Deering v. United States

219 F.Supp.3d 283

Daniel DEERING, Petitioner,

v.UNITED STATES of America, Respondent.

CIVIL NO. 16–1655 (PG)

United States District Court, D. Puerto Rico.

Signed November 29, 2016

Miguel Oppenheimer, San Juan, PR, Ricardo A. Nicol, Law Office of Ricardo Nicol, Santa Ana, CA, for Plaintiff.

Mariana E. Bauza, Nelson J. Perez–Sosa, United States Attorneys Office, San Juan, PR, for Defendant.

OMNIBUS OPINION AND ORDER

JUAN M. PEREZ–GIMENEZ, SENIOR UNITED STATES DISTRICT JUDGE

Before the court is petitioner Daniel Deering's ("petitioner" or "Deering") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1), and the United States' ("respondent" or the "government") opposition thereto (Docket No. 17). In addition, the petitioner has filed a motion requesting that a pretrial conference be set, followed by an evidentiary hearing or, alternatively, an oral argument. See Docket No. 24. For the reasons set forth below, the Court DENIES petitioner's motion to vacate (Docket No. 1) and DENIES the motion filed at Docket No. 24.

I. BACKGROUND

On February 7, 2013, after waiving the right to be charged by means of an indictment, Deering pled guilty to a One–Count Information charging him with conspiracy to engage, and cause others to engage in the wholesale distribution in interstate commerce of prescription drugs without a license, in violation of 18 U.S.C. § 371 and 21 U.S.C. §§ 331(t), 353(e)(2)(A).¹ See Crim. No. 13–76 (PG), Docket Nos. 1 and 2. Deering, a resident of Orange County, California, was in the business of buying and selling diverted prescription drugs to various prescription-drug wholesale companies.²

See Crim. No. 13–76 (PG), Docket No. 4. From approximately July 2007 to March 2011, Deering, in furtherance of the conspiracy, identified unlicensed sources of diverted pharmaceuticals in California; shipped the diverted pharmaceuticals to wholesale companies in Puerto Rico, and supplied said companies with pedigrees that falsely stated the prescription drugs came from authorized distributors. See id. at pp. 9–10. The wholesale companies, which were owned and operated by one of Deering's co-conspirators, then sold the diverted prescription drugs to unsuspecting hospitals, pharmacies, and clinics. See id.

1. Plea Hearing, Sentencing & Cooperation in between³

A plea hearing was held on February 7, 2013 before U.S. Magistrate Judge Marcos E. Lopez, during which Deering was assisted and represented by his two retained attorneys , Gregory Lee ("Lee"), who appeared pro hac vice , and Miguel Oppenheimer ("Oppenheimer") as local counsel. Crim. No. 13–76 (PG), Docket Nos. 6 and 7. Upon advising the court of his intention to plead guilty, Deering was placed under oath and apprised of his right to plead not guilty, proceed to a trial by jury, be represented by counsel, remain silent and be presumed innocent, among others. See Federal Rule of Criminal Procedure 11(b). After instructing petitioner of the consequences of pleading guilty, questioning him, listening to his responses and observing his demeanor, Magistrate Judge Lopez made a determination that Deering was fit to enter a plea of guilty. To that end, a Report & Recommendation ("R&R") was issued by the Magistrate Judge and later adopted by this court. See Crim. No. 13–76 (PG), Docket No. 12.

Subsequently, and pursuant to the plea agreement, Deering met with government officials on numerous occasions for cooperation purposes. As a result, the government requested a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 prior to Deering's sentencing hearing. See Crim. No. 13–76 (PG), Docket No. 39.

On February 18, 2016, Deering was sentenced to 24 months of imprisonment and to three years of supervised release as to Count One of the Information. Due to the petitioner's substantial cooperation, the court reduced the offense level and sentenced him to a term within the corresponding guideline range. Moreover, since the court imposed a sentence in accordance with the terms, conditions and recommendations of the plea agreement, the waiver of appeal and judgment contained therein became effective on that same date. See Crim. No. 13–76 (PG), Docket No. 42.

