Fernandez-Santos v. USA

Filing 22

ORDER: The motion to vacate, set aside, or correct the sentence in Criminal Case No. 14-225 (FAB) pursuant to section 2255 is DENIED. (Civil Docket No. 1.) The motion to recuse is also DENIED. (Civil Docket No. 2.) This case is DISMISSED, with prejudice. Signed by Judge Francisco A. Besosa on 3/26/2021. (AA)

Case 3:17-cv-02331-FAB Document 22 Filed 03/26/21 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

DIEGO FERNÁNDEZ-SANTOS,
Petitioner,
Civil No. 17-2331 (FAB)
related to
Criminal No. 14-225 (FAB)

v.
UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
BESOSA, District Judge.
Diego Fernández-Santos (“Fernández”) is serving a 76-month
term of imprisonment for drug-trafficking and unlawful firearm
possession.

(Crim.

Docket

No.

99.) 1

Before

the

Court

is

Fernández’s motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. section 2255 (“section 2255”).
12.)

(Docket No.

For the reasons set forth below, the section 2255 motion is

DENIED.
I.

Background
On

February

13,

2014,

federal

law

enforcement

executed a search warrant at Fernández’s residence.
No.

84.)

The

paraphernalia.

1

officers
Id.

seized

a

firearm,

officers

(Crim. Docket

cocaine,

and

drug

Subsequently, a grand jury returned a three-

“Crim. Docket” and “Civil Docket” refer to Criminal Case No. 14-224 and Civil
Case No. 17-2331, respectively.

Case 3:17-cv-02331-FAB Document 22 Filed 03/26/21 Page 2 of 27

Civil No. 17-2331 and Criminal No. 14-225 (FAB)

2

count indictment charging Fernández with possession of narcotics
with intent to distribute, possession of a firearm in furtherance
of a drug-trafficking crime, and possession of a firearm by a
convicted felon, in violation of 21 U.S.C. section 841(a)(1), and
18 U.S.C. sections 924(c) and

922(g)(1), respectively.

(Crim.

Docket. No. 1.)
Trial commenced on June 9, 2014.

(Crim. Docket No. 52.)

Before the United States rested, however, Fernández pled guilty to
all counts in the indictment.

(Crim. Docket No. 53.)

He then

moved to withdraw his guilty plea. (Crim. Docket No. 72.)

The

Court denied this motion. United States v. Fernández, 136 F. Supp.
3d 160 (D.P.R. 2015) (Besosa, J.). Fernández received a concurrent
sentence of 16 months imprisonment as to counts one and three, and
a consecutive sentence of 60 months imprisonment as to count two.
(Crim. Docket. No. 110.)
The

Court

had

previously

placed

Fernández

release regarding a prior drug conviction.
p. 8; see Crim. No. 11-240, Docket No. 122.

on

supervised

Crim. Docket No. 86 at
Because the offenses

committed by Fernández in Criminal Case No. 14-255 violated the
conditions of his supervised release, the Court also imposed a
consecutive sentence of 24 months imprisonment for the revocation.
(Crim. Docket No. 108 at p. 20.)

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

3

On appeal, Fernández asserted that the Court committed two
errors.

First, he argued that the consecutive sentence for the

revocation of supervised release was unreasonable.

United States

v. Fernández-Santos, 856 F.3d 10, 20 (1st Cir. 2017).
Fernández

purportedly

pled

guilty

without

Second,

understanding

charges set forth in the indictment. Id. at 20.

the

The First Circuit

Court of Appeals affirmed the criminal disposition in toto.

Id.

at 22.
On November 30, 2017, Fernández filed a pro se motion to
vacate

the

ineffective

76-month

sentence,

assistance

of

contending

counsel.

that

(Civil

he

Docket

received
No.

1.)

Fernández also moved for a “change of venue,” requesting that the
Court recuse itself from this proceeding.

(Civil Docket No. 2.)

The United States responded to both motions.
14 & 15.)
II.

Fernández replied.

(Civil Docket Nos.

(Civil Docket No. 17.)

The Section 2255 Motion
Section 2255 embodies the common law writ of habeas corpus,

an extraordinary remedy for “convictions that violate fundamental
fairness.”

Brecht

v.

Abrahamson,

(citation and quotation omitted).

507

U.S.

619,

622

(1993)

Pursuant to section 2255, a

prisoner in federal custody may move “to vacate, set aside or
correct [his or her] sentence.”

