Matos-Luchi v. USA, No. 3:2011cv02230 - Document 7 (D.P.R. 2012)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-208) filed by Epifanio Matos-Luchi. Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to Section 2255 relief in this court. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 5/21/2012.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 EPIFANO MATOS-LUCHI, 4 Petitioner, 5 v. 6 7 Civil No. 11-2230 (JAF) UNITED STATES OF AMERICA Respondent. 8 OPINION AND ORDER 9 10 Petitioner brings this pro-se petition under 28 U.S.C. § 2255 for relief from 11 sentencing by a federal court, alleging that the sentence was imposed in violation of his 12 constitutional rights. (Docket Nos. 1; 1-1.) The Government opposes (Docket No. 3), and 13 Petitioner replies (Docket No. 6). 14 I. 15 Factual Background 16 We draw the following narrative from the record of Petitioner s criminal case and 17 appeal, Petitioner s motion, the Government s response, and Petitioner s reply. (Docket 18 Nos. 1; 3; 6.) On May 12, 2007, the U.S. Coast Guard investigated a small boat, or yola, 19 about thirty to thirty-five miles off the coast of the Dominican Republic. United States v. 20 Matos-Luchi, 627 F.3d 1, 2 (1st Cir. 2010). Their investigation revealed that the yola had 21 been retrieving bales of cocaine dropped off by a low-flying plane. Id. When the yola 22 appeared to be experiencing engine problems, a Dominican Coast Guard cutter sailed out to 23 retrieve it and its three crewmembers including Petitioner at the request of U.S. Customs 24 officials. Id. Civil No. 11-2230 (JAF) -2- 1 Petitioner was indicted on two charges relating to his role in smuggling narcotics in 2 international waters.1 Count One charged Petitioner with conspiracy to possess with intent 3 to distribute 386 kilograms of cocaine on board a vessel subject to U.S. jurisdiction, in 4 violation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70502(c) 5 (1)(A), 70503(a)(1), 70504(b)(1), and 70506(b). (Crim. No. 07-208, Docket No. 14.) Count 6 Two charged Petitioner with aiding and abetting the commission of Count One. (Id.) After 7 a five-day jury trial commencing on May 19, 2008, Petitioner was found guilty of both 8 counts. (Crim. No. 07-208, Docket Nos. 140; 149.) 9 September 3, 2008, we sentenced Petitioner to 235 months imprisonment. (Crim. No. 07- 10 063, Docket Nos. 165; 166.) On appeal, the First Circuit affirmed Petitioner s conviction 11 and sentence. Matos-Luchi, 627 F.3d at 9. Petitioner was represented by the same counsel, 12 Ricardo R. Morel, during trial and on direct appeal. (Id. at 9.) He filed the present habeas 13 petition on December 20, 2011. (Docket No. 1.) After a sentencing hearing on 14 II. 15 Standard for Relief Under 28 U.S.C. § 2255 16 A federal district court has jurisdiction to entertain a § 2255 petition when the 17 petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A 18 federal prisoner may challenge his or her sentence on the ground that, inter alia, it was 19 imposed in violation of the Constitution or laws of the United States. Id. The petitioner is 20 entitled to an evidentiary hearing unless the allegations, accepted as true, would not entitle 21 the petitioner to relief, or . . . are contradicted by the record, inherently incredible, or 22 conclusions rather than statements of fact. United States v. Rodríguez Rodríguez, 929 F.2d 1 The yola had no ensign, flag or registration tying it to any nation, and the crew declined to make a verbal claim of nationality during the interrogation. On appeal, after an in-depth exploration, the First Circuit affirmed that the yola was a vessel without nationality within the meaning of the MDLEA. Matos-Luchi, 627 F.3d at 3 7. Civil No. 11-2230 (JAF) -3- 1 747, 749 50 (1st Cir. 1991) (quoting Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 2 1990)); see 28 U.S.C. § 2255(b). 3 III. 4 Analysis 5 Because Petitioner appears pro se, we construe his pleadings more favorably than we 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 8 procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 9 Petitioner argues that his counsel was ineffective because he: 1) failed to request a 10 continuance to further search for a witness, a Dominican official; 2) did not request a 11 downward departure at sentencing based on the sentencing factors outlined in 18 U.S.C. 12 § 553(a); and 3) did not request a rehearing en banc or seek certiorari after the unsuccessful 13 direct appeal. (Docket No. 1-1 at 1.) We discuss each claim in turn and, for the reasons 14 outlined below, find that Petitioner is not entitled to § 2255 relief. 15 The Sixth Amendment right to counsel is the right to the effective assistance of 16 counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks 17 omitted); see U.S. Const. amend. VI. To prevail on a claim of ineffective assistance of 18 counsel, Petitioner must show not only a deficient performance by trial counsel, but also 19 that the deficient performance prejudiced the defense and deprived the defendant of a fair 20 trial. United States v. Manon, 608 F. 3d 126, 131 (1st Cir. 2010) (quoting Strickland, 466 21 U.S. at 687). 