Rivera-Delgado v. United States of America, No. 3:2007cv01383 - Document 25 (D.P.R. 2009)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 05-134-9 JAF.) filed by Joel Rivera-Delgado. However, the court notes that, previously, we reduced Petitioner's term of imprisonment to 121 months. See Case No. 05-134, Docket No. 266 . As of today, that part of Petitioner's request is moot. Judgment to enter. Signed by Chief Judge Jose A Fuste on 2/24/09.(mrj)

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1 2 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 3 JOEL RIVERA-DELGADO, 4 Petitioner, Civil No. 07-1383 (JAF) 5 v. (Crim. No. 05-134 (HL)) 6 7 UNITED STATES OF AMERICA, Respondent. 8 OPINION AND ORDER 9 10 Petitioner, Joel Rivera-Delgado, brings this pro-se petition for 11 post-conviction relief from a federal judgment pursuant to 28 U.S.C. 12 § 2255. Docket No. 1. Respondent, the United States of America, 13 opposes. Docket No. 17. 14 I. 15 Factual and Procedural History 16 On May 11, 2005, Petitioner was charged with one count of 17 conspiracy to possess with intent to distribute fifty grams or more 18 of crack cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 19 (b)(1)(A), and 846. Case No. 05-134, Docket No. 40. The indictment 20 alleged that the conspiracy lasted from about 1998 until May 2005. 21 Id. Petitioner was personally charged with leading, organizing, and 22 controlling this narcotics-trafficking conspiracy; using violence to 23 enforce the conspiracy; and supervising the sale of drugs at several 24 locations in Guayama and Arroyo, Puerto Rico. Id. at 3. 25 26 Petitioner moved for a change of plea on November 9, 2005, with assistance of counsel. Case No. 05-134, Docket No. 101. On Civil No. 07-1383 (JAF) -2- 1 January 19, 2006, Petitioner signed a waiver of his right to trial by 2 jury. Case No. 05-134, Docket No. 162. 3 On January 19, 2006, pursuant to a plea agreement, Petitioner 4 pled guilty to conspiracy to distribute between fifty and 150 grams 5 of crack. Case No. 05-134, Docket No. 164. Under the agreement, 6 Petitioner and the government agreed that Petitioner s base offense 7 level would be set at thirty-two, reduced by three for his acceptance 8 of responsibility, and increased by three for his significant role in 9 the conspiracy, resulting in an adjusted level of thirty-two. Id. 10 The consequent recommended term of imprisonment was from 121 to 151 11 months. Id. 12 On May 26, 2006, Judge Héctor Laffitte sentenced Petitioner to 13 imprisonment for 132 months with credit for time served, supervised 14 release for five years, and a $100 assessment, and entered judgment 15 against Petitioner. Case No. 05-134, Docket No. 220. On May 4, 2007, 16 Petitioner moved to vacate his judgment under 28 U.S.C. § 2255 on the 17 grounds that his counsel was ineffective, that the waiver of his 18 right to appeal was unknowing, and that recent legal developments 19 entitle him to a lesser penalty. Docket No. 1. The government opposed 20 on October 31, 2008. Docket No. 17. 21 On November 28, 2008, we held an evidentiary hearing, per Rule 22 8 of the Rules Governing Section 2255 Proceedings, on Petitioner s 23 plea colloquy on January 19, 2006. Docket No. 24. In the course of 24 this hearing, we discovered evidence that Petitioner may be entitled 25 to a reduced sentence in light of recent amendments to the U.S. 26 Sentencing Commission Guidelines. Id. Civil No. 07-1383 (JAF) -3- 1 II. 2 Standard Under Section 2255 3 A federal district court has jurisdiction to entertain a § 2255 4 motion when the petitioner is in custody under the sentence of a 5 federal court. See 28 U.S.C. § 2255. Section 2255 provides four 6 grounds under which a federal prisoner challenging the imposition or 7 length of his sentence may seek relief. The petitioner may argue 8 that: 9 Constitution or laws of the United States; (2) the court was without 10 jurisdiction to impose such a sentence; (3) the sentence was in 11 excess of the maximum authorized by law; or (4) the sentence is 12 otherwise subject to collateral attack. § 2255(a). Should a court 13 find any of these errors, it shall vacate and set the judgment aside 14 and shall discharge the prisoner or resentence him or grant a new 15 trial or correct the sentence as may appear appropriate. § 2255(b). 16 The petitioner bears the burden of establishing, by a preponderance 17 of the evidence, that he is entitled to relief. United States v. 18 DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). (1) the court imposed the sentence 19 violation of the III. 20 in Analysis 21 Because Petitioner is pro se, we construe his pleadings more 22 favorably than we would pleadings drafted by an attorney. See Haines 23 v. 24 González, 909 F.2d 8, 15 (1st Cir. 1990). However, Petitioner's pro- 25 se status does not insulate him from the strictures of procedural and Kerner, 404 U.S. 519, 520 (1972); Ayala Serrano v. Lebrón Civil No. 07-1383 (JAF) -4- 1 substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 2 1997). 