Torres-Estrada v. USA, No. 3:2017cv01373 - Document 40 (D.P.R. 2019)
Court Description: OPINION AND ORDER denying 7 Motion to Vacate. Judgment dismissing case shall be entered accordingly. As stated in the Opinion and Order, no certificate of appealability should be issued because there is no substantial showing of the denial of a constitutional right under 28 U.S.C. sec. 2253(c)(2). Signed by Judge Juan M. Perez-Gimenez on 04/26/2019. (NNR)
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Torres-Estrada v. USA Doc. 40 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Elvin To rre s -Es trad a, Petitioner, Civil No. 17-1373 (PG) 1 v. U n ite d State s o f Am e rica, Respondent. OPINION AND ORDER Before the court is Petitioner Elvin-Torres Estrada’s (“Petitioner” or “Torres-Estrada”) m otion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 2 (Dockets No. 7 and No. 9), and the United States’ (or the “Governm ent”) opposition thereto (Docket No. 25). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D On Septem ber 28, 20 0 9, a Grand J ury returned a seven -count First Superseding Indictm ent charging Petitioner and 64 co-defendants of various drug trafficking offenses. See Crim inal Case No. 0 9-173 (PG). On April 15, 20 10 , a Grand J ury returned an 11-count Second Superseding Indictm ent charging the sam e co-defendants of the sam e or sim ilar offenses. In the Second Superseding Indictm ent, Torres-Estrada was charged with: (1) conspiracy to distribute large am ounts (stated in kilogram s) of heroin , cocaine base, cocaine, m arijuana, and detectable am ounts of Percocet and Xanax within 1,0 0 0 feet of a public 1 Related Crim s. No. 0 9-173-5 (PG); 11-0 45-1 (PG). Petitioner failed to request leave to file a reply under Local Rule 7(c). Therefore, Petitioner’s Reply (actually called Request for Consideration of New U.S. Suprem e Court Precedent in Support of 2255) (Docket No. 39) is hereby stricken from the record. 2 Dockets.Justia.com Civ. No. 17-1373 (PG) Page 2 of 18 housing project, in violation of 21 U.S.C. §§ 841, 846, and 860 (Count One); (2) three counts of possession with intent to distribute in excess of 1 kilogram of heroin, 50 gram s of cocain e base, 5 kilogram s of cocaine, and 1,0 0 0 kilogram s of m arijuana, within 1,0 0 0 feet of a public housing project, in violation of 21 U.S.C. § 841 (Counts Three, Four, Five and Six); (3) two counts of conspiracy to com m it m oney laundering, in violation of 18 U.S.C. § 1956(h), (Counts Seven and Eleven); and (4) narcotics and m oney laundering forfeiture allegations pursuant to 21 U.S.C. § 853 and 18 U.S.C. § 982. See Crim . No. 0 9-173, Docket No. at 4-45. On February 9, 20 11, a Grand J ury returned a one-count Indictm ent charging Petitioner an d three other co-defendants with: (1) conspiracy to im port controlled substances into the United States, in violation of 21 U.S.C. §§ 952(a) and 963. See Crim . No. 11-0 45, Docket No. at 1-3. On March 21, 20 11 Torres-Estrada entered a guilty plea as to Count One of the Second Superseding Indictm ent in Crim inal Case No. 0 9-173 (PG) and Count One of the Indictm ent in Crim in al Case No. 11-0 45 (PG). See Crim . No. 0 9-173, Docket No. 1513. On February 12, 20 15, Torres-Estrada was sentenced to 288-m onths of im prisonm ent as to Count One in Crim inal Case No. 0 9-173, an d 120 -m onths of im prisonm ent as to Count One in Crim . Case No. 11-0 45, to be served concurrently with each other. See Crim . No. 0 9-173, Docket No. 3451. Torres-Estrada filed notices of appeal in both cases on February 21, 20 15. See Crim . No. 0 9-173, Docket No. 3459. On April 19, 20 16, the Court affirm ed the District Court’s sentence and dism issed the appeal. See Crim . No. 0 9-173, Docket No. 370 6. II. STAN D ARD OF REVIEW Under 28 U.S.C. § 2255, a federal prisoner m ay m ove to vacate, set aside, or correct his sentence “upon the ground that the sentence was im posed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to im pose such sentence, Civ. No. 17-1373 (PG) Page 3 of 18 or that the sentence was in excess of the