Carrasco-Carrasco v. USA, No. 3:2012cv01255 - Document 17 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-208), filed by Ramon Carrasco-Carrasco. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Carrasco is not entitled to § 2255 relief from this court. Carrasco may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A. Fuste on 02/14/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 RAMON CARRASCO-CARRASCO, Petitioner, Civil No. 12-1255 (JAF) v. (Crim. No. 07-208-JAF-3) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner Ramón Carrasco-Carrasco ( Carrasco ) comes before the court with a 8 motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed. 9 (Docket No. 1.) The United States opposes his motion. (Docket No. 7.) For the 10 following reasons, we deny Carrasco s motion. 11 I. 12 Background 13 On May 23, 2007, Carrasco was indicted along with two co-defendants for 14 knowingly and intentionally possessing with intent to distribute five kilograms or more of 15 cocaine on board a vessel subject to United States jurisdiction, in violation of 46 U.S.C. 16 §§ 70502(c)(1)(A), 70503(a)(1), 70504(b)(1), and 18 U.S.C. § 2 ( Count Two ). He was 17 also indicted for knowingly and intentionally conspiring to do the same, in violation of 46 18 U.S.C. §§ 70502(c)(1)(A), 70503(a)(1), 70504(b)(1), and 70506(b) ( Count One ). 19 (Crim. No. 07-208, Docket No. 14.) Before the indictment was formally handed down, 20 on May 17, 2007, each of the defendants was appointed counsel by the court. (Crim. 21 No. 07-208, Docket No. 6.) However, the defendants jointly retained one attorney to 22 represent them all. Civil No. 12-1255 (JAF) -2- 1 The case was assigned to Judge Jay A. García-Gregory on May 31, 2007. (Crim. 2 No. 07-208, Docket No. 24.) On May 31, 2007, Magistrate Judge Bruce J. McGiverin 3 held a Foster Hearing as to Manolo Soto-Pérez ( Soto ) and Carrasco, admonishing them 4 of the possible conflict of interest that can arise when represented by a shared attorney. 5 They chose to waive their right to an un-conflicted attorney. (Crim. No. 07-208, Docket 6 No. 20.) A second Foster Hearing was held on December 6, 2007, again before Judge 7 McGiverin. Judge McGiverin once again told Carrasco about the possible conflict of 8 interest that may arise when sharing an attorney with his codefendants. Again, Carrasco 9 decided to proceed with joint representation and signed an acknowledgement form. 10 (Crim. No. 07-208, Docket No. 83.). 11 The case was reassigned to the undersigned on March 17, 2008. (Crim. No. 07- 12 208, Docket No. 100.) The trial began May 19, 2008. (Crim. No. 07-208, Docket 13 No. 140.) On May 23, 2008, the jury announced its verdict that Carrasco was guilty on 14 both counts of the indictment. (Crim. No. 07-208, Docket No. 149.) Sentencing was 15 held on September 8, 2008, and judgment was entered the next day. (Crim. No. 07-208, 16 Docket Nos. 165, 168.) 17 Carrasco immediately appealed. (Crim. No. 07-208, Docket No. 171.) On 18 December 1, 2010, the First Circuit entered judgment affirming Carrasco s conviction 19 and sentence. (Crim. No. 07-208, Docket Nos. 190, 193, 196.) On January 6, 2011, 20 Carrasco filed a petition for a panel rehearing/rehearing en banc. (Court of Appeals 21 Docket No. 08-2289.) On January 20, 2011, the First Circuit denied the petition for a 22 panel rehearing/rehearing en banc. 23 April 17, 2012, Carrasco filed the instant motion to vacate, set aside, or correct his 24 sentence under 28 U.S.C. § 2255. (Docket No. 1.) (Court of Appeals Docket No. 08-2289.) On Civil No. 12-1255 (JAF) -3- 1 II. 2 Jurisdiction 3 We have jurisdiction to hear this case pursuant to 28 U.S.C. § 2255. Carrasco is 4 currently in federal custody having been sentenced by this District Court. To file a timely 5 motion, Carrasco had one year from the date his judgment became final. 28 U.S.C. 6 § 2255(f). His judgment became final on the last day that he could have filed a petition 7 for a writ of certiorari, which was ninety days after the entry of the Court of Appeals 8 judgment. 9 January 20, 2011, the First Circuit denied his petition for a panel rehearing/rehearing en 10 banc. (Court of Appeals Docket No. 08-2289, 08-2291.) Therefore, Carrasco had until 11 April 19, 2012, to file his habeas petition. Because he filed on April 17, 2012, his 12 petition is timely. (Docket No. 1.) SUP. CT. R. 13(1); Clay v. United States, 537 U.S. 522 (2003). 13 III. 14 On Legal Analysis 15 Carrasco makes several claims regarding ineffective assistance of counsel. 