Camacho-Santiago v. USA
Filing
24
OPINION AND ORDER re 1 Motion to Vacate, Set Aside or Correct Sentence (2255). The Court ORDERS an evidentiary hearing solely on whether Camacho was prejudiced by his attorney's deficient performance. Signed by Judge Francisco A. Besosa on 03/03/2021. (brc)
Case 3:18-cv-01140-FAB Document 24 Filed 03/03/21 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARLOS R. CAMACHO-SANTIAGO,
Petitioner,
v.
Civil No. 18-1140 (FAB)
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Before the Court is Carlos R. Camacho-Santiago (“Camacho”)’s
motion to vacate the judgment against him and to allow him to
consider a reinstated plea offer.
(Docket No. 1.) 1
As discussed
below, the Court ORDERS an evidentiary hearing solely on whether
Camacho was prejudiced by his attorney’s deficient performance.
I.
Background
In 1993, Camacho was convicted of four crimes in Puerto Rico
court.
(Docket No. 1 at pp. 4–5.)
sentenced to ten years of probation.
For one conviction, he was
Id. at p. 4.
For the other
three convictions, he was sentenced to two, three, and five years
of probation.
Id. at pp. 4–5; see Docket No. 2, Exs. 1–3.
The
Puerto Rico sentencing court explained that those three probation
terms were to be served consecutively to the sentence for the first
conviction, (Docket No. 2, Exs. 1–3), but did not indicate whether
1
All docket references are to Civil No. 18-1140 unless otherwise indicated.
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2
those three terms of probation were to be served consecutively to,
or concurrently with each other.
See id.
If the three terms of
probation were to be served consecutively to each other, Camacho’s
probation would end in 2013 (i.e., twenty years after 1993).
If
they were to be served concurrently with each other, the probation
would end in 2008 (i.e., fifteen years after 1993).
In 2012, Camacho was charged in federal court with two counts
of drug trafficking crimes.
(Crim. No. 12-413, Docket No. 3); see
also Crim. No. 12-413, Docket No. 518 at pp. 3–7 (superseding
indictment).
He pled not guilty.
(Crim. No. 12-413, Docket
Nos. 578, 590.)
That same year, Puerto Rico authorities began proceedings to
revoke Camacho’s probation because of the federal charges. (Docket
No. 2, Exs. 4–5.)
They necessarily assumed that the three terms
of probation were to be served consecutively to each other and
that, as a consequence, Camacho was still on probation in 2012.
See
id.
Camacho’s
lawyer,
Ismael
Rodríguez-Izquierdo
(“Rodríguez”), argued in the revocation proceedings in the state
court that the federal charges were based on inadequate evidence.
Id., Exs. 6–7, 9.
The government made a plea offer in the federal case. (Docket
No. 1 at p. 2.)
According to Camacho, “[t]he plea offered [sic]
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3
tendered by the prosecution in the federal case was for ten (10)
years of imprisonment.”
Id.
Rodríguez also represented Camacho in the federal case.
Camacho
states
that
Rodríguez’s advice.
he
Id.
rejected
the
federal
plea
offer
Id.
on
Apparently, Rodríguez told Camacho that
he was still on probation for the Puerto Rico charges and that
pleading guilty to the federal charges would cause Puerto Rico to
revoke his probation.
Id.
So, like the Puerto Rico authorities,
Rodríguez necessarily believed that the three terms of probation
were to be served consecutively to each other, and that Camacho
was still on probation in 2012.
See id.
Camacho says Rodríguez
counseled that the revocation would land him in prison for twenty
years consecutive to any federal sentence.
Id.
Camacho proceeded to trial in the federal case.
In various
pre-trial motions, Camacho indicated his intention to proceed to
trial.
See
Docket
No. 10
at
pp. 8–9
(collecting
pre-trial
motions).
In 2014, a jury found Camacho guilty of the federal charges.
(Crim. No. 12-413, Docket No. 1448.)
At the sentencing hearing,
Camacho stated that he did not agree with the jury’s decision but
would respect it.
35.)
(Crim. No. 12-413, Docket No. 1874 at pp. 34–
This Court sentenced Camacho to 360 months imprisonment and
entered judgment.
(Crim. No. 12-413, Docket No. 1651.)