28 U.S.C. § 2255(a).

“[T]he

statute provides for post-conviction relief in four instances,

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4

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)).
The applicable statute of limitations is one year, beginning
on the date that “judgment of conviction becomes final.” 28 U.S.C.
§ 2255(f)(1); see Barreto-Barreto v. United States, 551 F.3d 95,
100 (1st Cir. 2008) (holding that “the limitations period ‘shall
apply’ to all motions made under § 2255”). 2

For petitioners who

appeal to the Supreme Court of the United States, judgment is final
when certiorari is denied, or the conviction is affirmed.

Derman

v. United States, 298 F.3d 34, 41 (1st Cir. 2002) (citing Kapral
v. United States, 166 F.3d 565, 577 (3d Cir. 1999)).

Because

Fernández did not seek certiorari review, the limitations period
commenced

“when

the

time

[expired]

for.

.

.

appellate court’s affirmation of the conviction.”

2

contesting

the

Ramos-Martínez

Three additional contingencies trigger the one-year limitations period, all
of which are irrelevant for purposes of this Opinion and Order. See, e.g., 28
U.S.C. § 2255(f)(2) (“The date on which the impediment to making a motion
created by governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a motion by
such governmental action.”).

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5

v. United States, 638 F.3d 315, 320-21 (1st Cir. 2011) (citing
Clay v. United States, 537 U.S. 522, 525 (2003)).
The

First

Circuit

Court

of

Appeals

conviction and sentence on May 1, 2017.
F.3d 10, 14.

affirmed

Fernández’s

Fernández-Santos, 856

A petition for a writ of certiorari “is timely when

it is filed with the [Clerk of the Supreme Court] within 90 days
after entry of judgment.”

See Sup. Ct. R. 13.1.

The period of

limitations began on July 30, 2017, the deadline for Fernández to
seek certiorari review.

See, e.g., United States v. Cheng, 392 F.

Supp. 3d 141, 150 (D. Mass. 2019).

The Bureau of Prisons mail

service received Fernández’s habeas petition on November 6, 2017.
Civil Docket No. 12, Ex. 3; Casanova v. Dubois, 304 F.3d 75, 79
(1st Cir. 2002) (“[We] adopted the prisoner mailbox rule for §
2254 and § 2255 filings”).

Accordingly, the section 2255 motion

is timely.
A. Procedural Default
Section 2255 is not a substitute for a direct appeal.
Foster v. Chatman, 136 S. Ct. 1737, 1758 (2016).

“[A]s a general

rule, federal prisoners may not use a motion under 28 U.S.C. §
2255 to relitigate a claim that was previously rejected [by the
appellate

court].”

“[c]ollateral

relief

Id.
in

(citations
a

§

2255

omitted.)
proceeding

Moreover,
is

generally

unavailable if the petitioner has procedurally defaulted his claim

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6

by failing to raise the claim in a timely manner at trial or on
direct appeal.”

Bucci v. United States, 662 F.3d 18, 27 (1st Cir.

2011) (quotation marks and citations omitted.)

Relief for claims

not raised at trial or on direct appeal is inappropriate unless
the petitioner can demonstrate both (1) cause for the procedural
default,
asserted.

and

(2)

actual

prejudice

resulting

from

the

error

Id.; United States v. Frady, 456 U.S. 152, 167-68

(1982).
Generally, postconviction relief requires a “sufficient
showing of fundamental unfairness.”
26 F.3d 233, 236 (1st Cir. 1994).

Singleton v. United States,
An ineffective assistance of

counsel claim is, however, an exception to this rule.

Massaro v.

United States, 538 U.S. 500, 509 (2003) (holding that “failure to
raise an ineffective-assistance of counsel claim on direct appeal
does not bar the claim from being brought in a later, appropriate
proceedings under § 2255”); see Rivera-Rivera v. United States,
844

F.3d

367,

372

(1st

Cir.

2016)

(“A

claim

of

ineffective

assistance of counsel, rooted in the Sixth Amendment, may be raised
by means of a section 2255 motion.”).

Because Fernández claims

that he received ineffective assistance of counsel, the Court will
adjudicate the section 2255 motion on the merits.

see e.g.,

Lasalle-Velázquez v. United States, 948 F. Supp. 2d 188 (D.P.R.
2013)

(holding

that

the

procedural

default

doctrine

did

not

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7

preclude the Court from addressing the petitioner’s ineffective
assistance of counsel claims) (Fusté, J.).
B. Defense Counsel’s Purported Failure to Challenge Judicial
Participation in Plea Negotiations
Fernández is dissatisfied with trial and appellate counsel.
Attorney Humberto Guzmán-Rodríguez (“Guzmán”) allegedly “coerced”
Fernández to plead guilty.
On

appeal,

purportedly

attorney
failed

(Civil Docket No. 1, Ex. 1 at p. 9.)

