Perez-Perez v. USA, No. 3:2014cv01288 - Document 4 (D.P.R. 2014)

Court Description: OPINION AND ORDER denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 09/05/2014. (TW) Modified to add "opinion &" on 9/17/2014 (su).

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO JOSE PEREZ-PEREZ, Petitioner, Civil No. 14-1288 (PG) v. (Crim. 10-355 (PG)) UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER Petitioner, José Pérez-Pérez, 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. He requests an order to vacate, set aside, or correct the sentence imposed in Cr. No. 10-355. (Docket No. 1.) I. BACKGROUND Petitioner, along with ten codefendants, was charged in a multi-count including indictment conspiring for in a various drug drug-related conspiracy and possessing firearm in furtherance of a drug trafficking crime. 10-335, Docket No. 3.) offenses, a (Crim. No. After a four-day jury trial, Petitioner was found guilty on three counts of the indictment: conspiring to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§841 and 846; aiding and abetting in the attempt to possess with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§841 and 846 and 18 U.S.C. §2; and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. Civil No. 14-1288 (PG) §924(c)(1)(A). Page 2 (Docket No. 316.) On February 9, 2012, Petitioner was sentenced to a total of 180 months in prison. (Docket No. 440.) appeal. On May 22, 2007, Petitioner filed a notice of Upon review, the First Circuit affirmed petitioner s conviction and sentence. United States v. Pérez-Pérez, 2013 WL 1026412 (1st Cir. 2013). On May 20, 2013, the Supreme Court denied petitioner s writ of certiorari. States, 133 S.Ct. 2405 (2013). Pérez-Pérez v. United On April 4, 2014, Petitioner filed a § 2255 motion assisted by counsel. Docket No. 1.) The government opposed. (Civ. No. 14-1288, (Docket No. 6.) II. LEGAL STANDARD A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner sentence of a federal court. is in custody under See 28 U.S.C. § 2255. the 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 prejudice for his procedural default. Frady, 456 relief on available U.S. 167 collateral only unfairness. Cir. 152, 1994). on a is and actual See United States v. Indeed, (1982). review cause [p]ostconviction an sufficient extraordinary showing of remedy, fundamental Singleton v. United States, 26 F.3d 233, 236 (1st Claims of ineffective however, are exceptions to this rule. assistance See of counsel, Massaro v. United Civil No. 14-1288 (PG) Page 3 States, 538 U.S. 500, 123 (2003) (holding that failure to raise ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255 review). III. DISCUSSION Because pleadings Petitioner more attorney. favorably than Erickson v. See Nevertheless, appears Petitioner s pro we se, would Pardus, we those construe drafted by 551 U.S. 89, 94 status pro-se his does not an excuse from complying with procedural and substantive law. (2007). him Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). The petitioner alleges assistance of counsel. several species of ineffective 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 of the proceedings would have been different. S.Ct. 2052, Strickland v. Washington, 466 U.S. 668, 687, 104 80 Strickland test assistance. L.Ed.2d must 674 be (1984). met to Both prongs demonstrate of the ineffective Id. A. Counsel was not ineffective for failing to give Petitioner a written record of verbal plea offers Petitioner argues that counsel was ineffective for failing to present the two verbal plea offers tendered by the government in writing. Petitioner s claim is contradicted by the record. The minutes of the status conferences held April 5, 2011, and May 2, 2011, Civil No. 14-1288 (PG) clearly Page 4 reflect that Petitioner refused to accept the plea offers tendered by the government. Further Status Conference held. The parties advised the Court Carlos A. as to the status of this case ¦ Counsel Vazquez for co-defendant Perez-Perez (11) informed that his client rejected the plea offer, and will exercise his right to jury trial. (Crim. Docket No. 199 at 1.) Petitioner remained steadfast in his rejection of the government s plea offer. On May 2, 2011, counsel once again advised us that the Petitioner opted to exercise his right to jury trial: Further Status Conference held. The parties advised the Court as to the status of this case. ¦ In regards co-defendant Perez-Perez (11) counsel Carlos Vazquez informed that his client rejected the plea offer, and will exercise his right to jury trial. (Docket No. 225 at 1.) Here, Petitioner was offered the opportunity to plea twice before the start of trial and on both occasions firmly rejected the government s offers. Therefore, Petitioner s claim fails. B. Counsel was not ineffective for failing to call a witness to testify Petitioner argues that counsel was ineffective because he failed to call one of his co-workers to testify on Petitioner s behalf. The decision to call or not call witnesses to Civil No. 14-1288 (PG) testify falls counsel. Page 5 within the strategic discretion exercised by Petitioner s argument, therefore, is misplaced. A defense lawyer must make reasonable investigations in the course of representation. Strickland, 466 U.S. at 691. However, strategic choices made after thorough investigation of law and facts relevant unchallengeable. to plausible options are virtually Strickland, 466 U.S. at 690; Cf. Raley v. Yist, 470 F.3d 792, 799 (9th counsel s tactical declaring that decisions the Cir.2006) (a disagreement with does not representation provide was the basis for constitutionally deficient); Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002) (same). Here, counsel called several witnesses, Petitioner, who testified on his own behalf. including Petitioner s trial counsel made a tactical decision not to place on the witness stand the specific witness desired by Petitioner. This was a strategic decision, Hensley v. Roden, 755 F.3d 724, 737 (1st Cir. 2014) (in context of ineffective assistance of counsel claim, decision whether to call a particular witness is almost always strategic), and any disagreement that Petitioner now has does not provide assistance. grounds for a determination of ineffective Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011) (strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance and represents sound trial strategy). Merely asserting displeasure that counsel did Civil No. 14-1288 (PG) Page 6 not call a specific witness to testify is plainly insufficient. The petitioner s argument fails. IV. CERTIFICATE OF APPEALABILITY In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever issuing a denial of § 2255 relief we must concurrently determine whether appealability ( COA ). to issue a certificate of We grant a COA only upon a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate that court's make reasonable assessment wrong. this Miller-El of the v. showing, jurists [t]he would constitutional Cockrell, 537 petitioner find claims U.S. the must district debatable 322, or 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Petitioner has not yet requested a COA, we see no way in which a reasonable jurist constitutional could claims find debatable our or assessment wrong. 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. Rules (Docket No. 1.) Governing § 2255 Pursuant to Rule 4(b) of the Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Civil No. 14-1288 (PG) Page 7 IT IS SO ORDERED. San Juan, Puerto Rico, this 5th day of September, 2014. S/ JUAN M. Pà REZ-GIMà NEZ JUAN M. Pà REZ-GIMà NEZ UNITED STATES DISTRICT JUDGE

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