Morales-Badillo v. USA
Filing
4
OPINION AND ORDER denied 1 pro se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 12-398). Signed by Judge Carmen C. Cerezo on 4/19/2017. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS ALBERTO MORALES-BADILLO
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
OPINION AND ORDER
Before the Court is the Motion under 28 U.S.C. § 2255 filed by Petitioner
Luis Alberto Morales-Badillo (hereinafter “Petitioner” or “Morales-Badillo”)
(d.e. 1). The Government’s Response (d.e. 3) For the reasons discussed
below, the Court finds the Motion as well as the Supplemental Petition must be
DENIED.
I.
BACKGROUND
Petitioner Morales-Badillo was charged in a six-count Indictment (d.e. 1
in Cr. 12-398CCC).
Counts One through Five charged Morales-Badillo with production and
attempted production of child pornography,1 in violation of Title 18, United
States Code, Section 2251(a) and (e) (d.e. 1 at pages 1-3 in Cr. 12-0398CCC).
Count Six charged Petitioner with possession of child pornography in
violation of Title 18, United States Code, Section 2252(a)(4)(B) (d.e. 1 at p. 3
in Cr. 12-0398CCC). The Indictment also included a forfeiture allegation
pursuant to Title 18, United States Code, Section 2253 (d.e. 1 at p. 4 in
Cr. 12-0398CCC).
On August 30, 2011, Morales-Badillo was arrested at a state jail, he was
transferred from state jail to the Metropolitan Detention Center in Guaynabo,
1
Each count involved a different minor.
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
2
Puerto Rico, on May 22, 2012. On May 23, 2012, Petitioner appeared before
a Federal Magistrate Judge (d.e. 36 at p. 2 in Cr. 12-0398CCC).
At the time of his arrest by federal authorities, Petitioner was serving a
total term of imprisonment of fifteen (15) years and one (1) day at the state
level for conviction of statutory rape, lewd and lascivious conduct and sexual
aggression against under aged victims2 (d.e. 36 at p. 29 in Cr. 12-0398CCC).
On October 5, 2012, Petitioner, through his court-appointed counsel, filed
a Motion for Change of Plea3 (d.e. 20 in Cr. 12-0398CCC).
On November 16, 2012, Morales-Badillo, after being found competent to
plea by the Court, pled guilty as to all counts of the Indictment (d.e. 27 in
Cr. 12-0398CCC).
On September 6, 2013, Petitioner’s sentencing hearing was held. The
Court sentenced Morales-Badillo to a total term of imprisonment of fifty (50)
years, a Supervised Release Term of fifteen (15) years and a Special Monetary
Assessment of six hundred dollars4 ($600.00) (d.e. 46 in Cr. 12-0398CCC).
Judgment was entered on September 6, 2013 (d.e. 47 in Cr. 12-0398CCC).
On September 10, 2013, Morales-Badillo filed a timely Notice of Appeal
(d.e. 48 in Cr. 12-0398CCC).
On August 28, 2015, the First Circuit Court of Appeals entered its
Judgment on the matter of Petitioner’s appeal. “Counsel has filed a brief
2
The victims of the state level charges included but were not limited to the victims described
in the federal indictment against Morales-Badillo.
3
In said motion, counsel indicated that Morales-Badillo wished to change his plea to guilty
pursuant to a straight plea. Meaning there was no plea agreement with the Government and
Petitioner was willing to plead guilty to all counts of the Indictment (d.e. 20 in Cr. 12-0398CCC).
4
The Court denied Petitioner’s request to serve his federal sentence concurrent to his state
sentence therefore the same will be served consecutively to the state sentence (d.e. 55 at p. 35
in Cr. 12-0398CCC).
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
3
pursuant to Andres v. California, 386 U.S. 738 (1967), along with a motion to
withdraw. Having carefully reviewed the brief and record, we conclude that
there is no non-frivolous basis for appeal. Consequently, counsel’s request to
withdraw is granted and the judgment is summarily affirmed.” United States v.
Morales- Badillo, App. 13-2215 (1st Cir. 2015).
