Garcia-Pagan v. USA, No. 3:2017cv01273 - Document 47 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 13 Motion to Vacate; denying 1 Motion to Vacate. Final judgment dismissing case shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 10/22/2018. (NNR)
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Garcia-Pagan v. USA Doc. 47 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Lu is A. García-Pagán , Petitioner CIVIL NO. 17-1273 (PG) Related Crim . No. 13-123 (PG) v. U n ite d State s o f Am e rica, Respon dent. OPIN ION AN D ORD ER Before the court is petitioner Luis A. García-Pagán’s (“Petitioner” or “García-Pagán”) am ended m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 13), and the United States’ (or the “governm ent”) response in opposition thereto (Docket No. 39). For the reasons explained below, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D On February 28, 20 13, a grand jury returned a two-count indictm ent charging GarcíaPagán an d co-defendant Ricardo Urbina-Robles (“Urbina”) of aiding and abetting a carjacking, in violation of 18 U.S.C. § 2119(1) (“Count One”), and possession of a firearm during and in relation to a crim e of violence, in violation of 18 U.S.C. § 924(c) (“Count Two”). See Crim . No. 13-123 (PG) (hereinafter “Crim .”), Docket No. 11. A. Th e Fa cts For expediency purposes, the court takes the facts relevant to the m atter at hand directly from the First Circuit Court of Appeals’ decision in United States v. García-Pagán , 8 0 4 F.3d 121, 122-124 (1st Cir. 20 15). Dockets.Justia.com Civil No. 17-1273 (PG) At approxim ately 1:40 a.m . on February 4, 20 13, three m en broke into the hom e of Dr. Noel De León– Roig in Puerto Nuevo, Puerto Rico. All three intruders wore m asks and carried firearm s. One of the m en woke De León by straddling his head and hitting him in the face. When the lights in the room cam e on, De León saw his twelve-year-old son with the other two assailants. One was pushing a revolver into the boy's m outh. The other held a gun to the back of the boy's head. At that point, one of the assailants said, “Doctor, lower your eyes. Lower your arm s. This is a robbery, you son of a bitch.” Over the next hour and a half, the three assailants terrorized De León and his son. They took tens of thousands of dollars from De León's safe, along other valuables. The intruders tied up the doctor and his son, hit them with guns, and threatened to execute them . Around 3:0 0 a.m ., the assailants left in De León's car, an d De León called the police. For a stretch of tim e during the invasion, the robbers rem oved their m asks in order to eat pizza and drink soda that they had found in De León's kitchen. And so De León saw their faces. De León later identified García as one of the assailants from a group of nine people in a photo array within one m in ute of being shown the photographs. De León m ade that identification very soon after the break-in, at approxim ately 9:0 0 a.m . the sam e day. De León identified García again in the courtroom at trial. De León described García as “the focused one” of the three assailants, an d he described one of the other assailants, Ricardo Urbina– Robles, as the leader of the group. García argued at trial that he had been m isidentified. He introduced the alibi testim ony of his wife, his m other, and a friend. Together, these three people testified that García saw a film with his fam ily on the evening of February 3, and then, som etim e in the early hours of February 4, returned with his fam ily to the housing com plex where García lived. García’s wife testified that, after their return from the film , García was in bed the entire night. After the close of the eviden ce and before closing argum ents, defense counsel requested a continuance in order to m ove for a writ of habeas corpus ad testificandum for Urbina, to enable Urbina, who was then incarcerated and awaiting sentencing following his guilty plea for his involvem ent in this sam e crim e, Page 2 of 15 Civil No. 17-1273 (PG) Page 3 of 15 to be present and testify in person on García's behalf. 