m axim um authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 20 0 2). Furtherm ore, “it is firm ly settled that issues disposed of on a prior appeal will not be reviewed again by way of such a m otion.” Dirring v. United States, 370 F.2d 8 62 (1st Cir. 1967). In e ffe ct iv e As s is t a n ce o f Co u n s e l Cla im s The Sixth Am endm ent guarantees that in all crim inal prosecutions, the accused have a right to the assistance of counsel for their defense. U.S. Const. am end. VI. It has long been recognized that the right to counsel m eans the right to effective legal assistance. Strickland v. Washington, 466 U.S. 669, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970 )). Where, as here, a petitioner m oves to vacate his sentence on ineffective assistan ce of counsel grounds, he m ust show that “counsel’s conduct so underm ined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686; see also Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (a petitioner seeking to vacate his sentence based on the ineffective assistan ce of counsel bears a very heavy burden). “J udicial scrutiny of counsel’s perform ance m ust be highly deferen tial.” Strickland, 466 U.S. at 689. For Petitioner’s ineffective assistance of counsel claim to succeed, he m ust satisfy a two-part test. First, Petitioner needs to show that “counsel’s representation ‘fell below an objective standard of reasonablen ess.’” Padilla v. Kentucky, 559 U.S. 356, 366 (20 10 ) (quoting Strickland, 466 U.S. at 688). Second, Petitioner m ust establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the Civ. No. 17-1373 (PG) Page 4 of 18 proceeding would have been m ore favorable to him . See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 20 13) (citing Missouri v. Frye, 132 S. Ct. 1399, 140 9 (20 12)). Petitioner m ust dem onstrate both incom petence and prejudice. Failure to prove one elem ent proves fatal for the other. See United States v. Caparotta, 679 F.3d 213, 219 (1st Cir. 20 12). Nonetheless, the court “need not address both requirem ents if the evidence as to either is lacking.” Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 20 0 7). Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice…that course should be followed.” Strickland, 466 U.S. at 679. III. D ISCU SSION On March 17, 20 17, Torres-Estrada filed the pen ding m otion to vacate attacking his conviction and sentence. See Docket No. 7. At the underbelly of every argum ent contained in the m otion is the belief that the Governm ent has schem ed to deprive Torres-Estrada of his constitutional rights and that he was deprived of effective assistance of counsel. In regards to claim s not presented on appeal, Petitioner has the added burden of proving good cause and actual prejudice with respect to the procedurally defaulted claim s. See Owens v. United States, 483 F.3d 48, 56 (1st Cir. 20 0 7) (setting forth analysis of claim s subject to procedural default doctrine). The First Circuit has held that “[o]ne way to m eet the cause requirem ent is to show constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).” Wider v. United States, 80 6 F.3d 653, 658 (1st Cir. 20 15). Conversely, if Petitioner fails to establish that the procedural default was the result of his attorney’s ineffectiveness, then such claim s cannot be presented by way of a § Civ. No. 17-1373 (PG) Page 5 of 18 2255 m otion. See United States v. Frady, 456 U.S. 152, 165 (1982) (holding that “a collateral challenge m ay not do service for an appeal”). Furtherm ore, the court has deem ed waived any other argum ent that is m erely m entioned in passing or is hidden behin d Petitioner’s prim ary com plains as a m ere afterthought. See United States v. Zann ino, 8 95 F.2d 1, 17 (1st Cir. 1990 ) (holding that “issues adverted to in a perfunctory m anner, unaccom panied by som e effort at developed argum entation, are deem ed waived”). Against this background, the court will address Petitioner’s adequately developed claim s in turn. A. Go v e r n m e n t ’s Sch e m e / M is co n d u ct t o Vio la t e Co n s t it u t io