Sanchez-Oxio v. USA, No. 3:2010cv01960 - Document 14 (D.P.R. 2011)
Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 06-241) filed by Michael Sanchez-Oxio; FINDING AS MOOT 5 MOTION requesting Order to Allow Discovery or for Evidentiary Hearing filed by Michael Sa nchez-Oxio. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, we summarily dismiss Petitioner'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 8/2/2011.(mrj)
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1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO MICHAEL RAFAEL Sà NCHEZ-OXIO, 4 Petitioner, 5 v. 6 7 Civil No. 10-1960 (JAF) (Crim. No. 06-241) UNITED STATES OF AMERICA, Respondent. 8 9 10 Petitioner, represented by counsel, petitioned under 28 U.S.C. § 2255 for relief from a 11 federal court conviction. (Docket No. 1.) Thirteen days later, counsel filed a supplemental 12 petition, and memorandum in support thereof, prepared by Petitioner on his own behalf; counsel 13 noted that he endorsed no argument Petitioner made that conflicted with the initial filing. 14 (Docket No. 2.) Counsel also moved for discovery or an evidentiary hearing as to one of the 15 grounds set forth in the initial petition. (Docket No. 5.) Respondent opposes § 2255 relief 16 (Docket No. 13), and Petitioner does not respond. OPINION AND ORDER 17 I. 18 Factual Background 19 Petitioner was indicted as a felon in possession of a firearm, and as an armed career 20 criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Crim. No. 06-241, Docket No. 1.) 21 A jury convicted him on that charge, and this court sentenced him to 210 months imprisonment. Civil No. 10-1960 (JAF) -2- 1 (Id., Docket Nos. 55; 64.) Petitioner appealed his conviction and sentence; upon reviewing 2 appellate counsel s brief filed in accordance with Anders v. California, 386 U.S. 738 (1967), 3 the First Circuit concluded that there were no non-frivolous issues for appeal and affirmed 4 Petitioner s conviction and sentence. United States v. Sanchez-Oxio, No. 07-1961 (1st Cir. 5 Apr. 10, 2009). On October 5, 2009, the U.S. Supreme Court denied Petitioner a writ of 6 certiorari. Sanchez-Oxio v. United States, 130 S. Ct. 245 (2009). 7 II. 8 Standard for Relief Under 28 U.S.C. § 2255 9 A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner 10 is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner 11 may challenge his or her sentence on the ground that, inter alia, it was imposed in violation of 12 the Constitution or laws of the United States. Id. A petitioner is entitled to an evidentiary 13 hearing unless the allegations, even if true, do not entitle him to relief, or . . . need not be 14 accepted as true because they state conclusions instead of facts, contradict the record, or are 15 inherently incredible. Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (quoting David 16 v. United States, 134 F.3d 470, 477 (1st Cir. 1998)) (internal quotation marks omitted); see 17 also § 2255(b). 18 III. 19 Analysis 20 In Petitioner s initial petition, filed by counsel, he asserts three grounds to show that he 21 received ineffective assistance of trial and appellate counsel. (Docket No. 1.) His supplemental Civil No. 10-1960 (JAF) -3- 1 filing reiterates two of those three grounds and adds seven others. (See Docket No. 2-1.) 2 Respondent opposes, claiming that the grounds added in the supplemental filing are time barred 3 and that all grounds lack merit. (Docket No. 13.) 4 A. Time Bar 5 An individual has one year to file a § 2255 petition from the date on which his judgment 6 of conviction becomes final. § 2255(f)(1). As the U.S. Supreme Court denied Petitioner a writ 7 of certiorari on October 5, 2009, Petitioner had until October 5, 2010, to file the instant petition. 8 (See Docket Nos. 1 at 2; 13 at 7.) The initial petition in this case was filed on October 5, 2010, 9 and is, therefore, timely; the supplemental petition was thirteen days late. We construe the 10 supplemental petition as an amendment of the initial filing. 11 Federal Rule of Civil Procedure 15 governs amendments to habeas petitions in a § 2255 12 proceeding. United States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005). Under Rule 15(c)(2), 13 amended claims relate back to the date of the initial filing, so long as the amended claims 14 arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the 15 original pleading. Id. (quoting Fed. R. Civ. P. 15(c)(2)). In the habeas context, however, the 16 Rule 15 relation back provision is to be strictly construed, in light of Congress decision to 17 expedite collateral attacks by placing stringent time restrictions on [them]. Id. (alteration in 18 original) (quoting Mayle v. Felix, 545 U.S. 644, 657 (2005)). Accordingly, amended habeas 19 corpus claims generally must arise from the same core facts, and not depend upon events 20 which are separate both in time and type from the events upon which the original claims 21 depended. Id. at 24 (quoting Mayle, 545 U.S. at 657). Civil No. 10-1960 (JAF) -4- 1 The grounds set forth in Petitioner s initial filing are as