Mangual-Santiago v. USA, No. 3:2010cv01756 - Document 5 (D.P.R. 2011)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 03-361) filed by Walter Mangual-Santiago. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, we summarily dismiss Petitioner 9;s claims because it is plain from the record that he is entitled to no relief. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 7/7/2011.(mrj)

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1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO WALTER MANGUAL-SANTIAGO, 4 Petitioner, 5 v. 6 7 Civil No. 10-1756 (JAF) (Crim. No. 03-361) UNITED STATES OF AMERICA, Respondent. 8 9 10 Petitioner brings this pro-se petition under 28 U.S.C. § 2255 for relief from a federal 11 court conviction. (Docket No. 1.) Respondent opposes (Docket No. 3), and Petitioner replies 12 (Docket No. 4). OPINION AND ORDER 13 I. 14 Factual History 15 The facts of the trial underlying this petition are detailed in the First Circuit s disposition 16 of Petitioner s direct appeal, United States v. Mangual-Santiago, 562 F.3d 411 (1st Cir. 2009). 17 We note here only points salient to the instant petition. 18 On January 17, 2007, Petitioner was convicted of two counts of conspiracy, each lasting 19 from 1991 to 2002: (1) to possess with intent to distribute cocaine and heroin; and (2) to 20 commit money laundering. (Docket No. 1 at 2, 4.) He was sentenced to a term of imprisonment 21 of 324 months. (Id. at 5.) Civil No. 10-1756 (JAF) -2- 1 Petitioner was indicted on those charges on December 6, 2003, but he was a fugitive 2 from justice until he was apprehended on February 28, 2006, at his residence in Orlando, 3 Florida. Mangual-Santiago, 562 F.3d at 419. His person and home were searched incident to 4 that arrest, and the executing authorities found, among other things, narcotics and false 5 identifications. Id. 6 In preparation for trial, on August 7, 2006, the court appointed Petitioner counsel, 7 Benjamín Ortiz-Belaval. (Crim. No. 03-361, Docket No. 786.) At a status conference on 8 September 14, 2006, the parties informed the court that they had exchanged discovery, and the 9 court granted Petitioner twenty days to review it. (Id., Docket No. 808.) On October 27, 2006, 10 a second status conference revealed that the parties had not yet reached a plea agreement, and 11 the court set trial for November 13, 2006. (Id., Docket No. 823.) On November 9, 2006, 12 Petitioner moved to appoint new counsel; the trial court granted Ortiz-Belaval s withdrawal on 13 November 27, gave Petitioner until December 15 to inform the court of new counsel, and reset 14 the trial for January 8, 2007. (Id., Docket Nos. 838, 841.) New counsel, Luis R. Rivera- 15 Rodríguez, appeared on December 15 and moved to continue the trial, citing his need for more 16 time to acquaint himself with the facts of the case and also his preplanned holiday vacation. 17 (Id., Docket No. 846.) On January 3, 2007, the trial court denied the motion to continue, and 18 trial began as scheduled. (Id., Docket Nos. 848, 862.) 19 Petitioner unsuccessfully appealed his conviction. See generally Mangual-Santiago, 562 20 F.3d 411. He argued, among other things, that the trial court s failure to grant his motion to 21 continue to allow Rivera-Rodríguez to prepare for trial denied him effective counsel. Id. at Civil No. 10-1756 (JAF) -3- 1 429 31. He also renewed an argument he had made during trial that the evidence showed a 2 hiatus of criminal activity on his part and on that of his coconspirators lasting from 1994 to 3 1996. Id. at 421 26. Given that evidence, he argued that what was charged as one long 4 conspiracy was actually two separate conspiracies. Id. Further, he argued that the first 5 conspiracy was barred by the statute of limitations and that evidence of criminal activity during 6 the first conspiracy was, therefore, inadmissible. Id. The First Circuit rejected both arguments 7 and affirmed Petitioner s conviction and sentence. See id. at 417. 8 II. 9 Standard for Relief Under 28 U.S.C. § 2255 10 A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner 11 is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner 12 may challenge his or her sentence on the ground that, inter alia, it was imposed in violation of 13 the Constitution or laws of the United States. Id. 14 On collateral review, a petitioner may not relitigate issues that were decided on direct 15 appeal. See Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1993). In addition, a 16 petitioner s failure to raise a claim in a timely manner at trial or on appeal constitutes a 17 procedural default that bars collateral review, unless the [petitioner] can demonstrate cause for 18 the failure and prejudice or actual innocence. Berthoff v. United States, 308 F.3d 124, 127 28 19 (1st Cir. 2002). This bar does not apply to claims of ineffective assistance of counsel. See 20 Massaro v. United States, 538 U.S. 500, 509 (2003). Civil No. 10-1756 (JAF) -4- 1 A petitioner is entitled to an evidentiary hearing unless the allegations, even if true, do 2 not entitle him to relief, or . . . the movant s allegations need not be accepted as true because 3 they state conclusions instead of facts, contradict the record, or are inherently incredible. 