On April 20, 2015, Petitioner signed his 2255 Petition for Relief (d.e. 58
at p. 10 in Cr. 12-0398CCC). However, the same was filed in the United States
District Court for the District of Maryland. On August 19, 2015, the United
States District Court of Maryland transferred, electronically, Morales-Badillo’s
2255 Petition to this district (d.e. 58-2 in Cr. 12-0398CCC).
Morales-Badillo’s 2255 Petition for Relief was formally entered into
docket on September 2, 2015, and given case number 15-2213(CCC). As
such the case is ready for disposition by this Court.
II.
DISCUSSION
In his Petition under 28 U.S.C. § 2255, Morales-Badillo raises the
following allegation of ineffective assistance of counsel:
Trial counsel was ineffective for failing to negotiate a plea
agreement with the government opting instead to recommend
Petitioner plead guilty pursuant to a straight plea.
A.
28 U.S.C. § 2255 Standards and Exhaustion Requirements
28 U.S.C. § 2255 allows a federal prisoner to move the Court to vacate,
set aside, or correct his sentence if one of the following events happens:
1.
the sentence was imposed in violation of the Constitution or
laws of the United States . . .
2.
the court was without jurisdiction to impose the sentence
3.
The sentence was in excess of the maximum authorized by
law or . . .
4.
The sentence is otherwise subject to collateral attack.
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
4
When a prisoner files a motion for relief pursuant to section 2255, the
court may dismiss the motion without an evidentiary hearing if “the motion and
files and records of the case show conclusively that the movant is not entitled
to relief.”
It is well settled law that a section 2255 motion is not a substitute for an
appeal. Therefore, the defendant must first raise his claims on direct appeal
before bringing the claim in a section 2255 motion. Bucci v. United States,
662 F.3d 18 (1st Cir. 2011), Smullen v. United States, 94 F.3d. 20
(1st Cir. 1996). United States v. Essig, 10 F.3d 968 (3d Cir 1993). If a
defendant fails to preserve his claim on direct appeal a court may not consider
the claim in a subsequent section 2255 motion, unless the defendant can
establish “cause and prejudice”, United States v. Frady, 456 U.S. 152,
167 (1982); or a “fundamental miscarriage of justice”. Murray v. Carrier,
477 U.S. 478, 496 (1986). The exception to this dogma of the exhaustion
requirement is the allegation of ineffective assistance of counsel which may be
brought for the first time in a section 2255 motion.
Morales-Badillo did file an appeal of his case, pursuant to Petitioner’s
statement in his 2255 Petition his ground for appeal was that “his sentence was
to long” (d.e. 1 at p. 2). Yet the First Circuit Court accepted appellate’s counsel
Andres brief and determined after reviewing the record that there were no
non-frivolous basis for appeal, United States v. Morales- Badillo, App. 13-2215
(1st Cir. 2015).
The only alternative left for Petitioner is to raise a valid claim of ineffective
assistance of counsel.
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
B.
5
Claim of Ineffective Assistance of Counsel
The standard for an ineffective assistance of counsel claim is whether
counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied upon as having produced a just result.
Strickland v. Washington, 466 U.S. 668 (1984); Lema v. United States,
987 F.2d 48 (1st Cir. 1993). In order to succeed in a claim of ineffective
assistance of counsel, Morales-Badillo must show both incompetence and
prejudice: (1) Petitioner must show that counsel’s representation fell below an
objective standard of reasonableness and (2) that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Argencourt v. United States, 78 F.3d 14
(1st Cir. 1996); Darden v. Wainwright, 477 U.S. 168 (1986); Lockhart v.
Fretwell, 506 U.S. 364 (1993).
Petitioner bears a “very heavy burden” in his attempt to have his
sentence vacated premised on an ineffective assistance of counsel claim,
Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996); Lema v. United
States, 987 F.2d 48, 51 (1st Cir. 1993). Even more so under Strickland
standard, “only where, given facts known at the time, counsel’s choice was so
patently unreasonable that no competent attorney would have made it.” United
States v. Rodriguez, 675 F.3d 48, 56 (1st Cir. 2012), quoting Tevlin v. Spencer,
621 F.3d 59, 66 (1st Cir. 2010), which in turn quotes Knight v. Spencer,
447 F.3d 6, 15 (1st Cir. 2006).
In order to successfully satisfy the first prong of the Strickland test,
petitioner must show that “in light of all the circumstances, the identified acts
or omissions [allegedly made by his counsel] were outside the wide range of
professionally competent assistance.” Tejada v. Dubois, 142 F.3d 18, 22
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
6
(1st Cir. 1998) (quoting Strickland, 466 US. at 690). Petitioner must overcome
the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Smullen v. United States, 94 F.3d 20, 23
(1st Cir. 1996) (quoting Strickland at 689). Finally, a court must review
counsel’s actions deferentially, and should make every effort “to eliminate the
distorting effects of hindsight.” Argencourt v. United States, 78 F.3d at 16
(quoting Strickland, 466 U.S. at 689).
