Navedo-Ramirez v. USA, No. 3:2016cv02314 - Document 24 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 1 Motion to Vacate under 28 U.S.C. sec. 2255. Judgment dismissing case shall be issued forthwith. It is further ordered that no certificate of appealability should be issued in the event that Petitioner files a notice of appeal because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. sec. 2253(c). Signed by Judge Gustavo A. Gelpi on 08/03/2018. (NNR)
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Navedo-Ramirez v. USA Doc. 24 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Yam il N a ve d o -Ram ire z, Petitioner CIVIL NO. 16-2314 (PG) Related Crim . No. 10 -344-2 (PG) v. U n ite d Sta te s o f Am e rica, Respon dent. OPIN ION AN D ORD ER Before the court is petitioner Yam il Navedo-Ram irez’ (“Petitioner” or “Navedo-Ram irez”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1), the United States’ (or the “governm ent”) opposition thereto (Docket No. 22), and Navedo-Ram irez’ reply (Docket No. 23). For the following reasons, the court D EN IES petitioner’s m otion to vacate. I. BACKGROU N D Navedo-Ram irez was arrested as a result of Operation Guard Shack, a sting operation led by the Federal Bureau of Investigation (FBI) aim ed at com bating corruption in the Puerto Rico Police Departm ent (PRPD). See United States v. Navedo-Ram irez, 78 1 F.3d 563 (1st Cir. 20 15). On April 9, 20 10 , Navedo-Ram irez was recruited by a form er rom antic partner, Wendell RiveraRuperto, as extra security for one of the sham drug transactions being organized by the FBI. Petitioner participated in the faux drug transaction on April 14, 20 10 , and was later arrested for her involvem ent in the sam e. Id. at 566. Petitioner was charged with ( 1) conspiracy to possess with intent to distribute over five kilogram s of cocaine (“conspiracy count”); ( 2 ) aiding and abetting an attem pt to possess with intent to distribute over five kilogram s of cocain e Dockets.Justia.com Civ. No. 16-2314 (PG) Page 2 of 11 (“substantive count”); and ( 3 ) possession of a firearm in furtherance of a drug crim e (“firearm count”). Petitioner proceeded to trial by jury and was found guilty of the substantive count, aiding and abetting an attem pt to possess with intent to distribute cocaine, and of the firearm count, possession of a firearm in relation to a drug trafficking crim e. The jury found her not guilty as to the conspiracy count. On Novem ber 16, 20 12, the court sentenced Navedo-Ram irez to 121 m onths im prisonm ent as to the substantive count, to be served consecutively with 60 m onths as to the firearm count. See id. at 567. Navedo-Ram irez appealed her conviction and sentence with unprosperous results. In her appeal, Navedo-Ram irez argued that the district court com m itted various evidentiary errors, and that she should have been granted a downward variance in senten cing because the governm ent supposedly engaged in sentencing factor m anipulation. See id. at 565. The First Circuit Court of Appeals soundly rejected these claim s, and affirm ed Petitioner’s conviction and sentence. See id. at 570 . II. STAN D ARD OF REVIEW Pursuant to 28 U.S.C. § 2255, a federal prisoner m ay m ove to vacate, set aside, or correct his sentence “upon the ground that the senten ce was im posed in violation of the Constitution or laws of the United states, or that the court was without jurisdiction to im pose such sentence, or that the sentence was in excess of the m axim um authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 20 0 2). III. D ISCU SSION On J une 28, 20 16, Navedo-Ram irez presen ted the m otion to vacate (Docket No. 1) challenging her senten ce on twenty-six grounds, which, as the following analysis will showcase, m ust be rejected because they are either procedurally defaulted, waived due to lack of Civ. No. 16-2314 (PG) Page 3 of 11 developm ent, have been resolved against her on direct appeal, have been attended by the court through a separate m echanism , or are sim ply m eritless. A. U n d e rd e ve lo p e d & Pro ce d u rally D e fa u lte d Claim s Firstly, the court deem s waived Grounds Five through Nine, Twelve through Fifteen, Seventeen through Twenty-Two, and Twenty-Four through Twenty-Six, because they sim ply present barebones argum ents. The