1 See 28 U.S.C. § 2241(c)(5) (providing for such a writ). The court denied the request. B. Co n victio n a n d Se n te n ce Following trial by jury, the court sentenced García-Pagán to a total term of 420 m onths--18 0 m onths as to Count One, plus 240 m onths as to Count Two, to be served consecutively. See Crim . Docket No. 20 1. García-Pagán filed a notice of appeal on May 9, 20 14. See Crim . Docket No. 239. The First Circuit affirm ed García-Pagán’s conviction and senten ce and dism issed without prejudice two claim s of ineffective assistance of counsel. The appellate court held that the district court did not abuse its discretion in denying García-Pagán’s request for a continuance of trial for counsel to file a m otion for writ of habeas corpus ad testificandum . See García- Pagán, 8 0 4 F.3d at 126 (1st Cir. 20 15). On February 23, 20 17, García-Pagán filed a m otion to vacate, set aside or correct his sentence. See Docket No. 1. He later am ended his m otion. See Docket No. 13. II. LEGAL STAN D ARD 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 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 1 Defense counsel, attorney Olga M. Shepard-De-Mari, raised the issue earlier, after the court denied the defense's Rule 29 m otion . See Crim . No. 13-123, Docket No. 258 at 116-118. But counsel did not request a continuance at that tim e. Id. Rather, counsel sim ply inform ed the court that she had served a subpoena to obtain Urbina’s presence, and that she had been instructed to do so by the United States Marshals. Id. The court instructed defense counsel that this was the wrong procedure, and that she should have filed a request for a writ of habeas corpus ad testificandum . Id. Then , the day before closing argum ents, the court raised the issue on its own. See Crim . Docket No. 257 at 179-18 0 . Defense counsel did not request a continuance at that m om ent either. Id. Civil No. 17-1273 (PG) Page 4 of 15 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). Moreover, the Sixth Am endm ent guarantees that in all crim in al prosecutions, the accused have a right to the assistance of counsel for their defense. U.S. Const. am end. VI. It has long been recognized that the right to counsel m eans the right to effective legal assistan ce. Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970 )). Where, as here, García-Pagán m oves to vacate his sentence on an ineffective assistance of counsel basis, he m ust show that “counsel’s conduct so underm ined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686; see also Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (a petitioner seeking to vacate his sentence based on the ineffective assistance of counsel bears a very heavy burden). For García-Pagán’s claim to succeed, he m ust satisfy a two-part test. First, GarcíaPagán needs to show that “counsel’s representation ‘fell below an objective standard of reasonablen ess.’” Padilla v. Kentucky, 599 U.S. 356, 366 (20 10 ) (quoting Strickland, 466 U.S. at 68 8). Second, petitioner m ust establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been m ore favorable to him . See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 20 13) (citing Missouri v. Frye, 132 S. Ct. 1399, 140 9 (20 12)). Thus, the petitioner m ust dem onstrate both incom peten ce and prejudice. Failure to prove one elem ent proves fatal for the other. See United States v. Caparotta, 676 F.3d 213, 219 (1st Cir. 20 12). Nonetheless, the court “need not address both requirem ents if the evidence as to either is lacking.” Sleeper v. Spen cer, 510 Civil No. 17-1273 (PG) Page 5 of 15 F.3d 32, 39 (1st Cir. 20 0 7). Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice…that course should be followed.” Strickland, 466 U.S. at 697. III. D ISCU SSION In the pending m otion, García-Pagán claim s that defense counsel ren dered ineffective assistan ce because she did not secure alibi witness testim ony from co-defendant Urbin a; failed to investigate and secure eviden ce in Petitioner’s favor and failed to advocate for m itigation at sentencin g. See Docket No. 13. He also challenges his conviction under Section 924(c)’s residual clause arguing that it is unconstitutionally vague after J ohnson v. United States, 135 S. Ct. 2551 (20 15) (J ohnson II). See id. In its response, the governm ent subm its these claim s fail because (1) counsel’s failure to present the testim ony of co-defendant Urbina as an alibi witness did not fall below an objective standard of reasonableness and, at any rate, Petitioner was not prejudiced as a result; (2) counsel did not fail to investigate and secure evidence in favor of Petitioner; (3) counsel neither failed to advocate for m itigation nor failed to object to a leadership role enhan cem ent at the sentencing stage, and (4) J ohnson II does not support Petitioner’s collateral attack to his Section 924(c) conviction. See Docket No. 39. A. In e ffe ctive As s is tan ce o f Co u n s e l Cla im s 1. Failu re to Se cu re Te s tim o n y o f Co -D e fe n d an t Aw aitin g Se n te n ce As noted earlier, García-Pagán claim