n a l R ig h t s Petitioner m akes several argum ents to further his viewpoint that the Governm ent schem ed to deprive him of his Fifth Am endm ent right to due process, Sixth Am endm en t right to effective assistance of counsel, and Eight Am endm ent right against cruel an d unusual punishm ents. See Docket No. 7 at 9. Likewise, as part of the alleged schem e, Petitioner argues that the Governm ent intentionally withheld critical Brady/ Giglio 3 m aterial that would have been helpful in the plea bargaining process. Id. Petitioner claim s that a “[d]ism issal of [the] in dictm ent can be the only just rem edy where an accused establishes a pattern of serious prosecutorial m isconduct.” Docket No. 7 at 17. 3 Giglio v. Un ited States, 40 5 U.S. 150 , 153 (1972) (findin g that a reversal of the judgm ent of conviction is proper when the Govern m ent used false testim ony to secure a conviction.). Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is m aterial to either guilt or punishm ent”). Civ. No. 17-1373 (PG) Page 6 of 18 i. Fift h Am e n d m e n t , Sixt h Am e n d m e n t , a n d Eig h t Am e n d m e n t Cla im As noted before, Petitioner argues that the Governm ent has schem ed to deprive him of his rights of due process, effective assistance of counsel, and protection against cruel and unusual punishm ent. As explained below, the relevant facts used to buttress his claim are not germ ane to his conviction or sentence. As such, his request for relief on this ground fails. The situation that gave rise to this claim has to do with the m urder of a correctional officer at the MDC Guaynabo in Puerto Rico. See Docket No. 7 at 5. Torres-Estrada argues that he was falsely accused of using sm uggled cell phones to plan the m urder. As a result, he was subjected “to degrading, inhum ane, and physically harm ful treatm ent by BOP em ployees…” Id. Not only was he subjected to a cavity search, but he was also subjected to several rounds of X-rays. Both of these m ethods proved to be in effective in the search for the sm uggled cell phon es. But, according to Petitioner, the pattern of m isconduct and abuse did not end there. Torres-Estrada alleges that he was placed in solitary confinem ent for over 26 m onths precisely so he could then be surrounded by jailhouse in form ants after he was psychologically weakened in solitary confin em ent. See Docket No. 7 at 18. Furtherm ore, Torres-Estrada alleges that he was deprived of his Sixth Am en dm ent right to effective assistan ce of counsel because he had no access to his attorneys as the Governm ent purposely delayed charges for the m urder of the correctional officer as it tried to gather inform ation through inform ants. 4 4 Petitioner is referrin g to the m urder of Lieutenant Osvaldo Albarati, for which another individual was charged and convicted after trial by jury. Civ. No. 17-1373 (PG) Page 7 of 18 The problem with Torres-Estrada’s claim is that his conditions of confinem ent are not subject to collateral review under 28 U.S.C. § 2255. To challenge his con ditions of confinem ent, Petitioner has to exhaust adm inistrative rem edies, as “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such adm in istrative rem edies as are available are exhausted.” 42 U.S.C. § 1997e(a). Therefore, no court could entertain this specific claim until Petitioner exhausts adm inistrative rem edies. Petitioner’s m otion to vacate is thus denied on this ground. ii. Exp lo it a t io n o f Co n flict D u r in g Ple a N e g o t ia t io n s Torres-Estrada argues that (1) the Governm ent encouraged local counsel, Ram on Garcia Garcia (“Mr. Garcia”), to provide legal advice that conflicted with the advice offered by his lead counsels, Edward Sapone (“Mr. Sapone”) and Raym ond Granger (“Mr. Granger”); (2) the Governm ent secretly encouraged local counsel to represent Petitioner in a way that conflicted with the advice provided by lead counsel; (3) the Governm ent took advantage of the serious conflict erupting between local and lead counsel by negotiating with local counsel instead of lead counsel. See