José

to

raise

Gaztambide-Añeses
claims

participation in plea negotiations.

(“Gaztambide”)

pertaining

to

judicial

Id. at p. 7.

The Sixth Amendment of the United States Constitution
provides that in all criminal prosecutions “the accused shall enjoy
the right to [. . .] the Assistance of Counsel for his defence.”
U.S. CONST. amend VI.

The principles set forth in Strickland v.

Washington, 466 U.S. 668 (1984), govern ineffective assistance of
counsel claims.
(1st Cir. 2019).
the

evidence

See Rojas-Medina v. United States, 924 F.3d 9, 16
Fernández must establish by a preponderance of

that:

(1) counsel’s

performance

“fell

below

an

objective standard of reasonableness,” and (2) that this deficient
performance resulted in actual prejudice.
687.

Strickland, 466 U.S. at

The Court presumes that “counsel’s strategy and tactics fall

within the range of reasonable professional assistance.”

Knight

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8

v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (quoting Strickland,
466 U.S. at 689).
The Sixth Amendment “does not guarantee [Fernández] a
letter-perfect

defense

or

a

successful

defense;

rather,

the

performance standard is that of reasonably effective assistance
under the circumstances then obtaining.” United States v. Natanel,
938 F.2d 302, 309-10 (1st Cir. 1991).

The Strickland analysis is

“highly demanding” and places a “heavy burden” on Fernández.
Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (citing Williams
v. Taylor, 529 U.S. 362, 393 (2000)).
C. Federal Rule of Criminal Procedure 11
The effective assistance of counsel claim is based on
Federal Rule of Criminal Procedure 11 (“Rule 11”).
No. 1, Ex. 1.)

(Civil Docket

This rule prohibits the Court from participating

in plea negotiations.

Fed. R. Crim. P. 11(c).

According to

Fernández, Guzmán acquiesced to the purported Rule 11 violations
at trial.

(Civil Docket No. 1, Ex. 1.)

Gaztambide allegedly

omitted the Rule 11 error from the appellate brief.

Id.

Judicial intervention in the plea negotiations process
presents a “high and unacceptable risk of coercing a defendant to
accept the proposed agreement.”

United States v. Bierd, 217 F.3d

15, 18 (1st Cir. 2000) (no Rule 11 violation when the judge at
sidebar during trial stated “why doesn’t [defendant] plead out,

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9

get the three levels he’s entitled to and then that will accomplish
the severance, but that’s not for me to say.”).

Moreover, Rule 11

“preserves the judge’s impartiality both during and after the plea
negotiations.”

United States v. Bradley, 455 F.3d 453, 460 (4th

Cir. 2006) (internal quotation marks and citation omitted).
D. The Alleged Rule 11 Violation
Fernández maintains that the Court participated in plea
negotiations on the first and second days of trial.
No. 1, Ex. 1.)

On June 9, 2019, defense counsel requested an ex

parte sidebar before opening statements.
p. 52.)

(Civil Docket

(Crim. Docket No. 84 at

After a brief discussion with defense counsel, the Court

requested the United States to approach the bench.

Id. at 54.

The following exchange occurred:
Court: This is not what [defense counsel] came up here
for, but I asked him if his client would be
willing to plead, now that the statements will go
in, and I would give him three points for
acceptance to plead as to what you had originally
offered.
Defense Counsel: The last time.
Court: Count Two
United States: The 924(c) count.
Court: Yes.
United States: Is he willing to do that?
Court: Well, he hasn’t talked to him yet.
going to give him the tenth try.

He said he is

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

United States: I know.
Defense Counsel: She knows.
Court: All right [sic].
talk to him.

We will continue, and you can

Defense Counsel: Thank you, Your Honor.
United States: Well, we are going to continue with the
trial, or is he going to talk to him real
fast?
. . .
Court: All right [sic]. Let’s start at 2:30.
Defense Counsel: Very well. So I will speak to my client
now.
Court: Tell him that I think it’s a good deal.
Defense Counsel:

His concern is the other count of
violation of the supervision.

Court: Well, there is nothing I can do about that because
that’s consecutive.
United States: And I am just asking, Your Honor, isn’t
it a fact that by law, if he were to be
found guilty of the felon in possession
charge, that would be consecutive to the
924(c)?
Court: Yes, but what –
United States: No. I am just thinking if he were not to
choose not to go – not the accept the
plea.
Court: I don’t know.
United States: Something has to be checked.

10

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)
Court: If he goes to trial, then he has the drug count,
the 924(c) is consecutive. And what [the United
States] says is the felon in possession may be
consecutive too.
United States: I believe research was made by the office
and –
Court: You may want to tell him that.
United States:

That’s why I asked the question.