follows: (1) counsel did not 2 challenge the application of 18 U.S.C. § 924(e), when the government did not prove, nor did 3 Petitioner stipulate to, the existence of more than one prior conviction; (2) counsel did not 4 pursue reconsideration of First Circuit precedent holding that under § 924(e), the prior 5 convictions need not have been separated by terms of imprisonment; and (3) counsel did not 6 present evidence that one of the arresting, testifying officers stated before trial that he did not 7 recall the facts of the case. (Docket No. 1.) The supplemental filing reiterates grounds two and 8 three (see Docket No. 2-1 at 10, 12 (reiteration labeled grounds one and four, respectively)) and 9 adds seven others. Specifically, Petitioner adds: (1) counsel failed to exact an explanation from 10 the sentencing judge as to why the judge imposed a 210-month sentence (id. at 10 11); 11 (2) counsel failed to challenge the imposition of a sentence above the fifteen-year statutory 12 minimum (id. at 11); (3) counsel stipulated prior convictions that were obtained through guilty 13 pleas that were invalid because Petitioner did not know the consequences of pleading guilty (id. 14 at 13); (4) counsel failed to move for suppression of evidence prior to trial (id.; Docket No. 2-2 15 at 3 8); (5) counsel failed to thoroughly investigate Petitioner s case (Docket Nos. 2-1 at 13; 16 2-2 at 8 12); (6) counsel did not challenge the government s use of improper evidence to prove 17 Petitioner s prior convictions (Docket Nos. 2-1 at 13; 2-2 at 12 14, 20 23); and (7) counsel 18 committed substantive cumulative errors (Docket Nos. 2-1 at 13; 2-2 at 15 18). 19 The grounds added in Petitioner s supplemental filing focus on facts different in time 20 and type from those alleged in the initial filing. The initial filing relies on counsel s decisions 21 not to (1) challenge the application during sentencing of prior convictions, in that they were not Civil No. 10-1960 (JAF) -5- 1 proven to the jury as elements of the crime alleged; (2) pursue the First Circuit s reconsideration 2 of its precedent regarding separation between prior convictions; and (3) communicate to the jury 3 that an arresting, testifying officer could not recall the facts of the case during a pretrial 4 interview. (Docket No. 1.) Petitioner reiterates the facts underlying initial grounds two and 5 three, but the remaining supplemental allegations arise out of different decisions made by 6 counsel. (See Docket Nos. 2-1; 2-2.) Since those decisions were made at a different time and 7 arose out of different considerations, the new allegations do not relate back to the time of 8 Petitioner s initial habeas filing. See Ciampi, 419 F.3d at 24. They are, therefore, untimely, and 9 we will not consider them.1 10 B. Timely Claims of Ineffective Assistance of Counsel 11 1. 12 The Sixth Amendment right to counsel is the right to the effective assistance of 13 counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks 14 omitted); see U.S. Const. amend. VI. To establish ineffective assistance, a petitioner must show 15 both that his counsel s performance was deficient and that he suffered prejudice as a result of 16 the deficiency. Strickland, 466 U.S. at 686 96. To show deficient performance, a petitioner 17 must establish that counsel was not acting within the broad norms of professional 18 competence. Owens, 483 F.3d at 57 (citing Strickland, 466 U.S. at 687 91). To show 19 prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for 1 Standard To the extent Petitioner s supplemental filing mentions grounds alleged in his initial filing, we find its discussion of same more general and therefore unhelpful in furthering his initial argumentation. Civil No. 10-1960 (JAF) -6- 1 counsel s unprofessional error, the result of the proceedings would have been different. 2 Strickland, 466 U.S. at 694. 3 To succeed on a claim of ineffective assistance of counsel, a petitioner must overcome 4 the strong presumption that counsel s conduct falls within the wide range of reasonable 5 professional assistance. Id. at 689. Choices made by counsel that could be considered part of 6 a reasonable trial strategy rarely amount to deficient performance. See id. at 690. Counsel s 7 decision not to pursue futile tactics will not be considered deficient performance. Vieux v. 8 Pepe, 184 F.3d 59, 64 (1st Cir. 1999); see also Acha v. United States, 910 F.2d 28, 32 (1st Cir. 9 1990) (stating that failure to raise meritless claims is not ineffective assistance of counsel). 