s attorney Shepard-De-Mari rendered him ineffective assistance because she did not request a writ of habeas corpus ad testificandum to procure Urbina as an alibi witness. He avers that counsel’s failure prejudiced his defense. Civil No. 17-1273 (PG) Page 6 of 15 See Docket No. 13 at 9. Attached to Petitioner’s m otion to vacate is an affidavit where Urbin a states he is willing to testify that “all [he] knows is that Luis García Pagán has nothing to do with the events in this case because I do not know him .” See Docket No. 19-1. The governm ent counters that counsel’s “failure” to call Urbina was a tactical decision m ade as part of her overall trial strategy and that, at any rate, Petitioner has not dem onstrated that there is a substantial likelihood that the testim ony in question would have secured a different, favorable result. See Docket No. 39 at 12. In support, the governm ent points to notes obtained by Petitioner’s attorney from the forensic investigator who interviewed Urbina back in 20 13—and concluded he would be an unreliable witness. See id. at 14. The governm ent further argues that his testim ony would have been against the testim ony of the governm ent’s witnesses, in cluding the victim ’s. See id. at 14-15 (citin g Gonzalez-Soberal v. United States, 244 F. 3d 273, 278 (1st Cir. 20 0 1)) (discussing the elem ents with which to evaluate whether counsel’s perform ance for failure to call a prospective witness, including the potential value of the witness’s testim ony in underm inin g the credibility of the prosecution’s witnesses). As the First Circuit pointed out, even sidestepping counsel’s belated request for a continuance to m ove for a writ for habeas corpus ad testificandum , the fact is that Urbina was awaiting senten ce at the tim e of Petitioner’s trial and thus retained his Fifth Am endm en t right against self-in crim ination. There was no assurance that Urbina would have waived this right and testified, if so com pelled. See García-Pagán, 8 0 4 F.3d at 124; see also Crim . Dockets No. 257, 258 (trial transcripts). Notwithstanding the Urbina’s statem ent regarding Civil No. 17-1273 (PG) Page 7 of 15 his willingness to testify on Petitioner’s behalf, which the court views with skepticism , 2 counsel’s purported failure does not constitute deficient perform ance. Pertinently, the decision to call a particular witness is alm ost always a strategic one. See Lem a v. United States, 98 7 F.2d 48, 54 (1st Cir. 1993). The court finds that given the high degree of uncertainty regarding Urbin a’s willingness to testify and the fact that the defense presented three other alibi witnesses, García-Pagán cannot “overcom e the presum ption that” defense counsel’s failure to call him as a witness “m ight be considered sound trial strategy.’” Id. (quoting Strickland, 466 U.S. at 68 9); Knight v. Spencer, 447 F.3d 6, 16– 17 (1st Cir. 20 0 6) (holding that failure to call alibi witness open to significant im peachm ent after six alibi witnesses have already been called was a tactical decision); Phoenix v. Matesanz, 233 F.3d 77, 84 (1st Cir. 20 0 0 ) (holding that failure to call expert who could not testify as to whether fingerprint belonged to defendant did not constitute ineffective assistance). Even assum ing defense counsel’s failure to call Urbina could fall below an objective standard of reasonableness, García-Pagán’s fails to m eet the “prejudice” prong of the Strickland analysis. This court echoes the First Circuit in noting that “Urbina’s testim ony would have been up against the testim ony of the victim .” García-Pagán, 8 0 4 F.3d 124. At trial, Dr. De León “testified that he was with the assailants for approxim ately an hour and a half and saw the assailants with their m asks off.” Id. Dr. De León identified García-Pagán within a m inute of seeing a photograph lineup and again, at trial, identified him as on e of the assailants. Id. Moreover, García-Pagán presented the alibi testim ony of three witnesses 2 See Un ited States v. Montilla– Rivera, 115 F.3d 10 60 , 10 66 (1st Cir. 1997) (quoting Un ited States v. ReyesAlvarado, 963 F.2d 1184, 1188 (9th Cir. 1992)) (recognizing the in herently suspicious nature of co-defendant’s testim ony provided only after the co-defendant has been con victed and sentenced because “[a] convicted, sentenced co-defendant has little to lose (and perhaps som ething to gain) by such testim ony”). Civil No. 17-1273 (PG) Page 8 of 15 to dispute the victim ’s testim ony that García-Pagán participated in the robbery and carjacking. This shows that his attorney was sufficiently effective