Varela-Rivera v. USA, No. 3:2014cv01561 - Document 7 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number Cr. 12-4 (JAF)) filed by Gilberto Varela-Rivera. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is i n order because 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 10/29/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 GILBERTO VARELA-RIVERA, Plaintiff, Civil No. 14-1561 (JAF) v. (Crim. No. 12-004-01) UNITED STATES OF AMERICA, Defendant. 5 6 OPINION AND ORDER 7 Petitioner Gilberto Varela-Rivera ( Varela-Rivera ) comes before the court with a 8 petition under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed 9 in Criminal No. 12-004-01. (Docket No. 1.) For the following reasons, we deny his 10 petition. 11 I. 12 Background 13 On March 9, 2012, Varela-Rivera pleaded guilty to possession of a firearm in 14 furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Nearly 15 two months later, Varela-Rivera moved to withdraw his plea, arguing that his public 16 defender had coerced him into pleading guilty. We denied the motion to withdraw his 17 plea and sentenced Varela-Rivera to twenty years imprisonment, which include[d] a 18 component for lying before the Court. United States v. Gilberto Varela-Rivera, 551 19 Fed. Appx. 583, 585 (1st Cir. 2014). 20 Varela-Rivera appealed, arguing that (1) we abused our discretion when we 21 refused to grant his motion to withdraw his plea, and (2) his sentence was procedurally Civil No. 14-1561 (JAF) -2- 1 and substantively unreasonable. The First Circuit affirmed our decision on January 15, 2 2014. Varela-Rivera, 551 Fed. Appx. at 585. On July 16, 2014, Varela-Rivera filed the 3 instant motion to vacate his sentence under 28 U.S.C. § 2255. (Docket No. 1.) On 4 September 29, 2014, the United States filed a response in opposition. (Docket No. 5.) 5 On October 27, 2014, Varela-Rivera filed a reply. (Docket No. 6.) 6 II. 7 Jurisdiction 8 Varela-Rivera is currently in federal custody, having been sentenced by this 9 district court. To file a timely motion, Varela-Rivera had one year from the date his 10 judgment became final. 28 U.S.C. § 2255(f). Because he filed the instant motion only 11 six months after the Court of Appeals affirmed his sentence, he is well within the one- 12 year time limit for a § 2255 petition. 13 III. 14 Analysis 15 Varela-Rivera s claims can be grouped into several larger claims: Charging errors; 16 an error in applying a sentencing enhancement for an assault weapon or machine 17 gun; ineffective assistance of counsel, and other sentencing errors. For the following 18 reasons, these claims all fail. 19 A. Charging 20 Varela-Rivera argues that when he was charged under 18 U.S.C. § 924(c)(1)(A), 21 he was not charged with an offense, but a penalty provision. (Docket No. 1 at 6, 17.) 22 This is simply untrue. 18 U.S.C. § 924(c)(1)(A) punishes the crime of being a person 23 who, during an in relation to any crime of violence or drug trafficking crime [ ¦] uses or 24 carries a firearm, or who, in furtherance of any such crime, possesses a firearm. 18 Civil No. 14-1561 (JAF) -3- 1 U.S.C. § 924(c)(1)(A). On appeal, the First Circuit already affirmed our conviction and 2 sentence under this law. Varela-Rivera, 551 Fed. Appx. at 585-90. 3 B. Assault Weapon/Machine Gun 4 Varela-Rivera makes numerous arguments centered upon the assertion that he did 5 not possess an assault weapon or a machine gun. (Docket No. 1 at 6, 9; Docket No. 6 at 6 2.) The First Circuit already stated that the undisputed offense conduct in Defendant s 7 presentence report shows police found him sleeping with an automatic firearm and a 8 large quantity of drugs. Varela-Rivera, 551 Fed. Appx. at 591. Varela-Rivera himself 9 admits that he possessed a pistol modified by a chip. (Docket No. 1 at 18.) 10 However, this argument is moot because 18 U.S.C. §924(c)(1)(A) makes no 11 mention of assault weapons or machine guns. 18 U.S.C. §924(c)(1)(A). Varela-Rivera 12 pleaded guilty to the crime of possession of a firearm during and in relation to a drug 13 trafficking crime. (Crim. No. 12-004-01, Docket No. 62.) His plea agreement states 14 that he did knowingly possess a firearm, that is, a Glock pistol, black color, Model 22, 15 serial number GAX007, 0.40 caliber [striken portion] loaded with ten (10) rounds of 0.40 16 caliber ammunition, in furtherance of a drug trafficking crime. (Crim. No. 12-004-01, 17 Docket No. 36 at 2; Crim. No. 12-004-01, Docket No. 40.) 18 argument fails. 19 C. Therefore, this irrelevant Ineffective Assistance of Counsel 20 Varela-Rivera makes several ineffective-assistance-of-counsel claims. To prove a 21 claim of ineffective assistance of counsel, Varela-Rivera must show that both: (1) the 22 attorney s conduct fell below an objective standard of reasonableness; and (2) there is a 23 reasonable probability that, but for counsel s unprofessional errors, the result of the 24 proceeding would have been different. Strickland v. Wash., 466 U.S. 688, 688-94 Civil No. 14-1561 (JAF) -4- 1 (1984). This standard applies in the context of plea agreements as well. Hill v. Lockhart, 2 474 U.S. 52, 58 (1985). 3 Varela-Rivera argues that Counsels representing Defendant at different stages 4 prior to the filing of this motion have never addressed or challenged the applicability of 5 18 U.S.C. § 924(c)(1)(A) to the facts of this case. The use of a chip to render a pistol 6 semiautomatic does not make the weapon fully automatic, an assault weapon or a 7 machine gun. (Docket No. 1 at 6.) As stated above, the crime to which Varela-Rivera 8 pleaded never required that the gun be fully automatic or an assault weapon or a machine 9 gun. Therefore, there is zero probability that, but for this error, the result of the 10 proceeding would have been different. See Strickland, 466 U.S. at 688-94; Lockhart, 474 11 U.S. at 58. 