Docket No. 7 at 33. The first two claim s were argued in a perfunctory m anner and are unsupported, so the court will address the third claim . See Zannino, 8 95 F.2d at 17 (issues adverted to in a perfunctory m anner are deem ed waived). Neither the Federal Rules of Crim inal Procedure nor the Local Rules of the District of Puerto Rico m ake a distinction between lead and local counsel. Therefore, all counsel appearing in a case are fully accountable to their client and the court regardless of the term used. Petitioner m akes reference to a sworn statem ent from Mr. Granger, which does not Civ. No. 17-1373 (PG) Page 8 of 18 contain any details for the court to conclude that Mr. Garcia had less responsibility than Mr. Granger and Mr. Sapone. 5 As for Petitioner’s statem ent that Mr. Garcia sabotaged lead counsel by engaging in plea negotiations without authorization from lead counsel, the court m ust note that: [A]lthough the term ‘local counsel’ at one tim e m ay have m eant less responsibility on the part of attorneys so designated, it is clear to the court, and should be to every lawyer who litigates in this country, that in the last ten years developm ents in the law have invalidated this prior m eaning. The tren d is, properly away from the view that som e counsel have only lim ited responsibility and represent a client in court in a lim ited capacity, or that local counsel is som ewhat less the attorney for the client than is lead counsel. Gould, Inc. v. Mitsui Min. & Sm elting Co., 738 F. Supp. 1121, 1125 (N.D. Ohio 1990 ). In this court, counsel is counsel regardless of the term used. 6 Therefore, the Governm ent did not violate any norm by engaging in plea negotiations with Mr. Garcia. Petitioner could have proven that he in tended Mr. Garcia to have lim ited responsibility, but he has not. It would be hard for the court to conclude so given that Petitioner discharged his so called “lead” counsel and at som e point decided to rem ain with Mr. Garcia as far as his choice of legal representation is concerned. Petitioner needed to at least identify the contractual lim itations im posed on Mr. Garcia, but again he did not. The court has no other option but to conclude that Mr. Garcia had the sam e responsibilities an d duties as “lead counsels.” Thus, Petitioner’s request for habeas relief on this ground is denied. The court will discuss Mr. Garcia’s actual perform ance later on. 5 6 See Crim . No. 0 9-173, Docket No. 28 64 at 3. See also Local Civil Rule 8 3A(f) and Local Crim inal Rule 162 (D.P.R. 20 0 9). Civ. No. 17-1373 (PG) Page 9 of 18 iii. Br a d y Cla im Torres-Estrada contends that the Governm ent failed to disclose “inform ation that was critical to his counsel’s ability to engage in effective plea n egotiations.” Docket No. 7 at 69. This m aterial, Petitioner argues, was necessary for the sentencing phase of his case, thus under the purview of Brady. This inform ation was listed on a letter sent to the Governm ent on February 7, 20 14. See Docket No. 7 at 68. Petitioner also claim s that the Governm ent failed to reveal sworn statem ents of witness Maribel Olivo. Id. at 69-70 . Upon careful review of the m otion and supporting docum ents, Petitioner’s Brady claim is riddled with conclusory statem ents m any of which were already settled. See Crim . No. 0 9-173, Docket No. 3447. Moreover, Petitioner failed to show how any of the withheld m aterial caused him prejudice. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Suprem e Court held that the governm ent violates the accused’s due process rights when ever it suppresses evidence favorable to the accused, because it is m aterial to determ ining either guilt or punishm ent. A true Brady violation has three com ponents, n am ely, [t]he evidence at issue m ust be favorable to the accused, either because it is exculpatory, or because it is im peaching; that eviden ce m ust have been suppressed by the State, either willfully or inadvertently; and prejudice m ust have en sued.” Strickler v. Greene, 527 U.S. 263, 281-282 (1999). To prove prejudice, Petitioner