4 Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (quoting David v. United States,134 5 F.3d 470, 477 (1st Cir. 1998)) (internal quotation marks omitted); see also § 2255(b). A 6 petitioner waives any claims he raises perfunctorily. See Cody v. United States, 249 F.3d 47, 7 53 n.6 (1st Cir. 2001) (deeming waived ineffective assistance claim raised in § 2255 proceeding 8 in perfunctory manner). 9 III. 10 Analysis 11 Because Petitioner appears pro se, we construe his pleadings more favorably than we 12 would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 13 Nevertheless, Petitioner s pro-se status does not excuse him from complying with procedural 14 and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 15 Petitioner enumerates seven grounds for his claim that his conviction was 16 unconstitutional, each stemming from his assertion that he received ineffective assistance of 17 both trial and appellate counsel. We first provide the standard for ineffective assistance of 18 counsel and then consider each ground Petitioner raises. 19 A. Standard for Ineffective Assistance of Counsel 20 The Sixth Amendment right to counsel is the right to the effective assistance of 21 counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks Civil No. 10-1756 (JAF) -5- 1 omitted); see U.S. Const. amend. VI. To establish ineffective assistance, a petitioner must show 2 both that his counsel s performance was deficient and that he suffered prejudice as a result of 3 the deficiency. Strickland, 466 U.S. at 686 96. To show deficient performance, a petitioner 4 must establish that counsel was not acting within the broad norms of professional 5 competence. Owens, 483 F.3d at 57 (citing Strickland, 466 U.S. at 687 91). To show 6 prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for 7 counsel s unprofessional error, the result of the proceedings would have been different. 8 Strickland, 466 U.S. at 694. 9 To succeed on a claim of ineffective assistance of counsel, a petitioner must overcome 10 the strong presumption that counsel s conduct falls within the wide range of reasonable 11 professional assistance. Id. at 689. Choices made by counsel that could be considered part of 12 a reasonable trial strategy rarely amount to deficient performance. See id. at 690. Counsel s 13 decision not to pursue futile tactics will not be considered deficient performance. Vieux v. 14 Pepe, 184 F.3d 59, 64 (1st Cir. 1999); see also Acha v. United States, 910 F.2d 28, 32 (1st Cir. 15 1990) (stating that failure to raise meritless claims is not ineffective assistance of counsel). 16 B. Petitioner s Claims 17 1. 18 Under ground one, Petitioner claims broadly that his trial counsel failed to adequately 19 prepare for trial and, therefore, provided him ineffective assistance of counsel. (Docket No. 1 20 at 7 11.) He claims that counsel s unpreparedness prevented counsel from adequately advising 21 him as to the risks of going to trial and therefore prevented Petitioner from knowingly Failure to Prepare for Trial Civil No. 10-1756 (JAF) -6- 1 considering his plea options and from presenting an effective defense at trial. (Id.) We 2 examine ground one in light of ground two, which reads in relevant part: In the instant claim 3 subjudice, [Petitioner] incorporates his argument at ground one . . . to complain that the gist of 4 counsel s ineffectiveness was the result of the trial court s denial of counsel s motion for a 5 continuance premised upon counsel s admission that he was not prepared to try the case on 6 behalf of [Petitioner]. (Id. at 13.) 7 We begin with Petitioner s allegations that counsel s pretrial unpreparedness prevented 8 him from pleading guilty.1 The counsel whom Petitioner claims was unprepared, Rivera- 9 Rodríguez, appeared as counsel on December 15, 2006, taking over for previous counsel, Ortiz- 10 Belaval. Ortiz-Belaval was the attorney who collected and reviewed the government s discovery 11 and advised Petitioner as to a potential guilty plea. (See, e.g., Crim. No. 03-361, Docket 12 No. 823.) Petitioner does not allege that the counsel who handled his plea negotiations, Ortiz- 13 Belaval, was unprepared for trial, but rather claims that the denial of the motion to continue 14 rendered his trial counsel unprepared. (See Docket No. 1 at 13.) We also note that ground 15 seven, Petitioner s more detailed claim regarding