Court: Whatever the guideline is, plus 60.
United States: And the revocation proceeding.
Court: Plus to revocation hearing.
Defense Counsel: Why 60?
United States:

Court:

No, the 924(c).
life

Minimum of 60, up to

So it would be the drug charge, the felon in
possession, which I am not sure whether that
would be grouped.

Defense Counsel:

Court:

Felon in possession is 60?

No, the 924(c).
life.

Minimum of 60, up to

So it would be the drug charge, the felon in
possession which I am not sure whether that
would be grouped.

Defense Counsel: I think it is grouped Your Honor, but
I will do my double checking.
United States:

Court:

I am just thinking because statutorily
it says under the law that it’s
consecutive to any other federal crime,
so I would think it is consecutive.

So it’s 924—

United States:

Under 924(c)(1)(A), the law specifies

11

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

12

that it has to be consecutive.
Court: Yes, but the question is whether the felon in
possession is consecutive to the drug charge.
United States:

Court:

Oh, I don’t know – that would be in the
Court’s
discretion.
I
think
it
definitely is consecutive.

Well, you can tell him that.

United States: But it’s definitely consecutive to the
924(c).
Court:

I understand that. But the 922(g) may not be
grouped with the drug charge. I am not sure.
So you may want to tell him that. First of all,
it may not be grouped, and, second of all, the
judge has discretion to make it consecutive.

Defense Counsel:
United States:

Court:

I need privacy, Your Honor.

I can say that, based on the information
I was told – obviously, I will have to
verify that, but the Government will be
seeking – is arguing for it to be
consecutive.

Plus the revocation, and that certainly is
consecutive.

Defense Counsel: I know.
United

States:

But the revocation
independent and –

Court:

proceedings

is

That’s consecutive.

Defense Counsel: But what will have to be on the merits.
I will not be stipulating to that.
Court: No, of course not.
If you want to have an
evidentiary hearing on the revocation, we can do
that.

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)
Defense Counsel:

13

Okay, but not today.

Court: No. So speak to your client.
Defense Counsel: Thank you, Your Honor.

(Crim. Docket No. 84 at pp. 54-58.)
On the second day of trial, defense counsel questioned whether
the United States remained interested in a plea agreement. (Crim.
Docket No. 85 at p. 3.)

The United States responded that “at this

point . . . the only option for the Defendant is to make a straight
plea.

Yesterday he had the opportunity [to accept the offer].”

Id. at p. 5. Fernández proposed, however, to plead guilty if the
sentence

for

violating

the

conditions

of

supervised

release

occurred concurrently to counts set forth in the indictment.

Id.

The United States countered that Fernández “can do a straight plea,
and

[it

would]

revocation.”

not

make

any

Id. at p. 4.

specific

recommendation

in

the

The Court stated that Fernández would

receive three points for acceptance of responsibility if he pled
guilty at all counts.
The

Court,

the

Id.
United

States,

and

defense

discussed the United States Sentencing Guidelines.
10.

counsel

then

Id. at pp. 5—

Trial recessed while a guideline specialist from the United

States

Probation

Office

examined

whether

the

revocation

of

supervised release resulted in a mandatory consecutive sentence.

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)
Id.

14

This specialist informed the Court and litigants that the

sentence for the violation of supervised release must be served
concurrent to the section 924(c) count. Id.

Defense counsel

confirmed that his client’s sentence “would be 86 versus 93; 86
with a straight plea versus 93 with a verdict.”

Id. at p. 11.

The Court granted defense counsel’s request to confer with
Fernández, and to contact the supervisor of the Assistant United
States Attorneys in an attempt to revive the plea offer.
p. 13.

Id. at

After a two-hour recess, defense counsel disclosed that

Fernández “reached an agreement with the Government.

He is going

to enter a straight plea.” (Crim. Docket No. 86 at p. 2.) Although
defense counsel referred to an “agreement,” Fernández entered a
straight plea of guilty.
agreement.

The parties did not enter into a plea

The Court subsequently conducted a Rule 11 colloquy.

Id.
1. The Rule 11 Claim is Unavailing
Fernández maintains that the Court “set the terms and
conditions of the plea agreement.”
p. 5.)

(Civil Docket No. 1, Ex. 1 at

He cites a litany of alleged Rule 11 violations: (1) the

“good deal” comment from the first day of trial, (2) the acceptance
of responsibility remark, and (3) that defense counsel provided
false information.

Id. at pp. 3—6.

The “good deal” comment does not contravene Rule 11.

