Colon-de-Jesus v. USA

Filing 6

OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), (Criminal Number 10-CR-251), 2 MOTION to Disqualify filed by Jose Colon-de-Jesus. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, s ummary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. While Colon-de-Jesus has not yet requested a COA, we see no way in which a reasonable jurist could find ou r assessment of his constitutional claims debatable or wrong. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Judgment to enter accordingly. Signed by Judge Jose A. Fuste on 07/22/2015.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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JOSE COLÓN-DE-JESÚS,
Plaintiff,

Civil No. 15-1441 (JAF)

v.

(Criminal No. 10-251-1)

UNITED STATES OF AMERICA,
Defendant.
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OPINION AND ORDER

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Petitioner José Colón-de-Jesús (“Colón-de-Jesús”) comes before the court with a

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habeas petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence

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we imposed in Criminal No. 10-251-1 (ECF No.1) and a motion to disqualify ourselves

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(ECF No. 2). For the following reasons, we deny both his § 2255 petition and his motion

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for disqualification.

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I.

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Background

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Colón-de-Jesús pleaded guilty to conspiracy to distribute narcotics, in violation of

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21 U.S.C. § 846, 841(a)(1) and 860, and pleaded guilty to use or possession of a firearm

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during and in relation to a drug trafficking offense, in violation of 18 U.S.C.

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§ 924(c)(1)(A) and (2). For this, we sentenced him to three hundred twenty-four months

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as to Count 1 and sixty months as to Count 2, to be served consecutively with each other.

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We also sentenced him to ten years of supervised release. (Crim. No. 10-251-1, ECF

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No. 2829.)

Civil No. 15-1441 (JAF)

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Colón-de-Jesús appealed. He argued that we erred by failing to recuse our self

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from the proceedings on the basis of certain public statements and comments we made.

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Colón-de-Jesús also argued that the sentence was substantively unreasonable for

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numerous reasons. The First Circuit rejected these claims and affirmed our judgment on

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all fronts.

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requested a rehearing, but his request was denied, and he did not file for a writ of

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certiorari. (See ECF No. 4 at 4; Crim. No. 10-251-1, ECF No. 3169.)

United States v. Colón-de-Jesús, Appeal No. 12-1936. Colón-de-Jesús

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II.

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Jurisdiction

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Colón-de-Jesús is currently in federal custody, having been sentenced by this

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district court. To file a timely motion, Colón-de-Jesús had one year from the date his

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judgment became final. 28 U.S.C. § 2255(f). His request for a rehearing of his appeal

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was denied on August 7, 2014, and on August 15, 2014, the First Circuit issued a formal

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mandate. (ECF No. 4 at 4; Crim. No. 10-251-1, ECF No. 3169.) Colón-de-Jesús did not

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file for a writ of certiorari. His habeas petition, delivered to the prison authorities on

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February 27, 2015, is therefore timely.

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III.

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Analysis

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Colón-de-Jesús argues that the Government breached their plea agreement, and

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that his appellate counsel was ineffective for not raising this breach on appeal. He also

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argues that we must disqualify our self from deciding this § 2255 petition. For the

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following reasons, we deny these claims.

Civil No. 15-1441 (JAF)
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A.

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Breach of Plea Agreement

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Colón-de-Jesús argues that “the addition of 150 kilograms of cocaine, when the

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agreement between the parties was stipulated that Colon is accountable for conspiring to

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possess with intent to distribute at least 5 kilograms but less than 15 kilograms of cocaine

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is a material breach by the government.” (ECF No. 1 at 7.) The plea agreement promises

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that the Government would not argue for more than the stipulated amount, but states that

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“the sentence will be left entirely to the sound discretion of the Court” and that “the Court

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is not bound by this plea agreement.” (Crim. No. 10-251-1, ECF No. 689.) The

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Government indeed argued in accordance with their plea agreement. The Government

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stated: “Your Honor, in this case the United States stands by its Plea Agreement.” (Crim.

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No. 10-251-1, ECF No. 62911 at 114-15.)

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Government argued for more than that amount. The Court – which was not bound by the

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plea agreement -- independently came to the finding that “this record, and this

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Presentence Report, no matter how you look at it, no matter how you analyze it, allows

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anybody to calculate at least 150 kilos of cocaine,” and we based the sentence off our

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own finding sua sponte. (Crim. No. 10-251-1, ECF No. 62911 at 123.) There was no

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breach.

Nowhere does the record show that the

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We note that Colón-de-Jesús previously challenged the higher drug quantity on

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appeal, and has now simply repackaged the argument. The First Circuit upheld our

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rejection of the plea agreement’s stipulated drug quantity.

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Appeal No. 12-1936.

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B.

U.S. v. Colón-de-Jesús,

Ineffective Assistance of Counsel

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Colón-de-Jesús claims that he had ineffective assistance of appellate counsel

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because his appellate counsel failed to argue on direct appeal that Colón-de-Jesús’ trial

Civil No. 15-1441 (JAF)

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counsel had been ineffective for failing to raise a claim that the plea agreement was

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breached. (ECF No. 1 at 12.)

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Jesús 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. 688-94 (1984). Because we have already found that there was no

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breach of the plea agreement, the result of the proceeding could not have been different.

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Therefore, we deny this claim.

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C.

To prove ineffective assistance of counsel, Colón-de-

Motion to Disqualify

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Colón-de-Jesús filed a motion asking that we disqualify our self from presiding

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over his § 2255 petition. (ECF No. 2.) He cites to newspaper articles which quote public

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statements we made, and asserts that these show we have an “intolerable risk of bias.”

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(ECF No. 2.)

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Colón-de-Jesús already argued on appeal that we erred by failing to originally

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recuse our self on the basis of public statements and comments. The First Circuit wrote

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that,
The judge’s public comments, taken in context, cannot be
reasonably viewed as “committing or appearing to commit”
the judge to a “particular result” with respect to appellant’s
plea or sentencing.
And the comments made during
sentencing proceedings of appellant’s co-defendants do not
“display a deep-seated favoritism or antagonism” of the type
“that would make fair judgment impossible.”

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U.S. v. Colón-de-Jesús, Appeal No. 12-1936. The instant motion is merely a repackaging

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of Colón-de-Jesús’ previous argument, which the First Circuit has already ruled upon.

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When an issue has been disposed of on direct appeal, it will not be reviewed again

Civil No. 15-1441 (JAF)

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through a § 2255 motion. Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994)

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(internal citations omitted).

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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)).

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

While Colón-de-Jesús has not yet

Civil No. 15-1441 (JAF)

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of his constitutional claims debatable or wrong. Colón-de-Jesús may request a COA

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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 Colón-de-Jesús’ § 2255 motion (ECF

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No. 1) and his motion to disqualify (ECF No. 2). Pursuant to Rule 4(b) of the Rules

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Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears

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from the record that Colón-de-Jesús is not entitled to § 2255 relief from this court.

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IT IS SO ORDERED.
San Juan, Puerto Rico, this 22nd day of July, 2015.
S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE