Figueroa-Gonzalez v. USA, No. 3:2011cv01353 - Document 20 (D.P.R. 2013)
Court Description: ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 05-382) filed by Raul Figueroa-Gonzalez. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Judgment shall be entered accordingly. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 3/26/2013.(mrj)
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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 RAUL FIGUEROA-GONZALEZ, 4 Petitioner, 5 v. 6 7 Civil No. 11-1353 (JAF) (Crim. No. 05-382) UNITED STATES OF AMERICA, Respondent. 8 9 10 OPINION AND ORDER 11 Petitioner, Raúl Figueroa-Cartagena, brings this pro-se petition under 28 U.S.C. § 2255 12 for relief from sentencing by a federal court, alleging that the sentence was imposed in violation 13 of his constitutional rights. (Docket No. 1-1.) The Government opposes, (Docket No. 9), and 14 Petitioner replies (Docket No. 13). 15 I. 16 Factual and Procedural Summary 17 On March 22, 2007, Petitioner pled guilty to three counts of carjacking, 18 U.S.C. 18 § 2119 (2006), and one count of use of a firearm during and in relation to a crime of violence, 19 18 U.S.C. § 924(c)(1)(a). (Cr. No. 03-582, Docket Nos. 105, 106, 107.) These counts were 20 charged in two separate indictments that were merged for change of plea and sentencing. (Cr. 21 Nos. 05-330; 05-382.) On June 21, 2007, this court sentenced Petitioner to two-hundred sixteen 22 months for the three carjacking convictions, to be served concurrently; and eighty-four months 23 for the firearms conviction, to be served consecutively to the above counts. (Cr. No. 05-382, -2- Civil No. 11-1353 (JAF) 1 Docket No. 117.) Petitioner appealed, challenging this court’s competency determination and 2 one part of his sentence. (Docket No. 120.) The Court of Appeals affirmed in all respects. 3 United States v. Figueroa-Gonzalez, 621 F.3d 44 (1st Cir. 2010). 4 In this collateral challenge, Petitioner raises various arguments. (Docket No. 1-1.) 5 Petitioner alleges ineffective assistance of counsel by the four attorneys who represented him at 6 various stages of his case. At trial, Petitioner was represented by Carlos Noriega-Rodríguez, 7 Epifanio Morales-Cruz, and Joseph C. Laws.1 On appeal, he was represented by Juan Matos de 8 Juan. In this collateral attack, Petitioner alleges seven claims of ineffective assistance by his 9 trial counsel. He also alleges that his appellate counsel was ineffective for failing to raise these 10 seven claims on direct appeal. (Docket No. 1-1 at 3-4.) The government responds, arguing that 11 Petitioner’s claims lack merit. (Docket No. 9.) For the reasons explained below, we dismiss 12 Petitioner’s claims. 13 II. 14 Standard for Relief Under 28 U.S.C. § 2255 15 A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner 16 is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner 17 may challenge his or her sentence on the ground that, inter alia, it “was imposed in violation of 18 the Constitution or laws of the United States.” Id. 19 In general, a petitioner cannot be granted relief on a claim that was not raised at trial or 20 on direct appeal, unless he can demonstrate both cause and actual prejudice for his procedural 1 Petitioner refers to his counsel as “Alverez” but, as the government notes in its response brief, this is an incorrect reference. (Docket Nos. 1-1 at 2-3; 9 at 1 n.1) -3- Civil No. 11-1353 (JAF) 1 default. See United States v. Frady, 456 U.S. 152, 167 (1982). Claims of ineffective assistance 2 of counsel, however, are exceptions to this rule. See Massaro v. United States, 538 U.S. 500 3 (2003) (holding that failure to raise ineffective assistance of counsel claim on direct appeal does 4 not bar subsequent § 2255 review). Because Petitioner appears pro se, we construe his pleadings more favorably than we 5 6 would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 7 Nevertheless, Petitioner’s pro-se status does not excuse him from complying with procedural 8 and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 9 The Sixth Amendment “right to counsel is the right to the effective assistance of 10 counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks 11 omitted); see U.S. Const. amend. VI. To prevail on a claim of ineffective assistance of counsel, 12 Petitioner must show not only a deficient performance by trial counsel, “but also that the 13 deficient performance prejudiced the defense and deprived the defendant of a fair trial.” 