in presenting an alibi defense. Given that the jury ultim ately believed Dr. De León’s testim ony, the court finds no reasonable probability that the jury’s verdict would have been different had Urbin a testified. See Levasseur v. Pepe, 70 F.3d 187, 195 (1 st Cir. 1995) (noting that an assault victim ’s degree of attention during a traum atic incident “is presum ed to have been acute,” supporting the credibility of an identification). Here, the victim ’s identification of García-Pagán was crucial to the jury’s determ ination of guilt. Based on the foregoing, the court finds that Petitioner’s allegations—as they pertain to counsel’s decision not to call Urbina as a witness—neither show objectively deficient perform ance by trial counsel nor prejudice. Having failed to satisfy either prong of the Strickland test, his claim necessarily fails. 2 . Failu re to In ve s tiga te an d Se cu re Evid e n ce García-Pagán claim s that his trial counsel was ineffective because she failed to investigate the true identities of the individuals who com m itted the crim es, scrutinize the governm ent’s investigation of the crim es and the lineup identification that was con ducted thereafter, and secure security video footage from San Patricio Plaza, to which he attaches exculpatory value. See Docket No. 13 at 10 -13. First, García-Pagán’s claim as to trial counsel’s failure to adequately investigate the true identity of those involved in the robbery and carjacking is a conclusory one. Id. at 10 . García-Pagán does not explain how or why counsel’s investigation was deficient nor has he detailed the eviden ce that would have been uncovered by counsel. Petitioner m erely states Civil No. 17-1273 (PG) Page 9 of 15 that m ore investigation was required from the defense. Thus, this perfunctory claim fails. See United States v. Diaz-Castro, 752 F.3d 10 1, 114 (1st Cir. 20 14) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990 )) (holding that argum ents not clearly developed are deem ed waived). Second, García-Pagán’s claim regarding defense counsel’s failure to poke holes in the governm ent’s investigation and challenge the lineup cannot prosper either. At odds with his claim , García-Pagán accepts that trial counsel filed a m otion to suppress the lineup identification. See Crim . Docket No. 136. He avers that said m otion was lacking inform ation that would have aided the court to conduct a prelim inary assessm ent of the investigation’s trustworthiness. See id. He specifically alludes to unrelated crim inal charges filed again st one of the law enforcem ent officers who participated in the investigation of the robbery and carjacking. The court provides som e context below. At trial, CIC Agent Gilberto Moya testified that on the day of the events he was the first to arrive at the scene. He was also the first law enforcem ent officer to interview Dr. De León. See Crim . Docket No. 248 . He testified that PRPD Agent Angel Quiñones took over the investigation and interviewed the victim . As Petitioner points out, however, Agent Moya could not ascertain the contents of Agent Quiñones’ interview with the victim . Moreover, Petitioner contends that Dr. De León did not give Agent Moya any details regarding the individuals who com m itted the robbery; that was supposedly covered in the interview conducted by Agent Quiñones. In addition, Petitioner claim s that neither Agent Moya n or Agent Quiñones prepared the lin eup. In sum , García-Pagán argues that defense counsel failed to conduct an appropriately exhaustive investigation to tie these loose ends, and therefore, it is im possible to prove that the law enforcem ent agents unduly influenced the Civil No. 17-1273 (PG) Page 10 of 15 investigation process. Still, that fact in and of itself does not buttress Petitioner’s allegations into a constitutional violation. Petitioner further argues that som etim e after the investigation took place, Agent Quiñones was arrested and charged with, inter alia, conspiracy to in terfere with com m erce by robbery under 18 U.S.C. § 1951(a), and aiding and abetting in the use and carrying of a firearm during and in relation to a crim e of violence under § 924(c). The docum ents subm itted by García-Pagán show that Agent Quiñones eventually plead guilty to aforesaid charges. This inform ation was not included in the m otion to suppress filed by Petitioner’s attorney, and he now suggests that such om ission rendered the representation constitutionally defective. The court disagrees. At the outset, the court fails to understand the connection between the unrelated crim in al