Melendez-Hernandez v. USA
Filing
27
OPINION AND ORDER re 1 Motion to Vacate, and re 16 Supplemental Motion. Petitioner Jessy J. Melendez-Hernandez's motion filed pursuant to 28 U.S.C. § 2255 and his Supplemental Motion are DENIED. This case is DISMISSED with prejudice. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 11/24/2020. (brc)
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JESSY J. MELÉNDEZ-HERNÁNDEZ,
Petitioner,
Civil No. 17-1603 (FAB)
v.
related to
UNITED STATES OF AMERICA,
Criminal No. 15-462 (FAB)
Respondent.
OPINION AND ORDER
BESOSA, District Judge.
Before
the
Court
is
Jessy
J.
Meléndez-Hernández’s
(“Petitioner” or “Meléndez-Hernández”) pro-se motion to vacate,
set aside, or correct his sentence in Criminal Case No. 15-462,
pursuant to Title 28, United Sates Code, section 2255 (“section
2255”), (Civil Docket No. 1); the Government’s Response, (Civil
Docket No. 15); Petitioner’s Supplemental Motion (Civil Docket
No. 16);
and
the
Government’s
Response
Supplemental Motion (Civil Docket No. 25.)
forth
below,
the
Court
dismisses
with
to
Petitioner’s
For the reasons set
prejudice
Petitioner’s
motion to vacate his sentence and Petitioner’s Supplemental Motion
(Civil Docket Nos. 1 and 16).
I.
BACKGROUND
On July 17, 2015, Meléndez-Hernández was charged in a nine-
count
Indictment
along
with
one
hundred
four
additional
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 2 of 17
Civil No. 17-1603 (FAB)
2
defendants, all members of a violent criminal drug trafficking
organization known as “La Rompe ONU”. 1
the
first
three
counts
of
the
Petitioner was charged in
indictment
with
violations
of
Title 18, United States Code, sec. 1962(d), Title 21, United States
Code, sections 846 and 860 and Title 18, United States Code,
section 924(c)(1)(A) (Criminal Docket No. 3.)
Petitioner was
identified as an enforcer for La Rompe ONU and as a drug point
owner in the Villa Andalucía Public Housing Project (Criminal
Docket No. 3).
On January 29, 2016, Meléndez-Hernández pled guilty pursuant
to a Plea Agreement entered into with the Government to counts one
and three, violations of Title 18, United States Code, section
1962(d) and Title 18, United States Code, section 924(c)(1)(A).
(Criminal Docket Nos. 959 and 961.)
On
May
3,
2016,
Petitioner
was
sentenced
to
a
term
of
imprisonment of eighty-four months as to count one and sixty months
as to count three, to be served consecutively to each other for a
total term of imprisonment of one hundred forty-four months of
imprisonment 2 (Criminal Docket No. 1551); an Amended judgment was
entered on May 17, 2016 (Criminal Docket No. 1676.)
1
Meléndez-Hernández was
(Criminal Docket No. 3.)
2
defendant
number
fifty-four
in
the
The sentence imposed was in accordance with the plea agreement.
indictment.
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Civil No. 17-1603 (FAB)
3
Meléndez-Hernández did not appeal his sentence, and on May 5,
2017, Petitioner filed a timely Motion to Vacate Sentence pursuant
to Title 28, United States Code, section 2255 (Civil Docket No. 1).
II.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. section 2255, “[a] prisoner in custody
under sentence of a court established by [an] Act of Congress . .
. may move the court which imposed the sentence to vacate, set
aside or correct the sentence.”
28 U.S.C. § 2255(a).
“[T]he
statute provides for post-conviction relief in four instances,
namely, if the petitioner’s sentence (1) was imposed in violation
of the Constitution, or (2) was imposed by a court that lacked
jurisdiction, or (3) exceeded the statutory maximum, or (4) was
otherwise subject to collateral attack.”
David v. United States,
134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States,
368
U.S.
424,
426-27
(1962)).
Claims
that
do
not
allege
constitutional or jurisdictional errors are properly brought under
section 2255 only if the claimed error is a “fundamental defect
which fundamentally results in a complete miscarriage of justice”
or “an omission inconsistent with the rudimentary demands of fair
procedure.”
Id.
A motion filed pursuant to section 2255 is not a substitute
for a direct appeal.
(2016).
Foster v. Chatman, 136 S. Ct. 1737, 1758
As a result, “as a general rule, federal prisoners may
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 4 of 17
Civil No. 17-1603 (FAB)
4
not use a motion under 28 U.S.C. § 2255 to relitigate a claim that
was
previously
omitted).
is
rejected
on
direct
appeal.”