aforem entioned grounds, as presented in Petitioner’s m otion to vacate, are as follows: “Gro u n d Five : first tim e offender, no prior crim in al history; Gro u n d Six: low level offender, not a risk to the public; Gro u n d Se ve n : no prior state, federal, or crim in al history, lesser [sic] serious offense code; Gro u n d Eigh t: crim in al offenses, overstacked, double-count, overem phasized for the seriousness of the crim e; Gro u n d N in e : federal rule 29; Gro u n d Tw e lve : bill of particulars; Gro u n d Th irte e n : J ohnson v. United States; Gro u n d Fo u rte e n : Welch v. United States, 136 S.Ct. 1257 (20 16); Gro u n d Fifte e n : no firearm ; Gro u n d Se ve n te e n : judge’s abuse of discretion; Gro u n d Eigh te e n : crim inal offense conduct; Gro u n d N in e te e n : 18 U.S.C. § 924(c)(1)(A); Gro u n d Tw e n ty: 21 U.S.C. § 846 and 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) & (b)(1)(A)(ii); Gro u n d Tw e n ty-On e : volum e II am endm ents to particular guidelines, U.S.S.G. § 2D1.1 and 18 U.S.C. § 2; Gro u n d Tw e n tyTw o : rule- release on bonding [sic] pending appeal; Gro u n d Tw e n ty-Fo u r: change of venue or § 455; Gro u n d Tw e n ty-Five : prosecutorial; Gro u n d Tw e n ty-Six: juries/ jurors.”1 Docket No. 1, at 12, 13. The court recognizes that pro-se litigants are entitled to a liberal construction of their pleadings and these are held to less stringent standards than form al pleadings drafted by 1 The lan guage used by Navedo-Ram irez in her m otion to vacate was kept m ostly intact, but the court took the liberty of fixin g any citation errors. In Ground Thirteen, Petitioner did not specify whether she is referrin g to J ohnson I or J ohnson II, therefore the citation was left as is. See Docket No. 1. Civ. No. 16-2314 (PG) Page 4 of 11 lawyers. Nevertheless, while pro-se litigants are held to less stringen t standards, their m otions m ust m eet certain fundam ental requirem ents. See United States v. Nishnianidze, 342 F.3d 6, 18 (1st Cir. 20 0 3). Specifically, all petitioners have the obligation of explicitly spelling out their argum ents, as “it is not enough m erely to m ention a possible argum ent in the m ost skeletal way, leaving the court to do counsel’s work, create the ossature for the argum ent, and put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990 ). Issues that are “adverted to in a perfunctory m anner, unaccom panied by som e effort at developed argum entation, are deem ed waived.” Id. Additionally, the First Circuit has held that: a significant bar on habeas corpus relief is im posed when a prisoner did not raise claim s at trial or on direct review. In such cases, a court m ay hear those claim s for the first tim e on habeas corpus review only if the petitioner has ‘cause’ for having procedurally defaulted [her] claim s, and if the petitioner suffered ‘actual prejudice’ from the errors of which [she] com plains. Owens v. United States, 483 F.3d 48, 56 (1st Cir. 20 0 7). Here, Petitioner barely provides any support for Grounds Five through Nine, Twelve through Fifteen, Seventeen through Twenty-Two, and Twenty-Four through Twenty-Six. Indeed, it is im possible to decipher what she is requesting or alleging in the first place. Moreover, Petitioner does not provide any argum ent as to why these “issues” are not procedurally defaulted. Due to this lack of developm ent, and the fact that these issues were not raised on trial or on appeal, Grounds Five through Nine, Twelve through Fifteen, Seventeen through Twenty-Two, and Twenty-Four through Twenty-Six are rejected. B. Gro u n d s Pre vio u s ly Rais e d o n Ap p e al In Ground One, Petitioner alleges that the governm ent engaged in sentencing factor m anipulation. See Docket No. 1 at 4. On this ground, Petitioner requests the sam e senten cing relief that was granted to her co-defendant, J osé Nieves-Velez. See United States v. Nieves-Velez, 28 F.Supp.3d 131 (D.P.R. 20 14). Because the facts of Nieves-Velez’ case are not analogous to Civ. No. 16-2314 (PG) Page 5 of 11 those of Navedo-Ram irez’, this court’s finding of sentencing factor m anipulation in NievesVelez, 28 F.Supp.3d 131, has no bearing on Navedo-Ram irez’ present request. See NavedoRam irez, 78 1 F.3d at 570 n.2. Additionally, in Ground Eleven Petitioner accuses