Rivera-Gomez v. USA, No. 3:2010cv01098 - Document 6 (D.P.R. 2010)
Court Description: OPINION AND ORDER DENYING 5 MOTION for Hearing filed by Juan A. Rivera-Gomez, DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-453), filed by Juan A. Rivera-Gomez. Pursuant to Rule 4(b) of the Rules Governing & #167; 2255 Proceedings, judgment shall enter summarily dismissing this case, it plainly appearing from the record that Petitioner is not entitled to § 2255 relief from this court. Signed by Chief Judge Jose A Fuste on 11/30/2010.(mrj)
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Rivera-Gomez v. USA Doc. 6 1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO JUAN A. RIVERA-GOMEZ, 4 Petitioner, 5 v. 6 7 8 Civil No. 10-1098 (JAF) (Crim. No. 07-453) UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER 9 Petitioner, Juan A. Rivera-Gómez, brings this pro-se petition under 28 U.S.C. § 2255 for 10 relief from sentencing by a federal court, alleging that the sentence was imposed in violation 11 of his constitutional rights. (Docket No. 1-2.) The Government opposes. (Docket No. 3.) 12 Petitioner replies (Docket No. 4) and moves for an evidentiary hearing (Docket No. 5). 13 I. 14 Factual and Procedural Summary 15 We draw the following narrative from Petitioner’s motion, the Government’s response, 16 and Petitioner’s reply. (Docket Nos. 1; 3; 4.) Petitioner was indicted on seven charges relating 17 to his role as leader in a narcotics conspiracy. (Crim. No. 07-453, Docket No. 3.) Count one 18 charged Petitioner with conspiracy to possess with intent to distribute one kilogram (“kg”) or 19 more of heroin, fifty grams or more of cocaine base (“crack”), five kg or more of cocaine, and 20 unspecified quantities of marijuana, oxycodone, and alprazolam, all in violation of 18 U.S.C. 21 §§ 841, 846, 860. (Id.) Count six charged Petitioner with aiding and abetting the possession Dockets.Justia.com Civil No. 10-1098 (JAF) -2- 1 of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). 2 (Id.) 3 Petitioner agreed to plead guilty to counts one and six, in exchange for the Government’s 4 recommendation for dismissal of the other five counts. (Crim. No. 07-453, Docket Nos. 570; 5 1649.) As part of his plea agreement, Petitioner stipulated that he was liable for conspiring to 6 possess at least one but less than three kg of heroin, at least five but less than fifteen kg of 7 cocaine, and at least 150 but less than 500 grams of crack. (Id.) Petitioner was sentenced to 156 8 months’ imprisonment and ten years’ supervised release for count one. (Crim. No. 07-453, 9 Docket No. 1828.) He was sentenced to sixty months’ imprisonment and an additional sixty 10 months’ supervised release for count six. While the terms of imprisonment were sentenced to 11 run consecutively, the terms of supervised release were to be concurrent. 12 Petition appealed our judgment but Petitioner’s appellate counsel filed a motion seeking 13 to withdraw from representation, in compliance with Anders v. California, 386 U.S. 738 (1967). 14 Petitioner then filed a pro-se brief before the First Circuit. (Docket No. 3-3.) He argued that 15 the indicted conduct was beyond the statute of limitations, that appellate counsel was ineffective 16 in counseling him to plead guilty to count six where there was insufficient evidence Petitioner 17 had handled a firearm, and that the sentencing enhancement for distributing drugs in a protected 18 location “[was] not jurisdictional[ly] applicable.” The First Circuit summarily affirmed our 19 decision, finding that Petitioner’s arguments were frivolous. (Crim. No. 07-453, Docket 20 No. 1958.) Civil No. 10-1098 (JAF) -3- 1 II. 2 Standard for Relief Under 28 U.S.C. § 2255 3 A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner 4 is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner 5 may challenge his or her sentence on the ground that, inter alia, it “was imposed in violation of 6 the Constitution or laws of the United States.” Id. 7 The petitioner is entitled to an evidentiary hearing unless the “allegations, even if true, 8 do not entitle him to relief, or . . . the movant’s allegations need not be accepted as true 9 because they state conclusions instead of facts, contradict the record, or are inherently 10 incredible.” Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (internal quotation marks 11 omitted) (quoting David v. United States,134 F.3d 470, 477 (1st Cir. 1998)); see also § 2255(b). 