Id.
(citations
Moreover, “[c]ollateral relief in a § 2255 proceeding
generally
unavailable
if
the
petitioner
has
procedurally
defaulted his claim by failing to raise the claim in a timely
manner at trial or on direct appeal.”
F.3d
18,
omitted).
27
(1st
Cir.
2011)
Bucci v. United States, 662
(quotation
marks
and
citations
If a section 2255 petitioner does not raise a claim on
direct appeal, that claim is barred from judicial review unless a
petitioner can demonstrate both (1) cause for the procedural
default and (2) actual prejudice resulting from the error asserted.
Id.; United States v. Frady, 456 U.S. 152, 167-68 (1982).
III. DISCUSSION
In his original 2255 petition, Meléndez-Hernández makes the
following allegations:
Ineffective assistance of counsel – Counsel was ineffective
because she failed to advise Petitioner of his right to appeal,
Petitioner is entitled to relief pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015), and Petitioner entered into a Plea
Agreement involuntarily and not knowing the full consequences of
pleading guilty.
After the Government responded to Petitioner’s original 2255
petition, Meléndez-Hernández filed what he titled Motion to Amend
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Civil No. 17-1603 (FAB)
5
and Supplement (Civil Docket No. 16.)
In that filing, Petitioner
for the first time raises a claim of actual innocence for the first
time.
The Court will first address the claims made by MeléndezHernández in his original 2255 petition.
A.
Whether Meléndez-Hernández’s counsel provided ineffective
assistance of counsel by failing to advise him about the
consequences
of not filing an appeal.
To
establish
ineffective
assistance
of
counsel,
a
defendant must show that:
1.
His attorney’s performance was deficient, and
2.
The deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In
order
to
establish
deficiency,
a
defendant
must
establish that counsel’s performance “fell below an objective
standard of reasonableness under prevailing professional norms.”
Strickland 466 U.S. at 688.
to
have
acted
assistance,”
within
and
it
Under Strickland, counsel is presumed
the
is
range
defendant
of
“reasonable
who
bears
the
professional
burden
of
“overcoming the presumption that, under the circumstances, that
challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689.
To show prejudice, a defendant must
establish that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 6 of 17
Civil No. 17-1603 (FAB)
would
have
been
6
different.
A
reasonable
probability
is
a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
This assessment “must be a ‘fairly
tolerant’ one [, however,] because ‘the Constitution pledges to an
accused an effective defense, not necessarily a perfect defense or
successful defense.’”
Moreno-Espada v. United States, 666 F.3d
60, 64 (1st Cir. 2012) quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st
Cir. 1994).
A claim of ineffective assistance of counsel “requires
a court to assess, first whether ‘counsel’s representation ‘fell
below an objective standard of reasonableness.’”
Padilla v.
Kentucky, 130 S.Ct. 1473, 1482 (2010). It is clear that Petitioner
was obligated to show both that counsel’s performance fell below
an
objective
standard
of
reasonableness,
and
resulted from it, Strickland, 466 U.S. at 687.
that
prejudice
See also López-
Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990).
He
must do this as to each particular instance in which he claims
ineffective assistance of counsel.
Counsel’s performance must be
examined “not in hindsight, but based on what the lawyer knew, or
should have known, at the time his tactical choices were made and
implemented.”
Cir. 1992).
quite wide.
United States v. Natanel, 938 F.2d 302, 309 (1st
The “range of reasonable professional assistance” is
See Strickland, 466 U.S. at 689.
Therefore, the
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 7 of 17
Civil No. 17-1603 (FAB)
7
Supreme Court has stated that, “judicial scrutiny of counsel’s
performance must be highly deferential.”
See Strickland, 466 U.S.
at 689.
Under Strickland, Petitioner is required to identify
acts or omissions by counsel which need to be outside the wide
range of professional competent assistance, and the harm those
actions caused.
Furthermore, “a defendant’s failure to satisfy
one prong of the Strickland analysis obviates the need for a court
to consider the remaining prong.”
Moreno-Espada v. United States,
666 F.3d 60,64 (1st Cir. 2012) (quoting Tevlin v. Spencer, 621
F.3d 59,66 (1st Cir. 2010).
Meléndez-Hernández
argues
that,
at
the
time
of
sentencing, defense counsel knew that Petitioner was not satisfied
with the length of his sentence and of his desire to challenge
both the length of his sentence as well as his firearms conviction.