10 11 2. Claims a. Failure to Prove Prior Convictions 12 Petitioner argues that he stipulated to one prior conviction and that the government did 13 not prove, nor attempt to prove, the other prior convictions that formed the basis for the 14 sentencing court s application of 18 U.S.C. § 924(e). (Docket No. 1 at 3.) He concludes that 15 the court, therefore, should not have applied § 924(e), but rather should have applied 16 § 924(a)(2), which mandates a ten-year maximum sentence. (Id. at 3 6.) He claims that 17 counsel was ineffective for failing to so argue at trial and on appeal. (Id.) 18 Petitioner s argument is foreclosed by federal law. Under the Armed Career Criminal 19 Act ( ACCA ), 18 U.S.C. § 924(e), violators of § 922(g)(1) who have had three prior 20 convictions for violent felonies or serious drug offenses are subject to a fifteen-year minimum 21 sentence. § 924(e)(1). The U.S. Supreme Court has rejected Petitioner s argument, that prior Civil No. 10-1960 (JAF) -7- 1 convictions under § 924(e) must be alleged and proven beyond a reasonable doubt before a jury. 2 See United States v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006) (citing Almendarez-Torres v. 3 United States, 523 U.S. 224, 239 (1998)). The argument Petitioner makes is, therefore, 4 meritless, and his counsel was not deficient for failing to make it. 5 b. Failure to Pursue Reconsideration of First Circuit Precedent 6 Petitioner claims that his counsel should have invited the First Circuit to reconsider its 7 holding in United States v. Anderson, 921 F.2d 335 (1st Cir. 1990), that under ACCA, a 8 defendant s conviction for one predicate offense need not precede the commission of the next 9 predicate offense. (Docket No. 1 at 9; see generally id. at 6 10.) He claims that Anderson is 10 ripe for reconsideration because it contradicts holdings in, for example, the Third and Sixth 11 Circuits. (Docket No. 1 at 8, 9 & n.7.) Specifically, he cites as current Third Circuit law United 12 States v. Balascsak, 873 F.2d 673 (3d Cir. 1989), in which the Third Circuit held that prior 13 convictions under ACCA must have been separated in time. (See Docket No. 1 at 8.) 14 Balascsak is no longer the law in the Third Circuit. See United States v. Mucha, 49 Fed. 15 App x 368, 371 (3d Cir. 2002) (noting that United States v. Schoolcraft, 879 F.2d 64 (3d Cir. 16 1989), superseded Balascsak). The Third Circuit uses the separate episode test to count prior 17 convictions; under that test, even brief differences in time between crimes suffice to constitute 18 separate episodes for the purposes of ACCA. Id. at 370 71; see also id. 371 & n. 2 (noting 19 Seventh, Fourth, Second, Tenth, and Ninth Circuit opinions using that test). The Sixth Circuit 20 also uses the separate episodes test. See, e.g., United States v. Thomas, 211 F.3d 316, 320 21 (6th Cir. 2000) (citing Fifth Circuit case using that test). Civil No. 10-1960 (JAF) -8- 1 Petitioner s argument is based on the erroneous premise that Anderson contradicts the 2 law in other circuits, namely the Third and the Sixth. The argument is meritless, and counsel 3 was not deficient for failing to pursue it. 4 c. Failure to Impeach 5 Petitioner claims that the testimony of one of the arresting officers, Sergeant Getulio 6 Soler-Mercado, was crucial to the government s case and that it was, therefore, ineffective 7 assistance for counsel to fail to impeach Soler-Mercado s testimony with evidence that he could 8 not recall Petitioner s arrest when asked about it during a pretrial interview. (Docket No. 1 at 9 11 13.) 10 Upon review of the trial transcript, we find that counsel did, in fact, cross examine Soler- 11 Mercado as to his faulty memory during a pretrial interview. (See Crim. No. 06-241, Trial 12 Tr. 21 27, 34 35, Jan. 8, 2007.) We also find that a different arresting officer, who was in 13 charge of the investigation, independently testified as to Petitioner s arrest. (See id. at 44 49.) 14 We, therefore, find that counsel did not fail to bring the pretrial interview to the jury s attention 15 and that Soler-Mercado s testimony was not crucial to the government s case. As Petitioner s 16 argument, yet again, is based on erroneous premises, it lacks merit. 17 IV. 18 Certificate of Appealability 19 In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever we 20 deny § 2255 relief, we must concurrently determine whether to issue a certificate of 21 appealability ( COA ). We grant a COA only upon a substantial showing of the denial of a Civil No. 10-1960 (JAF) -9- 1 constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, [t]he petitioner must 2 demonstrate that reasonable jurists would find the district court s assessment of the 3 constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) 4 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable 5 jurist could find our assessment of Petitioner s constitutional claims debatable or wrong. 6 Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate 7 Procedure 22. 8 V. 9 Conclusion 10 For the foregoing reasons, we DENY Petitioner s § 2255 petition (Docket Nos. 1; 2). 11 Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, we summarily dismiss 12 Petitioner s claims because it is plain from the record that he is entitled to no relief. We DENY 13 AS MOOT Petitioner s motion for discovery or an evidentiary hearing (Docket No. 5). 14 IT IS SO ORDERED. 15 San Juan, Puerto Rico, this 2 nd day of August, 2011. 16 17 18 19 20 s/José Antonio Fusté JOSE ANTONIO FUSTE United States District Judge
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