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15

The First Circuit Court of Appeals addressed an analogous argument
in United States v. Pagán-Ortega, 372 F.3d 22 (1st Cir. 2004).
The district court stated that the plea offer constituted a “super
break”

and

“good

deal.”

defendant pled guilty.

Pagán-Ortega,

Id.

372

F.3d

at

27.

The

He subsequently appealed, asserting

that the district court violated Rule 11.
court rejected this proposition.

Id.

The Pagán-Ortega

Although the “comments about

‘super break’ and ‘good deal’ admittedly could have exercised a
considerable influence upon the [defendant, they] were clearly
related to the factual and compelling comparison with the risk of
conviction following trial.”

Id. at 28.

The “good deal” comment

by this Court referred to the disparity between a plea agreement
and a trial verdict.

Indeed, the Court afforded defense counsel

and the United States with additional time to negotiate a plea
agreement after obtaining the approximate sentencing guideline
range.
The section 2255 motion assails the Court’s comment
regarding

the

three

points

for

acceptance

(Civil Docket No. 1, Ex. 1 at p. 5.)

of

responsibility.

The statement informed

Fernández that a guilty conviction precluded him from receiving
this

deduction.

negotiations.
F.

Appx.

265,

It

was

not,

however,

interference

in

plea

See United States v. Martin, Case No. 15-10726, 651
266

(5th

Cir.

June

7,

2016)(holding

that

the

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16

following comment did not violate Rule 11: “And if you were to
plead guilty today under these circumstances, I would give you the
two points for acceptance [of responsibility].”).
Court

continued

specialist,

trial

enabling

to

seek

Fernández

guidance
to

regarding a putative plea agreement.
the

Court

with

providing

him

make

from

an

In fact, the
a

sentencing

informed

decision

Ultimately, Fernández faults

with

the

pertinent

sentencing

information.
Fernández asserts that defense counsel “lied to [him]
about the twenty-year sentence.”

(Civil Docket No. 1, Ex. 2 at p.

4.) The mandatory maximum sentence for violating 21 U.S.C. section
841(a)(1)

(count

imprisonment.
841(b)(1).

one)

is,

however,

a

term

of

twenty-years

Crim. Docket No. 86 at p. 10; see 21 U.S.C. §

The Court disclosed this fact to Fernández at the

change of plea hearing.

Id.

He now claims that defense counsel

forced him to plea, but this decision rested solely with Fernández.
See Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003)
(“Although the attorney may provide an opinion on the strength of
the government’s case, the likelihood of a successful defense, and
the wisdom of a chosen course of action, the ultimate decision of
whether to go to trial must be made by the person who will bear
the

ultimate

consequence

of

conviction.”).

Because

the

allegations of judicial participation in plea negotiations have no

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17

basis in fact or law, the Rule 11 argument is unavailing.
2. Fernández Failed to Demonstrate that But for the Alleged
Rule 11 Violation, He Would Have Continued to Stand Trial
Even if the Court participated in plea negotiations,
postconviction relief pursuant to Rule 11 is unwarranted.

In

United States v. Dávila, the United States Supreme Court rejected
the proposition that judicial involvement in plea negotiations
necessarily invalidates a guilty plea.

133 S. Ct. 2139, 2148

(2013) (“Nothing in Rule 11’s text . . . indicates that the ban on
judicial involvement in plea discussions, if dishonored, demands
automatic vacatur of the plea without regard to case-specific
circumstances.”).

In reviewing Rule 11 motions, “particular facts

and circumstances [. . .] should be assessed, not in isolation,
but in light of the full record.”

Id. at 2148-49.

The relevant

question, after examining the entire record, is whether it was
reasonably probable that, but for the judge’s involvement, the
defendant would have exercised his right to a jury trial.

Id.

Fernández fails to demonstrate or allege that but for the
purported Rule 11 violation, he would have continued to stand
trial.

As a preliminary matter, Fernández claims that he “never

knew about the sidebar conversations between the judge and the
attorney until [he] received the Appellate brief.”
No. 1, Ex. 2 at p. 2.)

(Civil Docket

The Court cannot discern how unknown Rule

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

18

11 violations influenced Fernández to change his plea.
learned

about

purported

judicial

participation

If he only
in

plea

negotiations after trial, how did the Rule 11 violation induce him
to plead guilty?
According to Fernández, he changed his plea for two
alternative reasons.

First, defense counsel “forced” him to plead

guilty because the Court applied “pressure.”
Ex. 1 at p 8.)

(Civil Docket No. 1,

Second, Fernández allegedly “had to plead guilty

or my mother would be arrested and that would kill her.”
Docket No. 1, Ex. 2 at p. 4.)