Yet counsel did not advise him of the consequences that a failure
to appeal would have on the ability to attack his conviction and
sentence.
Petitioner also alleges that, at the change of plea
phase of his case, defense counsel failed to inform him of the
direct consequences that the waiver of appeal had on his sentence
as well as the consequences it had on all future collateral attacks
to his sentence.
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Civil No. 17-1603 (FAB)
8
Meléndez-Hernández’s argument is not only not supported
by the record; it is also incorrect.
It is well settled that a “defendant must be informed of
the direct consequences of his plea but not of all the collateral
consequences of a guilty plea.”
United States v. Ocasio-Cancel,
727 F.3d 85, 89 (1st Cir. 2013).
Petitioner’s waiver of appeal
was a direct consequence of his plea of guilty.
Paragraph nine of
Meléndez-Hernández’s plea agreement states the following:
Waiver of Appeal - Defendant knowingly and voluntarily
waives the right to appeal the judgment and sentence in this case,
provided that Defendant is sentenced in accordance with the terms
and
conditions
set
forth
in
the
provisions of this Plea Agreement.
Sentencing
Recommendations
(Criminal Docket No. 959 at
p. 6.)
Not only is the Plea Agreement signed by Petitioner, but
his initials are on every page including page six.
There can be
no doubt that prior to his Change of Plea Hearing MeléndezHernández was fully aware of the waiver of appeal and that he was
also informed of it during the hearing.
Furthermore, Meléndez-Hernández cannot claim a lack of
knowledge or understanding of the terms and conditions of the Plea
Agreement; on page 11 of the document Petitioner signed below the
following statement:
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 9 of 17
Civil No. 17-1603 (FAB)
9
I have consulted with my counsel and fully understand
all of my rights with respect to the charges pending against me.
Further, I have consulted with my attorney and fully understand my
rights with respect to the provisions of the Sentencing Guidelines,
Policy Statements, Application, and Background Notes which may
apply in my case.
I have read this Plea Agreement and carefully
reviewed every part of it with my attorney.
My counsel has
translated the Plea Agreement to me in the Spanish language and I
have no doubts as to the contents of the agreement.
understand this agreement and voluntarily agree to it.
I fully
(Criminal
Docket No. 959 at p. 11.)
The record is clear that Petitioner knew of the waiver
of appeal and its consequences; he cannot now claim otherwise.
In
United States v. Butt, the First Circuit Court of Appeals held
that a presumption of truthfulness applies to statements made in
the context of a guilty plea.
See 731 F2d. 75, 80 (1st Cir. 1984).
The presumption “will not be overcome unless the allegations in
the 2255 Petition are sufficient to state a claim of ineffective
assistance of counsel and include credible, valid reasons why a
departure
from
justified.”
those
earlier
contradictory
statements
is
now
Id.; see also United States v. Padilla-Galarza, 351
F.3d 594, 598 (1st Cir. 2003).
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Civil No. 17-1603 (FAB)
10
Meléndez-Hernández alleges that when his sentence was
imposed, his attorney was aware of his dissatisfaction with the
sentence
imposed
and
his
desire
to
challenge
the
weapons
conviction, yet she failed to inform him of his right to appeal.
The
record
contradicts
this
statement.
The
Court
sentenced
Petitioner to the terms and conditions to which he agreed in the
Plea Agreement, honoring the agreement which triggered the waiver
of appeal.
Absent a clear indication from Meléndez-Hernández,
(and Petitioner has provided none) about his wish to appeal despite
the waiver, counsel did not have a duty to act further. 3
See Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000).
B.
Whether Meléndez-Hernández is entitled to relief pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015)
Meléndez-Hernández
alleges
that
his
conviction
and
sentence for violating Title 18, United States Code, section 924
(c)(1)(A) are unconstitutional due to the Supreme Court’s ruling
in Johnson v. United States.
In Johnson v. United States, 576
U.S. ___, 135 S.Ct. 2551 (2015), the United States Supreme Court
held that the “residual clause” of the Armed Career Criminal Act
(“ACCA”)
was
unconstitutionally
vague
and
that
“imposing
an
increased sentence under the residual clause of the ACCA violates
the Constitution’s guarantee of due process.”
3
Johnson, 576 U.S.
Meléndez-Hernández’s has not stated or even implied in any of his filings that
he instructed his counsel to file an appeal.
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Civil No. 17-1603 (FAB)
11
at ___, 135 S.Ct. at 2555-63.