3 A. Waiver of Appeal 4 Petitioner claims that his waiver of his right to appeal was 5 unknowing. Docket No. 1. Federal Rule of Criminal Procedure 11(b) 6 guards against coerced pleas by requiring the court to engage in an 7 extensive colloquy to ascertain a defendant s voluntariness and 8 awareness of his rights. While a guilty plea must be knowing, 9 voluntary, and intelligent, if a court has accepted a defendant s 10 plea per Rule 11, the defendant cannot go back on his own word by 11 petitioning under § 2255. United States v. Sánchez-Barreto, 93 F.3d 12 17, 23 (1st Cir. 1996). 13 The court discussed Petitioner s rights at length during his 14 plea colloquy. Docket No. 12. Petitioner represented that his plea 15 was both knowing and voluntary, and that he was consciously waiving 16 his right to appeal the length of his prison term. Id. The plea 17 agreement clearly spells out Petitioner s potential maximum liability 18 under the offense and his waiver of the right to appeal his sentence. 19 Case No. 05-134, Docket No. 164. This case essentially turns on a 20 swearing contest between Petitioner s assertions in this petition and 21 his previous sworn affirmations to this court. See Sánchez-Barreto, 22 93 F.3d at 23; see also Peguero v. United States, 526 U.S. 23, 29-30 23 (1999) (denying § 2255 relief due to petitioner s knowledge of his 24 right to appeal). We, therefore, deny Petitioner s claim on the issue 25 of waiver of appeal. Civil No. 07-1383 (JAF) 1 2 B. -5- Ineffective Assistance of Counsel Petitioner argues that his sentence is unconstitutionally 3 tainted by ineffective assistance of counsel, to wit, (1) that 4 counsel failed to obtain the best possible plea agreement, (2) that 5 his plea was not fully knowing as he was unaware of possible 6 sentencing enhancements, (3) that his lawyer failed to file a timely 7 objection to the pre-sentence investigation report, and (4) that 8 counsel failed to file a direct appeal. Docket No. 1. 9 To establish ineffective assistance of counsel, Petitioner must 10 show both that his attorney s performance was deficient and that he 11 suffered prejudice as a result of the deficiency. Strickland v. 12 Washington, 466 U.S. 668, 686-96 (1984). To demonstrate deficient 13 performance, Petitioner must establish that counsel was not acting 14 within the broad norms of professional competence. Owens v. United 15 States, 483 F.3d 48, 57 (1st Cir. 2007) (citing Strickland, 466 U.S. 16 at 687-91). As to prejudice in guilty pleas, Petitioner must show 17 that there is a reasonable probability that, but for counsel s 18 errors, he would not have pleaded guilty and would have insisted on 19 going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). 20 First, Petitioner does not allege that he would not have pled 21 guilty and would have insisted on a jury trial, but for his lawyer s 22 intercession. See Docket No. 1. Accordingly, Petitioner fails to show 23 sufficient prejudice for ineffective assistance as to the first two 24 claims relating to his guilty plea. See Hill, 474 U.S. at 59. 25 Second, Petitioner does not point to any portion of the pre-sentence 26 investigation report that should have prompted counsel to object, see Civil No. 07-1383 (JAF) -6- 1 Docket No. 1, and, thus, fails to show prejudice, see Strickland, 466 2 U.S. at 686-96. Third, Petitioner s waiver of his right to appeal, 3 supra, forecloses the claim that counsel neglected to file an appeal. 4 C. Remedy for Crack Cocaine Disparity 5 At the hearing, Petitioner urged us to reconsider his judgment 6 in light of recent developments in sentencing for crack-related 7 offenses. Docket No. 1. Pursuant to an administrative directive dated 8 February 15, 2008, the District of Puerto Rico retrospectively 9 reforms federal sentences, sua sponte, to effect recent amendments to 10 the U.S. Sentencing Commission Guidelines pertaining to crack-related 11 offenses. Misc. No. 08-31, Docket No. 1. As Petitioner admitted 12 responsibility 13 Petitioner s base offense level under the amended guidelines is 14 thirty, a reduction of two points from the previous version of the 15 guidelines. See U.S. Sentencing Guidelines Manual § 2D1.1(c) (2008). 16 Based on Petitioner s criminal history category at one, Case No. 05- 17 134, Docket No. 202, the guideline sentencing range should be from 97 18 to 121 months imprisonment, see Sentencing Guidelines (Sentencing 19 Table). As the mandatory statutory minimum sentence for crimes 20 involving fifty or more grams of crack is 120 months, 21 U.S.C. 21 § 841(b)(1)(A)(iii), the effective sentencing range is 120 to 121 22 months. Pursuant to 18 U.S.C. § 3582(c)(2), we reduced Petitioner s 23 sentence by eleven months, to 121 months imprisonment. See Case 24 No. 05-134, Docket No. 266. for over fifty grams of crack, Docket No. 12, Civil No. 07-1383 (JAF) -7- 1 IV. 2 Conclusion For the foregoing reasons, we DENY § 2255 relief. However, the 3 4 court notes that, previously, we reduced Petitioner s 5 imprisonment to 121 months. See Case No. 05-134, Docket No. 266. As 6 of today, that part of Petitioner s request is moot. 7 IT IS SO ORDERED. 8 term San Juan, Puerto Rico, this 24th day of February, 2009. 9 10 11 S/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge of

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