(Civil

He fails to address, however,

whether defense counsel’s advice derived from a sound assessment
of

the

evidence,

or

whether

family

related

motivated the motion for a change of plea.

considerations

Other than post-hoc

allegations, the record is devoid of evidence suggesting that
Fernández

would

have

proceeded

with

participation in plea negotiations.

trial

but

for

judicial

See Posey v. United States,

Case No. 20-121, 2020 U.S. Dist. LEXIS 78874 at *26-27 (M.D. Tenn.
May 5, 2020) (“And in this case, there is no reason to believe
that, contrary to what Petitioner said in his plea agreement and
plea

hearing

–

confirming

the

voluntary,

unpressured,

fully

advised and fully counseled nature of his plea of guilty – a
reasonably probability exists that he actually would not have pled
guilty but for the district judge’s alleged Rule 11 participation

Case 3:17-cv-02331-FAB Document 22 Filed 03/26/21 Page 19 of 27

Civil No. 17-2331 and Criminal No. 14-225 (FAB)

19

violation.”); United States v. Thompson, 770 F.3d 689, 698 (8th
Cir. 2014) (holding that the defendant’s Rule 11 motion lacked
merit because “even during the sentencing hearing, [he] failed to
give any indication that the district court had led him to expect
a particular sentence in exchange for pleading guilty”).
The Rule 11 colloquy conducted by the Court established
that

Fernández

knowingly

and

voluntarily

Fernández-Santos, 136 F. Supp. at 164.

pled

guilty.

See

At the change of plea

hearing, the Court asked Fernández the following question: “Do you
understand that you can maintain that plea of not guilty, and we
will continue with trial against you?”

(Crim. Docket No. 86 at p.

6.)

The Court also questioned

Fernández answered “yes.”

Id.

whether Fernández moved to change his plea “because someone forced
[him]” to do so.

Id. at p. 16.

Fernández answered “no.”

Id.

His statements under oath at the change of plea “carry a strong
presumption of verity,” because “it is the policy of the law to
hold litigants to their assurances.”

United States v. Marrero-

Rivera, 124 F.3d 342, 349 (1st Cir. 1997) (citations omitted).
Accordingly, the Court accepts the assertions Fernández made at
his change of plea hearing as true.
The strength of the evidence against Fernández is an
additional motivation for the change of plea.

See United States

v. Oakes, 411 F. Supp. 2d 1, 4 (D. Me. 2006) (“Often the decision

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

20

to plead guilty is heavily influenced by the defendant’s appraisal
of

the

prosecution’s

case

against

him

and

by

the

apparent

likelihood of securing leniency should a guilty plea be offered
and accepted.”) (citing Brady v. United States, 397 U.S. 742, 756
(1992). The Court denied Fernández’s motion to suppress statements
made by him on the date of his arrest.
These

admissions

incriminate

(Crim. Docket No. 49.)

Fernández,

serving

as

powerful

evidence at trial. (Crim. Docket No. 49.) For instance, Fernández
informed law enforcement officers that “there was a weapon behind
the washing machine” before they searched the residence.
Docket No. 83 at p. 13.)

(Crim

The jury heard testimony regarding this

statement and a detailed account of the contraband he possessed in
violation of various federal statutes.
67.).

(Crim. Docket No. 84 at p.

Physical evidence against Fernández included, inter alia,

three magazines, ten rounds of .38 caliber ammunition, five rounds
of 9mm caliber ammunition, drug paraphernalia, and cocaine. (Crim.
Docket No. 11 at p. 1.)

Indeed, Fernández possessed legitimate

incentives to plead guilty.

See Williams v. United States, 879

F.3d 244, 249 (7th Cir. 2018) (Although the defendant “insisted
that but for the Judge’s Rule 11(a)(1) violation, he would not
have accepted the government’s plea offer,” the Seventh Circuit
Court of Appeals held that the “overwhelming evidence against [the
defendant] and the prospect of a mandatory life term [negated his]

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

21

hindsight claim that he would have rejected such exceptionally
favorable terms”).

In sum, Fernández pled guilty because he

concluded that doing so aligned with his best interests.
3. The Ineffective Assistance of Counsel
Guzmán and Gaztambide is Meritless

Claim

against

Because the Rule 11 violation is unsubstantiated, the
ineffective assistance of counsel claim is meritless.

See, e.g.,

United States v. Rector, Case No. 08-50015, 2013 U.S. Dist. LEXIS
156937 at *29 (W.D. Ark. Nov. 1, 2013) (“For the foregoing reasons,
the Court finds that there were no Rule 11(c) violations.

It

cannot, therefore, have been ineffective assistance of counsel for
[the

defendant’s]

attorneys

not

to

object

to

any

Rule

11(c)

violations.”) Guzmán and Gaztambide are not ineffective by failing
to set forth frivolous arguments.

