Peguero-Carela v. USA, No. 3:2013cv01276 - Document 11 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 08-37) filed by Jacobo Peguero-Carela. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order becau se it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Judgment to 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 02/06/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 JACOBO PEGUERO-CARELA, Petitioner, Civil No. 13-1276 (JAF) v. (Crim. No. 08-37-4 (JAF)) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner, Jacobo Peguero-Carela, brings this petition under 28 U.S.C. § 2255 for 8 relief from sentencing by a federal court, alleging that the sentence imposed violated his 9 rights under federal law. He requests an order to vacate, set aside, or correct the sentence 10 imposed in Cr. No. 08-37-4. (Docket No. 1.) 11 I. 12 Background 13 Petitioner and three co-defendants were found guilty on two drug-related charges: 14 One count of conspiracy to distribute narcotics and one count of conspiracy to import 15 cocaine into the United States. On December 21, 2009, we sentenced Petitioner to 324 16 months, to be served concurrently. (Cr. Docket No. 356.) The First Circuit affirmed 17 Petitioner s conviction. See United States v. Espinal-Almedia, 699 F.3d 588 (1st Cir. 18 2012). Petitioner now seeks relief under 28 U.S.C. § 2255. (Docket No. 1.) Respondent 19 opposes. (Docket No. 7.) Civil No. 13-1276 (JAF) -2- 1 II. 2 Legal Standard 3 A federal district court has jurisdiction to entertain a § 2255 petition when the 4 petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A 5 federal prisoner may challenge his sentence on the ground that, inter alia, it was imposed 6 in violation of the Constitution or laws of the United States. Id. A petitioner cannot be 7 granted relief on a claim that has not been raised at trial or direct appeal, unless he can 8 demonstrate both cause and actual prejudice for his procedural default. See United States 9 v. Frady, 456 U.S. 152, 167 (1982). Indeed, [p]ostconviction relief on collateral review 10 is an extraordinary remedy, available only on a sufficient showing of fundamental 11 unfairness. Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). Claims of 12 ineffective assistance of counsel, however, are exceptions to this rule. See Massaro v. 13 United States, 538 U.S. 500, 123 (2003) (holding that failure to raise ineffective 14 assistance of counsel claim on direct appeal does not bar subsequent § 2255 review). 15 III. 16 Discussion 17 Because Petitioner appears pro se, we construe his pleadings more favorably than 18 we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 19 Nevertheless, Petitioner s pro-se status does not excuse him from complying with 20 procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 21 Petitioner claims he was apprehended in The Dominican Republic s Territorial 22 Contiguous Zone and that, therefore, the United States lacked jurisdiction to charge him 23 with the crimes for which he was convicted. Petitioner never raised this claim during 24 trial or in the appeals process. Claims not previously raised are deemed waived. Civil No. 13-1276 (JAF) -3- 1 Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 374 n. 7 (1st Cir.2011) 2 (arguments not raised on appeal are waived). Even if Petitioner s claim was not waived, 3 however, the record contradicts it. A review of the trial transcript indicates that the 4 vessel was intercepted by the Coast Guard in international waters. Moreover, at the time 5 of the interdiction the vessel made no effort to identify itself with any state. As such, the 6 vessel was deemed stateless and within the jurisdiction of the United States. See 7 United States v. Nueci-Peña, 711 F.3d 191, 194 (1st Cir. 2013) (a vessel that at the time 8 of the interdiction ¦flew no flag, had no markings, had no registration documentation, 9 and ¦ offered no proof was stateless and under the jurisdiction of the United States). 10 Next, Petitioner asserts that his counsel was ineffective for denying him the right 11 to testify in his own defense and failing to develop a due process objection to evidence. 12 To prevail on an ineffective assistance of counsel claim, movant must show (1) that 13 counsel s performance fell below an objective standard of reasonableness, and (2) that 14 there is a reasonable probability that, but for counsel s errors, the result of the 15 proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 16 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test must be met 17 to demonstrate ineffective assistance. Id. 18 First, Petitioner argues that his counsel denied him the right to testify in his own 19 defense. Petitioner states that there s a reasonable probability that the court and jury 20 would have heard facts and explanations about the case that would have changed the 21 outcome of the proceeding. (Docket No. 1.) This is not sufficient to meet the Strickland 22 standard. Petitioner must cite specific details and facts demonstrating how his testifying 23 would have changed the outcome a vague assertion that the outcome would be different 24 is not enough. Strickland, 466 U.S. at 693 ( actual ineffectiveness claims alleging a Civil No. 13-1276 (JAF) -4- 1 deficiency in attorney performance are subject to a general requirement that the defendant 2 affirmatively prove prejudice. ). Furthermore, Petitioner s counsel made a strategic trial 3 decision to keep him from testifying and also being cross-examined. Such a decision 4 receives a high level of deference. Strickland, 466 U.S. at 690 ( Strategic choices made 5 after thorough investigation of law and facts relevant to plausible options are virtually 6 unchallengable. ). 7 presented leaves little doubt that, even if Petitioner had been allowed to testify, the 8 outcome would not have been different. Finally, as the government points out, the totality of evidence 9 Second, Petitioner asserts that his counsel failed to object to an in-court 10 identification. Petitioner raised this claim on direct appeal. Espinal-Almeida, 699 F.3d at 11 601-02. 12 decided on direct appeal. See Withrow v. Williams, 507 U.S. 680, 720-21 (1993). Petitioner cannot collaterally challenge a matter that has previously been 13 We can well understand that petitioner does not enjoy [her] incarceration. 14 However, a § 2255 proceeding is a collateral remedy available to a petitioner only when 15 some basic fundamental right is denied, and not as routine review at the behest of a 16 defendant who is dissatisfied with his sentence. Dirring v. United States, 370 F.2d 862, 17 865 (1st Cir. 1967). Petitioner has made no argument that would indicate that his rights 18 have been denied. 19 IV. 20 21 22 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 23 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 24 certificate of appealability ( COA ). We grant a COA only upon a substantial showing 25 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, Civil No. 13-1276 (JAF) -5- 1 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 2 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 3 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 4 Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could 5 find our assessment of his constitutional claims debatable or wrong. Petitioner may 6 request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 7 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 13 entitled to § 2255 relief from this court. 14 IT IS SO ORDERED. 15 San Juan, Puerto Rico, this 6th day of February, 2014. 16 17 18 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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