has to show that there was a “reasonable probability that the result of the trial would have been different if the suppressed docum ents had been disclosed to the defense.” J ackson v. Marshall, 634 F.Supp.2d 146, 160 (D. Mass. 20 0 9) (quoting Strickler, 527 U.S. at 28 9). The right Petitioner has to discover exculpatory evidence does not require the prosecution to subm it its entire file to the Petitioner, see United States v. Agurs, 427 U.S. 97, Civ. No. 17-1373 (PG) Page 10 of 18 10 9 (1976), nor does it include “the unsupervised authority to search through the [governm ent’s] files.” Pennsylvania v. Richie, 480 U.S. 39, 59 (1987). When it com es to Torres-Estrada’s enum erated list of supposed Brady m aterial, m ost, if not all, of the requested evidence was decided by this court. In other words, the list in question, found in the letter dated February 7, 20 14, contains the sam e m aterial requested by Petitioner in his Motion for Release of Brady Material for Sentencing, which was denied. See Crim . No. 0 9-173 (PG), Docket No. 3337. At any rate, the court finds that Petitioner failed to prove the third elem ent of the alleged violation, i.e., that the withholding of m aterial caused him prejudice. Petitioner m ust prove that if it were not for the Governm ent’s suppression of the sworn testim ony, Torres-Estrada would not have pleaded guilty, but instead gone to trial. See Ferrara v. United States, 456 F.3d 278, 291 (1st Cir. 20 0 6). Again, even if the court were to reconsider previously settled issues, Petitioner fails to dem onstrate prejudice. As far as the sworn statem ent Maribel Olivo is concerned, the court does not find that there was a Brady violation. Assum ing, arguendo, that the sworn statem ent is indeed a favorable piece of evidence, that is not enough to prove that the Governm ent “com m itted a classic Brady violation.” See Docket No. 7 at 71. Petitioner m ust still prove the elem ent of prejudice, which he has not. Nothing in the record suggests that, were it not for the Governm ent’s suppression of Olivo’s testim ony, Torres-Estrada would have proceeded to trial, or absent that disclosure the result of his case would have been different. However, Petitioner seem s to presum e that the m ere withholding of eviden ce constitutes a Brady violation, which in and of itself requires vacating his conviction and sentence. Petitioner’s m otions fall woefully short of showing his entitlem ent to such extraordinary relief. On the Civ. No. 17-1373 (PG) Page 11 of 18 record as it stands, the court concludes that his Brady violation claim s lack m erit and his m otion on those grounds is denied. B. La fle r / Fr y e 7 Cla im Petitioner claim s that (1) Mr. Garcia provided ineffective assistance of counsel during the ‘first round’ of plea negotiations which led to the m ore severe plea that Torres-Estrada accepted and that (2) his ineffective assistance of counsel waiver does not apply to Mr. Garcia as it pertains to the plea negotiations. See Docket No. 7 29-43. It has been established by the Suprem e Court that “[d]efendants have a Sixth Am endm ent right to counsel, a right that extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162, 132 S. Ct. 1376, 138 4 (20 12). We agree with Petitioner that his ineffective assistance of counsel waiver does not extend to Mr. Garcia. Now, even in that case, the court would be hard-pressed to find that Mr. Garcia provided in effective assistance of counsel during the plea-bargain ing process. For his in effective assistance claim to succeed, Petitioner m ust pass the Strickland test in the plea-bargaining context. Torres-Estrada m ust thus establish two things: (1) that Mr. Garcia’s representation fell below an objective standard of reasonableness, and (2) such subpar representation caused him prejudice. At this stage, the court asks “whether counsel’s constitutionally ineffective perform ance affected the outcom e of the plea process.” Hill, 474 U.S. at 59; Lafler, 566 U.S. at 163, 132 S. Ct. at 1384. Petitioner argues that Mr. Garcia’s representation fell below an