Acevedo-Lopez v. United States

1

LUTGARDO ACEVEDO-LOPEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL No. 19-1331 (ADC)

Crim. No. 14-380-02 (ADC)

United States District Court, D. Puerto Rico

September 30, 2022

OPINION AND ORDER

S/AIDA M. DELGADO-COLON United States District Judge

Pending before the Court is Lutgardo Acevedo-Lopez's (“petitioner”) motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. ECF No 1. The government opposed. ECF No. 37. For the following reasons, the Court DENIES petitioner's motion.

I. Factual and Procedural Background^[1]

On June 30, 2012, petitioner was involved in a car accident that caused the death of the other driver. In response, petitioner was charged by state prosecutors with aggravated negligent homicide, obstruction of justice, and driving under the influence of alcoholic beverages.

In November 2012, Angel Roman-Badillo ("Lito"), a long-time acquaintance of petitioner, met with then state court Superior Judge, Manuel Acevedo-Hernandez ("Acevedo-Hernandez"), the judge's brother Saul Acevedo-Hernandez ("Saul"), and nephew Miguel Acevedo-Manjo (“Miguel”) at a restaurant. They discussed petitioner's case and ways to help petitioner.

Acevedo-Hernandez commented that petitioner's criminal case was delicate and that it “could not be worked on, not even for $100,000.” However, Acevedo-Hernandez eventually named his price. He wanted to use petitioner's political connections to gain a seat on the state appellate court and government jobs for his family. Acevedo-Hernandez eventually agreed to provide petitioner with favorable treatment during the judicial proceedings.

From November 2012 to April 2013, Lito (acting on behalf and for the benefit of petitioner) invited Acevedo-Hernandez, Saul, Miguel, and other friends to bars and restaurants. Petitioner paid for everything. Through Lito, petitioner also: (1) paid Acevedo-Hernandez's pending state income tax debt; (2) bought Acevedo-Hernandez gifts; (3) arranged for construction improvements on Acevedo-Hernandez's garage; and (4) purchased a motorcycle for Acevedo-Hernandez.

Petitioner also pulled strings to procure a seat on the Puerto Rico Court of Appeals for Acevedo-Hernandez. Specifically, since December 2012, petitioner arranged meetings between Acevedo-Hernandez and Anaudi Hernandez, a businessman with strong political connections to the then-Governor-elect who had previously helped another judge get reappointed. Petitioner's brother, Lutgardo Acevedo-Lopez II (“Bebe”), told Anaudi Hernandez that he wanted to introduce a friend who aspired to be an appellate judge. A few weeks later, on January 21, 2013, Lito drove Acevedo-Hernandez to Anaudi Hernandez's residence to discuss Acevedo-Hernandez's potential appointment to the appellate court. During the meeting, Acevedo-Hernandez's told petitioner that his dream was to retire as an appellate judge.

In return for these inducements, Acevedo-Hernandez met his end of the deal and provided help with Petitioner's case from the bench. Between January and March 2013, petitioner provided Acevedo-Hernandez with draft court filings for his review and advice prior to filing. Further, on March 22, 2013, Acevedo-Hernandez met with Lito to discuss petitioner's case and provide strategic legal advice in order to obtain the dismissal of the criminal charges. On March 27, 2013, Acevedo-Hernandez acquitted petitioner of all charges.

On April 5, 2013, Lito drove Acevedo-Hernandez to a seminar sponsored by the Puerto Rico's Court Administration System. Later that day, Puerto Rico police officers stopped Lito, still with Acevedo-Hernandez, for suspected driving while under the influence of alcohol. Acevedo-Hernandez intervened on Lito's behalf, but as fate would have it, some of the officers had also been involved in the case against petitioner. Thus, the officers were able to identify Lito as petitioner's associate. Evidently, this raised concerns about the Acevedo-Hernandez's association with Lito. Eventually, the police officers' well-founded concerns led to a federal investigation.

On June 3, 2014, federal officers arrested petitioner in the Southern District of Florida.^[2]On June 6, 2014, a magistrate judge in the Southern District of Florida ordered that petitioner be detained and removed to the District of Puerto Rico. On July 14, 2014, the district court for the District of Puerto Rico conducted a de novo detention hearing and reinstated the Florida magistrate's detention order.