his plea agreement, contains no allegation that 1 Inherent in this claim are Petitioner s more specific allegations regarding counsel s grasp of the strength of the prosecution s case and subsequent ability to adequately advise Petitioner as to a potential plea: Failure to read the government s discovery or otherwise familiarize himself with the facts of the case; failure to conduct a pretrial investigation; failure to subpoena witnesses; failure to realize that the government could introduce evidence of a conspiracy Petitioner maintains was a separate, earlier conspiracy from the one alleged in the indictment or that the court would not have to instruct the jury that the alleged single conspiracy was actually two; and failure to realize that certain other evidence was admissible, namely evidence of his bank accounts, purchases of goods and possession of narcotics occurring outside of the period of the charged conspiracy. (Docket No. 1 at 8 9.) To the extent Petitioner claims that these failures also affected trial counsel s performance at trial, we find that their perfunctory mention fails to explain how they prejudiced his trial defense. Civil No. 10-1756 (JAF) -7- 1 counsel was unfamiliar with case facts or evidence. (See id. at 29 31; see also Docket No. 4 2 at 8 9.) We, therefore, deem spurious Petitioner s claim that counsel s unpreparedness 3 deprived him of a chance to adequately consider his plea options. 4 We now turn to the evidence Petitioner claims he could have introduced had his counsel 5 been prepared for trial. First, he claims he could have introduced evidence that he lost his 6 Orlando residence for [his] indigency and inability to pay his property taxes evidence he says 7 undermines the government s puffery of his financial status. Petitioner does not explain when 8 he lost the residence, so we have no basis for judging the relevance of this evidence to the 9 charged conspiracy. Regardless, we find that Petitioner overstates the probative value of the 10 omitted evidence, as the jury heard substantial evidence demonstrating Petitioner s wealth.2 11 See, e.g., Mangual-Santiago, 562 F.3d at 427 (noting that the jury heard extensive testimony 12 on Petitioner s significant spending). We, therefore, find no prejudice from the omission of this 13 evidence. 14 Petitioner next claims he would have introduced evidence that a main government 15 witness, Antonio Robles, testified before the grand jury that he did not know Petitioner but 16 rather only knew of Petitioner evidence he claims contradicts Robles trial testimony. 17 Upon review of the trial transcript, we find that Petitioner s counsel indeed brought this 18 disparity to the jury s attention. (See Crim. No. 03-361, Trial Tr. 89 91, Jan. 11, 2007 (cross 2 Furthermore, we presume the omitted evidence was at all times known to Petitioner; Petitioner does not explain how counsel s unpreparedness prevented Petitioner from bringing this evidence to his counsel s attention. Civil No. 10-1756 (JAF) -8- 1 examination of Robles); see also id., Trial Tr. 126, Jan. 16, 2007 (closing arguments).) We, 2 therefore, find no prejudice from the alleged omission of this evidence. 3 Finally, Petitioner claims that counsel did not prepare him to testify.3 He does not, 4 however, explain what that testimony would have been or how it would have supported his 5 defense. We, therefore, find no demonstration that this alleged failure prejudiced his defense. 6 2. 7 Under ground two, Petitioner claims that the trial court deprived him of effective 8 assistance of counsel by denying his motion to continue the trial. (Id. at 12 14.) This claim 9 mirrors Petitioner s argument on direct appeal that the trial court s denial of his motion to 10 continue was erroneous because it rendered his counsel unable to prepare for trial. See 11 Mangual-Santiago, 562 F.3d at 429 31. The First Circuit determined that, while erroneous, the 12 denial did not prejudice his trial; it found no showing that the omitted evidence allegedly 13 omitted due to counsel s unpreparedness would have aided his defense. Id. Denial of Motion to Continue Trial 14 Petitioner now revives this argument, raising new evidence he claims was omitted due 15 to counsel s unpreparedness and would have aided his defense. He also now claims that the 16 failure to prepare prevented counsel from discovering and explaining to Petitioner the risks of 17 going to trial, which in turn caused Petitioner to proceed to trial instead of accepting a plea 18 offer. While these new prejudice arguments appear to be waived given his failure to raise them 3 Petitioner also alleges under ground one that trial counsel (1) waived a challenge to the validity of a prior conviction the government sought to use in enhancing Petitioner s sentence; (2) waived a meritorious motion to suppress evidence; and (3) failed to adequately apprise Petitioner of the plea offer. (Docket No. 1 at 9 10.) These claims are repeated in the petition, in more detail, under grounds four, five, and seven, respectively (see id. at 19 24, 29 31), and we, therefore, consider them under those grounds below. Civil No. 10-1756 (JAF) -9- 1 on direct appeal, Petitioner claims that ineffective assistance of appellate counsel caused that 2 prejudicial default.4 (Docket No. 1 at 12.) For reasons detailed above, we disagree. As on 3 direct appeal, Petitioner has failed to demonstrate prejudice from the trial court s ruling. 