Francisco v. United States

115 F.Supp.3d 416

Rafael FRANCISCO, Petitioner,

v.UNITED STATES of America, Respondent.

Nos. 14 Civ. 07085(VM)

09 Cr. 341(VM).

United States District Court, S.D. New York.

Signed July 9, 2015.

Rafael Francisco, Ayer, MA, pro se.

Laurie Ann Korenbaum, New York, NY, for Respondent.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Petitioner Rafael Francisco ("Francisco") brought a pro se motion ("Motion") pursuant to 28 U.S.C. Section 2255 (" Section 2255") to vacate, set aside, or otherwise correct his conviction and sentence. (Dkt. No. 1.) Francisco is currently serving a sentence of 360 months imprisonment after pleading guilty to two counts of aiding and abetting murder through the use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sections 924(j) and 2. Francisco claims he was deprived of his Sixth Amendment right to the effective assistance of counsel, and he requests that his current sentence be vacated or, alternatively, his case be remanded for evidentiary hearings. For the reasons discussed below, the Court DENIES Francisco's motion in its entirety.

I. BACKGROUND¹

On February 13, 1997, Oliver Martinez was shot and killed during the course of a robbery of a stash house run by his brother Jose Acosta, a/k/a "Chino." Chino sought to have all those involved in the robbery and homicide (the "Robbery Crew") murdered.

In June 1997, Chino met with a group of men led by Francisco who regularly congregated at a parking lot on 156th Street and Southern Boulevard in the Bronx, New York (the "Parking Lot Crew"). The Parking Lot Crew agreed to commit the murder of Jose Suarez ("Suarez"), one of the Robbery Crew members, in exchange for money.

On June 25, 1997, some members of the Parking Lot Crew, including Francisco, abducted Suarez and his friend Juan Carmona ("Carmona") in the Bronx, New York, by posing as law enforcement officers. Suarez and Carmona were taken to the parking lot where they were beaten, interrogated, and subsequently shot by members of the Parking Lot Crew. Chino paid the Parking Lot Crew members, including Francisco, approximately $50,000 as compensation for the murders.

By indictment filed on April 7, 2009 ("Indictment"), the Government charged Francisco with eight criminal offenses: one count of conspiring to use interstate commerce facilities in the commission of murder-for-hire, resulting in the death of Pedro Medina, in violation of 18 U.S.C. Sections 1958 and 2 ("Count One"); one count of using interstate commerce facilities in the commission of murder-for-hire, resulting in the death of Pedro Medina, in violation of 18 U.S.C. Section 1958 ("Count Two"); one count of possessing and aiding and abetting in the possession of a firearm that was used to murder Pedro Medina, in violation of 18 U.S.C. Sections 924(j) and 2 ("Count Three"); one count of conspiring to use interstate commerce facilities in the commission of murder-for-hire, resulting in the deaths of Suarez and Carmona, in violation of 18 U.S.C. Sections 1958 and 2 ("Count Four"); one count of using interstate commerce facilities in the commission of murder-for-hire, resulting in the death of Suarez, in violation of 18 U.S.C. Section 1958 ("Count Five"); one count of using interstate commerce facilities in the commission of murder-for-hire, resulting in the death of Carmona, in violation of 18 U.S.C. Section 1958 ("Count Six"); one count of possessing and aiding and abetting the possession of a firearm used to murder Suarez, in violation of 18 U.S.C. Sections 924(j) and 2 ("Count Seven"); and one count of possessing and aiding and abetting the possession of a firearm used to murder Carmona, in violation of 18 U.S.C. Sections 924(j) and 2 ("Count Eight").

Michael Kim of Kobre & Kim LLP was appointed as Francisco's counsel pursuant to the provisions of the Criminal Justice Act. Francisco's counsel negotiated the Plea Agreement on his behalf, stipulating that Francisco would plead guilty to Counts Seven and Eight of the Indictment. (Dkt. No. 13 Ex. 1.) In return, Counts One through Six of the Indictment would be dismissed. The Plea Agreement stipulated that the United States Sentencing Guidelines ("Sentencing Guidelines") would be applicable, and based on Francisco's offense level, a Sentencing Guidelines range of 360 months to life imprisonment was stipulated. (Id. )