12 III. 13 Analysis 14 Because Petitioner appears pro se, we construe his pleadings more favorably than we 15 would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 16 Nevertheless, Petitioner’s pro-se status does not excuse him from complying with procedural 17 and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 18 We first note that grounds four and five, as enumerated by Petitioner in his § 2255 19 motion, were previously raised on direct appeal: (4) trial counsel was ineffective in counseling 20 Petitioner to plead guilty to the § 924(c) firearms charge; and (5) the sentencing enhancement 21 for drug distribution in a protected location suffered from a “jurisdictional” infirmity. We 22 cannot adjudicate a claim under § 2255 that was previously brought on direct appeal unless Civil No. 10-1098 (JAF) -4- 1 equitable considerations like actual innocence or cause and prejudice weigh in favor of 2 collateral review. See Conley v. United States, 323 F.3d 7, 22 (1st Cir. 2003) (citing Withrow 3 v. Williams, 507 U.S. 680, 721 (1993) (Scalia, J., concurring)). Petitioner has made no 4 demonstration of actual innocence or of cause and prejudice that may have affected his prior 5 litigation of this claim on direct appeal. For this reason, we will not consider these two grounds. 6 Petitioner’s remaining claims are that trial counsel allegedly provided ineffective 7 assistance in the following ways: (1) failing to move to dismiss the indictment based on charged 8 conduct occurring outside the five-year statute of limitations, see 18 U.S.C. § 3282; (2) advising 9 Petitioner to plead guilty to a larger amount of cocaine than charged; and (3) failing to object 10 to the fifteen-year term of supervised released imposed at sentencing. 11 The success of a claim of ineffective assistance of counsel under § 2255 depends on a 12 petitioner’s showing both a deficient performance by his trial counsel and a resulting prejudice. 13 Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010). Deficient performance is present 14 where the trial counsel’s representation “fell below an objective standard of reasonableness,” 15 a standard that is informed by “prevailing professional norms.” Id. (quoting Strickland v. 16 Washington, 466 U.S. 668, 688 (1984)). Choices made by counsel that could be considered part 17 of a reasonable trial strategy rarely amount to deficient performance. See Strickland, 466 U.S. 18 at 690. Counsel’s decision not to pursue “futile tactics” will not be considered deficient 19 performance. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999); see also Acha v. United States, 20 910 F.2d 28, 32 (1st Cir. 1990) (stating that failure to raise meritless claims is not deficient 21 performance). To succeed on a claim of ineffective assistance of counsel, a petitioner must 22 overcome the “strong presumption that counsel’s conduct falls within the wide range of Civil No. 10-1098 (JAF) -5- 1 reasonable professional assistance.” Strickland, 466 U.S. at 689. This inquiry into counsel’s 2 performance is “highly deferential” and rejects comparisons to “perfect advocacy judged with 3 the benefit of hindsight.” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (quoting 4 Yarborough v. Gentry, 540 U.S. 1, 8 (2003)). Prejudice exists where “there is a reasonable 5 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 6 been different.” Strickland, 466 U.S. at 694. 7 A. Statute of Limitations 8 Petitioner claims that the charged conduct fell outside the statute of limitations and his 9 trial counsel was ineffective by not moving to dismiss the indictment. At the outset, we note 10 that the First Circuit has previously denied Petitioner’s argument that the statute of limitations 11 rendered the indictment defective. (Crim. No. 07-453, Docket No. 1958.) In general, crimes 12 that are not capital offenses must be indicted within five years from the commission of the 13 offense. See 18 U.S.C. § 3282. In conspiracy cases, the statute of limitations runs from the date 14 of the last overt act in furtherance of the conspiracy. See Grunewald v. United States, 353 U.S. 15 391, 396–97 (1957); United States v. Keohane, 918 F.2d 273, 275 (1st Cir. 1990). Furthermore, 16 conspiracies that “contemplate[] a continuity of purpose and a continued performance of acts” 17 are presumed to exist until an affirmative showing that they terminated. United States v. Piper, 18 298 F.3d 47, 53 (1st Cir. 2002) (quoting United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir. 19 1993)). The indictment charged a conspiracy beginning in 1998 and continuing through the 20 return of the indictment in 2007. Absent some indication that Petitioner had actively withdrawn 21 from the conspiracy prior to 2002, Petitioner’s trial counsel lacked a basis to argue that the Civil No. 10-1098 (JAF) -6- 1 indictment violated § 3282. Therefore, we find that trial counsel’s decision to forgo a meritless 2 statute-of-limitations argument was not an example of deficient representation of Petitioner. 3 B. Drug Quantity 4 Petitioner next argues that his trial counsel was ineffective in recommending a plea 5 agreement in which “the stipulated amount of drug quantity completely change [sic] excessively 6 where no lab reports of drug seizure was [sic] ever present or confiscated.” (Docket No. 1-2 7 at 5.) He further argues that Government witnesses at the trial of his codefendants “never 8 established any transaction or quantity of heroin as the Government presented in [the] plea 9 agreement.” (Docket No. 4 at 3.) 