Betancourt-Perez v. USA, No. 3:2018cv01088 - Document 28 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 1 Motion to Vacate and dismissing case with prejudice. Final judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 12/14/2018. (NNR)
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Betancourt-Perez v. USA Doc. 28 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO An ge l Be tan co u rt-Pe re z, Petitioner, CIVIL NO. 18 -10 88 (PG) Related Crim . No. 10 -175 (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 Angel Betancourt-Perez’s (“Petitioner” or “Betan courtPerez”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1) and the United States’ (or the “governm ent”) opposition thereto (Docket No. 16). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D Betancourt-Perez was indicted in three separate crim inal cases. First, on May 5, 20 10 , a gran d jury returned a m ulti-count indictm ent against Betancourt-Perez and sixty-nin e (69) other coconspirators charging them with several drug and firearm -related offenses. See Crim . Case No. 10 -175 (PG), Docket No. 3. Count One charged Betancourt-Perez with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 8 41(a)(1), 846, and 860 . See Crim . No. 10 -175, Docket No. 3. The indictm ent deem ed Petitioner a runner for a drug trafficking organization (“DTO”) that sold crack, heroin , cocaine, m arijuana, Percocet, and Xanax at a public housing project in Carolina, Puerto Rico and its surrounding areas. Id. Petitioner rem ained a fugitive until his arrest in May of 20 11. Dockets.Justia.com Civ. No. 18-10 88 (PG) Page 2 of 10 On May 12, 20 11, a grand jury returned the second indictm ent against BetancourtPerez. He was charged with possession with intent to distribute cocaine and m arijuana, in violation of 21 U.S.C. §§ 8 41(a)(1) and(b), and possession of a firearm in furtherance of a drug trafficking crim e, in violation of 18 U.S.C. § 924(c)(1)(A). See Crim . No. 11-18 1 (PG), Docket No. 1. On Septem ber 23, 20 11, Betancourt-Perez was indicted in a third crim inal case and charged with possession with intent to distribute m ore than 1,0 0 0 kilogram s of m arijuana. See Crim . No. 11-367 (PG), Docket No. 3. Ple a & Se n t e n cin g Betancourt-Perez an d the governm ent negotiated a plea deal that took care of all the charges in all three of his crim inal cases. See Crim . No. 10 -175, Docket No. 1985 (Plea Agreem ent). Specifically, Betancourt-Perez agreed to plead guilty to one count of conspiracy to possess with intent to distribute narcotics from each of the three indictm ents (Crim . No. 10 -175, 11-18 1 and 11-367) and the firearm count from the second indictm ent (Crim . No. 1118 1). The plea agreem ent specified the following types and quantities of drugs involved in each of the conspiracy counts: between 3.5 and 5 kilogram s of cocaine, between 2 and 3.5 kilogram s of cocaine, and between 10 0 and 40 0 kilogram s of m arijuana. See id. at pp. 6-10 . Based on the relatedness of the drug crim es, the agreem ent grouped the three con spiracy counts together for plea and sentencing purposes pursuant to Section 3D1.2(b) and (d) of the United States Sentencing Guidelines (“U.S.S.G.”) and calculated, albeit incorrectly, a guideline sentence range of 51 to 63 m onths. 1 See id. at 10 -11. 1 Again , this calculation was incorrect, and the First Circuit Court of Appeals explained why. See Un ited States v. Betancourt-Perez, 833 F.3d 18, 20 -22 & n. 4 (1st Cir. 20 16). The court adopts and incorporates by reference that explanation herein. Civ. No. 18-10 88 (PG) Page 3 of 10 The parties agreed to recom m en d concurren t sentences between 60 to 120 m onths for the conspiracy counts and a consecutive sentence of 60 m onths for the firearm count. See id. Pursuant to Federal Crim inal Procedure Rule 11(c)(1), the agreem ent warned that: The defendant is aware that the defendant’s sentence is within the sound discretion of the sentencing judge and the advisory Sentencing Guidelin es …. The defendant understands and acknowledges that the Court is not a party to this Plea Agreem ent and thus, is not bound by this agreem ent or the senten cing calculations and/ or recom