Vazquez-Arciliares v. USA, No. 3:2014cv01022 - Document 5 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 12-691) filed by Denis R. Vazquez-Arciliares. Judgment will be entered summarily dismissing Petitioner's § 2255 motion because it pl ainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. While Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could find our assessment of Petitioner's constitutional claims debatable or wrong. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A. Fuste on 03/17/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 DENIS R. Và ZQUEZ-ARCILIARES, Petitioner, Civil No. 14-1022 (JAF) v. (Crim. No. 12-691-14) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner, Denis R. Vázquez-Arciliares, brings this petition under 28 U.S.C. 8 § 2255 for relief from sentencing by a federal court, alleging that the sentence imposed 9 violated his rights under federal law. He requests an order to vacate, set aside, or correct 10 the sentence imposed in Criminal No. 12-691. (Docket No. 1.) 11 I. 12 Background 13 On December 27, 2011, pursuant to a plea agreement, Petitioner pled guilty for his 14 role as an enforcer, runner, and facilitator in a drug-trafficking organization operating out 15 of the Dr. Manuel De La Pila Iglesias Public Housing Project in Ponce, Puerto Rico. 16 (Crim. Docket No. 1011 at 20-25.) On July 2, 2013, we sentenced Petitioner to an 17 imprisonment term of 180 months, to be served consecutively with a Commonwealth 18 sentence imposed for weapons charges. (Crim. Docket No. 1398.) We ordered that the 19 federal sentence be served first. (Id.) No notice of appeal was filed and Petitioner s 20 conviction became final on July 11, 2013. On January 13, 2014, Petitioner timely filed 21 this petition. (Docket No. 1.) The government opposed. (Docket No. 4.) Civil No. 14-1022 (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 her sentence on the ground that, inter alia, it was 6 imposed in violation of the Constitution or laws of the United States. Id. A petitioner 7 cannot be granted relief on a claim that has not been raised at trial or direct appeal, unless 8 she can demonstrate both cause and actual prejudice for his procedural default. See 9 United States v. Frady, 456 U.S. 152, 167 (1982). Indeed, [p]ostconviction relief on 10 collateral review is an extraordinary remedy, available only on a sufficient showing of 11 fundamental unfairness. Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). 12 Claims of ineffective assistance of counsel, however, are exceptions to this rule. See 13 Massaro v. United States, 538 U.S. 500, 123 (2003) (holding that failure to raise 14 ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255 15 review). 16 III. 17 Discussion 18 Because Petitioner appears pro se, we construe his pleadings more favorably than 19 we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 20 Nevertheless, Petitioner s pro-se status does not excuse him from complying with 21 procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 22 Petitioner asserts claims of ineffective assistance of counsel related to his plea 23 agreement. To prevail on an ineffective assistance of counsel claim, movant must show 24 (1) that counsel s performance fell below an objective standard of reasonableness, and Civil No. 14-1022 (JAF) -3- 1 (2) that there is a reasonable probability that, but for counsel s errors, the result of the 2 proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 3 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test must be met 4 to demonstrate ineffective assistance. Id. 5 Petitioner claims that counsel was ineffective for failing to call our attention to any 6 potential error in the Pre-Sentence Report. Petitioner offers nothing more than an oblique 7 reference to errors in the Pre-Sentence Report. 8 perfunctorily referred to are waived. United States v. Brown, 669 F.3d 10, 16 n.5 (1st 9 Cir. 2012). Therefore, his claim is dismissed. 10 It is well-established that issues The Petition also asserts that his counsel was ineffective for failing to show or give 11 him a copy of the Pre-Sentence Report. However, Petitioner does not specifically 12 identify any information contained in the Pre-Sentence Report of which he was unaware 13 prior to sentencing. See United States v. Caparotta, 676 F.3d 213, 218 (1st Cir. 2012). In 14 support of his contention, he attaches a letter of his counsel and claims that it is an 15 admission from counsel that he failed to show or give a copy of the PSR to the defendant. 