10 Assuming, for the sake of argument, that trial counsel never received any lab reports 11 specifying weights of narcotics seized, Petitioner still has not demonstrated deficient 12 performance by his trial counsel. Lab reports are only one way in which the Government may 13 establish the quantity of drugs distributed by a conspiracy. 14 codefendants, an unindicted coconspirator testified that Petitioner was in charge of processing 15 between three-fourths and one kg of crack per week as early as 2004 and as part of a conspiracy 16 that lasted through late 2007. (Crim. No. 07-453, Docket No. 1406 at 28–33.) Petitioner’s plea 17 stipulated to possession of only 150–500 grams of crack. As to the amount of heroin, the 18 Government produced the testimony of a coconspirator that the conspiracy had distributed at 19 least one kg of heroin. For these reasons, we find the alleged lack of lab reports would not 20 render deficient counsel’s advice in favor of the plea agreement. In the trial of Petitioner’s 21 Even if we broadly construe Petitioner’s argument to be an allegation that trial counsel 22 failed to properly investigate the Government’s case before recommending acceptance of the Civil No. 10-1098 (JAF) -7- 1 plea offer, the Petitioner fails to demonstrate prejudice to his case. When claiming ineffective 2 assistance of counsel in accepting a plea offer, a petitioner’s defense is not prejudiced unless 3 he can show a reasonable probability that, were it not for counsel’s error, he would not have 4 pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 5 (1985). In this case, Petitioner has not claimed that he would have rejected the plea offer in 6 favor of a trial. As one of the leaders of a large drug-distribution conspiracy operating over 7 eight years, and processing nearly a kilogram of crack each week from 2004 onward, Petitioner 8 experienced a considerable benefit by stipulating to a relatively-small quantity of drugs and 9 receiving the adjustment for acceptance of responsibility. Given the amounts of crack Petitioner 10 and his organization were distributing, we find it improbable that he would have passed on this 11 deal simply because there were no lab reports specifying quantities of narcotics. 12 C. Supervised Release 13 Finally, Petitioner argues that trial counsel was ineffective in not filing a sentencing 14 memorandum in objection to the presentence report’s recommendation for supervised release. 15 He claims that his “15 years supervised release . . . is excessive” and moves us to vacate. First, 16 we must clarify that Defendant was sentenced to a ten-year term of supervised release for count 17 one and a five-year term of supervised release for count six. The terms, however, are being 18 served concurrently. Second, the supervised release term for count one was mandated by 19 statute. The quantity of drugs Petitioner stipulated to in count one mandated a five-year term 20 of supervised release. See 21 U.S.C. 841(b)(1)(A). Furthermore, because the crime was 21 committed in a public housing project, the five-year term of supervised release prescribed by 22 § 841 must be doubled. See 21 U.S.C. § 860 (a). An objection to these statutorily-mandated Civil No. 10-1098 (JAF) -8- 1 terms would have been futile and, therefore, the absence of such objection is not demonstrative 2 of deficient performance of trial counsel. 3 As for the supervised-release term imposed for count six, this sentence was within the 4 court’s discretion. While counsel may have argued for a shorter term of supervision by 5 submitting a sentencing memo, Petitioner was not prejudiced by the lack of such argument 6 because this five-year term of supervision runs concurrently with the mandatory ten years of 7 supervision sentenced for count one. 8 IV. 9 Certificate of Appealability 10 In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we 11 deny § 2255 relief we must concurrently determine whether to issue a certificate of appealability 12 (“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional 13 right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that 14 reasonable jurists would find the district court's assessment of the constitutional claims 15 debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable jurist could find 17 our assessment of Petitioner’s constitutional claims debatable or wrong. Petitioner may request 18 a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. 19 V. 20 Conclusion 21 For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket No. 1) 22 and motion for an evidentiary hearing (Docket No. 5). Pursuant to Rule 4(b) of the Rules Civil No. 10-1098 (JAF) -9- 1 Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from 2 the record that Petitioner is not entitled to § 2255 relief from this court. 3 IT IS SO ORDERED. 4 San Juan, Puerto Rico, this 30th day of November, 2010. 5 6 7 s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge
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