Feliciano-Rivera v. United States

115 F.Supp.3d 243

Jose M. FELICIANO–RIVERA, Plaintiff

v.UNITED STATES of America, Defendant.

Civil 13–1585CCC.

United States District Court, D. Puerto Rico.

Signed May 29, 2015.

Jose M. Feliciano–Rivera, Edgefield, SC, pro se.

Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.

JUDGMENT

CARMEN CONSUELO CEREZO, District Judge.

Having considered the Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 filed by petitioner José M. Feliciano–Rivera (D.E. 1 ), the United States' Response in Opposition (D.E. 6), and the Report and Recommendation issued by U.S. Magistrate–Judge Justo Arenas (D.E. 8 ), to which no objections have been filed, said Report and Recommendation is APPROVED and ADOPTED and petitioner's Motion Under 28 U.S.C. § 2255 is DENIED. Accordingly, it is ORDERED and ADJUDGED that judgment be and is hereby entered DISMISSING this action.

No certificate of appealability shall be issued, as petitioner has not made a substantial showing of the denial of a constitutional right within the meaning of Title 28 U.S.C. § 2253(c)(2). Miller–El v. Cockrell, 537 U.S. 322, 336–38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

SO ORDERED AND ADJUDGED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

I. PROCEDURAL HISTORY

Petitioner was indicted on October 28, 2010 in two counts of a four-count indictment.

Thirty-three other defendants were also indicted. Petitioner was charged in the first count in that beginning in or about the year 2000 and up to the return of the indictment, in the District of Puerto Rico and elsewhere and within the jurisdiction of this court, the defendants did knowingly and intentionally combine, conspire, and agree with each other and with diverse other persons known and unknown to the Grand Jury, to commit an offense against the United States, that is, to knowingly and intentionally possess with intent to distribute in excess of five kilograms of a mixture or substance containing a detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance, as prohibited by Title 21, United States Code, Sections 841(a)(1). All in violation of 21 U.S.C. § 846. (Criminal No. 10–0412(CCC), Docket No. 3). Petitioner's role in the enterprise is not described. Count Four of the indictment is the corresponding substantive charge under 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1).

After initially pleading not guilty to the charges on November 9, 2010, petitioner moved to change his plea on January 15, 2013 and entered a guilty plea on February 18, 2013. (Criminal No. 10–0412(CCC), Docket Nos. 180, 1035, 1037, 1050, 1083). As part of a plea agreement entered into with the United States, petitioner agreed to plea guilty to Count One of the indictment. The terms of the agreement called for holding petitioner accountable for at least five but less than fifteen kilograms of cocaine, thus establishing a base offense level of 32, pursuant to U.S.S.G. § 2D1.1(c)(4), and a 3–level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. (Criminal No. 10–0412(CCC), Docket No. 1035 at 4). The parties agreed to a recommendation at the lower end of the applicable guideline.

Petitioner was sentence on May 28, 2013 to 70 months imprisonment as to Count One. (Criminal No. 10–0412(CCC), Docket No. 1174)¹ . The remaining count was then dismissed, as provided for in the plea agreement.

II. MOTION TO VACATE, SET ASIDE OR VACATE SENTENCE

This matter is before the court on petitioner Jose M. Feliciano–Rivera's timely motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, filed on July 31, 2013. (Docket No. 1.) Petitioner, pro se, states he brings three issues before the court for its consideration, but there are more. He argues that defense counsel was ineffective and violated his right to counsel since he was only an habitual cocaine user and not a distributor. Counsel never made a motion for severance so that he could be tried in relation to the evidence related to him as a user. He stresses that he had absolutely nothing to do with the charges or allegations made against him under the charging statutes. Petitioner also argues that he is actually innocent of the substantive offense² , and accuses the grand jury of bias.

(Docket No. 1 at 2, ¶ 3). He states that his attorney coerced him into pleading guilty, and said that his actual innocence did not matter. He repeats his argument of severance and dismissal due to lack of physical evidence tying him to the enterprise. He discusses misjoinder of parties under a civil standard and repeats previous argument. He seeks dismissal and/or severance due to prejudice, and since there is no factual basis for the charges against him.

On October 14, 2014, in response to the section 2255 motion, the government notes that petitioner pled guilty and, having complied with the "safety valve", was sentenced at the lower end of the applicable guideline, as agreed to. The government disagrees with petitioner's allegation that there is no factual support for the charges, and stresses that petitioner readily admitted to his participation in the conspiracy, quoting extensively from the plea colloquy. Petitioner stated that he was satisfied with his attorney. The government also notes that there were no grounds for a severance for counsel to move the court. Finally, the government notes that petitioner has procedurally defaulted on his claims since they were never presented to the district court nor were they subject of a direct appeal. Included in this argument is that there is no predicate for the argument of actual innocence except for the bare conclusory allegation of the same. Petitioner's argument is contradicted by his statements made at the change of plea hearing under oath. At that hearing, petitioner understood that by pleading guilty, he waived the right to challenge the government's evidence, something that he could have done at trial.

Because petitioner appears pro se, his pleadings are considered more liberally, however inartfully or opaquely pleaded, than those penned and filed by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) ; Proverb v. O'Mara, 2009 WL 368617 (D.N.H. Feb. 13, 2009). Notwithstanding such license, petitioner's pro se status does not excuse him from complying with both procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.1997). For example, I will treat the argument of misjoinder where petitioner cites the Federal Rules of Civil Procedure within the frameworks of Rules 8 and 14 of the Federal Rules of Criminal Procedure.

Having considered the arguments of the parties and for the reasons set forth below, I disagree with petitioner's arguments and recommend that petitioner Feliciano–Rivera's motion to vacate, set aside, or correct sentence be DENIED.

III. DISCUSSION

Under section 28 U.S.C. § 2255, a federal prisoner may move for post conviction relief if:

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(a) ; Hill v. United States, 368 U.S. 424, 426–27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ; David v. United States, 134 F.3d 470, 474 (1st Cir.1998).

It is well settled that the Sixth Amendment right to counsel guarantees effective counsel. See Strickland v. Washington, 466 U.S. 668, 686–87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; United States v. Ortiz, 146 F.3d 25, 27 (1st Cir.1998).

Nevertheless, petitioner bears a "very heavy burden" in his attempt to have his sentence vacated premised on an ineffective assistance of counsel claim. See Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996) ; Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). This is particularly true in this circuit where a lawyer's performance is deficient under Strickland "... only where, given the facts known at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it." United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir.2012), quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010), which in turn quotes Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006).

The United States Supreme Court has developed a two-pronged test to determine whether a criminal defendant was denied his constitutionally guaranteed effective assistance of counsel. See Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052. Pursuant to this test, petitioner Feliciano–Rivera must first establish that his counsel in the criminal proceedings was deficient in that the quality of legal representation fell below an objective standard of reasonableness. See id. at 688, 104 S.Ct. 2052 ; Rosenthal v. O'Brien, 713 F.3d 676, 685 (1st Cir.2013) ; Encarnacion–Montero v. United States, 34 F.Supp.3d 202, 205 (D.P.R.2014). In order to satisfy the first-prong of the aforementioned test, petitioner "must show that ‘in light of all the circumstances, the identified acts or omissions [allegedly made by his trial attorney] were outside the wide range of professionally competent assistance.’ " Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir.1998) (citing Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052 ). Petitioner must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996) (citing Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052 ). Finally, a court must review counsel's actions deferentially, and should make every effort "to eliminate the distorting effects of hindsight." Argencourt v. United States, 78 F.3d at 16 (citing, Strickland v. Washington, 466 U.S. at 689, ...