4 Appellate counsel s failure to raise these additional prejudice arguments therefore indicates 5 neither deficient performance nor prejudice to Petitioner s appeal. 6 3. 7 Under ground three, Petitioner claims that his voir dire was unconstitutionally inadequate Inadequate Voir Dire 8 and that his counsel was deficient in failing to object to it. (Docket No. 1 at 15 18.) 9 Specifically, he claims that his jury was selected by a series of exercising peremptory 10 challenges on a sheet of paper, without further inquiry into the biases of the potential jurors or 11 anything resembling such an inquiry into such potential bias. (Id. at 17.) We find this 12 statement clearly contradicted by the transcript of the voir dire.5 (See generally Crim. No. 03- 13 361, Docket No. 985 at 8 24 (transcript of voir dire).) 14 questioned the jury pool members as to their potential biases. (Id.) We note that the court has 15 broad discretion in performing a voir dire, see United States v. Pérez-González, 445 F.3d 39, 16 46 47 (1st Cir. 2006), and may conduct voir dire via group questioning, see Orlando-Figueroa During voir dire, the trial court 4 Petitioner perfunctorily realleges under ground six ineffective assistance of appellate counsel on the basis of counsel s inadequate handling of the challenge to the trial court s denial of the motion to continue. (Docket No. 1 at 28.) We consolidate these separate allegations into the instant discussion of grounds one and two. 5 Petitioner claims he has never received a copy of the voir dire transcript and requests that he be furnished a copy and then be allowed to revisit this claim before we resolve it. (Docket No. 4 at 4.) We note for Petitioner s convenience that the transcript is available in the criminal docket. (Crim. No. 03-361, Docket No. 985.) Regardless, delaying this proceeding to allow Petitioner to review the transcript would be futile, as we find the voir dire adequate. Civil No. 10-1756 (JAF) -10- 1 v. United States, 229 F.3d 33 (1st Cir. 2000); United States v. Medina, 761 F.2d 12, 19 20 (1st 2 Cir. 1985). Detecting no inadequacy in the court s voir dire, we find no deficiency in counsel s 3 failure to challenge it. 4 4. 5 Under ground four, Petitioner claims that his counsel was deficient in failing to move 6 for a revised presentencing report ( PSR ), as it reflected inaccurate criminal history points. 7 (Docket No. 1 at 19.) He notes that the sentencing judge rejected the criminal history points 8 assessed in the PSR. (Id.) Having so noted, Petitioner cannot show prejudice from that error 9 in his PSR, and from his attorney failing to correct it. Indeed, Petitioner s counsel at sentencing 10 successfully argued for the application of fewer criminal history points than that recommended 11 in the PSR. (See Crim. No. 03-361, Sent g Hr g Tr.19 24, 34, Apr. 30, 2007.) We, therefore, 12 find no ineffective assistance of counsel in relation to the PSR. To the extent Petitioner 13 nevertheless wishes his PSR to be amended, a § 2255 petition is not the means to do so. Error in Presentencing Report 14 5. 15 Under ground five, Petitioner claims that his counsel was deficient in failing to pursue 16 the suppression of evidence obtained in violation of his Fourth Amendment rights. (Docket 17 No. 1 at 20 24.) Specifically, he alleges that the evidence found during a protective sweep of 18 his house following his arrest in 2006 was the fruit of an unconstitutional search and should 19 have been excluded as such. 20 admissibility of the evidence by failing to timely file a motion to suppress. (See id. at 22 23 21 ( While counsel attempted to cure his failure to file a motion to suppress prior to trial by Waiver of Motion to Suppress He claims that his counsel waived the objection to the Civil No. 10-1756 (JAF) -11- 1 objecting to the introduction of the evidence seized from the Orlando residence, the Court 2 admonished counsel that counsel failed to file a motion to suppress and could not attempt to file 3 such a later motion to suppress during the trial. (citations omitted).) We find this claim 4 contradicted by the transcript, which reveals that the trial court noted the failure to file a motion 5 to suppress, but went on to consider the suppression issue. (See Crim. No. 03-361, Trial 6 Tr. 64 67, 73.) As counsel raised the issue and received a ruling on its merits, Petitioner cannot 7 show that counsel was deficient for waiving the issue. 