On August 14, 2014, petitioner entered into a plea agreement. The parties stipulated to a total offense level of 23, but petitioner's presentence investigation report (the “PSR”) initially recommended a total offense level of 29. Petitioner filed several objections to the PSR. In response to those objections, the probation officer issued an addendum to the PSR on November 3, 2015. The addendum included a revised calculation of the benefits received by Acevedo-Hernandez under U.S.S.G. § 2C1.1(b)(2), which reduced the recommended total offense level from 29 to 27.

The district court held a sentencing hearing on November 6, 2015. Among other things, the district court found that the annual salary increase that Acevedo-Hernandez would have received if he had been appointed as an appellate judge, totaling $123,200 over 8 years, was to be included in calculating the value of the bribe under U.S.S.G. § 2C1.1(b)(2). The district court also found that the conspiracy involved at least 5 criminally responsible participants and was also otherwise extensive under U.S.S.G. § 3B1.1(a). Altogether, the district court calculated a total offense level of 27, a Criminal History Category (CHC) of I, which provided for a sentencing range of 70 to 87 months of imprisonment. After reviewing the 18 U.S.C. § 3553(a) factors, however, the district court determined that “the circumstances surrounding this offense fall completely out of the heartland of the Sentencing Guidelines,” and so “a variance [was] warranted.” Considering “the seriousness of the offense and all of the factors,” the district court therefore sentenced Petitioner to 108 months of imprisonment, 1 year less than the statutory maximum.

II. Discussion

Petitioner's 63-page motion^[3] advances 5 instances of ineffective assistance of trial counsel and 3 violations of due process. ECF No. 1. The government opposes arguing that petitioner's claims have been procedurally defaulted and are meritless. ECF No. 37. The Court will analyze each of petitioner's arguments in turn.

a. Ineffective Assistance of Trial Counsel^[4]

To review a claim of ineffective assistance of counsel, the Court must assess whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. See Strickland v. Washington, 466 U.S. 668, 685-87 (1984). To succeed in a claim of ineffective assistance of counsel, a petitioner must show that counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to petitioner. See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013). Furthermore, the Strickland test is bifurcated. See Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010). Failure to prove either prong proves fatal for the other. See United States v. Caparotta, 676 F.3d 213, 219 (1st Cir. 2012).

i. Mental Competency

Petitioner argues that his trial counsel was ineffective because she failed to have him evaluated for mental competency pursuant to 18 U.S.C. § 4241 despite knowing that he recently received mental health and addiction therapy at the Hanley Center in Florida. ECF No. 1 at 1114. He also posits that counsel was ineffective for failing to interject at the change-of-plea hearing when petitioner denied having been treated for a mental or emotional condition. Id. Therefore, petitioner believes the Court was not able to determine whether his medications affected his ability to enter a voluntary and intelligent plea. Id. (citing United States v. Parra-Ibanez, 936 F.2d 588, 594 (1st Cir. 1991)). He asserts that if his counsel had informed the Court that he was suffering from a mental defect, then there is a reasonable probability that the Court would have found petitioner unfit to plead voluntarily and intelligently. Id. According to a report by Dr. Ibzan Perez Munoz issued on April 8, 2019, petitioner did not have the “mental clarity” or “mental function sufficient” to understand what pleading guilty entailed. Id. (citing ECF No. 3-1 at 1-2). Put succinctly, petitioner suggests that his counsel's failure to request a mental competency evaluation resulted in an involuntary and unintelligent plea.

The government opposes by first noting that petitioner does not state that he would have not plead guilty but for his counsel's ineffectiveness. ECF No. 37 at 15.

It is well-settled law that the voluntariness of a guilty plea can be questioned on collateral review under 28 U.S.C. § 2255 only if, and to the extent that, the plea has been challenged on direct appeal. See Oakes v. United States, 400 F.3d 92, 95 (1st Cir. 2005) (citing Bousley v. United States, 523 U.S. 614, 621-23 (1998)). If a petitioner challenges his conviction or sentence on a ground that he did not advance on direct appeal, his claim is deemed procedurally defaulted. Id. A procedurally defaulted habeas petition will be allowed to proceed if the petitioner can show either that: (1) there is cause for the default and (2) actual prejudice resulting from it.^[5] Id.

On appeal, petitioner did not challenge that his guilty plea was involuntary or unintelligent. See United...