the court of m aking several evidentiary errors. See Docket No. 1 at 12. Like in Ground One, Petitioner previously raised this issue on direct appeal, and the First Circuit addressed and decided her claim s. See Navedo-Ram irez, 78 1 F.3d at 567-68. That fact, com bin ed with Petitioner’s failure to allege that there has been an intervening change in the law since then, bars her claim s on collateral review. See Tracey v. United States, 739 F.2d 679, 682 (1st Cir. 1984) (quoting United States v. Sanders, 723 F.2d 34, 36 (8th Cir. 1983)) (holding that issues adjudicated in a prior appeal should generally not be reviewed again by way of a § 2255 m otion without an intervening change in the applicable law). C. D o u ble Je o p ard y Claim In Ground Two, Navedo-Ram irez argues that her constitutional protection against double jeopardy was infringed because she was allegedly tried twice for the sam e offense. Specifically, she alleges to have been “tried again for sam e offense with ‘wording’ (i.e. ‘Attem pt’) being m isused in order to obtain a guilty plea . . . .” Docket No. 1 at 5. As noted earlier, a jury acquitted Navedo-Ram irez of the conspiracy count, conspiracy to possess with intent to distribute cocaine, but found her guilty of the substantive count, that is, aiding and abetting an attem pt to possess with intent to distribute cocaine. See Crim . No. 10 -0 344 (PG), Docket No. 487. It has long been understood that a “conspiracy to com m it a crim e is not the sam e offense as the substantive crim e for double jeopardy purposes.” United States v. Fornia-Castillo, 40 8 F.3d 52, 69 (1st Cir. 200 5) (quoting United States v. Lanoue, 137 F.3d 656, 662 (1st Cir. 1998)). This has been justified under the prem ise that “the agreem ent to do the act is distinct from the [com pleted] act itself.” Id. at 69 (quoting United States v. Felix, 50 3 U.S. 378 , 390 -391 (1992)). Therefore, conspiracy Civ. No. 16-2314 (PG) Page 6 of 11 to possess with intent to distribute cocaine is not the sam e offense as aiding and abetting an attem pt to possess with intent to distribute cocaine. Because Navedo-Ram irez was never tried twice for the sam e offense, her double jeopardy claim fails. D . Se n te n cin g D is p arity Claim s In Grounds Three, Four and Ten, Petitioner seeks to reduce her sentence based on changes to the United States Sentencing Guidelines (or “U.S.S.G.”). See Docket No. 1 at 7, 8 , 12. Navedo-Ram irez requests that the court apply Am endm ent 782 of the U.S.S.G. to reduce her 121-m onth sentence im posed as to the substantive count. 2 However, a § 2255 m otion is not the adequate m echanism for presenting a sentencing am en dm ent reduction petition such as the one at hand. See Rodriguez-Isaac v. United States. Civ. No. 14-140 4, 20 15 WL 4476218 at *3 (D.P.R. J uly 22, 20 15). Instead, such a claim should be presented via a m otion under 18 U.S.C. § 358 2(c)(2). On April 18, 20 16, Navedo-Ram irez did, in fact, present this senten cing am endm ent reduction request via a Motion to Reduce Sentence under the proper section, that is, § 358 2(c)(2). Furtherm ore, on J uly 18, 20 17, this court granted that request and reduced Petitioner’s sentence. See Crim . No. 10 -0 0 344 (PG), Dockets No. 792, 8 0 4. Consequently, her renewed requests, as raised in Grounds Three, Four and Ten of her § 2255 m otion, are hereby D EN IED . E. In e ffe ctive As s is tan ce o f Co u n s e l Cla im In Ground Sixteen, Navedo-Ram irez alleges that her Sixth Am endm ent right to the effective assistance of counsel was infringed because counsel failed to present appropriate argum ents during the pre-trial, trial, and sen tencing stages. See Docket No. 1 at 13; Docket No. 2 Am endm ent 78 2 generated a 2-level reduction in all offense levels found in USSG §§ 2D1.1 and 2D1.11. Civ. No. 16-2314 (PG) Page 7 of 11 23 at 3, 10 . Specifically, Navedo-Ram irez alleges that counsel failed to ( 1) argue that Petitioner’s sentence should be reduced pursuant to Am endm ent 794; ( 2 ) secure a “valid plea agreem ent” that would accurately reflect her m inor role in the sting operation; and ( 3 ) argue that a sting operation in which an undercover agent is involved is always considered entrapm ent. See Docket No. 23 at 2. In order to establish ineffective assistance of counsel, Petitioner m ust prove that her attorney’s perform ance was deficient and the deficient perform ance prejudiced her defen se. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, the burden of proving counsel’s deficiency falls squarely on the shoulders of the defendan t, who m ust overcom e “the presum ption that, under the circum stances, that challenged action ‘m ight be considered sound trial strategy.’” Id. at 689. Furtherm ore, failure to satisfy either prong of the Strickland test is fatal. See id. at 697. Firstly, Navedo-Ram irez alleges that her counsel was ineffective because she failed to argue that Petitioner’s sentence be reduced for m inor role pursuant to Am endm ent 794. Am endm ent 794 m odified the com m entary to U.S.S.G. § 3B1.2, which provides a downward adjustm ent to the offense level of a defendant that had a m inim al or m inor role in the crim inal activity for which she was charged. See Paz-Alvarez v. United States Civ. No. 16-1792, 20 17 WL 19570 0 2 at *5 (D.P.R. April 25, 20 17) (quoting United States v. Cobb, 248 F.Supp.3d 637, 638 (E.D. Pa. 20 17)). “Most notably, Am endm ent 794—which went into effect on Novem ber 1, 20 15— added a list of factors that a court should consider in determ ining whether to decrease an individual's offense level under § 3B1.2.” Id. While Am en dm ent 794 went into effect on Novem ber 1, 20 15, the Sentencing Com m ission first published said am endm ent on May 5, 20 15. See 80 Fed. Reg. 25, 782 (May 5, 20 15). And on March 30 , 20 15, the First Circuit decided Navedo-Ram irez’ appeal. See Crim . No. 10 -0 0 344 Civ. No. 16-2314 (PG) Page 8 of 11 (PG), Docket No. 763. Therefore, it would be unreasonable to find that Petitioner’s counsel was ineffective for failing to present the Am endm ent 794 argum ent given that the am endm ent was not known at the tim e of Petitioner’s appeal. In any case, Am endm ent 794 is not retroactively applicable on collateral review, and therefore, it is not a cognizable claim under § 2255. See Shepard-Fraser v. United States, Cr. No. 0 9-113, 20 17 WL 1386333 at *2 (D.P.R. April 18, 20 17). Consequently, Petitioner’s claim would still fail. Navedo-Ram irez’ claim that counsel was ineffective because she did not secure a plea agreem ent that took into consideration Petitioner’s allegedly m inor role in the operation is sim ilarly flawed. Courts have recognized that counsel’s assistance in obtaining a plea agreem ent was ineffective when a plea offer has been extended by the governm ent and counsel fails to inform or educate the defendant about said offer. 3 Alternatively, this court has found that there is in effective assistance of counsel when the defendant expressly states that she wishes to plead guilty in order to avoid a trial, but her counsel m isses m ultiple opportunities to accept or negotiate a plea bargain. See United States v. Miranda, 50 F.Supp.3d 8 5 (D.P.R. 20 14). In the present case, the record shows that the governm ent extended plea offers to Petitioner, which she rejected. See Crim . No. 10 -344 (PG), Docket No. 649, at 28. 4 Yet, NavedoRam irez does not allege that counsel failed to notify or adequately instruct her as to the plea offers so m ade. Moreover, the record does not reveal, nor does Petitioner allege that she explicitly 3 For exam ple, in Lafler v. Cooper, 132 S.Ct. 1376 (20 12), the Suprem e Court of the United States determ ined that if a plea bargain has been offered, then the defendant has the right to effective assistance of counsel when determ inin g whether or not to accept it. On the other hand, in Missouri v. Frye, 132 S.Ct. 1399 (20 12), the Suprem e Court found that there was ineffective assistance of counsel when counsel altogether failed to inform his client that there were plea offers on the table. 