m endations contained herein. Defendant specifically acknowledges and adm its that the Court has jurisdiction and authority to im pose any sentence within the statutory m axim um set for the offense to which the defendant pleads guilty. Defendant is aware that the court m ay accept or reject the Plea Agreem ent, or m ay defer its decision…until it has considered the pre-sen tence report. Should the Court im pose a sentence up to the m axim um established by statute, the defendant cannot, for that reason alone, withdraw a guilty plea, and will rem ain bound to fulfill all of the obligations under this Plea Agreem ent. Id. at p. 6. Furtherm ore, the agreem ent included the following appeal waiver provision: The defen dant knowingly and voluntarily waives the right to appeal the judgm ent and sentence in this case, provided that the defendant is senten ced in accordance with the term s and conditions set forth in the Senten ce Recom m endation provisions of this Plea Agreem ent. Id. at p. 11. Petitioner entered his guilty plea at the change of plea hearing held on October 18, 20 13. See Crim . Case No. 10 -175, Dockets No. 1987 and 20 54. On April 11, 20 14, the court sentenced Betancourt-Perez to 10 8 m onths of im prisonm ent as to each conspiracy count, 2 to be served concurrently with each other, and to 60 m onths on the firearm count, to be 2 The court reasoned that the sentenced im posed was still within the 60 -to-120 -m onth range stipulated by the parties in the plea agreem ent. See Crim . No. 10 -175, Docket No. 20 0 7. Civ. No. 18-10 88 (PG) Page 4 of 10 served consecutively. Altogether, he was sentenced to a total term of 168 m onths of im prisonm ent. P o s t -Co n v i c t i o n P r o c e e d i n g s On appeal, Betancourt-Perez challenged the court’s refusal to follow the plea agreem ent’s guideline calculations at senten cing. 3 See Betancourt-Perez, 8 33 F.3d at 21. Nonetheless, the First Circuit determ ined that Petitioner’s sentence fell within the param eters of the parties’ recom m endations by way of a correct arithm etic, an d therefore, within the plea agreem ent’s appeal waiver. Furtherm ore, the First Circuit highlighted that Betancourt-Perez expressly acknowledged (in both the plea agreem ent and during his change-of-plea hearing) that the parties’ guideline calculations were not binding on the sentencing court. See id. at 23. The Court thus dism issed the appeal. Id. at 24. On February 14, 20 18, Betancourt-Perez filed the pending m otion to vacate under § 2255, seeking to vacate his senten ce on ineffective assistance of counsel grounds. See Docket No. 1. Mainly, he claim s that attorney J ose R. Olm o Rodriguez, who represented him in the underlying crim inal proceedings, failed to adequately explain the applicable sentencing guidelines. 4 See Docket No. 1-1 at 7-8. In its response, the governm ent correctly argues that 3 Unlike the plea agreem ent, the Presentence In vestigation Report (“PSR”) prepared prior to sentencin g included the correct guidelin e ranges for the court to consider. On appeal, the First Circuit concluded not only that this court applied the correctly calculated guideline ran ge, but also, that the ultim ate 168-m onth im prisonm ent sentence fell within the param eters of the parties’ recom m endation . See BetancourtPerez, 833 F.3d at 21-22. 4 Betancourt-Perez’s m otion raises at least two other claim s. First, he alleges that counsel’s perform ance led him to withdraw a pendin g m otion to suppress and waive to waive his Fourth Am endm ent rights. Second, he challenges the court’s “wrongful exclusion of evidence that was crucial to his defense[.]” Docket No. 1-1 at p. 3. Petitioner fails to develop both claim s. Therefore, they are deem ed waived. See Un ited States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990 ) (“[I]ssues adverted to in a perfunctory m anner, unaccom pan ied by som e effort at developed argum entation, are deem ed waived.”). Civ. No. 18-10 88 (PG) Page 5 of 10 Betancourt-Perez fails to satisfy Strickland’s two-prong test, and therefore, his ineffective assistan ce claim s fails. See Docket No. 16 at p. 6. After a careful review of the eviden ce on record, the plea agreem ent and the transcripts of the change of plea and sentencing hearings, the court denies Petitioner’s m otion for the reasons explain ed below. 