16 This assertion is incorrect. The attached letter is counsel s response to an initial inquiry 17 made by the Petitioner on November 22, 2013 four months after the sentencing where 18 Petitioner requested a copy of his PSR and claimed that he had not received it. (Docket 19 No. 1-1.) In the letter, Petitioner s counsel makes clear that he advised the Petitioner at 20 an earlier meeting that he could not give him a copy of the Pre-Sentence Report since it is 21 a confidential document and its disclosure is prohibited by the Bureau of Prisons and the 22 Federal Rules of Criminal Procedure. (Id.). For this reason, Petitioner s counsel was not 23 ineffective. Civil No. 14-1022 (JAF) -4- 1 Petitioner was convicted, pursuant to a plea agreement, for using and carrying a 2 firearm during a drug-trafficking crime. (Cr. Docket No. 3.) Now, Petitioner claims that 3 he should be given an opportunity to be sentenced according to the applicable guidelines 4 and that we should consider the appropriateness of downward or upward departures 5 under the guidelines. (Docket No. 1-1, at 5-6.) However, his charge of conviction is 6 statutorily precluded from guidelines calculations and mandates a minimum of five years 7 in prison. See U.S.S.G. § 2K2.4 (if the defendant was convicted of violating 18 U.S.C. 8 § 924(c), Chapter Three s adjustments shall not apply to that count of conviction and the 9 guideline sentence is the minimum term of imprisonment required by statute). Therefore, 10 his allegation lacks merit. 11 Similarly, Petitioner claims that we committed an error by not granting a Chapter 12 Three adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Yet, 13 here again, his charge of conviction is precluded from guidelines calculations. See 14 United States v. Davis, 380 F.3d 183, n.5 (4th Cir. 2004) (noting that the acceptance of 15 responsibility credit operates by reducing the offense level calculation by one to three 16 points, but, in sentencing for a § 924(c) conviction, there is no offense level calculation. 17 In fact, there is no offense level. ); United States v. Schaffer, 110 F.3d 530, 533-34 (8th 18 Cir. 1997) (defendant who pleaded guilty to using or carrying firearm during or in 19 relation to drug trafficking crime was not entitled to sentence adjustment for acceptance 20 of responsibility, given that offense carried mandatory statutory sentence and, therefore, 21 Sentencing Guideline adjustments did not apply). Also, since Petitioner alleges neither a 22 constitutional nor a jurisdictional error in our application of the Sentencing Guidelines, 23 his claims will not be considered for the first time on a § 2255 motion. See Knight v. 24 United States, 37 F.3d 769, 772-74 (1st Cir.1994); see also Graziano v. United States, 83 Civil No. 14-1022 (JAF) -5- 1 F.3d 587, 590 (2d Cir. 1996) (holding that absent a complete miscarriage of justice, 2 claims regarding application of sentencing guidelines will not be considered on a § 2255 3 motion where the defendant failed to raise them on direct appeal); United States v. 4 Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (holding that non-constitutional sentencing 5 errors that have not been raised on direct appeal have been waived and generally may not 6 be reviewed by way of 28 U.S.C. § 2255). 7 We can well understand that petitioner does not enjoy [her] incarceration. 8 However, a § 2255 proceeding is a collateral remedy available to a petitioner only when 9 some basic fundamental right is denied, and not as routine review at the behest of a 10 defendant who is dissatisfied with his sentence. Dirring v. United States, 370 F.2d 862, 11 865 (1st Cir. 1967). Petitioner has made no argument that would indicate that his rights 12 have been denied. 13 IV. 14 15 16 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 17 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 18 certificate of appealability ( COA ). We grant a COA only upon a substantial showing 19 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 20 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 21 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 22 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 23 Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could 24 find our assessment of her constitutional claims debatable or wrong. Petitioner may Civil No. 14-1022 (JAF) -6- 1 request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 2 22. 3 V. 4 Conclusion 5 For the foregoing reasons, we hereby DENY Petitioner s § 2255 motion (Docket 6 No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary 7 dismissal is in order because it plainly appears from the record that Petitioner is not 8 entitled to § 2255 relief from this court. 9 10 11 12 13 IT IS SO ORDERED. San Juan, Puerto Rico, this 17th day of March, 2014. S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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