deny his petition.

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I.

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Background

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Morales-Torres pleaded guilty to conspiracy to commit robbery and firearm

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offenses. (Crim. No. 12-95-4, Docket Nos. 52, 53, 163.) For this, we sentenced him to a

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one-hundred-fourteen-month sentence. (Crim. No. 12-95-4, ECF No. 163.) He appealed

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his sentence to the First Circuit, which concluded that our “sentencing methodology was

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procedurally and substantively sound and that the district court did not abuse its

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discretion by imposing the sentence it did.” (Crim. No. 12-95-4, ECF No. 163.) The

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First Circuit affirmed our “reckless endangerment” enhancement pursuant to U.S.S.G.

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§ 3C1.2. (Crim. No. 12-95-4, ECF No. 163.) The Court of Appeals’ judgment was

Civil No. 15-1293 (JAF)

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handed down September 15, 2014. (Crim. No. 12-95-4, Docket Nos. 163, 166.) Morales-

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Torres did not seek certiorari.

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On March 24, 2015, Morales-Torres filed a motion to vacate, set aside, or correct

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his sentence under 28 U.S.C. § 2255. (ECF No. 1.) The United States filed a response in

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opposition. (ECF No. 4.)

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II.

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Jurisdiction

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Morales-Torres is currently in federal custody, having been sentenced by this

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district court. To file a timely motion, Morales-Torres had one year from the date his

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judgment became final. 28 U.S.C. § 2255(f). His judgment became final on the last day

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that he could have filed a petition for a writ of certiorari, which was ninety days after the

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entry of the Court of Appeals’ judgment. SUP. CT. R. 13(1); Clay v. United States, 537

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U.S. 522 (2003). The Court of Appeals entered judgment on September 15, 2014, and,

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therefore, Morales-Torres filed within the one-year time limit for a § 2255 petition.

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III.

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Legal Analysis

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Morales-Torres argues that his plea agreement was breached and that his counsel

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was ineffective for failing to object to that breach. For the following reasons, these

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claims fail.

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A.

Breach of the Plea Agreement

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Morales-Torres alleges that the government breached his plea agreement because

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he was sentenced under a higher criminal history score than that which the government

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agreed to recommend. (ECF No. 1 at 4.)

Civil No. 15-1293 (JAF)

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Because Morales-Torres did not pursue this challenge on direct appeal, it was

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procedurally defaulted. Bousley v. United States, 523 U.S. 614, 621-22 (1998). “Where

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a defendant has procedurally defaulted a claim by failing to raise it on direct review, the

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claim may be raised in habeas only if the defendant can first demonstrate either cause and

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actual prejudice, or that he is actually innocent.” Id. at 622 (internal citations omitted).

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Morales-Torres does not argue that he is actually innocent. Likewise, he has failed to

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show cause why he did not raise this issue in his direct appeal, at the time when he

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appealed the imposition of the “reckless endangerment” enhancement.

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No. 12-95-4, ECF No. 163.)

(See Crim.

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However, even if this were not procedurally defaulted, his claim would fail. The

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plea agreement, signed by Morales-Torres, states that “[t]he parties do not stipulate any

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assessment as to the defendant’s Criminal History Category.” (Crim. No. 12-95-4, ECF

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No. 53 at 5.) Because the government made no promises regarding Morales-Torres’

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criminal history category, a breach is impossible.

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B.

Ineffective Assistance of Counsel

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Morales-Torres alleges that he received ineffective assistance of counsel when his

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attorney failed to argue that his plea agreement had been breached. (ECF No. 1 at 5.) To

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prove this, Morales-Torres must show that both: (1) the attorney’s conduct “fell below an

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objective standard of reasonableness;” and (2) there is a “reasonable probability that, but

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for counsel’s unprofessional errors, the result of the proceeding would have been

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different.” Strickland v. Wash., 466 U.S. 688-94 (1984).

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found that the plea agreement was not breached. Therefore, it is impossible that the

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result would have been different had the attorney objected. Therefore, this claim also

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fails.

However, we have already

Civil No. 15-1293 (JAF)

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Lastly, Morales-Torres also filed a Motion for Default Entry against the

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Government on June 3, 2015, (ECF No. 5), which is now DENIED, since the

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Government’s response appears on record since April 30, 2015, (ECF No. 4).

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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”). In this respect, we state that it has become common

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practice to collaterally challenge federal convictions in federal court by raising arguments

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of dubious merit. This practice is overburdening federal district courts to the point of

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having some of these criminal cases re-litigated on § 2255 grounds. We look at this

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matter with respect to the rights of litigants, but also must protect the integrity of the

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system against meritless allegations. See Davis v. U.S., 417 U.S. 333, 346 (1974) (in a

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motion to vacate judgment under §2255, the claimed error of law must be a fundamental

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defect which inherently results in a complete miscarriage of justice); see also Dirring v.

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U.S., 370 F.2d 862 (1st Cir. 1967) (§ 2255 is a remedy available when some basic

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fundamental right is denied—not as vehicle for routine review for defendant who is

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dissatisfied with his sentence).

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We grant a COA only upon “a substantial showing of the denial of a constitutional

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right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate

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that reasonable jurists would find the district court's assessment of the constitutional

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claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting

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Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Petitioner has not yet requested a

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COA, we see no way in which a reasonable jurist could find our assessment of his

Civil No. 15-1293 (JAF)

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constitutional claims debatable or wrong. Petitioner may request a COA directly from

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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 Morales-Torres’ § 2255 motion

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(ECF No. 1).

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summary dismissal is in order because it plainly appears from the record that Morales-

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Torres is not entitled to § 2255 relief from this court. We also DENY Morales-Torres’

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motion for default entry. (ECF No. 5.)

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 20th day of July, 2015.

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

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