The First
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4
Circuit Court of Appeals affirmed.
United States v. Camacho-
Santiago, 851 F.3d 81, 83 (1st Cir. 2017).
After Camacho was convicted, the Puerto Rico court revoked
his probation and sentenced him to twenty years imprisonment.
(Docket No. 2, Ex. 15.)
That court, like Rodríguez and the Puerto
Rico authorities, must have thought that the three probation terms
were to be served consecutively to each other and that Camacho was
still on probation.
See id.
In 2015, a Puerto Rico appellate court held that Camacho’s
probation ended in 2008.
(Docket No. 2, Ex. 18 at p. 13.)
The
appellate court explained that because the 1993 sentencing court
did not indicate whether the three terms of probation were to be
served concurrently with, or consecutively to, each other, the law
required that they be served concurrently.
13.
Id., Ex. 18 at pp. 12–
In support, the appellate court pointed to Rule 179 of the
Puerto Rico Rules of Criminal Procedure and People v. García, 165
D.P.R. 339, 344 (P.R. 2005).
(Docket No. 2, Ex. 18 at pp. 12–13.)
This means, of course, that pleading guilty in the federal case
could not have caused Puerto Rico to revoke Camacho’s probation in
2012.
Id. at p. 13.
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II.
5
The Parties’ Positions
A.
Camacho
Camacho’s
motion
boils
down
to
the
following
four
propositions: (1) His Puerto Rico probation ended before the
federal proceedings began.
(Docket No. 1 at pp. 2–3.)
(2) His
lawyer erred in advising him that accepting the plea in the federal
case would lead Puerto Rico to revoke his probation.
Id.
(3) He
would have accepted the federal plea but for that advice.
Id. at
p. 3.
(4) Following the advice landed him in prison for longer
than he would have been imprisoned had he accepted the plea offer.
Id.
Camacho explains that Rodríguez recently admitted that
his plea bargain advice was mistaken.
17.)
(Docket No. 1 at pp. 3, 9,
According to Camacho,
[Rodríguez] candidly and honestly admitted to giving
[Camacho] mistaken advice regarding his alleged exposure
to a twenty (20) year local court revocation judgment
consecutive to the ten (10) year federal sentence
offered in a plea by the prosecution. [Rodríguez] also
stated that his mistaken advice prevented [Camacho] from
considering the federal plea offer; that this fact
caused [Camacho] not to be able to evaluate the plea
offered and the consequences of facing the federal trial
without accepting the plea tendered by the prosecution.
Id. at p. 9.
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Civil No. 18-1140 (FAB)
B.
6
The Government
The government argues that Rodríguez’s advice was not
deficient at the time it was given.
(Docket No. 10 at pp. 5–7.)
According to the government, the circumstances giving rise to
Camacho’s claim were not foreseeable at the time and are “wholly
dependent
ended.”
on
events
that
Id. at p. 5.
transpired
after
the
representation
Therefore, the government argues that
Camacho leans too heavily on hindsight in implying that Rodríguez
should have known that Camacho’s probation had ended.
pp. 5–6.
Id. at
The government warns, “To conclude that counsel should
have known facts dependent on a later ruling by the state court of
appeal, is to declare that counsel should engage in speculation of
potential unforeseen circumstances.”
Id. at p. 7.
The government also asserts that Camacho cannot show he
would have accepted the government’s plea offer but for Rodríguez’s
advice.
Id. at pp. 8–10.
In support, the government points to
Camacho’s assertions before and during the trial regarding (i) his
intention to proceed to trial, (ii) the government’s alleged lack
of sufficient evidence against him, and (iii) his disagreement
with the jury’s verdict.
Id.
According to the government, these
assertions “unequivocally suggest that Camacho was determined to
go to trial well before and after any plea offer was extended” and
establish
“a
reasonable
probability
that
Camacho
would
have
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Civil No. 18-1140 (FAB)
7
proceeded to trial regardless of the pending state revocation.”
Id. at pp. 8–9.
III. Applicable Law
In certain circumstances, a federal prisoner may attack his
conviction or sentence pursuant to 28 U.S.C. § 2255. An allegation
that defense counsel rendered ineffective assistance during plea
bargaining may be a proper basis on which to attack a conviction
or sentence.