16 (Docket No. 1.) To prove a claim of ineffective assistance of counsel, Carrasco must 17 show that both: (1) the attorney s conduct fell below an objective standard of 18 reasonableness; and (2) there is a reasonable probability that, but for counsel s 19 unprofessional errors, the result of the proceeding would have been different. Strickland 20 v. Wash., 466 U.S. 668, 688-94 (1984). As we detail below, Carrasco is unable to make 21 this showing. 22 First, Carrasco claims that his Sixth Amendment right to effective assistance of 23 counsel was violated because his lawyer had a conflict of interest in representing all three 24 co-defendants. (Docket No. 1.) However, the right to counsel of one s choosing includes Civil No. 12-1255 (JAF) -4- 1 the right to choose counsel with a potential conflict of interest, so long as the court 2 conducts an inquiry to probe the circumstances and decides in its discretion to allow the 3 joint representation. See Wheat v. U.S., 486 U.S. 153 (1988). In such a case, the court 4 must, [c]omment on some of the risks confronted where defendants are jointly represented to insure that defendants are aware of such risks, and to inquire diligently whether they have discussed the risks with their attorney, and whether they understand that they may retain separate counsel, or if qualified, may have such counsel appointed by the court and paid for by the government .... If the court has carried out this duty of inquiry, then to the extent a defendant later attempts to attack his conviction on the grounds of conflict of interest arising from joint representation he will bear a heavy burden indeed of persuading us that he was, for that reason, deprived of a fair trial. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 U.S. v. Foster, 469 F.2d 1, 5 (1972). In Carrasco s case, there were two Foster hearings. 19 (Docket Nos. 14, 15.) Judge McGiverin commented at length about the risks of joint 20 representation. In the first hearing, Judge McGiverin mentioned that there could be 21 problems in terms of attorney/client privilege; that there could be conflicts that arise in 22 plea bargaining and deals with the government; and that there could be conflicts in 23 potential defense theories among the defendants. He gave general examples of each. 24 Judge McGiverin reiterated that if the defendants could not afford counsel, the court 25 could appoint attorneys and that if any defendant decided at any point that he wanted a 26 separate attorney, he would be provided with one. (Docket No. 14.) In the second Foster 27 hearing, Judge McGiverin again discussed potential conflicts with general examples, and 28 then watched as Carrasco s attorney explained the waiver form in the Spanish language. 29 Judge McGiverin told Carrassco that because of these possible conflicts of interest, the 30 Court recommends, strongly recommends, that you each receive individual attorneys, Civil No. 12-1255 (JAF) -5- 1 but Carrasco again chose to sign a waiver of his right to conflict-free counsel. (Docket 2 No. 15 at 17.) Given these very thorough hearings, Carrasco has not carried the heavy 3 burden indeed of persuading us that he was, for that reason, [or any other valid reason 4 advanced], deprived of a fair trial. See Foster, 469 F.2d at 5. 5 Second, Carrasco claims that he had ineffective assistance of counsel because his 6 attorney did not adequately and properly advise him with respect to the federal 7 sentencing guidelines and sentencing exposure. (Docket No. 1.) He claims that his 8 counsel should have advised him on how the drug quantities would be applied to 9 sentencing and how acceptance of responsibility would be applied. (Docket No. 1 at 19.) 10 Carrasco waived this claim by failing to present a developed argument. Cody v. United 11 States, 249 F.3d 47, 53 n.6 (1st Cir. 2001) (ineffective assistance of counsel claims raised 12 in a perfunctory manner in § 2255 proceeding are deemed waived). Even if this claim 13 were not waived and were proven, however, an attorney s inaccurate prediction of his 14 client s probable sentence, standing alone, will not satisfy the prejudice prong of the 15 ineffective assistance test. United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995), 16 rev. on other grounds, 520 U.S. 751 (1997). Carrasco also claims that he had ineffective 17 assistance of counsel because his attorney did not adequately advise him about how his 18 sentence could be enhanced by testifying falsely. (Docket No. 1 at 19.) However, an 19 attorney does not need to engage in a cost-benefit assessment of perjury, because there is 20 no constitutional right to commit perjury. See Nix v. Whiteside, 475 U.S. 157, 173 21 (1986). 22 Third, Carrasco claims that he had ineffective assistance of counsel because his 23 attorney did not pursue independent plea negotiations on behalf of petitioner. (Docket Civil No. 12-1255 (JAF) -6- 1 No. 1.) This is connected to his claim that his counsel operated under a conflict of 2 interest, and is dismissed for the same reasons. 