charges against one of the law enforcem ent officers who investigated the scene an d García-Pagán’s conviction and sentence. Second, García-Pagán has never alleged that this agent unduly influenced the interviewing or identification process. Nonetheless, even if García-Pagán had m ade such an assertion, he has not pointed to any evidence with which to support the sam e. More im portantly, García-Pagán fails to show that om itting the inform ation concerning the charges against Agent Quiñones in the m otion to suppress was objectively unreasonable, or that, but for counsel’s om ission, the m otion would have been m eritorious. In other words, Petitioner has not shown (and there is no reason to believe) the court would have ruled differently and granted the m otion. Lastly, García-Pagán’s claim regarding counsel’s failure to adequately investigate San Patricio Plaza’s security video footage falls flat on its face. Civil No. 17-1273 (PG) Page 11 of 15 García-Pagán adm its that defense counsel did, in fact, ask for the videos, but they had already been deleted. Docket No. 13 at 13. Petitioner thus concedes that attorney ShepardDe-Mari did not altogether fail to consider, investigate or procure surveillance footage to present it at trial. García-Pagán assum es that counsel did not prom ptly apply for a court order to obtain the videos before they were deleted. But his argum ent rests on pure speculation. Assum ing arguendo that counsel could have secured the videos before they were deleted, Petitioner falls short on the prejudice prong of the Strickland test, as he has not shown that there was a reason able probability that the outcom e of his trial would have been different but for defense counsel's alleged m isstep. In this regard, the court refers to the trial transcripts which show that defense counsel did present the testim ony of three witnesses to establish the alibi defense. Therefore, this claim also fails. a. Failu re to s e e k D N A te s tin g García-Pagan filed a supplem ental m otion raising a fourth ineffective assistance of counsel claim . He alleges that he requested trial counsel to seek DNA testing of item s recovered at the crim e scen e, e.g., water bottles and gloves, that seem ed to belong to the assailants. See Docket No. 21. Petitioner claim s the results of such analyses were necessary “to advance his alibi defense.” Id. at 2. Oddly, he concedes “[h]is attorney did seek the Court’s authorization for conducting DNA tests.” The three-paragraph m otion leaves it at that. Ultim ately, Petitioner’s grounds for claim ing actual ineffectiveness or prejudice are unclear and underdeveloped, and the court will not warm the bench for argum ents that are waived. See Diaz– Castro, 752 F.3d at 114 (citing Zannino, 895 F.2d at 17). Even overlooking this waiver, nothing suggests any likelihood that the result of forensic testing would have been exculpatory, let alone so exculpatory as to overturn his conviction. See Rice v. Hall, 564 F.3d Civil No. 17-1273 (PG) Page 12 of 15 523, 526 (1st Cir. 20 0 9) (rejecting ineffective assistance of counsel claim based on attorney’s failure to seek forensic evidence where conviction was heavily supported by eviden ce an d petitioner’s argum ent as to prejudice “rest[ed] alm ost entirely upon ‘m ays’ and ‘could haves’”). 3 . Atto rn e y’s Pe rfo rm an ce at Se n te n cin g García-Pagán avers that he was denied his constitutional right to effective assistance of counsel because counsel failed to advocate in support of m itigation at sentencing and to object to a leadership role enhancem ent. See Docket No. 13 at 13-15. He argues that the alleged errors by counsel resulted in a sentence of 420 m onths of im prisonm ent, a term five year longer than Urbina’s, whom the victim identified as the leader of the assailants. Id. at 15. Additionally, García-Pagán avers that counsel should have relied on different caselaw to attack the governm ent’s proposed four-level enhancem ent for “serious physical injury.” See id. In its response, the governm ent argues that García-Pagán’s claim fails because, at sentencing, counsel did assert m itigating factors in his favor. Second, the allegations regarding counsel’s failure to object to a leadership role en hancem ent are not only underdeveloped and unsupported, but also, belied by the record. See Docket No. 39 at 18; Crim . Docket No. 192 at 11-12. The court agrees with the governm ent. First, the record dem onstrates that counsel did argue in favor of m itigating García-Pagán’s sentence. Moreover, counsel argued against a four-level “serious bodily injury” enhancem ent. 3 See Crim . Docket No. 256 at 9-11. 