See Jones v. Barnes, 463 U.S.

745, 754 (1983); Cofske v. United States, 290 F.3d 437, 444-45
(1st

Cir.

2002)

(holding

that

appellate

counsel

was

not

ineffective for foregoing an argument that “was not especially
promising”).

An attorney need not raise baseless claims, and

failure to do so does not render his or her legal assistance
ineffective.

See Acha v. United States, 910 F,2d 28 (1st Cir.

1990); Brown v. United States, 42 F.Supp.2d. 122, 131 (D.P.R.
1998).

Accordingly, the section 2255 motion is DENIED.

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

22

III. The Motion to Recuse
Fernández requests that the Court recuse itself from this
proceeding pursuant to a “motion to change venue.”
No. 2.)

(Civil Docket

This motion cites a nebulous “due process” basis for

disqualification.
sections

144

and

The relevant recusal statutes are 28 U.S.C.
455

(“section

144”

and

“section

455,”

respectively). See 28 U.S.C. §§ 144 & 455.
Defendants possess a “due process right to be tried before an
impartial judge – a fundamental right essential to a fair trial.”
Mitchell v. Sirica, 502 F.2d 375, 390 (D.C. Cir. 1974); see Tumey
v. Ohio, 273 U.S. 510, 535 (1927) (“No matter what the evidence
was against him, [the defendant] has the right to have an impartial
judge”). The allegations contained in Fernández’s motion to recuse
implicate the integrity of this Court and public confidence in the
judiciary.

The arguments in support of the motion to recuse,

however, are unconvincing.
A. Recusal Pursuant to Section 144
The recusal procedure set forth in section 144 provides,
in its entirety, that:
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that
the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor
of any adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear
such proceeding.

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

23

The affidavit shall state the facts and the reasons for
the belief that bias or prejudice exists, and shall be
filed not less than ten days before the beginning of
the term at which the proceeding is to be heard, or good
cause shall be shown for failure to file it within such
time. A party may file only one such affidavit in any
case.
It shall be accompanied by a certificate of
counsel of record stating that it is made in good faith.
28 U.S.C. § 144.
that

the

Fernández must demonstrate “in [an] affidavit

[undersigned]

judge

does

have

a

personal

bias

or

prejudice” in accordance “with the procedural requirements of
[section 144].”

In re Martínez-Cátala, 129 F.3d 213, 218 (1st

Cir. 1997) (footnote omitted).

Before determining whether recusal

is warranted, the “judge must pass upon the legal sufficiency of
the affidavit.”
(1st

Cir.

1988)

United States v. Giorgi, 840 F.2d 1022, 1034-35
(holding

that

“Judge

Pérez-Giménez

correctly

followed [section 144]; he reviewed the motion and supporting
materials and found no legal basis for disqualification therein”)
(emphasis in original).
Fernández’s “motion to change venue” does not contain an
affidavit.

This defect renders section 144 inapplicable in this

litigation.

See United States v. Chantal, 902 F.2d 1018, 1020 n.3

(1st Cir. 1990) (denying relief pursuant to section 144 because
the

“defendant

has

failed

to

support

the

motion

with

an

affidavit”); Leland v. United States, 495 F. Supp. 2d 124, 127 (D.
Me. 2007).

Accordingly, the Court need not transfer the recusal

Case 3:17-cv-02331-FAB Document 22 Filed 03/26/21 Page 24 of 27

Civil No. 17-2331 and Criminal No. 14-225 (FAB)
motion to another judge.

24

See In re United States, 158 F.3d 26, 34

(1st Cir. 1998) (“Although a trial judge faced with a § 455(a)
disqualification motion may, in her discretion, leave the motion
to a different judge, no reported case of accepted principle of
law compels her to do so.”) (citations omitted)
A. Recusal Pursuant to Section 455
Section 455(a) directs “[a]ny justice, judge, or magistrate
judge

of

the

proceeding

United

in

questioned.”

which

States
his

[to]

disqualify

impartiality

himself

might

in

reasonably

any
be

28 U.S.C. § 455(a); In re Martínez-Cátala, 129 F.3d

at 220 (holding that “where the appearance of partiality exists,
recusal is required regardless of the judge’s own inner conviction
that

he

or

she

can

decide

the

case

fairly

despite

the

circumstances”) (internal citation omitted); In re Bugler, 710
F.3d 42, 46 (1st Cir. 2013) (“The point under § 455(a) is not [the
judge’s] actual state of mind at a particular time, but the
existence of facts that would prompt a reasonable question in the
mind of a well-informed person about the judge’s capacity for
impartiality.”). 3

3

To

trigger

section

455(a),

Fernández

must

Congress bifurcated section 455, providing for mandatory recusal in
subsections (a) and (b). 28 U.S.C. § 455. Section 455(b)(1) enumerates five
circumstances in which disqualification is obligatory, none of which are
pertinent in this action. See e.g., 28 U.S.C. § 455(b)(4) (recusal is mandatory
when the presiding judge “knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial interest in
the subject matter in controversy”).

