Mendez-Colon v. USA, No. 3:2012cv01499 - Document 8 (D.P.R. 2014)
Court Description: OPINION AND ORDER denying 1 Motion to Vacate Signed by Judge Juan M. Perez-Gimenez on 11/05/2014. (TW)
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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO WINSTON MENDEZ-COLON, Petitioner, Civil No. 12-1499 (PG) v. (Crim. 05-417 (GAG)) UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER Petitioner, Winston Méndez-Colón, brings this petition under 28 U.S.C. § 2255 for relief from sentencing by a federal court, alleging that the sentence imposed violated his rights under federal law. requests an order to vacate, imposed in Cr. No. 05-417. set aside, or correct the He sentence (Docket No. 1.) I. BACKGROUND Petitioner was charged in a multi-count indictment for various drug-related distribute, conspiring offenses in to including: violation commit of money 21 possession U.S.C. laundering, with §§841(a)(1) in violation §§1956(h), 1956(a)(1)(A)(i), and 1956(a)(1)(B)(i). Docket No. 2.) to dismiss furtherance of intent to 846; and and of 18 U.S.C. (Crim. No. 05-417, On January 31, 2006, Petitioner pled not guilty. (Crim. Docket No. 229.) moved the the the On November 2, 2006, Petitioner’s counsel indictment, conspiracy had alleging been that all committed the acts in prior to the Petitioner’s eighteenth birthday and that he had not confirmed the conspiracy after turning eighteen. (Crim. Docket No. 510.) This Court denied his motion, relying on evidence presented by the government that demonstrated that Petitioner confirmed his participation in the conspiracy after his eighteenth birthday. (Crim. Docket No. 690.) Civil No. 12-1499 (PG) Page 2 However, in August of 2007, Petitioner was found incompetent to stand trial. Subsequently, the Court issued an order for a psychiatric evaluation pursuant to 18 U.S.C. §4241(d). (Crim. Docket No. 1138.) Petitioner was transferred to the Mental Health Department of the Federal Medical Center (FMC) in Butner, North Carolina. On February 16, 2008, Petitioner assaulted another patient at FMC, and was sentenced to forty-one months imprisonment by the United States District Court for the Eastern District of North Carolina. Ultimately, in April of 2008, the FMC filed a report finding that Petitioner was competent to stand trial. (Crim. Docket No. 1420.) On August 15, 2008, Petitioner moved to change his plea and requested a change of plea hearing. same day, he signed Docket No. 1509.) a plea (Crim. Docket No. 1505.) agreement with the On that government. (Crim. Pursuant to the plea agreement, Petitioner pled guilty to Count One of the Indictment, which alleged that “from or about 1998 . . . and ending on a date unknown but not earlier than on or about December intentionally 2005 conspire, . . . combine, [Méndez-Colón] confederate, did and knowingly, agree . . and . to commit an offense against the United States . . . in violation of Title 21, United States Code, Sections 841(a)(1) and 846.” (Docket No. 1509 at 1-2.) Additionally, Petitioner agreed to be held accountable for at least three and a half, but less than five, kilograms of cocaine. On (Id.) June 11, 2010, Petitioner was sentenced to seventy-eight months of imprisonment to be served consecutively with the forty-one months of imprisonment imposed Carolina for the assault at FMC. by the Eastern District (Docket No. 1705.) entered on June 18, 2010. (Docket No. 1707.) Petitioner filed a notice of appeal. of North Judgment was On June 23, 2010, (Docket No. 1709.) The First Civil No. 12-1499 (PG) Page 3 Circuit Court of Appeals affirmed the conviction on February 9, 2012. (Docket No. 1865.) Petitioner moved for a rehearing, which the First Circuit denied on March 23, 2012. judgment became final on No certiorari was filed. Therefore, June 21, 2012. Petitioner filed this § 2255 motion. 1.) The government opposes. On October 24, 2013, (Civ. No. 12-1499, Docket No. (Docket No. 3.) II. LEGAL STANDARD A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner may challenge his sentence on the ground that, inter alia, it “was imposed in violation of the Constitution or laws of the United States.” Id. A petitioner cannot be granted relief on a claim that has not been raised at trial or direct appeal, unless he can demonstrate both cause and actual prejudice for his procedural default. Frady, 456 U.S. 152, 167 (1982). See United States v. Indeed, “[p]ostconviction relief on collateral review is an extraordinary remedy, available only on a sufficient showing of fundamental unfairness.” States, 26 F.3d 233, 236 (1st Cir. 1994). Singleton v. United Claims of ineffective assistance of counsel, however, are exceptions to this rule. Massaro v. United States, 538 U.S. 500, 123 (2003) (holding See that failure to raise ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255 review). III. DISCUSSION Because Petitioner appears pro se, we construe his pleadings more favorably than we would those drafted by an attorney. Pardus, 551 U.S. 89, 94 (2007). status does not excuse him from See Erickson v. Nevertheless, Petitioner’s pro-se complying with procedural and Civil No. 12-1499 (PG) substantive law. Page 4 Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). The petitioner alleges several species of ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, Petitioner must show (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for his counsel’s errors, the result of the proceedings would have been Washington, 466 U.S. 668, 687 (1984). different. Strickland v. Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. A. Counsel was not ineffective for failing to argue for a dismissal of the indictment Petitioner alleges that counsel was deficient because of a failure to argue for the dismissal of the indictment on the grounds that the court did not have jurisdiction because Petitioner was a minor when the conspiracy took place. The record clearly indicates otherwise. A review of the record shows that Petitioner’s counsel argued for the dismissal of the indictment – at least twice during the pre-trial stage. Petitioner’s counsel raised the issue during an arraignment and bail Hearing. (Docket No. 229 at 7.) During that hearing, counsel argued that, at the time of the conspiracy, Petitioner was only “16 or 17 at the time the offenses were committed.” (Id.) The government offered the testimony of a Drug Enforcement Administration agent to corroborate that Petitioner participated in the conspiracy until the date of his arrest – which was after Petitioner’s eighteenth birthday. (Id. at 10-24.) Next, on November 2, 2006, Petitioner’s counsel moved for both an evidentiary hearing regarding any evidence of overt acts committed by Petitioner in furtherance of the conspiracy Civil No. 12-1499 (PG) Page 5 after his eighteenth birthday and to dismiss the indictment on the grounds that the court lacked jurisdiction because Petitioner was a minor when the conspiracy took place. Court denied Petitioner’s indictment. the motion. counsel (Docket effectively (Docket No. 510 at 1-4.) No. argued 690.) for It the is clear dismissal of The that the As such, Petitioner’s claim fails. B. Counsel was not ineffective for failing to inform Petitioner of his rights under the Federal Juvenile Delinquency Act (FJDA) Petitioner involuntary claims because that his his counsel guilty was plea was ineffective. unknowing He avers and that counsel was ineffective for failing to advise Petitioner of his rights under the FJDA. Petitioner claims that because of this failure, and because of alleged diminished capacity, his plea was unknowing and involuntary. Petitioner raised this argument on direct appeal. See United States v. Mendez-Colon, No. 10-1852 (1st Cir. Feb. 9, 2012). The First Circuit rejected this argument, finding that, “the indictment to which [Petitioner] pled guilty stated that he was involved in the conspiracy until at least December 1, 2005,” which was well after his eighteenth birthday. Id. Moreover, the claim Petitioner now raises to suggest that his plea was unknowing and involuntary because of mental incapacity was also addressed on appeal. The First Circuit “considered [Petitioner’s] arguments about diminished capacity” and found no basis for relief. Id. It is settled law that a petitioner may not revive claims already decided on direct appeal by cloaking them in “ineffective assistance of counsel” garb in a § 2255 petition. See United States v. Doyon, 16 Fed.Appx 6, 9 (1st Cir.2001) (dismissing claims raised in a § 2255 motion because they were “decided on direct appeal and may not be Civil No. 12-1499 (PG) Page 6 relitigated under a different label on collateral review”). As such, Petitioner’s claim fails. IV. In accordance Proceedings, CERTIFICATE OF APPEALABILITY with whenever Rule issuing 11 a of the denial Rules of § Governing 2255 relief § 2255 we must concurrently determine whether to issue a certificate of appealability (“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). this showing, jurists would “[t]he petitioner find the must district demonstrate court's constitutional claims debatable or wrong.” that To make reasonable assessment of the Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). in which While Petitioner has not yet requested a COA, we see no way a reasonable jurist could find constitutional claims debatable or wrong. our assessment of his Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. V. CONCLUSION For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion. (Docket No. 1.) 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. IT IS SO ORDERED. San Juan, Puerto Rico, this 5th day of November, 2014. S/ JUAN M. PÉREZ-GIMÉNEZ JUAN M. PÉREZ-GIMÉNEZ UNITED STATES DISTRICT JUDGE
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