objective standard of reasoning because (1) Mr. Garcia sabotaged plea negotiations when it went against “lead counsel’s” strategy; and (2) Mr. 7 Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376 (20 12) an d Missouri v. Frye, 566 U.S. 134 (20 12). Civ. No. 17-1373 (PG) Page 12 of 18 Garcia gave erroneous advice when he told Petitioner that he “should be facing a low-en d sentence of 8 -9 years, up to a high-end sentence of 11-12 years, but no m ore than that.” See Docket No. 7 at 35. Torres-Estrada argues that he suffered prejudice because were it not for Mr. Garcia’s ineffective assistance, he would have had the benefit of the Governm ent’s original plea rather than being “forced” to take the less favorable plea offer that led to his conviction. See id. at 32-33. For the following reasons the court finds that Petitioner has not proven either of the Strickland prongs. i. Ob je ct iv e St a n d a r d o f R e a s o n a b le n e s s The Governm ent’s original plea offer was of 188 m onths, or 15 years and 8 m onths, of im prisonm ent. See Crim . No. 0 9-173, Docket No. 2863-2. Petitioner’s “lead counsel” devised a strategy and gained authorization from Torres-Estrada to counter-offer 14 years. See Crim . No. 0 9-173, Docket No. 28 65 at 9. Shortly after Petitioner agreed to the counter-offer devised by Mr. Granger and Mr. Sapone, Mr. Garcia m et with Torres-Estrada. In this m eeting, Mr. Garcia allegedly convinced Torres-Estrada “not [to] authorize a counter-offer of m ore than 13 years (156 m onths).” Id. at 8. On or about Septem ber 28, 20 10 , Mr. Sapone and Mr. Granger tried to convince Petitioner that he should re-authorize the 14-year counter-offer. What did Torres-Estrada do? By his own adm issions, he authorized a counter-offer of 13 years and 8 m onths because he “did not feel com fortable changing [his] decision again.” Id. at 10 . What is m ore, Torres-Estrada insisted that Mr. Garcia be present during the negotiations even when Mr. Granger and Mr. Sapone advised him to rem ove Mr. Garcia from negotiations. Id. So, even when notified of Mr. Garcia’s actions, Torres-Estrada decided to trust Mr. Garcia an d keep him in his dream -team of attorneys. Civ. No. 17-1373 (PG) Page 13 of 18 Based on the circum stances explained up to this point, the court cannot indulge Petitioner’s assertion that attorney Garcia intended to sabotage, or was successful in sabotaging his client’s plea negotiations with the prosecution. Mr. Garcia was confident that he could negotiate a better deal than the 14-year counter-offer, so he devised a strategy and presented it to Torres-Estrada, who then authorized the counter-offer. Mr. Sapone and Mr. Granger then provided their own input on the viability of Mr. Garcia’s offer, which resulted in Torres-Estrada authorizing a 13 years and 8 m onths counter-offer. If anything, the record here heavily suggests that Petitioner received input from various experienced attorneys an d ultim ately decided what he wanted to authorize. That being said, Mr. Garcia’s strategy proved to be a sound one, to say the least. At the Septem ber 28, 20 10 m eeting with the Governm ent, Mr. Garcia participated and proposed a deal—for the parties to recom m en d 13 years and 6 m onths of im prisonm ent—, which the Governm ent at the very least heard, but ultim ately rejected. Id. At the end of the day, the Governm ent was not obligated to accept any counter-offer. Indeed, prosecutors are not required to offer pleas or enter into negotiations, period. By his own adm ission, it can be deduced that the root cause of what Petitioner is characterizing as ineffective assistan ce of counsel is nothing m ore than infighting between the attorneys caused or allowed by TorresEstrada him self. After all, even after being inform ed that Mr. Garcia was affecting his defen se strategy, Petitioner decided to trust and rem ain with Mr. Garcia and discharge Mr. Sapone and Mr. Granger. See Crim . No. 0 9-173 (PG), Docket No. 120 8. Petitioner cannot now rely on his own strategic m istakes to attack his conviction and senten ce on