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 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(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 the 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, the petitioner 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). Civ. No. 18-10 88 (PG) Page 6 of 10 For Betancourt-Perez’s claim to succeed, he m ust satisfy a two-part test. First, he needs to show that “counsel’s representation ‘fell below an objective standard of reasonablen ess.’” Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (20 10 ) (quoting Strickland, 466 U.S. at 68 8). Second, he needs to establish a reasonable probability that, but for counsel’s 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)). Petitioner m ust dem onstrate both incom petence and prejudice and 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). Courts “need not address both requirem ents if the eviden ce as to either is lacking.” Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 20 0 7); see Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice…that course should be followed.”) The right to effective assistance of counsel applies at the plea-bargaining stage. See Padilla, 130 S. Ct. at 1480 -81; see also Hill v. Lockhart, 474 U.S. 52 (1985). “It has long been recognized that the n egotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Am endm ent right to effective assistance of counsel.” Id. In advising a clien t during the plea-bargaining stage, “[c]ounsel m ust predict how the facts, as he understands them , would be viewed by the court.” McMann, 397 U.S. at 769. Even if counsel’s prediction had been inaccurate, an inaccurate prediction about sentencing will generally not alone be sufficient to sustain a claim of ineffective assistance of counsel. See Knight v. United States, 37 F.3d 769, 775, (1st Cir. 1994). Civ. No. 18-10 88 (PG) Page 7 of 10 III. D ISCU SSION As note earlier, Betancourt-Perez claim s he received in effective assistance of counsel at the plea and senten cing stage because his attorney m isinform ed him or otherwise failed to properly advise him with respect to his true sentence exposure. He alleges that because of counsel’s perform ance, he plead guilty and received a harsher and longer sentence. Betancourt-Perez’s weak attem pt to support his ineffective perform ance claim with the record is unpersuasive at best. In fact, the only instance in which Betancourt-Perez points to the record, period, is when he cites counsel’s expressions to the court at the sentencing hearing. See Docket No. 1-1 at p. 8, n. 1. At sentencing, counsel requested the court to reconsider the sentence by considering the plea agreem ent’s incorrect calculations. See Crim . No. 10 -175, Docket No. 20 23 at pp. 28 -29. Responding to counsel’s request, the court explained that it was not bound by the parties’ calculations and that the sentence im posed was still within the range stipulated by the parties. Id. at pp. 22-27. The evidence on record, including the plea agreem ent and the transcripts from the change of plea an d sentencing hearings, contradicts Petitioner’s allegations. During the change of plea hearing Betancourt-Perez was placed under oath, addressed person ally and in open court, advised of his constitutional rights and “the fact that [he was] waiving those rights by pleading guilty.” See Crim . No. 10 -175, Docket No. 20 54 at p. 17. Petitioner was aware of the charges against him , he confirm ed that he had enough tim e to confer with counsel before the hearing, and that he had participated in preparin g his defense. Id. at pp. 13-14. Notably, Petitioner also stated that he was satisfied with his attorney’s services. Id. The evidence further dem onstrates that Betancourt-Perez understood the m inim um and m axim um statutory penalties, fines and supervised release term s for each of the counts Civ. No. 18-10 88 (PG) Page 8 of 10 he plead guilty to, and the fact that the court had authority and discretion to im pose higher or stricter sentencing term