12 Varela-Rivera also argues that [O]nce the Public Defender was assigned to 13 Defendant, his counsel was substituted by another assistant public defender that 14 Defendant had never seen before; who spoke only English and Defendant speaks only 15 Spanish. (Docket No. 1 at 6.) However, he told that court that he was satisfied with his 16 counsel, including his second attorney. As stated in the transcript: 17 18 19 20 21 22 23 24 25 26 27 28 29 Q. And then you were asked if you were satisfied with Attorney Mauri Gray, and you said yes, under oath? A. And under the intimidation that Attorney Jorge Godoy had already made. Q. My question is if you said yes under oath in front of this Judge when he asked you that you were satisfied. You said yes, right? A. Yes. Q. And you remember that the Judge asked you if there was anything bothering you, and you said no? Correct? Civil No. 14-1561 (JAF) -5- A. Yes. 1 2 3 (Crim. No. 12-004-01, Docket No. 66 at 16.) We give weight to a defendant s assertions 4 under oath. 5 Finally, Varela-Rivera argues that [T]he investigation of the case was deficient 6 and there was failure in uncovering, securing, and preserving evidence. (Docket No. 1 7 at 6.) It is well-established that issues that are adverted to in a perfunctory manner 8 absent developed argumentation are waived. United States v. Brown, 669 F.3d 10, 16 9 n.5 (1st Cir. 2012). It is not enough merely to mention a possible argument in the most 10 skeletal way, leaving the court to do counsel s work, create the ossature for the argument, 11 and put flesh on its bones. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) 12 (internal citations omitted). These claims fail. 13 14 D. Other Sentencing Claims 15 Varela-Rivera argues that his sentence of twenty years is excessive. (Docket 16 No. 1 at 17.) The First Circuit has already ruled on this issue. Varela-Rivera, 551 Fed. 17 Appx. 583. The First Circuit has held that when an issue has been disposed of on direct 18 appeal, it will not be reviewed again through a § 2255 motion. Singleton v. United States, 19 26 F.3d 233, 240 (1st Cir. 1994) (citing Dirring v. United States, 30 F.2d 862, 863 (1st 20 Cir. 1967)). The Supreme Court has also held that if a claim was raised and rejected on 21 direct review, the habeas court will not readjudicate it absent countervailing equitable 22 considerations. Withrow v. Williams, 507 U.S. 680, 721 (1993). 23 Varela-Rivera also states that his criminal history did not justify an aggravated 24 sentence that would render him a career criminal, because most of his criminal history 25 was remote and could not be considered for Guideline purposes. (Docket No. 1 at 27.) Civil No. 14-1561 (JAF) -6- 1 He does not develop this argument any further. As we stated at sentencing, [T]his man 2 has violated parole. He has tried to escape from prison. He has murdered people. You 3 name it. Everything. Everything in the book he has done. Theft, burglaries, robberies, 4 disguises. You name it. Everything. (Crim. No. 12-004-01, Docket No. 66 at 41.) His 5 argument that his criminal record was remote and should not be considered is 6 disingenuous at best. 7 These claims fail. 8 IV. 9 10 11 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 12 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 13 certificate of appealability ( COA ). In this respect, we state that it has become common 14 practice to collaterally challenge federal convictions in federal court by raising arguments 15 of dubious merit. This practice is overburdening federal district courts to the point of 16 having some of these criminal cases re-litigated on § 2255 grounds. We look at this 17 matter with respect to the rights of litigants, but also must protect the integrity of the 18 system against meritless allegations. See Davis v. U.S., 417 U.S. 333, 346 (1974) (in a 19 motion to vacate judgment under § 2255, the claimed error of law must be a fundamental 20 defect which inherently results in a complete miscarriage of justice); see also Dirring v. 21 U.S., 370 F.2d 862 (1st Cir. 1967) (§ 2255 is a remedy available when some basic 22 fundamental right is denied not as vehicle for routine review for defendant who is 23 dissatisfied with his sentence). 24 We grant a COA only upon a substantial showing of the denial of a constitutional 25 right. 28 U.S.C. § 2253(c)(2). To make this showing, [t]he petitioner must demonstrate Civil No. 14-1561 (JAF) -7- 1 that reasonable jurists would find the district court's assessment of the constitutional 2 claims debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting 3 Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Petitioner has not yet requested a 4 COA, we see no way in which a reasonable jurist could find our assessment of his 5 constitutional claims debatable or wrong. Petitioner may request a COA directly from 6 the First Circuit, pursuant to Rule of Appellate Procedure 22. 7 V. 8 Conclusion 9 For the foregoing reasons, we hereby DENY Petitioner s § 2255 motion (Docket 10 No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary 11 dismissal is in order because it plainly appears from the record that Petitioner is not 12 entitled to § 2255 relief from this court. 13 IT IS SO ORDERED. 14 San Juan, Puerto Rico, this 29th day of October, 2014. 15 16 17 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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