Shortly thereafter, Deering filed a motion to vacate his sentence under 28 U.S.C. § 2255, alleging he received ineffective assistance of counsel. See Docket No. 1. On July 11, 2016, the government filed its opposition to petitioner's motion to vacate. In short, it argues Deering's motion lacks merit and should be denied without a hearing.

See Docket No. 17 at pp. 4–5. The court agrees.

II. DISCUSSION

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C § 2255 ; Hill v. United States , 368 U.S. 424, 426–427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ; Ellis v. United States , 313 F.3d 636, 641 (1st Cir.2002).

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees that in all criminal prosecutions, the accused has a right to the assistance of counsel for his or her defense. U.S. Const. amend. VI. Where, as here, the petitioner moves to vacate his sentence on an ineffective assistance of counsel basis, he must show that "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." Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ; 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).

To be successful on his claim, the petitioner must satisfy a two-part test. First, he must show that "counsel's representation ‘fell below an objective standard of reasonableness.’ " Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010) (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ). Second, the petitioner must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to him. See United States v. Carrigan , 724 F.3d 39, 44 (1st Cir.2013) (citing Missouri v. Frye , 566 U.S. 133, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012) ). Thus, the petitioner must demonstrate both incompetence and prejudice. Failure to prove one element proves fatal for the other. See United States v. Caparotta , 676 F.3d 213, 219 (1st Cir.2012).

Challenges to counsel's ineffective performance in the guilty plea context are also evaluated under the two-part Strickland test. See Hill , 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; Torres–Santiago v. United States , 865 F.Supp.2d 168, 178 (D.P.R.2012). The analysis only (and slightly) differs with respect to the second, or prejudice, prong which focuses on whether "counsel's performance affected the outcome of the plea process." Hill , 474 U.S. at 58–59, 106 S.Ct. 366. To satisfy this requirement, the petitioner must show "a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial." United States v. Colon–Torres , 382 F.3d 76, 86 (1st Cir.2004) (quoting Hill , 474 U.S. at 59, 106 S.Ct. 366 )(internal quotation marks omitted).

In the present case, the petitioner alleges attorney Lee was ineffective in that (1) he provided erroneous, pre-arrest advice on the legality of the conduct which formed the basis of petitioner's conviction,⁴ and (2) later failed to disclose the fact that such advice may have given rise to a conflict of interest. See Docket No. 1 at page 1. For that reason, Deering concludes that his decision to enter a guilty plea was not made voluntarily, intelligently, and knowingly; rather, it was the product of Lee's deficient representation. The court will address each claim, or subset thereof, in turn.

Before doing so, however, we remind litigants, and habeas petitioners in particular, of the following: the right to counsel under the Sixth Amendment is premised on the notion that in an adversarial proceeding or trial, "access to counsel's skill and knowledge is necessary to accord ... ample opportunity to meet the case of the prosecution[.]" Strickland , 466 U.S. at 685, 104 S.Ct. 2052. That right does not extend to, or guarantee, competent legal counsel regarding all imaginable aspects of the accused's life. Thus, for present purposes, the relevant inquiry is whether the petitioner was effectively assisted by counsel in the particular proceeding envisioned by the amendment—the criminal prosecution. See U.S. Const. amend. VI.

1. Pre-prosecution counsel

Together with his § 2255 motion, Deering submitted a letter dated June 27, 2008, where Lee provided the allegedly erroneous, pre-arrest advice. See Docket No. 1–2 at pp. 2–3. As Deering acknowledges in his motion to vacate, the letter was sent in response to his request for a legal opinion on the manner in which to conduct his business within the secondary wholesale market for drug prescriptions. Specifically, petitioner inquired as to the pedigree laws which require compliance and the payment of his invoices in cash. See id. at page 1.

In his letter, Lee addressed the general framework of the pedigree laws applicable to the prescription drug market, reminding Deering that "if a law is in place it is there for a reason...in this case...[,] the protection of the chain of distribution is of the highest priority." Id. at page 2. As to the issue of compliance with such laws, Lee's advice was "to display the end of the pedigree, which shows that the authorized distributor is true and correct." Id. at page 2. Lee...