Hernandez-Torres v. USA, No. 3:2013cv01548 - Document 7 (D.P.R. 2014)
Court Description: OPINION AND ORDER denying 1 Motion to Vacate Signed by Judge Juan M. Perez-Gimenez on 11/17/2014. (TW)
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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO JOSE HERNANDEZ-TORRES, Petitioner, Civil No. 13-1548 (PG) v. (Crim. 07-198 & Crim. 09-173) UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER Petitioner, Jose Hernández-Torres, 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. 08-079. set aside, or correct the He sentence (Docket No. 1.) I. BACKGROUND Petitioner was charged in two separate criminal matters. (Crim. 09-173 Docket No. 2.) On November 5, 2010, Petitioner, pursuant to a plea consolidated agreement that his offenses, pled guilty to conspiracy to possess with the intent to distribute one kilogram or more of heroin and conspiracy to import 1,000 kilograms or more of cocaine into the United States. (Crim. No. 09-173 Docket No. 1257 and Crim. No 07-198 Docket No. 112.) This Court sentenced Petitioner to to a term of 210-months of imprisonment. (Crim. No. 07-198 Docket No. 132 and Crim. No 09-173 Docket No. 2540 at 13-18.) entered on March 31, 2009. (Docket No. 63.) The judgment was On July 6, defendant filed a timely notice of appeal. (Appeal No. 11-1833.) First Circuit Court of Appeals affirmed. (Id.) Petitioner filed this § 2255 motion. 1.) The government opposes. 2011, The On July 15, 2013, (Civ. No. 13-1548, Docket No. (Docket No. 3.) Civil No. 13-1548 (PG) Page 2 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) See (holding 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 substantive law. excuse him from See Erickson v. Nevertheless, Petitioner’s pro-se complying with procedural and 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, a movant 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 Civil No. 13-1548 (PG) of the Page 3 proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate ineffective assistance of counsel, both prongs of the Strickland test must be met. Id. A. Counsel was not ineffective for failing to investigate Petitioner’s criminal history Petitioner argues that counsel was ineffective for failing to investigate his criminal history and this failure ultimately allowed certain facts to be used to increase Petitioner’s sentence. Petitioner’s claim is contradicted by the record. Here, all relevant facts for sentencing were set forth in the Pre-Sentence Report (PSR). Petitioner does not allege that counsel was anything but fully aware of all the relevant facts contained in the PSR. As such, counsel reasonably relied on the PSR in advising his client to plead. (1st Cir. United States v. Colon-Torres, 382 F.3d 76, 86 2004)(holding that there is no per se rule that an attorney’s failure to independently investigate his client’s criminal history before advising him to accept a plea offer is ineffective assistance). Because Petitioner fails to demonstrate negligence on the part of his counsel, the claim fails. B. Counsel was not ineffective for failing to object to a factual inaccuracy pertaining to a violation of his release conditions Petitioner asserts that the court’s comment about an alleged violation of his conditions of release was inaccurate because the arrest that followed his pretrial release was for offenses committed in an unrelated Brief, p. 32). (Id.) criminal matter. (App. No. 11-1833, Appellant’s Petitioner raised this argument on direct appeal. The First Circuit rejected this argument, finding that, “the Civil No. 13-1548 (PG) Page 4 targeted comment was fleeting and technically was correct in view of the span of the conspiracy to which appellant had admitted.” Id. It is settled law that a petitioner may not revive claims already decided on “ineffective direct appeal assistance of by cloaking counsel” them claim. in See the garb United of an 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 relitigated under a different label on collateral review”). As such, Petitioner’s claim fails. C. Counsel was not ineffective for failing to object to an alleged breach of the plea Petitioner alleges that his counsel was ineffective for “failing to object to an alleged breach of plea and failed to understand the applicable guideline grouping rules during the negotiation of such plea which resulted in top of guideline sentence.” (Docket No. 1 at 7.) However, Petitioner’s counsel raised this precise issue on direct review Circuit (App. 11-1833, rejected Appellant’s counsel’s Brief at contentions. 20-30), and Therefore, the First Petitioner’s claims fails. D. Counsel was not ineffective for failing to understand the application of United States Sentencing Guidelines §5G1.2 and §3D1.2 Finally, Petitioner contends that his counsel failed to foresee that the court would apply U.S.S.G. §3D1.2 instead of calculations set forth on the plea. (Docket No. 1 at 7.) The record contradicts Petitioner’s claim. The Petitioner’s PSR indicated that all counts should be grouped for sentencing purposes, pursuant to U.S.S.G. §3D1.2. A review of the record clearly indicates that Petitioner’s counsel objected to the PSR’s conclusion before, and at, the sentencing hearing. (Docket No. Civil No. 13-1548 (PG) Page 5 1529 at 4 and Docket No. 2540 at 4-7.) Petitioner’s counsel argued that Petitioner was entitled to an individual calculation of sentence for each count. (Docket No. 2540 at 5-7). The court ultimately rejected counsel’s objection, noting that it was not bound by the PSR’s recommended method for calculating Petitioner’s sentence. such, it is clear that Petitioner’s counsel both understood As the application of the Sentencing Guidelines at issue here and noted his objections before the court. IV. In accordance Proceedings, CERTIFICATE OF APPEALABILITY with whenever Petitioner’s claim fails. 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. Civil No. 13-1548 (PG) Page 6 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 4th day of November, 2014. S/ JUAN M. PÉREZ-GIMÉNEZ JUAN M. PÉREZ-GIMÉNEZ UNITED STATES DISTRICT JUDGE
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