14 United States v. Manon, 608 F. 3d 126, 131 (1st Cir. 2010) (quoting Strickland, 466 U.S. at 15 687). 16 A petitioner may satisfy the deficient performance prong by showing that the trial 17 counsel=s representation “fell below an objective standard of reasonableness,” a standard that is 18 informed by “prevailing professional norms.” Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 19 2010) (quoting Strickland, 466 U.S. at 688). Furthermore, Petitioner faces the “strong 20 presumption that counsel=s conduct falls within the wide range of reasonable professional 21 assistance.” Strickland, 466 U.S. at 689. Choices made by counsel that could be considered 22 part of a reasonable trial strategy rarely amount to deficient performance. Id. at 690. A -4- Civil No. 11-1353 (JAF) 1 decision by counsel not to pursue “futile tactics” cannot be characterized as deficient 2 performance. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999). 3 The prejudice factor requires the defendant to “‘show that there is a reasonable 4 probability that, but for counsel's unprofessional errors, the result of the proceeding would have 5 been different.’” Manon, 608 F.3d at 131–32. (quoting Strickland, 466 U.S. at 694). “A 6 reasonable probability is a probability sufficient to undermine confidence in the outcome.” 7 Strickland, 466 U.S. at 694. 8 III. 9 Analysis 10 Petitioner presents eight claims in his motion. (Docket No. 1-1 2-3.) All of these claims 11 lack merit, as we discuss below. 12 Petitioner’s first claim is that his counsel’s failure to argue his diminished capacity 13 during sentencing was ineffective assistance of counsel. (Docket No. 1-1 at 2.) We reject this 14 argument as futile, as any claim of diminished capacity would have been rejected. Vieux, 184 15 F.3d at 6 (holding that futile tactics do not give rise to ineffective assistance of counsel claim). 16 As we noted at trial, Petitioner is “a lot more capable than we think.” Figueroa-Gonzalez, 621 17 F.3d at 47. This court heard evidence regarding Petitioner’s ability to plan, execute, and lead 18 crimes, as well as his ability to communicate with his lawyers and assist in the preparation of 19 his defense. Id. On appeal, the Court of Appeals found that this determination was “well 20 within the court’s domain.” Id. at 48. Any claim of diminished capacity at sentencing would 21 have been rejected. Civil No. 11-1353 (JAF) -5- 1 Next, Petitioner argues that his counsel failed to contest on appeal the district court’s 2 appointment of an “unexperience[d] and biased” doctor to evaluate Petitioner’s competence. 3 (Docket No. 1-1 at 2.) On appeal, however, the Court of Appeals specifically considered 4 Petitioner’s argument that “the court should have held a second hearing sua sponte after 5 receiving Luis’ report.” Figueroa-Gonzalez, 621 F.3d at 48. The Court rejected the claim, 6 finding that “a court generally need not hold a hearing after a qualifying expert has found a 7 defendant competent.” Id. (citations omitted). Petitioner cannot raise claims in a collateral 8 proceeding that were already rejected. Berthoff v. United States, 308 F.3d 124, 127-128 (1st 9 Cir. 2002). 10 Petitioner next argues that his counsel were inefficient for failing to object to, or raise on 11 direct appeal, the fact that his sentence exceeded the statutory maximum for the carjacking 12 offense. (Docket No. 1-1 at 2.) This claim is also without merit. Petitioner pled guilty to three 13 counts under § 2119, which each carries a maximum fifteen-year statutory prison term. Thus, 14 Petitioner’s maximum sentence, just for the carjacking offenses, was forty-five years. See 15 United States v. Hernandez Coplin, 24 F.3d 312, 320 (1st Cir. 1994) (“the statutory maximum is 16 derived by adding up the maximums for each of the counts on which the defendant was convicted”). 