4 For instance, on October 21, 20 11, the governm ent stated that, durin g the initial production of discovery, “the U.S. Attorney’s office extended plea offers to these defendants, as they did to all the defendants in the Guard Shack cases.” Crim . No. 10 -344 (PG), Docket No. 649 at 28 . Civ. No. 16-2314 (PG) Page 9 of 11 com m unicated with her counsel a desire to plead guilty to avoid trial. In short, Petitioner has not shown that her attorney was, in fact, deficient during the plea-bargaining stage, as required under the first prong of Strickland. Finally, Navedo-Ram irez attem pts to establish ineffective assistance of counsel by arguing that counsel’s failure to present an entrapm ent defense caused her prejudice. She alleges that an entrapm ent occurs when an undercover agent is involved in a sting operation, as was the case with the operation that resulted in her arrest. It is well established that trial counsel is “under no obligation to raise m eritless claim s. Failure to do so does not constitute ineffective assistan ce of counsel.” Acha v. United States, 910 F.2d 28, 32 (1st Cir. 1990 ). Moreover, an entrapm ent defense n ecessitates proof that the “governm ent applied an im proper degree of pressure or used other im proper tactics to induce the crim e. . . .” United States v. Diaz-Castro, 752 F.3d 10 1, 10 9 (1st Cir. 20 14). The fact that an undercover agent was involved in the sting operation that resulted in Petitioner’s arrest is not prim a facie evidence that there was entrapm ent. In order for entrapm ent to occur, the governm ent m ust exert additional pressure on the defendant. As noted earlier, Navedo-Ram irez was brought into the sham drug transaction by Wendell Rivera-Ruperto, a form er rom antic partner who was not knowingly working with the governm ent. The governm ent never pressured Petitioner into participating in the sham drug transaction, be it directly or indirectly through Rivera-Ruperto as its unsuspecting interm ediary. Therefore, the entrapm ent defense would have been m eritless. Because counsel was under no obligation to present a m eritless entrapm ent defense, the court cannot conclude that NavedoRam irez’ assistance was ineffective on this ground. In light of the foregoing, the court finds that Navedo-Ram irez’ ineffective assistance of counsel claim s are m eritless, and her m otion to vacate on these grounds is, therefore, D EN IED . Civ. No. 16-2314 (PG) Page 10 of 11 F. Evid e n tia ry H e arin g Lastly, Navedo-Ram irez requests an evidentiary hearing. 5 See Docket No. 23 at 12. The First Circuit has held that “a prisoner who in vokes section 2255 is not entitled to an eviden tiary hearing as a m atter of right.” David v. United States, 134 F.3d 470 , 477 (1st Cir. 1998). Furtherm ore, when a hearing is requested, a district court m ay properly deny it when “(1) the m otion is in adequate on its face, or (2) the m ovant’s allegations, even if true, do not entitle him to relief, or (3) the m ovant’s allegations ‘need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible.’” David, 134 F.3d at 477 (quoting United States v. McGill, 11 F.3d 223, 225-226 (1st Cir. 1993)) (citation om itted). Petitioner’s request for an evidentiary hearing is dependent on a series of allegations that, as has been explained, are eirther inadequate on their face or conclusory in n ature. As such, Petitioner’s request for an evidentiary hearing is hereby D EN IED . IV. CON CLU SION Based on the above, the court finds that Petitioner has failed to articulate an adequate argum ent proving that her “sentence was im posed in violation of the Constitution or laws of the United states, or that the court was without jurisdiction to im pose such sentence, or that the sentence was in excess of the m axim um authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. As a result, Navedo-Ram irez’ present request for habeas corpus relief under § 2255 (Docket No. 1) is D EN IED . The case is thus D ISMISSED W ITH PREJ U D ICE. J udgm ent shall be entered accordingly. 5 The court assum es that Ground Twenty-Three (Docket No. 1 at 13) is a request for an evidentiary hearing. If it is not, then said ground fails for the reasons explained in Section A, supra. Civ. No. 16-2314 (PG) Page 11 of 11 V. CERTIFICATE OF APPEALABILITY It is further ordered that no certificate of appealability should be issued in the event that the Petitioner files a n otice of appeal because there is no substantial showing of the denial of a constitutional right within the m eaning of 28 U.S.C. § 2253(c)(2). IT IS SO ORD ERED . In San J uan, Puerto Rico, August 3, 20 18 . s / Gu s t a v o A. Ge lp í GUSTAVO A. GELPÍ ∗ United States District J udge ∗ Due to J udge J uan M. Pérez-Gim én ez’s unavailability, the undersigned has agreed to attend his docket.
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