22 A Petitioner may satisfy the deficient performance prong by showing that the trial 23 counsel=s representation fell below an objective standard of reasonableness, a standard 24 that is informed by prevailing professional norms. Peralta v. United States, 597 F.3d 74, Civil No. 11-2230 (JAF) -4- 1 79 (1st Cir. 2010) (quoting Strickland, 466 U.S. at 688). Furthermore, Petitioner faces the 2 strong presumption that counsel=s conduct falls within the wide range of reasonable 3 professional assistance. Strickland, 466 U.S. at 689. Choices made by counsel that could 4 be considered part of a reasonable trial strategy rarely amount to deficient performance. Id. 5 at 690. A decision by counsel not to pursue futile tactics cannot be characterized as 6 deficient performance. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999). 7 A. Failure to Request a Continuance 8 Petitioner argues that he received ineffective assistance when his counsel failed to 9 request a continuance to search for a potential witness, Carmelo Matos-Rodríguez 10 ( Matos ), a Dominican official aboard the Dominican Coast Guard cutter that intercepted 11 the yola. (Docket No. 1-1 at 10.) As discussed on appeal, the government apparently 12 attempted to secure [Matos ] presence at trial. But the defendants incorrectly identified 13 Matos Rodriguez as a member of the Dominican Coast Guard when he was in fact with the 14 Dominican equivalent of the Drug Enforcement Agency. Matos-Luchi, 627 F.3d at 8. By 15 the time the error was discovered and Matos Rodriguez located, there was insufficient time 16 to get him the necessary documents to travel to the United States. The defendants never 17 sought a continuance. Id. On direct appeal, Petitioner argued that the government denied 18 them a fair trial by failing to produce [Matos,] the only witness allegedly in a position to 19 settle the identification issue; now Petitioner blames his trial counsel. (Id.) 20 Petitioner claims that Matos was familiarly acquainted with his codefendant, Manolo 21 Soto-Pérez. (Docket No. 1-1 at 10.) Petitioner argues Matos could have shed light on the 22 fact that [the yola crew] are known fisherm[e]n throughout the water area where the offense 23 conduct took place. (Id. at 11.) Petitioner argues that this would have diminished the 24 weight of the government s evidence, but he offers no further details or elaboration as to the Civil No. 11-2230 (JAF) -5- 1 nature of Matos potential testimony or the dent, if any, it would have made in the 2 government s case. 3 Petitioner has produced no evidence that Matos testimony would have helped his 4 defense. Matos is an officer of the Dominican DEA, and he could have testified about the 5 positive ion scans of cocaine residue on the skin and clothing of the defendants. Matos- 6 Luchi, 627 F.3d at 8. 7 assistance under the circumstances then obtaining. Lema v. United States, 987 F.2d 48, 51 8 (1st Cir. 1993) (citation omitted). Trial counsel made a strategic decision not to move for a 9 continuance to pursue a witness who would have been potentially marginally helpful but 10 also potentially harmful to their defense. See McVean v. United States, 88 Fed. Appx. 847, 11 849 (6th Cir. 2004) (internal quotation marks and citations omitted) ( McVean has not 12 presented anything to overcome the presumption that this decision constitutes sound trial 13 strategy. Indeed, he concedes that a motion for a continuance would not have been taken 14 well by the district Court. ). A criminal defendant is entitled only to reasonably effective 15 More importantly, Petitioner has not shown how failure to request a continuance 16 resulted in prejudice. In assessing the prejudice suffered by a defendant as a result of his 17 counsel s alleged deficient performance, we must consider the totality of the evidence 18 before the judge or jury. A verdict only weakly supported by the record is more likely to 19 have been affected by errors than one with overwhelming record support. United States v. 20 De La Cruz, 514 F.3d 121, 140 (1st Cir. 2008) (quoting Strickland, 466 U.S. at 696) 21 (citations omitted). Petitioner has not averred and has produced no documentation to 22 sustain his vague claim that Matos would have offered favorable testimony. Even assuming 23 that Matos would have testified that he knew Petitioner s codefendant not Petitioner 24 himself to be a fisherman, Petitioner does not suggest how his testimony could have Civil No. 11-2230 (JAF) -6- 1 changed the fact that defendants declined to make any verbal claim of the yola s nationality 2 during interrogation by the Coast Guard.2 Petitioner s vague allegations fail to demonstrate 3 prejudice. See United States v. Rith, 171 Fed. App x 228, 233 (10th Cir. 2006) ( Our 4 conclusion that his counsel s alleged professional errors did not prejudice [petitioner] also 5 disposes of his claim that his attorney was ineffective for not requesting a continuance. ); 6 Alicea-Torres v. United States, 455 F. Supp. 2d 32, 46 (D.P.R. 2006) (internal quotations 7 and citations omitted) ( Since Petitioner fails to articulate what facts the additional 8 investigation or interviews would have uncovered, he cannot claim that he was prejudiced 9 from any alleged inaction by his attorney. ). 