s (up to the m axim um provided by statute). Id. 17-24. The court quotes a relevant portion of the change of plea colloquy below: The court: What I want you to understand is that since I am not part of the plea agreem ent, it m eans that I am not bound by any sentencing guideline calculations, sentencing stipulations, or sentencing recom m endations which are contained in the plea agreem ent; do you understand that? Betancourt-Perez: I understand that clearly, Your Honor. … The court: And sin ce I am not part of the plea agreem ent, it also m eans that if I were to im pose a term of im prisonm ent that turns out to be higher than any one you m ight be expecting, that reason alone would not be grounds for the Court to allow you to withdraw your pleas of guilty and you would still be bound by your plea agreem ent; do you understand that? Betancourt-Perez: I understand. Id. at 23-24. The court also asked Betancourt-Perez at least three tim es if anyone had threatened or coerced him into pleading guilty, and he replied “no.” See id. at pp. 22 and 30 . Upon further questioning, Betancourt-Perez assured the court that he had discussed the plea agreem ent with his attorney, he agreed with its term s, and he was satisfied with his legal representation. See id. at pp. 14 and 29-31, 36. The court finds Petitioner’s statem ents at the plea hearing “sufficiently conclusive to contradict his [ineffective assistance] claim s.” See United States v. Santiago Miranda, 654 F.3d 130 , 138 (1st Cir. 20 11) (quoting United States v. Pulido, 556 F.3d 52, 60 (1st Cir. 20 0 9)). Civ. No. 18-10 88 (PG) Page 9 of 10 The First Circuit has held that an attorney’s “failure to properly calculate [a defendant’s] sentence exposure, by itself, does not am ount to prejudice” under Strickland. Moreno-Espada v. United States, 666 F.3d 60 , 65 (1st Cir. 20 12) (finding that counsel was not ineffective for failing to advice or otherwise disclose defen dant’s true sentencin g exposure because, inter alia, the harsher sentence ultim ately im posed was always within the range of possible sentences that defendant could face under the plea agreem ent). Here, even if counsel’s perform ance fell below an objective standard of reasonableness on the basis alleged by Betancourt-Perez, he has not dem onstrated prejudice under Strickland. Again, an d as the First Circuit determ in ed, “the text of the plea agreem ent, as well as the transcripts from the change-of-plea and sentencing hearings, all m ake plain that Betancourt-Perez fully understood” he negotiated for a total senten ce between 120 an d 180 m onths. Betancourt-Perez, 8 33 F.3d at 23. Ultim ately, Petitioner received a senten ce of 168 m onths that, even by way of a different (but correct) arithm etic, still abides by the agreem ent’s term s. See id. Because Petitioner has not satisfied the Strickland test, his ineffective assistan ce of counsel claim fails. IV. EVID EN TIARY H EARIN G Betancourt-Perez requests an evidentiary hearing. See Docket No. 1-1 at p. 9. However, evidentiary hearings in § 2255 cases are the exception, not the norm , and petitioners carry a heavy burden to dem onstrate that a 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 Civ. No. 18-10 88 (PG) Page 10 of 10 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). Here, even if the court deem ed his m otion to vacate as facially adequate, the fact of the m atter is that the record belies his claim s. Having ruled that Betancourt-Perez’s ineffective assistance of counsel claim lacks m erit, the court finds that a hearing is not warranted. Accordingly, his request is D EN IED . V. CON CLU SION Based on the foregoing, Petitioner’s request for habeas corpus relief under 28 U.S.C. § 2255 (Docket No. 1) is D EN IED and the case is, therefore, D ISMISSED W ITH PREJU D ICE. J udgment shall be entered accordingly. VI. CERTIFICATE OF APPEALABILITY It is further ordered that no certificate of appealability should be issued if 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, Decem ber 14, 20 18. S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PÉREZ-GIMÉN EZ SEN IOR U .S. D ISTRICT J U D GE
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