3 García-Pagán argues that counsel should have supported her argum ents with caselaw contrary to that relied on, thus im plicitly concedin g that counsel did argue against the enhancem ent. Civil No. 17-1273 (PG) Page 13 of 15 Furtherm ore, a leadership role enhancem ent was neither recom m en ded by the governm ent nor applied at sentencing. See Crim . Dockets No. 256 at 9-11 & 192 at 11-12. Hence, both claim s in evitably fail. As for the reasonablen ess of his senten ce, the court need only refer to the First Circuit’s decision discussing the reasonableness, both procedurally and substantively, of Petitioner’s sentence. See García-Pagán, 8 0 4 F.3d at 126. B. Se ctio n 9 2 4 ( c) Co n victio n s García-Pagán claim s that the court must vacate his Section 924(c) conviction because Section 924(c)’s residual clause is unconstitutionally vague after J ohnson II, and his carjacking convictions fail to categorically qualify as crim es of violence under the statute’s force clause. See Docket No. 13 at 16 (incorporating by reference the grounds asserted in the m otion to vacate at Docket No. 1). In support, García-Pagán contends that intim idation does not am ount to the use, attem pted use, or threatened use of “violent force,” and that aiding and abetting does not require “violent force.” All of Petitioner’s argum ents fail in light of recent decisions by the First Circuit and this court. For exam ple, in United States v. Cruz-Rivera, 90 4 F.3d 10 2, 65-66 (1st Cir. 20 18 ), the First Circuit held that the defendant’s carjacking convictions qualified as crim es of violence under Section 924(c)’s force clause. Sim ilarly, the Court has also concluded that “any possible infirm ity of Section 924(c)’s residual clause provides…no exculpation because [a] Hobbs Act robbery still qualifies as a crim e of violence under the force clause of [S]ection 924(c).” United States v. Garcia-Ortiz, 90 4 F.3d 10 2, 10 6 (1st Cir. 20 18) (alteration in original). This court, too, has rejected the sam e or sim ilar void-for-vagueness challenges to Section 924(c) convictions raised by other habeas petitioners. See, e.g., Echevarria-Pacheco v. United States, Civil No. 17-1269 (PG), 20 18 WL 4676945 (D.P.R. Sept. 26, 20 18); Valentin- Civil No. 17-1273 (PG) Page 14 of 15 Manon v. United States, Civil No. 16-2225 (PG), 20 18 WL 450 1110 , at *3-5 (D.P.R. Sept. 18, 20 18 ); Cruz-Arboleda v. United States, Civil No. 16-2216 (PG), 20 18 WL 30 31480 , at *2-3 (D.P.R. J une 14, 20 18). Finally, this court has also rejected the argum ent that aiding an d abetting does not require “violent force.” Cruz-Arboleda, 20 18 WL 30 31480 , at *3 (citing United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994)) (holding that aiding and abetting the com m ission of a crim e of violence is a crim e of violence itself). Consistent with the above-cited decisions, the court finds Petitioner’s claim s are m eritless. C. Evid e n tia ry H e arin g García-Pagán has requested an evidentiary hearing. See Docket No. 13 at p. 16. The United States, in turn, believes that such a hearing is not necessary. Evidentiary hearings in § 2255 cases are the exception, not the norm , and there is a heavy burden on the petitioner to dem onstrate that an evidentiary hearing is warranted. See Moreno– Morales v. United States, 334 F.3d 140 (1st Cir. 20 0 3). A hearing “is not necessary when a § 2255 petition is inadequate on its face, or although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.” United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978 ). In García-Pagán’s case, even if the court deem ed his petition as facially adequate, the fact of the m atter is that the record belies his allegations. Having ruled that the GarcíaPagán’s ineffective assistance of counsel claim s lack m erit, the court finds that a hearing is not warranted. Accordingly, García-Pagán’s request is D EN IED . Civil No. 17-1273 (PG) Page 15 of 15 IV. CON CLU SION Based on the above, the court D EN IES Petitioner’s request for habeas relief under 28 U.S.C. § 2255 (Docket No. 13). This case is, therefore, D ISMISSED W ITH PREJU D ICE. J udgment shall be entered accordingly. V. CERTIFICATE OF APPEALABILITY It is further ordered that no certificate of appealability should be issued in the event that the Petitioner files a notice 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, October 22, 20 18. S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PÉREZ-GIMÉN EZ SEN IOR U .S. D ISTRICT JU D GE
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