17 In this context, a concurrent sentence of 216 months was perfectly appropriate. See United 18 States v. Quinones, 26 F.3d 213, 217 n.5 (1st Cir. 1994) (approving of concurrent sentences 19 where the statutory maximum for one count is sufficient punishment for all counts). 20 Petitioner’s fourth claim is that his counsel erred by failing to object to, and raise on 21 direct appeal, what he calls a “double enhancement” for his use of a firearm. (Docket No. 1-1 at 22 3.) The Court of Appeals considered sua sponte whether Petitioner’s sentence for the firearm -6- Civil No. 11-1353 (JAF) 1 count was properly based on brandishing, and concluded that it was. Figueroa-Gonzalez, 621 2 F.3d at 47. Both parties agreed that the facts on the record “clearly indicate” brandishing. Id. 3 Therefore, the seven-year sentence was appropriate in light of the statute, 18 U.S.C. 4 § 924(c)(1)(A)(ii). 5 Next, Petitioner argues that his attorneys were deficient for failing to object to, and raise 6 on direct appeal, his sentencing enhancement for his role in the offense. Petitioner argues that 7 his mental defects did not support such enhancement. We reject this claim for the same reasons 8 we gave above. We heard ample evidence to convince us that Petitioner was “more capable 9 than we think,” and that he helped plan, lead, and execute these crimes. Any argument that 10 Petitioner was somehow incapable of these feats would have necessarily failed. 11 Petitioner’s next claim is that his attorneys erred by failing to make a jurisdictional 12 objection to the indictment. (Docket No. 1-1 at 3.) Petitioner claims that the indictment 13 suffered from two jurisdictional flaws: It did not include victim testimony necessary to support 14 a guilty verdict, and it alleged purely local offenses. (Id. at 11.) We reject this argument as 15 well. “[I]f an indictment or information alleges the violation of a crime set out in Title 18 or in 16 one of the other statutes defining federal crimes, that is the end of the jurisdictional inquiry.” 17 United States v. George, 676 F.3d 249, 260 (internal quotations and citations omitted). The 18 indictment here satisfied this criterion easily. 19 jurisdictional arguments by counsel would, therefore, have been futile. (Cr. No. 05-382, Docket No. 9.) Any 20 Petitioner’s final argument is that his attorneys were ineffective for failing to object to, 21 and raise on appeal, the judge’s incorrect application of the sentencing factors under 18 U.S.C. 22 § 3553(a). (Docket No. 1-1 at 3.) This claim also lacks merit. The hearing transcript shows -7- Civil No. 11-1353 (JAF) 1 that defendant’s counsel did reference the statutory factors at sentencing. (S.H. Tr. at 3, 5.) 2 This court also considered the statutory factors and applied a sentence within the guidelines 3 range pursuant to the plea agreement. (S.H. Tr. at 7, 9.) Defendant did not object to the pre- 4 sentence report. (S.H. Tr. at 2.) Therefore, any claim that the sentence was in error is mistaken. 5 See United States v. Jimenez, 512 F.3d 1, 5 (1st Cir. 2007) (finding “no reason to allow 6 withdrawal of [defendant’s] guilty plea.”). 7 IV. 8 Certificate of Appealability 9 In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 10 issuing a denial of § 2255 relief we must concurrently determine whether to issue a certificate 11 of appealability (“COA”). We grant a COA only upon “a substantial showing of the denial of a 12 constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must 13 demonstrate that reasonable jurists would find the district court's assessment of the 14 constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) 15 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Petitioner has not yet requested 16 a COA, we see no way in which a reasonable jurist could find our assessment of Petitioner’s 17 constitutional claims debatable or wrong. Petitioner may request a COA directly from the First 18 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 Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in -8- Civil No. 11-1353 (JAF) 1 order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief 2 from this court. 3 IT IS SO ORDERED. 4 San Juan, Puerto Rico, this 26th day of March, 2013. 5 6 7 s/José Antonio Fusté JOSE ANTONIO FUSTE United States District Judge
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