The ACCA provides for enhanced
penalties
three
for
defendants
convictions
for
either
felonies.”
The
ACCA
with
serious
defines
a
qualifying
drug
prior
offenses
“violent
or
felony”
as
felony
“violent
a
crime
punishable by imprisonment for a term exceeding one year “that (1)
has as an element the use, attempted use, or threatened use of
physical force against the person of another; or (ii) is burglary,
arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical
injury to another.”
added).
18 U.S.C. sec. 924(C)(2)(B)(ii) (emphasis
The underlined portion is known as the ACCA’s “residual
clause”.
The Supreme Court determined that ACCA’s “residual
clause” was unconstitutionally vague because its application was
too “wide-ranging” and “indeterminate.”
the
United
States
Supreme
Court
Id.
On April 18, 2016,
determined
that
Johnson
II
announced a new substantive rule that applies retroactively to
cases on collateral review.
Welch v. United States, 578 U.S. ___,
136 S.Ct. 1257 (2016).
Because
Meléndez-Hernández
was
convicted
of,
and
sentenced for, possessing a firearm in furtherance of a drug
trafficking crime and not a crime of violence, Johnson does not
apply.
The
Federal
Public
Defender
appointed
to
represent
Petitioner even filed an informative motion stating that Johnson
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 12 of 17
Civil No. 17-1603 (FAB)
12
does not apply to Meléndez-Hernández because he specifically pled
guilty to possessing a firearm during and in relation to a drug
trafficking
crime.
(Civil
Docket
No.
4.)
Accordingly,
Petitioner’s Johnson allegation is DENIED.
C.
Whether Petitioner entered into a Plea Agreement
involuntarily and not knowing of the full consequences
of pleading guilty.
Meléndez-Hernández also alleges that his guilty plea was
unknowing and involuntary.
Petitioner raises this allegation
separate from his first allegation of ineffective assistance of
counsel, but here he once again alleges that his counsel was
ineffective.
Meléndez-Hernández alleges that his counsel failed
to inform him that his plea agreement involved a waiver of his
constitutional
prospective
right
claim
Meléndez-Hernández
to
habeas
against
fails
to
corpus
counsel
meet
and
(Civil
the
a
waiver
Docket
Strickland
No.
of
any
1-1).
standard
for
ineffective assistance of counsel because this final allegation is
premised on an incorrect allegation.
As previously discussed, the only waiver contained in
Petitioner’s Plea Agreement is a waiver of the right to appeal if
the Court sentenced Meléndez-Hernández to the terms and conditions
stipulated in the Plea Agreement.
The Court in fact sentenced
Petitioner according to the terms and conditions of the Plea
Agreement; the waiver of appeal is therefore enforceable.
At no
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Civil No. 17-1603 (FAB)
13
time did Meléndez-Hernández waive any right to possible habeas
corpus relief or relief from any prospective claim.
Petitioner
has requested habeas corpus relief by filing his 2255 petition.
Neither is Meléndez-Hernández’s right limited to seek any other
relief that might arise from a change in the law made applicable
retroactively.
Petitioner’s allegation is DENIED.
After the Government filed its response to Petitioner’s
original 2255 motion, Meléndez-Hernández filed a motion which he
titled Motion to Amend and Supplement (Civil Docket No. 16.)
In
its first paragraph, Petitioner states that he wished to amend and
supplement his original 2255 filing pursuant to Fed. R. Civ. P.
15(b).
In his supplement, Meléndez-Hernández raises a claim of
actual innocence for the first time.
He claims factual innocence,
stating that he was never a member of La Rompe ONU, that he knew
its members as childhood friends and that he has never possessed
a gun.
In fact, Petitioner alleges that he is nothing more than
an honest hard-working man.
In support of his claim of actual
innocence, Petitioner submitted an affidavit which he signed and
dated, as well as an article titled “The Question of Actual
Innocence”, by Arthur Curry (Civil Docket No. 16-1.)
evidence was presented.
No other
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Civil No. 17-1603 (FAB)
14
In order for the Court to entertain Petitioner’s claim
of actual innocence, Meléndez-Hernández must first pass the hurdle
of relating back to his original filing of his 2255 petition.
Petitioner’s
supplemental
pleading
was
filed
on
January 18, 2018, nine months after he signed his original 2255
petition, as well as outside the one-year statute of limitations. 4
A section 2255 claim presented in a motion to amend that
is filed more than one year after the conviction becomes final is
untimely under Title 28, United States Code, section 2255(f)(1),
unless the claim relates back to a timely-filed claim, pursuant to
Rule 15(c) of the Federal Rules of Civil Procedure.