Sometime after Francisco's arrest but before he agreed to the Plea Agreement his counsel had negotiated, while he was receiving dialysis treatment in a hospital, he was visited by Kimberly Cole ("Cole"), an attorney at Kobre & Kim LLP, along with an interpreter. Cole advised Francisco against going to trial, allegedly stating that he had "no chance to win at trial." (Francisco Decl. 2, ¶ 4.) She also allegedly warned him that should he choose to go to trial, he would "never see the light of day again" and "never get to hug or kiss [his] mother ever again." (Francisco Br. 3; Francisco Decl. 2, ¶ 4.) Through repeated visits, Cole allegedly informed Francisco that although she knew that he had no involvement in the crime, the Government had a witness that was willing to testify against Francisco at all costs, including perjuring himself, to reduce his own sentence. (Francisco Br. 3; Francisco Decl. 2, ¶ 5.) Cole allegedly told Francisco that because of his medical condition, the judge would compassionately sentence him in the range of "time served [to] ten, but definitely less than ten years," as he would be "pleading guilty to two weapons charges and [would] most likely get five years for each." (Francisco Br. 4; Francisco Decl. 2, ¶ 6.) She also allegedly stated that the Government had not offered him anything because they knew that he was innocent, and they would not "offer prison time to an innocent man." (Francisco Br. 4; Francisco Decl. 2, ¶ 6.)

On October 26, 2012, Francisco pleaded guilty before the Honorable Henry B. Pitman, United States Magistrate Judge, to Counts Seven and Eight of the Indictment. The Court found that: (1) even though Francisco was under medication for his physical conditions, his cognitive ability and judgment were not affected in any way (Plea Tr. 7); (2) both the Indictment and the Plea Agreement had been translated into Spanish for Francisco (Id. 3); (3) Francisco had discussed both the Indictment and the Plea Agreement with his counsel (Id. 3); (4) Francisco was "very satisfied" with his counsel's advice (Id. 9); (5) Francisco understood the general nature of the charges against him (Id. 10–12); and (6) Francisco had discussed the application of the Sentencing Guidelines to his case with his counsel. (Id. 12.) Because Francisco had eyesight problems and had lost his glasses in transit to the hospital, his plea allocution was read to him sentence-by-sentence, while he simultaneously confirmed its truth. (Id. 16–17.)

This Court sentenced Francisco on September 13, 2013. (Dkt. No. 13 Ex. 3.) After the parties confirmed that they had reviewed the Presentence Investigation Report and had no objections to it, the Court adopted the factual recitations in the Presentence Investigation Report and calculated the Sentencing Guidelines range to be 360 months to life imprisonment on each of Counts Seven and Eight. The Court then imposed a sentence of 360 months imprisonment on each Count to run concurrently. (Sentencing Tr. 9–10.)

On July 8, 2014, Francisco filed the instant motion in this Court under Section 2255. (Dkt. No. 1.) Francisco alleges that he was denied his Sixth Amendment right to effective assistance of counsel because his counsel: (1) severely underestimated the length of his sentence; (2) failed to explain the Plea Agreement honestly and misrepresented various crucial aspects of the case to him; and (3) improperly coached him on what to say during his plea allocution.

II. DISCUSSION

A. LEGAL STANDARD

At the outset, the Court notes that Francisco is a pro se litigant. As such, his submission must be held "to less stringent standards than formal pleadings drafted by lawyers." Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993) (internal citation omitted). The Court must construe Francisco's submissions "liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (internal citation omitted). A pro se litigant, however, is not exempt "from compliance with relevant rules of procedural and substantive law." Boddie v. N.Y. State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) ).

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 374–75, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) ; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001) ("Occasionally, the performance of defense counsel is so dismal that it ripens into the deprivation of counsel altogether and potentially violates the defendant's Sixth Amendment rights."). However, criminal defendants asserting ineffective assistance of counsel have a high threshold to meet "in order to deter a baseless attack on the performance of counsel in a last-ditch effort to avoid a conviction or reduce the sentence." Percan v. United States, 294 F.Supp.2d 505, 511 (S.D.N.Y.2003) ; see also Kimmelman, 477 U.S. at 382, 106 S.Ct. 2574.

To prove ineffective assistance of counsel, the petitioner must satisfy a two-prong test. First, he must show that "counsel's representation fell below an objective standard of reasonableness" according to "prevailing norms." Strickland v. Washington, 466 U.S. 668, 688–89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney's performance is given a strong presumption of effectiveness, as courts recognize a "wide range of professional assistance." Id. at 689, 104 S.Ct. 2052. Errors in counsel's predictions of a defendant's ultimate sentence under the Sentencing Guidelines generally do not constitute ineffective assistance of counsel...