Alvarez-Ortega v. USA, No. 3:2010cv01435 - Document 5 (D.P.R. 2010)
Court Description: OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-453) filed by Pablo Alvarez-Ortega. Judgment shall enter summarily dismissing this petition, because it is plain from the record that Petitioner is entitled to no relief. Rule 4(b) of the Rules Governing § 2255 Proceedings. We DENY Petitioner a COA. Signed by Chief Judge Jose A Fuste on 9/3/2010.(mrj)
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Alvarez-Ortega v. USA Doc. 5 1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO PABLO ALVAREZ-ORTEGA, 4 Petitioner, 5 v. 6 7 Civil No. 10-1435 (JAF) (Crim. No. 07-453) UNITED STATES OF AMERICA, Respondent. 8 OPINION AND ORDER 9 Petitioner brings this pro-se petition for relief from a federal court conviction pursuant to 10 28 U.S.C. § 2255. (Docket No. 1.) Respondent opposes (Docket No. 3), and Petitioner replies 11 (Docket No. 4). 12 I. 13 Factual History 14 In 2008, Petitioner pleaded guilty to conspiracy to possess with intent to distribute controlled 15 substances, in violation of 21 U.S.C. §§ 841(a)(1), 846, 860, and to possession of firearms during 16 and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Docket 17 Nos. 1 at 1; 3 at 1–2.) He was sentenced to 138 months’ imprisonment, and his conviction and 18 sentence were affirmed on appeal. (Id. at 1–2.) 19 II. 20 Standard for Relief Under 28 U.S.C. § 2255 21 A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is 22 in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner may Dockets.Justia.com Civil No. 10-1435 (JAF) -2- 1 challenge his or her sentence on the ground that, inter alia, it “was imposed in violation of the 2 Constitution or laws of the United States.” Id. The petitioner is entitled to an evidentiary hearing 3 unless the “allegations, accepted as true, would not entitle the petitioner to relief, or . . .‘are 4 contradicted by the record, inherently incredible, or conclusions rather than statements of fact.’” 5 United States v. Rodríguez Rodríguez, 929 F.2d 747, 749–50 (1st Cir. 1991) (quoting Dziurgot v. 6 Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)); see 28 U.S.C. § 2255(b). 7 III. 8 Analysis 9 Because Petitioner appears pro se, we construe his pleadings more favorably than we would 10 those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, 11 Petitioner’s pro se status does not excuse him from complying with procedural and substantive law. 12 Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 13 Petitioner claims that his counsel was deficient in researching the law surrounding charges 14 under § 924.1 (Docket No. 1-2.) Petitioner further claims that counsel advised him to plead guilty 15 based on that misinformation and that he would not have pleaded guilty otherwise. (Id. at 3–4.) 16 The Sixth Amendment “right to counsel is the right to the effective assistance of counsel.” 17 Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks omitted); see U.S. 18 Const. amend. VI. To establish ineffective assistance, a petitioner must show both that his 19 counsel’s performance was deficient and that he suffered prejudice as a result of the deficiency. 20 Strickland, 466 U.S. at 686-96. To show deficient performance, a petitioner must “establish that 21 counsel was not acting within the broad norms of professional competence.” Owens v. United 1 Petitioner also alleges that counsel was deficient in not arguing insufficiency of evidence before the court (Docket No. 1-2 at 3, 7), but in the context of a guilty plea, no such opportunity existed. We, therefore, view Petitioner’s as a challenge of counsel’s advice to plead guilty. Civil No. 10-1435 (JAF) -3- 1 States, 483 F.3d 48, 57 (1st Cir. 2007) (citing Strickland, 466 U.S. at 687–91). To show prejudice 2 in the context of a guilty plea, a petitioner must demonstrate that “there is a reasonable probability 3 that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going 4 to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). 5 Petitioner describes his exchange with his counsel when the two discussed whether 6 Petitioner should plead guilty to the § 924 charge. (Docket No. 1-2 at 6.) He explains that counsel 7 showed him the statements of two confidential sources, both of whom stood ready to testify as to 8 Petitioner’s possession or use of firearms. (Id.) On the basis of that evidence, Petitioner’s counsel 9 advised him to plead guilty to the § 924 charge. (Id.) 10 In arguing why this counsel was deficient in so advising, Petitioner makes three points: (1) 11 “neither statement made any reference to drug trafficking or how the firearm furthered any drug 12 trafficking crime”; (2) “Petitioner, when arrested, was not in possession of drugs or firearms”; and 13 (3) Petitioner was in any case innocent of the charge. (Id.) All of these, however, were known to 14 both Petitioner and counsel at the time of the decision to plead guilty. That is, Petitioner has failed 15 to identify the counsel’s failure to research that underlies his ineffective assistance of counsel claim. 16 Given this failure, Petitioner cannot show deficient performance, as required by Strickland. 17 IV. 18 Certificate of Appealability 19 Under Rule 11 of the Rules Governing § 2255 Proceedings, whenever we deny § 2255 relief, 20 we must also determine whether to issue a certificate of appealability (“COA”). We grant a COA 21 only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 22 To make this showing, “[t]he petitioner must demonstrate that reasonable jurists would find the 23 district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 24 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Civil No. 10-1435 (JAF) -4- 1 Based on the reasons stated above, we find that no reasonable jurist could find our 2 assessment of Petitioner’s constitutional claims debatable or wrong and we, therefore, deny him a 3 COA. Petitioner may request a COA directly from the First Circuit. See Fed. R. App. P. 22. 4 V. 5 Conclusion 6 For the foregoing reasons, we DENY Petitioner’s § 2255 petition (Docket No. 1). Pursuant 7 to Rule 4(b) of the Rules Governing § 2255 Proceedings, we summarily DISMISS this petition, 8 because it is plain from the record that Petitioner is entitled to no relief. We DENY Petitioner a 9 COA. 10 IT IS SO ORDERED. 11 San Juan, Puerto Rico, this 3rd day of September, 2010. 12 13 14 s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge
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