The second prong of the Strickland test, the element of prejudice, also
sets the bar high. “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Argencourt v. United States, 78 F.3d
at 16 (quoting Strickland, 466 U.S. at 691). Petitioner must “prove that there
is a reasonable probability that, but for his counsel’s errors, the result of the
proceeding would have been different.”
Knight v. United States,
37 F.3d 769, 774 (1st Cir. 1994) (citing Strickland, 466 U.S. at 687).
This means that if petitioner is successful in showing deficiencies in his
counsel’s representation, he then must conclusively establish that those
deficiencies led to a real prejudice against him in the criminal proceedings.
Id. at 694. Petitioner has failed to meet the Strickland standard in all of his
claims.
C.
Ineffective assistance of counsel - Trial counsel was
ineffective for failing to negotiate a plea agreement with the
government opting instead to recommend Petitioner plead
guilty pursuant to a straight plea.
Morales-Badillo claims in a perfunctionary manner that his counsel was
ineffective for she never tried to negotiate a plea agreement on his behalf and
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
7
advised him to plead guilty as a straight plea to the Indictment as charged.5
Petitioner provides no support for this allegation. Morales-Badillo is not only
mistaken in his statement, the same is contrary to law.
Attached to the United States’ response to Petitioner’s Motion are four
exhibits.
These four exhibits clearly depict two separate email
communications, September 12, 2012 and October 4, 2012, between
Petitioner’s counsel and the prosecutor of the case. Both communications are
initiated by defense counsel and both are requesting a plea agreement for
Morales-Badillo. In both instances counsel is informed that “there is no plea
agreement or plea offer on the table.” (d.e. 3-1)
Clearly, Morales-Badillo’s counsel attempted to obtain a plea agreement
from the Government which refused stating “due to the nature and
circumstances of this case, we will not be entering into a Plea Agreement . . . .”
(d.e. 3-1)
The email communications between defense counsel and the
Government clearly indicate that Morales-Badillo is wrong in his allegation.
Furthermore, the Supreme Court in Missouri v. Fryer has clearly
established that “a defendant has no right to be offered a plea
(see Weatherford, 429 U.S. at 561 (1971)) nor a federal right hat the judge
accept it (Santobello v. New York, 404 U.S. 257 (1971).” Missouri v. Fryer,
132 S.Ct. 1399, 1410 (2012).
Having established that Morales-Badillo has no right to be offered a plea
agreement by the government and given the uncontroverted fact that his
counsel on two separate occasions contacted the prosecutor to request a plea
5
By pleading guilty to the Indictment Petitioner was entitled to receive and did in fact receive
a three (3) point reduction of his total offense level for timely acceptance of responsibility.
CIVIL 15-2213CCC
(Related Crim. 12-0398CCC)
8
agreement on his behalf and was rejected, there can be no valid claim of
ineffective assistance of counsel based on counsel’s failure to negotiate a plea
agreement for Petitioner. Morales-Badillo’s claim of ineffective assistance of
counsel is DENIED.
III.
CONCLUSION
For the reasons stated, the Court concludes that Petitioner Luis Alberto
Morales-Badillo’s federal habeas relief is DENIED. Furthermore, Petitioner’s
request for evidentiary hearing is also DENIED.
IV.
CERTIFICATE OF APPEALABILITY
For the reasons previously stated, the Court hereby DENIES Petitioner’s
request for relief pursuant to 28 U.S.C. § 2255. It is further ordered that no
certificate of appealability should be issued in the event that Petitioner files a
notice of appeal because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
SO ORDERED.
At San Juan, Puerto Rico, on April 19, 2017.
S/CARMEN CONSUELO CEREZO
United States District Judge
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