ineffective assistan ce of counsel grounds. Petitioner also forgets that the sentencing judge was never bound by any Civ. No. 17-1373 (PG) Page 14 of 18 plea agreem ent, m ore or less favorable, or the would be senten cing recom m en dations m ade by either side. ii. Pr e ju d ice Petitioner argues that he suffered prejudice because Mr. Garcia provided legally uninform ed and ineffective advice. Apparently, Mr. Garcia told him that he would be facin g a low-end sentence of 8-9 years and a high-end senten ce of 11-12 years. See Docket No. 7 at 35. Petitioner had to elaborate m ore on this assertion instead of presum ing that he received legally uninform ed advice. But for argum ent’s sake, the court will assum e that Mr. Garcia’s advice was indeed unsound to m ove on to the next prong. Withal, Torres-Estrada has shown no prejudice. To show prejudice Torres-Estrada needed to prove two things: (1) that but for counsel’s deficient perform ance there is a reasonable probability Torres-Estrada would have accepted the original plea offer, and (2) that the trial court would have accepted the guilty plea and sentenced him accordingly. See United States v. Rivera-Ruperto, 8 52 F.3d 1, 7-9 (1st Cir. 20 17) (citing Lafler, 566 U.S. at 164, 132 S. Ct. at 1385, and Strickland, 466 U.S. at 688 ) (finding no ineffective assistance of counsel at the plea bargaining stage where Petitioner failed to show requisite prejudice, and specifically, that there was a reasonable probability that any plea deal (m uch less the allegedly favorable 12-year plea deal) would have been presented to the court but for counsel’s purported ineffective assistance). As it pertains to the original offer, there is nothing in the record that shows that Petitioner would have accepted said offer. This is so because even “lead counsel” was advocating for a 14-year counter-offer. Moreover, even after listening to everything defense counsels had to say about Civ. No. 17-1373 (PG) Page 15 of 18 plea negotiation strategy, Torres-Estrada decided to authorize one for 13 years and 8 m onths. Therefore, it would be hard for this court to conclude that Torres-Estrada would have accepted the original offer if it were not for Mr. Garcia. Even if Torres-Estrada had shown that he would have accepted the original offer in tim e, he has failed to show that the trial court would have accepted the 188 -m onth sentencing recom m en dation without m ore. See Rivera-Rivera v. United States, 844 F.3d 367, 372-73 (1st Cir. 20 16) (citing Frye, 132 S. Ct. at 140 9) (explaining that to show prejudice in the plea negotiation context, petitioner “m ust adduce facts indicating a reasonable probability that the prosecution would not have withdrawn the plea offer and that the district court would have im posed a senten ce in accordance with the term s of the offer.”). And even if prejudice was shown, a dism issal of the indictm ent is not the only just rem edy Torres-Estrada is entitled to, as the “trial court can…exercise its discretion in determ ining whether to vacate the convictions and resentence respondent pursuant to the plea agreem ent, to vacate only som e of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.” Lafler, 566 U.S. at 174, 132 S. Ct. at 1391. Because Torres-Estrada has not shown actual prejudice his m otion to vacate on these grounds is denied. To s u m u p … Again, what Petitioner fails to com prehen d—even after all of the years he has been relitigating the alleged internal discord created by attorney Garcia and the m issed opportunity to accept a better plea offer—is that no senten cing recom m en dation m ade pursuant to any plea agreem ent would have been bin ding on the sentencing court. In this regard, Petitioner’s argum ents are wholly speculative. Civ. No. 17-1373 (PG) Page 16 of 18 On a related note, the extensive record of underlying crim inal proceedings and the plea agreem ent signed by Petitioner dem onstrate that his decision to enter a guilty plea was m ade knowingly and voluntarily, and not the product of any of his attorney’s ineffective assistance or coercion. As the trial record shows, Petitioner in deed exercised his right to retain and be represented by the attorneys of his choice, and just as im portantly, the court com plied with its duty to inquire and probe into the purported conflicts or issues continually asserted by Torres-Estrada and his legal team through the crim inal prosecution. 