See Andrus v. Texas, 140 S. Ct. 1875, 1881 (2020);
Iowa v. Tovar, 541 U.S. 77, 81 (2004); Hill v. Lockhart, 474 U.S.
52, 57 (1985).
A
claim
of
ineffective
assistance
of
counsel
generally
requires a section 2255 petitioner to satisfy a two-pronged test.
A petitioner “must show that his ‘counsel’s representation fell
below an objective standard of reasonableness’ and that such
deficiency prejudiced him.”
Feliciano-Rodríguez v. United States,
986 F.3d 30, 36 (1st Cir. 2021) (quoting Strickland v. Washington,
466 U.S. 668, 688 (1984)) (emphasis supplied).
The first prong of that standard is sometimes known as the
“performance
prong.”
When
evaluating
whether
a
petitioner
satisfies the performance prong, “[t]he proper measure of attorney
performance
remains
simply
reasonableness
under
prevailing
professional norms.” Strickland, 466 U.S. at 688. Courts maintain
“a ‘strong presumption that counsel’s conduct falls within the
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8
wide range of reasonable professional assistance,’”
Feliciano-
Rodríguez, 986 F.3d at 37 (quoting Strickland, 466 U.S. at 689),
and “find an attorney’s performance deficient ‘only where, given
the facts known at the time, counsel’s choice was so patently
unreasonable that no competent attorney would have made it.’”
(quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)).
Id.
“[A]
reviewing court must not lean too heavily on hindsight: a lawyer’s
acts and omissions must be judged on the basis of what he knew, or
should have known, at the time his tactical choices were made and
implemented.”
Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002).
A showing that defense counsel gave incompetent advice to
accept or reject a plea offer can be sufficient to satisfy the
performance prong. See Lafler v. Cooper, 566 U.S. 156, 164 (2012);
Turner
v.
Tennessee,
858
F.2d
1201,
1205
(6th
Cir.
1988)
(collecting cases).
For example, in Lee v. United States, 137
S. Ct.
(2017),
1958,
1962
“[e]veryone
agree[d]
that
[the
petitioner] received objectively unreasonable representation” when
his attorney erroneously advised him that accepting a plea would
not subject him to mandatory deportation.
This court has held
that an attorney’s performance was deficient where the attorney
did not communicate offers to the client, stalled negotiations,
and misrepresented his client’s desire to sign a plea agreement.
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9
United States v. Miranda, 50 F. Supp. 3d 85, 90–96 (D.P.R. 2014)
(Pérez-Giménez, J.).
The second prong of the ineffectiveness standard is known as
the “prejudice prong”.
there
is
a
It requires a petitioner to “‘show that
reasonable
probability
that,
but
for
counsel’s
unprofessional errors, the result of the proceedings would have
been different.’”
Feliciano-Rodríguez, 986 F.3d at 37 (quoting
Strickland, 466 U.S. at 694).
“This is a ‘highly demanding and
heavy burden,’ meaning that ‘[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.’”
Id. (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000)).
The prejudice prong requires a particular showing where a
petitioner alleges that he would have accepted a plea offer but
for his counsel’s advice.
In these circumstances, a petitioner
“must show that but for the ineffective advice of counsel
there is a reasonable probability that the plea offer
would have been presented to the court (i.e., that the
defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence,
or both, under the offer’s terms would have been less
severe than under that the judgment and sentence that in
fact were imposed.”
Id. (quoting Lafler, 566 U.S. at 164).
A section 2255 petitioner bears the burden of establishing
the need for an evidentiary hearing by a preponderance of the
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evidence.
10
DeCologero v. United States, 802 F.3d 155, 167 (1st
Cir. 2015); Myatt v. United States, 875 F.2d 8, 11 (1st Cir.1989).
“Where
the
record,
motions,
and
supporting
documentation
demonstrate there to be a genuine issue of material fact, the Court
must hold an evidentiary hearing.”
Kiley v. United States, 260
F. Supp. 2d 248, 257 (D. Mass. 2003) (citing United States v.
DiCarlo, 575 F.2d 952, 954 (1st Cir.1978)).
“An evidentiary
hearing is not necessary when a § 2255 petition (1) is inadequate
on its face, or (2) although facially adequate, is conclusively
refuted as to the alleged facts by the files and records of the
case.”