10 B. Sentencing Factors 11 Petitioner next argues that counsel s performance was deficient by failing to request a 12 downward departure during the sentencing phase under § 3553(a).3 We reject his argument 13 for lack of a factual basis. Counsel did, in fact, move for downward departure based on the 14 § 3553(a) factors. 15 determined that the defendants had offered no persuasive reason for a lower sentence. 16 Matos-Luchi, 627 F.3d at 9. Furthermore, counsel also made additional arguments during 17 the sentencing hearing, and so we reject Petitioner s claim as ungrounded in reality. 2 (Docket No. 159.) And as the appellate court stated, this court In light of the yola s lack of flag, ensign or registration, plus the defendants refusal to verbally claim a nationality, we do not see how Matos potential testimony could have created a reasonable probability that . . . the result of the proceeding would have been different. Strickland, 466 U.S. at 694. As the majority opinion on appeal held, the controlling question [was] whether at the point at which the authorities confront the vessel, it bears the insignia or papers of a national vessel or its master is prepared to make an affirmative and sustainable claim of nationality. Matos-Luchi, 627 F.3d at 6 (emphasis added). 3 Specifically, Petitioner argues that his counsel should have sought a downward departure because he did not lie on the witness stand like his codefendants. (Docket No. 1-1 at 14.) Petitioner argues that he received the same sentence as his codefendants, and that his counsel s failure to seek a departure for his honesty prejudiced him. Based on the trial transcript, however, it appears that Petitioner did not testify at all. Civil No. 11-2230 (JAF) 1 C. -7- Further Appellate Review 2 Finally, Petitioner argues that his appellate counsel was ineffective in failing to 3 request further appellate review, arguing that he could have . . . pursued further review 4 such as a rehearing en banc or certiorari. (Docket No. 1-1 at 18.) We reject this argument. 5 Claims of ineffective assistance of appellate counsel are also measured under the Strickland 6 standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate counsel need not raise 7 every non-frivolous claim, but rather selects among them to maximize the likelihood of 8 success on the merits. Lattimore v. Dubois, 311 F.3d 46, 57 (1st Cir. 2002). 9 First, Petitioner does not even aver that he actually requested further appellate 10 review. Second, Petitioner had no federal constitutional right to counsel when pursuing a 11 discretionary appeal on direct review of his conviction, Pennsylvania v. Finley, 481 U.S. 12 551, 555 n.4 (1987), and even if he did, appellate counsel would not be deemed objectively 13 unreasonable in making the strategic choice not to seek a rehearing en banc for review of 14 his rejected arguments. Robbins, 528 U.S. at 285 (2000). Third, Petitioner had no right to 15 certiorari. Finally, we note that to the extent that Petitioner wants us to consider his 16 multitudinous arguments regarding the meaning of the word aboard, the appellate court 17 has already decided the issue, and issues decided on direct appeal may not be relitigated 18 under a different label on collateral review. United States v. Michaud, 925 F.2d 37, 41 (1st 19 Cir. 1991) (citing Tracey v. United States, 739 F.2d 679, 682 (1st Cir. 1984)). 20 IV. 21 Certificate of Appealability 22 In accordance with Rule 11 of the Rules Governing ' 2255 Proceedings, whenever 23 we deny ' 2255 relief we must concurrently determine whether to issue a certificate of 24 appealability (ACOA@). We grant a COA only upon Aa substantial showing of the denial of a -8- Civil No. 11-2230 (JAF) 1 constitutional right.@ 28 U.S.C. ' 2253(c)(2). To make this showing, A[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 5 reasonable jurist could find our assessment of Petitioner=s constitutional claims debatable or 6 wrong. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of 7 Appellate Procedure 22. 8 V. 9 Conclusion 10 For the foregoing reasons, we hereby DENY Petitioner=s ' 2255 motion (Docket 11 No. 1). Pursuant to Rule 4(b) of the Rules Governing ' 2255 Proceedings, summary 12 dismissal is in order because it plainly appears from the record that Petitioner is not entitled 13 to ' 2255 relief in this court. 14 IT IS SO ORDERED. 15 San Juan, Puerto Rico, this 21st day of May, 2012. 16 17 18 19 s/José Antonio Fusté JOSE ANTONIO FUSTE U.S. District Judge

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