3 Fourth, Carrasco claims that his counsel was ineffective for stipulating as to the 4 drug type and quantity and for stipulating to the chain of custody of evidence during the 5 trial. (Docket No. 1.) However, it is left to counsel to make strategic decisions in trying 6 the case, and counsel s choice to forego weak arguments does not constitute ineffective 7 assistance of counsel. See Jones v. Barnes, 463 U.S. 745 (1983). 8 Fifth, Carrasco claims that his counsel was ineffective for failing to procure 9 authenticated, exculpatory documents generated in a foreign nation to establish the 10 petitioner s defense. (Docket No. 1.) The alleged documents were related to Carrasco s 11 status as a fisherman, to ownership of the vessel, and to the vessel s nationality. (Docket 12 No. 1 at 25.) This fails to show ineffective assistance under the Strickland standard, 13 because it does not show a reasonable probability that, but for counsel s unprofessional 14 errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 15 688-94. The government presented ample other evidence of guilt: multiple videos and 16 photos of the boat idling in the water and then speeding towards the cocaine bales when 17 they were dropped; ion scans of cocaine residue on the skin and clothing of the 18 defendants; and testimony from the lieutenant who apprehended Carrasco. (Docket No. 7 19 at 15.) 20 (Docket No. 7 at 16.) Further, the government actually conceded that Carrasco was a fisherman. 21 Sixth, Carrasco claims that he had ineffective assistance of counsel because his 22 attorney promised the jury during opening statements that the defense would offer 23 exculpatory evidence and witnesses that the defense was then unable to produce during 24 the trial. (Docket No. 1.) Specifically, Carrasco cites to a quote from counsel s opening Civil No. 12-1255 (JAF) -7- 1 statement where he promised a pile of evidence supporting Carrasco s innocence. 2 (Docket No. 1 at 27.) A citation to this stray piece of puffery fails to demonstrate 3 ineffective assistance under the Strickland standard, because it does not show a 4 reasonable probability that, but for the remark, the result of the proceeding would have 5 been different. Strickland, 466 U.S. at 688-94. 6 Seventh, Carrasco claims that he had ineffective assistance of counsel because 7 counsel did not call a material witness to testify on Carrasco s behalf. (Docket No. 1.) 8 The witness allegedly would have testified that he, rather than Carrasco, owned the boat. 9 (Docket No. 1 at 31.) Yet, there was testimony from the Coast Guard that the individuals 10 on the ship failed to respond to multilingual inquiries about the ship s nationality and that 11 there was no evidence of nationality on board. (Docket No. 7 at 19.) Therefore, the court 12 determined that it was empowered with jurisdiction over this boat. (Docket No. 7 at 19.) 13 Carrasco s claim fails to meet the Strickland standard, because Carrasco has failed to 14 show a reasonable probability that, but for this missing witness, the result of the 15 proceeding would have been different. Strickland, 466 U.S. at 688-94. 16 Finally, Carrasco claims ineffective assistance of counsel because his lawyer 17 would not work with him after the First Circuit Court of Appeals issued its decision 18 affirming Carrasco s conviction. (Docket No. 1.) However, the right to counsel extends 19 only to the first right of appeal. Wainright v. Torna, 455 U.S. 586 (1982). 20 IV. 21 22 23 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 24 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 25 certificate of appealability ( COA ). We grant a COA only upon a substantial showing Civil No. 12-1255 (JAF) -8- 1 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 2 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 3 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 4 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 5 Carrasco has not yet requested a COA, we see no way in which a reasonable jurist could 6 find our assessment of his constitutional claims debatable or wrong. Carrasco may 7 request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 8 22. 9 V. 10 Conclusion 11 For the foregoing reasons, we hereby DENY Carrasco s § 2255 motion (Docket 12 No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary 13 dismissal is in order because it plainly appears from the record that Carrasco is not 14 entitled to § 2255 relief from this court. 15 IT IS SO ORDERED. 16 San Juan, Puerto Rico, this 14th day of February, 2014. 17 18 19 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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