Moreno-Morales v. United States, 334 F.3d 140, 145 (1st
Cir. 2003) (alteration and internal quotation marks omitted).
In reviewing the need for an evidentiary hearing, courts “take
the petitioner’s credible allegations as true,” DeCologero, 802
F.3d at 167 (internal quotation marks omitted), “but the court
need not give weight to conclusory allegations, self-interested
characterizations,
discredited
inventions,
or
opprobrious
epithets,” United States v. McGill, 11 F.3d 223, 225 (1st Cir.
1993).
“Moreover, when, as in this case, a petition for federal
habeas relief is presented to the judge who presided at the
petitioner’s trial, the judge is at liberty to employ the knowledge
gleaned
during
previous
proceedings
and
make
thereon without convening an additional hearing.”
findings
Id.
based
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Civil No. 18-1140 (FAB)
IV.
11
Discussion
A.
The Performance Prong
Rodríguez’s performance fell below an objective standard
of reasonableness. In 2012, he could have—and a competent attorney
would have—determined that Puerto Rico law required Camacho’s
probation to end in 2008. Instead, Rodríguez advised Camacho while
operating on an assumption that the probation ended in 2013. There
is no indication in the record that Rodríguez investigated when
Puerto Rico law required the probation to end.
There is also no
indication that Rodríguez’s error is the product of a tactical or
strategic decision.
To the contrary, Rodríguez candidly and
unqualifiedly acknowledged his error.
17.)
(Docket No. 1 at pp. 3, 9,
And the government disputes none of those facts.
The
government’s
argument
is
limited
consequences of the facts in Camacho’s petition.
to
the
legal
The government
argues that this Court should not expect a competent attorney to
have determined that Camacho’s probation ended in 2008.
No. 10 at pp. 5–7.)
(Docket
In the government’s view, Camacho’s petition
is “wholly dependent” on the Puerto Rico appellate court’s 2015
ruling.
Id. at p. 5.
The government misunderstands federal law and myopically
focuses on the Puerto Rico appellate court’s 2015 decision.
To be
sure, an attorney need not possess “clairvoyance” or be “a crystal
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Civil No. 18-1140 (FAB)
12
gazer” to render performance consistent with the demands of the
Sixth Amendment. State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005).
At the same time, however, attorneys are expected to stay abreast
of developments in the law and make arguments to develop the law
for the benefit of their clients.
For instance, the Fifth Circuit
Court of Appeals held that an attorney’s performance fell below an
objective standard of reasonableness where he failed to make an
argument on a point of law that was not settled in that circuit
but had been decided in his client’s favor in other circuits.
United States v. Franks, 230 F.3d 811, 814 (5th Cir. 2000).
Camacho’s petition does not call on Rodríguez to have
been clairvoyant or to have speculated.
It does not even ask
Rodríguez to have sought to develop the law.
Rather, it points
out that Rodríguez did not apply a settled point of law.
The law
applied by the Puerto Rico appellate court in 2015 was settled in
2012.
See Docket No. 2, Ex. 18 at pp. 12–13 (citing García, 165
D.P.R. at 344; P.R. Rules of Crim. P. 179).
Rule 179 of the Puerto
Rico Rules of Criminal Procedure stated in 2012,
When a person is convicted for a crime, the sentencing
court, when issuing the sentence, must determine whether
the prison term imposed must be served consecutively or
concurrently with any other prison terms. If the court
fails to make said determination, the prison term
imposed shall be served concurrently with any others
that the court imposes as part of its sentence . . . .
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13
P.R. R. Crim. P. 179 (certified translation into the English
language at Docket No. 22, Ex. 1).
In García, the Supreme Court
of Puerto Rico explained in 2005 that “Rule 179 . . . establishes
that whenever the court fails to determine that the sentences must
be served consecutively, the sentence imposed must be served
concurrently
with
any
other.”
165
D.P.R.
at
344
(certified
translation into the English language at Docket No. 22, Ex. 2).
Rodríguez, as Camacho’s lawyer, could have—and should have—applied
that law in 2012 just as easily as the Puerto Rico appellate court
did in 2015.
Accordingly, the government’s opposition fails.
The
performance
standard.