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

25

present “more than subjective fears, unsupported accusations or
unfounded surmise.”
is

appropriate

only

In re United States, 158 F.3d at 30.
when

the

circumstances

“provide

Recusal
what

an

objective, knowledgeable member of the public would find to be a
reasonable basis for doubting the judge’s impartiality.”

In re

Boston Children’s First, 244 F.3d at 167 (internal quotation
omitted).
The Court “has a duty not to recuse himself or herself
if there is no objective basis for recusal.”

In re United States,

441 F.3d 44, 67 (1st Cir. 2006); see United States v. Snyder, 235
F.3d 43, 45 (1st Cir. 2000) (“[U]nder § 455(a) a judge has a duty
to recuse himself if his impartiality can reasonably be questioned;
but otherwise he has a duty to sit.”).

“While doubts ordinarily

ought to be resolved in favor of recusal, the challenged judge
enjoys a margin of discretion.”
at 30 (citation omitted).

In re United States, 158 F.3d

This discretion exists because “in many

cases reasonable deciders may disagree.”
F.2d at 695.

In re United States, 666

Each case implicating section 455(a) is sui generis,

requiring a fact-specific analysis. In re Boston Children’s First,
244 F.3d at 171; In re United States, 158 F.3d at 31.

Ultimately,

the question for an appellate court is “not whether it would have
decided as did the trial court, but whether that decision cannot
be defended as a rational conclusion supported by [a] reasonable

Case 3:17-cv-02331-FAB Document 22 Filed 03/26/21 Page 26 of 27

Civil No. 17-2331 and Criminal No. 14-225 (FAB)
reading of the record.”

26

In re United States, 666 F.2d at 695.

1. The Motion to Recuse is Unsubstantiated
Because the section 2255 motion is based on Rule 11,
Fernández argues that there is an “untenable conflict to fairly
judge one’s own professional acts without actual or apparent bias.”
(Civil Docket No. 2 at p. 1.)

Pursuant to Fernández’s rationale,

no court is capable of adjudicating a Rule 11 motion.

Courts

routinely resolve allegations of judicial participation in plea
negotiations, however, without transferring the matter to another
judge.

See Cruz v. United States, Case No. 16-1789, 2019 LEXIS

175264 (D.P.R. Sept. 30, 2019) (Cerezo, J.); United States v. Cain,
Case No. 16-103, 2020 U.S. Dist. LEXIS 2409 at *38 (D. Me. Jan. 7,
2020) (“I followed Rule 11(c)(1) and did not participate in any
plea agreement negotiations between the prosecutor and Mr. Cain’s
defense lawyer.”); United States v. Salahuddin, 608 F. Supp. 2d
1061, 1065 (E.D. Wis. 2009).
The

motion

subjective
recusal.

to

beliefs.

recuse

relies

Surmise

and

exclusively
conjecture

on

Fernández’s

cannot

sustain

See In re Allied-Signal, Inc., 891 F.2d 967, 970 (1st

Cir. 1989) (“[W]hen considering disqualification, the district
court is not to use the standard of Caesar’s wife, the standard of
mere suspicion.”) (internal quotation and citation omitted).

A

fair and impartial judiciary is a lodestar of this democracy,

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Civil No. 17-2331 and Criminal No. 14-225 (FAB)

27

revered by this Court and essential to the peaceful resolution of
civil and criminal disputes.

A “motion to recuse is a very serious

matter and must have a factual foundation.” In re United States,
441 F.3d at 65.

That foundation is lacking in this proceeding.

Accordingly, the motion to recuse is DENIED.
IV.

Conclusion
For the reasons set forth above, Fernández’s motion to vacate,

set aside, or correct his sentence in Criminal Case No. 14225 (FAB) pursuant to section 2255 is DENIED.
1.)

The motion to recuse is also DENIED.

This case is DISMISSED, with prejudice.

(Civil Docket No.

(Civil Docket No. 2.)

Judgment shall be entered

accordingly.
If petitioner files a notice of appeal, no certificate of
appealability

shall

issue

because

petitioner

has

not

made

a

substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
San Juan, Puerto Rico, March 26, 2021.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE