Collazo-Rivera v. USA, No. 3:2013cv01365 - Document 9 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 11-534) filed by Noel Collazo-Rivera. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order bec ause it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Judgment to enter 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 03/14/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 NOEL COLLAZO-RIVERA, Petitioner, Civil No. 13-1365 (JAF) v. (Crim. No. 11-534-1) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner Noel Collazo-Rivera ( Collazo-Rivera ) comes before the court with a 8 motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed in 9 Criminal No. 11-534-1. (Docket No. 1.) For the reasons set forth below, we deny the 10 motion. 11 I. 12 Background 13 On November 18, 2011, Collazo-Rivera was charged with violating 18 U.S.C. 14 § 922(g)(1), which prohibits possession of a firearm by a convicted felon. (Crim. No. 11- 15 534, Docket No. 1.) 16 No. 11-534, Docket No. 26.) On May 4, 2012, Collazo-Rivera was sentenced to thirty- 17 six months imprisonment and a one-hundred dollar assessment. We also sentenced him 18 to three years of supervised release. (Crim. No. 11-534, Docket No. 32.) Collazo-Rivera 19 filed a motion for relief under 28 U.S.C. 2255 which he quickly moved to withdraw or 20 dismiss. (Crim. No. 11-534, Docket Nos. 35, 36.) We granted his motion. (Crim. 21 No. 11-534, Docket No. 37.) On February 2, 2012, Collazo-Rivera pleaded guilty. (Crim. Civil No. 13-1365 (JAF) -2- 1 On May 9, 2013, Collazo-Rivera filed the instant 28 U.S.C. § 2255 petition to 2 vacate, set aside, or correct his sentence. (Docket No. 1.) On July 24, 2013, the United 3 States filed a response in opposition. (Docket No. 6.) On September 9, 2013, Collazo- 4 Rivera filed a reply to the government s response. (Docket No. 8.) 5 II. 6 Jurisdiction 7 We have jurisdiction to hear this case pursuant to 28 U.S.C. § 2255, because 8 Collazo-Rivera is currently in federal custody having been sentenced by this district 9 court. To file a timely motion, Collazo-Rivera had one year from the date his judgment 10 became final. 28 U.S.C. § 2255(f). It became final fourteen days after the entry of the 11 judgment. Fed R. App. 4(b)(1)(A)(i). Judgment was entered on May 4, 2012, and 12 Collazo-Rivera had until May 18 to file a notice of appeal, which he did not do. (Crim. 13 No. 11-534, Docket No. 32.) He filed his habeas petition on May 9, 2013, just less than a 14 year after the judgment became final. Therefore, his petition is timely and we have 15 jurisdiction. 16 III. 17 Legal Discussion 18 Collazo-Rivera alleges ineffective assistance of counsel on multiple grounds. 19 (Docket No. 1.) To prove a claim of ineffective assistance of counsel, Collazo-Rivera 20 must show that both: (1) the attorney s conduct fell below an objective standard of 21 reasonableness; and (2) there is a reasonable probability that, but for counsel s 22 unprofessional errors, the result of the proceeding would have been different. Strickland 23 v. Wash., 466 U.S. 668, 688-94 (1984). Civil No. 13-1365 (JAF) -3- 1 First, Collazo-Rivera contends that his counsel was ineffective because he 2 refused to have the nine state counts either charged as federal offenses or have them 3 included as televant conduct. (sic) (Docket No. 1 at 4.) Relatedly, he contends that 4 Counsel stated that the state charges would probably run concurrent with the federal 5 charges, but that they were instead punished consecutively. Id. The doctrine of dual 6 sovereignty recognizes that the federal government is not bound by the actions of state 7 authorities and that successive state and federal prosecutions are constitutionally 8 permissible. Abbate v. United States, 359 U.S. 187 (1959). Therefore, Collazo-Rivera s 9 counsel could not force state prosecutors to transfer charges to the federal prosecutors. 10 The state court s determination to impose a consecutive sentence to the federal conviction 11 would be a matter for Collazo-Rivera s state counsel to argue in the state court. Further, 12 pleading guilty to the federal charge before a sentence was imposed at the state level 13 could be a wise strategic decision. 14 additional convictions which would increase his Criminal History Category for 15 sentencing. Counsel is afforded the latitude to make such strategic decisions. Strickland 16 466 U.S. at 690 ( strategic choices made after thorough investigation of the law and facts 17 relevant to plausible options are virtually unchallengeable ). In doing so, Collazo-Rivera avoided collecting 18 Second, Collazo-Rivera contends that his counsel was ineffective because his 19 translator failed to show up at Petitioner s sentencing [and the attorney] refused to 20 reschedule or Petition the Court for a resentencing. (Docket No. 1 at 5.) The record 21 belies this assertion. The sentencing transcript states that [t]he services of the court 22 interpreter are being provided to the defendant. (Crim. No. 11-534, Docket No. 41 at 3.) Civil No. 13-1365 (JAF) -4- 1 IV. 2 3 4 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 5 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 6 certificate of appealability ( COA ). We grant a COA only upon a substantial showing 7 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 8 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 9 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 10 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 11 Collazo-Rivera has not yet requested a COA, we see no way in which a reasonable jurist 12 could find our assessment of his constitutional claims debatable or wrong. Collazo- 13 Rivera may request a COA directly from the First Circuit, pursuant to Rule of Appellate 14 Procedure 22. 15 V. 16 Conclusion 17 For the foregoing reasons, we hereby DENY Collazo-Rivera s § 2255 motion 18 (Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, 19 summary dismissal is in order because it plainly appears from the record that Collazo- 20 Rivera is not entitled to § 2255 relief from this court. 21 IT IS SO ORDERED. 22 San Juan, Puerto Rico, this 14th day of March, 2014. 23 24 25 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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