Court
prong
of
holds
that
the
Camacho
ineffective
has
satisfied
assistance
of
the
counsel
Strickland, 466 U.S. at 688–89; Feliciano-Rodríguez,
986 F.3d at 37.
There is no need to conduct an evidentiary hearing
on this issue because the government does not dispute any fact on
which Camacho relies in asserting that Rodríguez’s performance
fell below an objective standard of reasonableness.
B.
It did.
The Prejudice Prong
Whether Camacho would have accepted the plea offer is a
disputed issue of fact.
Camacho asserts that he would have
accepted the plea but for Rodríguez’s advice.
p. 3.)
(Docket No. 1 at
He argues that he received “the toughest sentence in the
entire indictment,” and that his sentence “more than doubled the
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Civil No. 18-1140 (FAB)
14
highest sentenced imposed by the court to other co-defendants in
the case.”
Id. at pp. 3, 17.
The government’s opposition points
to instances in which Camacho (usually through his attorney)
asserted either his innocence or that the government did not have
sufficient evidence.
(Docket No. 10 at pp. 8–10.)
The reasoning put forward by the government has been
found insufficient to deny an evidentiary hearing.
In Griffin v.
United States, 330 F.3d 733, 738 (6th Cir. 2003), a defendant
argued that his attorney was ineffective for not presenting him a
plea offer.
The government argued that the defendant would not
have accepted the plea offer.
Id.
The government relied on a
plethora of instances in which the defendant asserted his innocence
and his intention to proceed to trial.
Id.
The Griffin court rejected the government’s argument.
Id.
It pointed to the Supreme Court’s observation that “reasons
other than the fact that he is guilty may induce a defendant to so
plead, . . . and he must be permitted to judge for himself in this
respect.”
Id. (quoting North Carolina v. Alford, 400 U.S. 25, 33
(1970) (quoting State v. Kaufman, 2 N.W. 275, 276 (Iowa 1879))).
The Griffin court explained that, as a practical matter, it made
no sense to require or expect a defendant to admit guilt before
accepting a plea deal.
Id.
The Griffin court also noted that a
defendant could enter an Alford plea while maintaining innocence.
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Civil No. 18-1140 (FAB)
Id.
15
And the Griffin court highlighted a Fifth Amendment right to
maintain innocence.
Id.
The Griffin court ordered an evidentiary
hearing on whether the defendant would have accepted the plea
because (i) a substantial gap existed between the defendant’s
sentencing exposure and the plea offer, (ii) the defendant was
unaware
that
co-defendants
would
testify
against
him,
and
(iii) the defendant did not know the government would be proposing
sentencing enhancements.
Id. at 739.
In the circumstances of this case, the Court holds that
Camacho has met his burden to obtain an evidentiary hearing on the
prejudice prong of the ineffective assistance of counsel standard.
DeCologero, 802 F.3d at 167; Griffin, 330 F.3d at 738–40; McGill,
11 F.3d at 225; Kiley, 260 F. Supp. 2d at 257.
The gap between
Camacho’s sentencing exposure at trial and the plea offer, along
with Camacho’s unawareness that he was not subject to probation
revocation by Puerto Rico authorities, are sufficient to merit a
hearing.
Camacho’s stated intention to go to trial and his
comments at the sentencing hearing do not conclusively refute
Camacho’s section 2255 petition.
Moreno-Morales, 334 F.3d at 145;
Griffin, 330 F.3d at 738.
One additional matter deserves attention at this stage.
The government confuses the applicable standard.
The government
argues that Camacho’s assertions regarding a lack of sufficient
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Civil No. 18-1140 (FAB)
16
evidence establish “a reasonable probability that Camacho would
have
proceeded
revocation.”
to
trial
regardless
of
(Docket No. 10 at p. 8.)
the
pending
state
The relevant question,
however, is whether Camacho can show a reasonable probability that
the plea agreement would have been presented to the Court, the
Court would have accepted it, and the conviction or sentence would
have been less severe than were in fact imposed.
Lafler, 566 U.S.
at 164; Feliciano-Rodríguez, 986 F.3d at 37.
V.
Conclusion
As discussed above, the Court ORDERS an evidentiary hearing
on
whether
Camacho
was
prejudiced
by
Rodríguez’s
deficient
performance.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 3, 2021.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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