8 Petitioner further claims that his appellate counsel was deficient in failing to appeal the 9 court s erroneous admission of the evidence. (See id. at 20.) Petitioner s argument fails because 10 the First Circuit already found that the evidence found incident to the 2006 arrest did not 11 prejudice his defense, even if it was erroneously admitted. See Mangual-Santiago, 562 F.3d at 12 425 26 (finding that jury instructions and strength of government s case against Petitioner 13 rendered nonprejudicial evidence found incident to the 2006 arrest). Therefore, appellate 14 counsel would not have prevailed on this argument, and he was not deficient for failing to raise 15 it. 16 6. 17 Under ground six, Petitioner alleges generally that his appellate counsel was deficient 18 in handling his appeal. (Docket No. 1 at 25 28.) He claims that the First Circuit admonished 19 his appellate counsel s deficient performance throughout its opinion resolving his direct appeal. 20 He proceeds to list seven clarifying points and footnotes the First Circuit wrote in its opinion, 21 deeming them notes of his appellate counsel s deficient performance. (See id.; Docket No. 4 Deficient Performance of Appellate Counsel Civil No. 10-1756 (JAF) -12- 1 at 7 8.) Upon reviewing the First Circuit s opinion, we find that these points were merely 2 clarifications regarding the scope of the appeal and contained no commentary as to appellate 3 counsel s performance. We also note generally that these arguments are raised in a perfunctory 4 manner with little development beyond parroting what the First Circuit wrote. Nevertheless, 5 we review each point in turn.6 6 a. Money Laundering Conspiracy as Two Separate Conspiracies 7 The First Circuit noted that Petitioner challenged only his narcotics conspiracy, and not 8 his money laundering conspiracy, as two separate conspiracies. Petitioner deems this deficient 9 performance by appellate counsel. (Docket No. 1 at 26.) In order to prevail on this argument, 10 Petitioner would have to show that appellate counsel s deficiency actually prejudiced his appeal. 11 He fails, however, to develop that argument. He merely states that the money laundering 12 conspiracy was two conspiracies rather than one single conspiracy, offering no support for that 13 assertion. He has therefore failed to make the requisite showing of prejudice. 14 b. Waiver of Affirmative-Withdrawal Argument 15 Petitioner alleges deficient performance in appellate counsel s waiver of Petitioner s 16 argument that he affirmatively withdrew from the conspiracy. (Docket No. 1 at 26 27.) He 17 does not elaborate, for example as to how trial evidence supported that argument or how the 18 argument would have affected the viability of his conviction. We, therefore, find no showing 19 of prejudice. 6 We discuss here only one through six of the seven points listed, because we have already treated the seventh. See supra note 4. Civil No. 10-1756 (JAF) 1 c. -13- Failure to Introduce Grand Jury Testimony 2 Petitioner alleges that his appeal was prejudiced by trial counsel s failure to introduce 3 grand jury testimony that would have aided his appellate argument that two alleged 4 coconspirators retired from drug dealing in 1994. (Docket No. 1 at 27.) We note that this 5 appears to be a claim of trial, rather than appellate, counsel s deficiency. Regardless, Petitioner 6 fails to explain how the omitted testimony would have made a difference in his defense and 7 appeal. The coconspirators 1994 break from drug dealing was made clear in the trial transcript 8 and was recognized by the First Circuit. We, therefore, find no prejudice in counsel s alleged 9 failure to introduce the grand jury testimony. 10 d. Failure to Argue that Time-Barred Conspiracy Increased Sentence 11 Petitioner claims that appellate counsel s failure to argue that the allegedly time-barred 12 conspiracy increased his sentence, and that he was, therefore, prejudiced by the erroneous 13 admission of evidence of the earlier conspiracy. But he does not explain whether or how 14 evidence of the allegedly earlier conspiracy increased his sentence. He, therefore, shows no 15 prejudice from counsel s failure to make that argument. 16 17 e. Failure to Show Evidence of First Conspiracy Inadmissible Petitioner claims that appellate counsel was deficient for failing to show that evidence 18 of the first conspiracy was inadmissible. He does not explain why the evidence was 19 inadmissible. We also note that the First Circuit expressed doubt that the evidence would have 20 been inadmissible simply because it fell outside the statute of limitations or even if it constituted Civil No. 10-1756 (JAF) -14- 1 a conspiracy separate from the one properly charged. See Mangual-Santiago, 562 F.3d at 2 423 24. We, therefore, find that Petitioner shows no prejudice for this alleged failure. 