8 See United States v. Diaz-Rodriguez, 745 F.3d 586, 590 (discussing the trial court’s duty to inquire into the reasons for a defendant’s dissatisfaction with appointed counsel). Conversely, Petitioner has failed to point to any evidence to show that his guilty plea was invalid on any basis. In fact, he has not even requested to withdraw it. 9 Rather, Petitioner presses for dism issal of the charges against him . This the court cannot due. At the end of the day, Torres-Estrada still has not shown that Mr. Garcia’s or any of his other attorneys’ perform ance “in advising his guilty plea fell below the standard of perform ance of reasonable proficient counsel, and second, that by such inadequate perform ance, [he] was induced to enter a guilty plea which he otherwise would not have entered.” United States v. Dunfee, 8 21 F.3d 120 , 128 (quotation m arks om itted) (quoting Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st Cir. 1990 )) (further noting that “[w]here…the defendant was represented by m ultiple attorneys, an ineffective assistan ce challenge is particularly difficult to m ount”). See United States v. Salam on, 220 F. Supp. 3d 8 As the parties are well aware, per their own m otions and due to the sensitive nature of som e of the attorneydefendant and plea bargain ing issues, portions of the trial record have rem ained under seal or their viewing restricted to selected parties and court users only. 9 And he should know by now that, were the court to withdraw his guilty plea, he would still be up against the ropes. Civ. No. 17-1373 (PG) Page 17 of 18 20 2, 20 7– 0 8 (D. Mass. 20 16) (rejecting ineffective assistance of counsel claim upon findin g that petitioner failed to establish that his sen tence would have been any shorter if, despite counsel’s advice, he had chosen to offer an other plea or declined to plead guilty and proceeded to trial). IV. EVID EN TIARY H EARIN G Torres-Estrada has requested an evidentiary hearing. See Docket No. 7 at 21. The United States, in turn, believes that such a hearing is not necessary. Evidentiary hearings in § 2255 cases are the exception, not the norm , and there is a heavy burden on the petitioner to dem onstrate that an evidentiary hearing is warranted. See Moreno– Morales v. United States, 334 F.3d 140 (1st Cir. 20 0 3). A hearing “is not necessary when a § 2255 petition is inadequate on its face, or although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.” United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978 ). In Torres-Estrada’s case, even if the court deem ed his petition as facially adequate, the fact of the m atter is that the record belies his allegations. Havin g ruled that the TorresEstrada’s claim s, including those regarding the alleged ineffective assistance of counsel, lack m erit, the court finds that a hearing is not warranted. Accordingly, Petitioner’s request is D EN IED . Civ. No. 17-1373 (PG) Page 18 of 18 V. CON CLU SION For the reasons previously explained, the court finds that Torres-Estrada’s claim s lack m erit. Accordingly, his request for habeas relief under 28 U.S.C. § 2255 (Dockets No. 7 and No. 9) is D EN IED . The case is, therefore, D ISMISSED W ITH PREJU D ICE. J udgm ent shall be entered accordingly. VI. CERTIFICATE OF APPEALABILITY It is further ordered that no certificate of appealability should be issued in the event that the Petitioner files a notice of appeal because there is no substantial showing of the denial of a constitutional right within the m eaning of 28 U.S.C. § 2253(c)(2). IT IS SO ORD ERED . In San J uan, Puerto Rico, April 26, 20 19. S/ J UAN M. PÉREZ-GIMÉNEZ J U AN M. P EREZ-GIMEN EZ S EN IOR U .S . D IS TRICT J U D GE
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