A claim
relates back “when the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set
forth in the original pleading.”
F3d. 20, 23 (1st Cir. 2005).
United States v. Ciampi, 419
An amended habeas corpus petition
does not relate back when “it asserts a new ground for relief
supported by facts that differ in both time and type from those
original pleading set forth.”
(2005).
Mayle v. Felix, 545 U.S. 644, 650
This relation back concept in the habeas corpus context
is strictly construed.
“The standard cannot be satisfied merely
by raising some type of ineffective assistance in the original
4
Meléndez-Hernández signed his original 2255 petition on April 30, 2017 (Civil
Docket No. 1 at p. 13.)
Case 3:17-cv-01603-FAB Document 27 Filed 11/24/20 Page 15 of 17
Civil No. 17-1603 (FAB)
petition,
and
then
15
amending
the
petition
to
assert
another
ineffective claim based upon an entirely distinct type of attorney
misfeasance.”
Ciampi at 24.
Petitioner’s
untimely
supplemental
relate back to his original 2255 petition.
filing
does
not
Therefore, it is time
barred and cannot be entertained by the Court.
For the first time, Petitioner has raised a claim of
actual innocence.
Even if it were timely, however, it would not
prosper.
The
Supreme
Court
has
emphasized
that
the
actual
innocence exception is very narrow, reserved for truly exceptional
cases.
Murray v. Carrier, 477 U.S. 478, 496 (1986).
Actual
innocence means factual innocence, not mere legal insufficiency.
Bousley v. United States, 523 U.S. 614, 623-624 (1998).
In order
to succeed, the petitioner “must establish that, in light of new
evidence, it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.”
Barreto-
Barreto v. United States, 551 F.3d 95, 102 (1st Cir. 2008), House
v. Bell, 547 U.S. 518 (2006).
Meléndez-Hernández fails to meet his burden of actual
innocence.
Petitioner has not presented any new evidence that
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Civil No. 17-1603 (FAB)
16
would sustain his claim of innocence. 5
is not new evidence.
A self-serving affidavit
Accordingly, even if Petitioner’s claim of
actual innocence were timely, it would have been DENIED.
D.
Evidentiary Hearing
As
part
of
his
2255
requested an evidentiary hearing.
petition,
Meléndez-Hernández
Petitioner has, however, failed
to meet the requirements for an evidentiary hearing to be held.
In order for Petitioner to prosper in his request, he
must be able to demonstrate, by a preponderance of the evidence,
not only an entitlement to the 2255 Petition for relief, but also
entitlement to an evidentiary hearing, David v. United States, 134
F.3d 470, 477-478 (1st Cir. 1998); Reyes v. United States, 421
F.Supp. 2d 426, 430 (D.P.R. 2006).
Inasmuch as Petitioner has
failed in his burden as to his 2255 Petition he has failed as well
in the request for an evidentiary hearing. Therefore, Petitioner’s
request for an evidentiary hearing is DENIED.
5
A review of Petitioner’s Pre-Sentence Investigation Report contradicts his
untimely claim of actual innocence. On March 16, 2016, Meléndez-Hernández was
interviewed by the United States Probation officer and made several statements:
The defendant accepted responsibility for his offense pursuant to the
stipulated version of facts as signed in the plea agreement.
The defendant stated that he got involved because of need. He advised
that there was rivalry between his public housing project of residence; that is
Villa Andalucía, and other residential projects in the area. He indicated that
since he was already identified as a resident of the Villa Andalucía group, he
had to join in an effort to be safe. He added that he was afraid for his life.
(Criminal Docket No. 1234 at p. 33).
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Civil No. 17-1603 (FAB)
IV.
17
CONCLUSION
For
the
reasons
stated,
Petitioner
Jessy
J.
Meléndez-
Hernández’s motion filed pursuant to 28 U.S.C. § 2255 (Civil Docket
No. 1) and his Supplemental Motion (Civil Docket No. 16) are
DENIED.
This case is DISMISSED with prejudice.
Judgment shall be
entered accordingly.
If Petitioner files a notice of appeal, no certificate of
appealability shall issue because he has not made a substantial
showing of the denial of a constitutional right.
See 28 U.S.C.
§ 2253(c)(2).
IT IS SO ORDERED.
San Juan, Puerto Rico, November 24, 2020.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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