3 f. Failure to Challenge Admissibility of Tax Records 4 Petitioner claims that he was prejudiced on appeal where appellate counsel failed to 5 challenge the admissibility of evidence of [Petitioner s] failure to file income tax reports as 6 required by Grunewald v. United States, 353 U.S. 391 (1957). (Docket No. 1 at 27.) This 7 claim comes from the First Circuit s note in Petitioner s case regarding its earlier holding in 8 United States v. Upton, 559 F.3d 3, 11 12 (1st Cir. 2009), that failure to file [a] required tax 9 return constituted evidence of concealment and an act in furtherance of money laundering. 10 Mangual-Santiago, 562 F.3d at 429. During that discussion, the First Circuit noted, At least 11 one member of this court believes that our holding in Upton is in tension with the Supreme 12 Court s holding in [Grunewald] . . . . Id. at 429 n.13 (citing Upton, 559 F.3d at 17 (Lipez, J., 13 dissenting)). The Petitioner, in sum, argues that his counsel should have made an argument 14 contrary to First Circuit precedent due to doubts expressed in a dissenting opinion regarding the 15 majority s alignment with Supreme Court precedent. We find that it was reasonable appellate 16 strategy not to make that argument; this claim, therefore, indicates no deficiency on appellate 17 counsel s part. 18 7. 19 Finally, under ground seven, Petitioner alleges that his trial counsel failed to adequately 20 advise him as to his potential plea offer. (Docket No. 1 at 29 31.) He claims that his counsel 21 told him the lowest plea offer was for twenty-four years and that he later learned that the plea Failure to Advise Regarding Plea Offer Civil No. 10-1756 (JAF) -15- 1 offer was actually for sixteen years, which he claims he would have taken. (Id. at 30.) In 2 response, Respondent provides an excerpt of a status-conference transcript demonstrating that 3 Petitioner received an offer of twenty-four years but that his counsel had explained that with 4 different calculations the sentence would be closer to 16 or 17 years. (Docket No. 3 at 5 19 20; see also Crim. No. 03-361, Docket No. 1012 at 4 5.) In reply, Petitioner admits that his 6 counsel mentioned the sixteen-year offer but described it as a cooperation agreement; Petitioner 7 claims that had counsel informed him that the offer did not require his cooperation with the 8 government, he would have accepted it. (Docket No. 4 at 9.) On the basis of this back-and- 9 forth, we find incredible Petitioner s initial assertion that he had never heard of an offer lower 10 than twenty-four years. And, on the basis of the transcript excerpt, we find incredible 11 Petitioner s claim that the sixteen-year offer would have required his cooperation with the 12 government, as counsel during the hearing mentioned no such qualification. 13 Petitioner also claims he would have taken a straight plea had he known that was a 14 possibility. (Docket No. 1 at 30 31.) He does not explain why he would have made a straight 15 plea, though he intimates that he would have preferred a straight plea over entering into an 16 agreement with the government. We find that assertion incredible, as a straight plea would have 17 resulted in a longer sentence than that he would have been recommended in a plea agreement. 18 IV. 19 Certificate of Appealability 20 In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we 21 deny § 2255 relief, we must concurrently determine whether to issue a certificate of Civil No. 10-1756 (JAF) -16- 1 appealability ( COA ). We grant a COA only upon a substantial showing of the denial of a 2 constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, [t]he petitioner must 3 demonstrate that reasonable jurists would find the district court's assessment of the 4 constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) 5 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable 6 jurist could find our assessment of Petitioner s constitutional claims debatable or wrong. 7 Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate 8 Procedure 22. 9 V. 10 Conclusion 11 For the foregoing reasons, we DENY Petitioner s § 2255 petition (Docket No. 1). 12 Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, we summarily dismiss 13 Petitioner s claims because it is plain from the record that he is entitled to no relief. 14 IT IS SO ORDERED. 15 San Juan, Puerto Rico, this 7 th day of July, 2011. 16 17 18 s/José Antonio Fusté JOSE ANTONIO FUSTE United States District Judge

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