Maysonet-Soler v. United States

1

RAMON MAYSONET-SOLER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL Nos. 20-1202 (PAD)

Related to Crim. No. 08-310-14 (FAB)

United States District Court, D. Puerto Rico

April 12, 2024

OPINION AND ORDER

PEDRO A. DELGADO HERNANDEZ United States District Judge

Before the court is the Petitioner's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence” (Docket No. 1). The Petitioner pled guilty under a type C plea agreement;^[1]was sentenced in accordance with the terms of the agreement; and seeks to withdraw his plea of guilty and vacate and set aside the sentence, claiming that the sentencing judge unlawfully participated in plea negotiations and his lawyer was ineffective in a number of ways, as discussed below (Docket No. 1). The court conducted 2 hearings- one on April 26, 2023, the other on September 14 2023 -in which the Petitioner, his change-of-plea counsel and a codefendant testified. See, Minutes of Proceedings, April 26, 2023 (Docket No. 40); Minutes of Proceedings, September 14, 2023 (Docket No. 48). After a thorough evaluation of all issues in light of the record and applicable law, the motion must be denied, and the case dismissed.

I. BACKGROUND

A. Original Case

1. Counts/Conviction

On September 2, 2008, the Petitioner was charged in Counts 1-6 of a 14-count indictment involving 74 defendants (Crim. No. 08-310, Docket No. 4). Count 1 charged him with conspiracy to possess with intent to distribute 1 kilogram or more of heroin; 50 grams or more of cocaine base; 5 kilograms or more of cocaine; and detectable amounts of marihuana, Oxycodone, and Alprazolam, all within one thousand feet of a public school, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860. Id. at pp. 5-19. Counts 2-5 charged him with aiding and abetting in the possession with intent to distribute 1 kilogram or more of heroin; 50 grams or more of cocaine base; 5 kilograms or more of cocaine; and 100 kilograms or more of marijuana, all within one thousand feet of a public school, in violation of 18 U.S.C. § 2 as well as 21 U.S.C. §§ 841(a)(1) and 860. Id. at pp. 19-27. Count 6 charged him with conspiracy to carry and use firearms during and in relation to drug trafficking crimes, in violation of 18 U.S.C. §§ 2 and 1513(e). Id. at pp. 27-29.

On April 20, 2010, after a 3-month jury trial alongside 4 co-defendants (Wilfredo Rosario-Camacho, Luis Rodriguez-Sostre, Josue Perez-Mercado and Jose Negron-Sostre), the Petitioner was found guilty of the drug charges (Counts 1, 2, 3, 4, and 5), and the firearm charge (Count 6) (Crim. No. 08-310, Docket No. 2661).^[2]On August 18, 2010, he was sentenced to life imprisonment as to Counts 1-5 and to 240 months of imprisonment as to Count 6 to be served concurrently with the other counts. Id., Docket No. 3141.^[3]

2. First Appeal

On August 24, 2010, the Petitioner, Mr. Rosario-Camacho, Mr. Rodriguez-Sostre, Mr. Perez-Mercado and Mr. Negron-Sostre appealed their conviction and sentence to the First Circuit (id. Docket No. 3160), which on June 25, 2015, concluded that albeit there was sufficient evidence to sustain the convictions, these had to be vacated and the case remanded for a new trial because the District Court (Hon. Francisco A. Besosa) committed “structural error” in closing the courtroom to the public during jury selection. U.S. v. Negron-Sostre, 790 F.3d 295, 312 (1st Cir. 2015). On August 21, 2015, the First Circuit issued the mandate, remanding the case to the District Court (Crim. No. 08-310, Docket No. 4535).

3. Post-Remand Events a. Conferences

Following remand, Judge Besosa scheduled and held conferences on September 10, 2015 (id. Docket No. 4733); October 13, 2016 (id., Docket No. 4734); November 12, 2015 (id., Docket No. 4735); January 22, 2016 (id., Docket No. 4740); February 11, 2016 (id., Docket No. 4741); and February 17, 2016 (id., Docket No. 4742).

i. September 10, 2015

During the conference of September 10, 2015, Judge Besosa expressed that Attorney Ignacio Fernandez (Mr. Rosario-Camacho's attorney), had told the Judge that after the First Circuit decided the appeal attorney Fernandez spoke with various attorneys in the case about the possibility of negotiating some sort of plea. Id., Docket No. 4733, p. 8. Judge Besosa indicated that because there was a possibility of plea agreements and the defendants were imprisoned outside of Puerto Rico, he was thinking about ordering that they be returned to this jurisdiction. Id. at p. 6. The prosecutor said it was preferable to have all of the defendants here and to make an assessment of what their wishes were, because the government would only entertain settlement by way of a plea agreement if all of the defendants decided to plea. Id. at pp. 9-10. Judge Besosa stated that he thought the best way to go forward was to have pleas, for when the case was remanded, the First Circuit went out of its way to mention that the evidence was more than sufficient to convict every one of the defendants. Id. at p. 10. Thus, Judge Besosa asserted that he would order that the defendants be brought back to Puerto Rico as soon as possible; would conduct another status conference in about a month; and hoped that by that time the defendants would be in the jurisdiction and counsel had spoken with and advised them as they saw fit, although he really thought that the way to move forward was by plea. Id. at 10-11.

ii. October 13, 2015

During the conference of October 13, 2015, Attorney Fernandez expressed that he had spoken with Mr. Rosario-Camacho, who informed him that defendants were still stateside because of a hurricane, and that Mr. Rosario-Camacho had talked to the rest of the defendants who were receptive to a reasonable plea agreement. Docket No. 4734, pp. 3, 5. Judge Besosa commented that he hoped the term “reasonable” for the defendants meant the same thing it meant to the government. Id. at pp. 4-5. Attorney Fernandez indicated that it was a 2-way street, and that they knew the evidence (id. at p. 6), to which Judge Besosa remarked that so did the First Circuit. Id. Further, Judge Besosa added that during the last hearing the prosecutor mentioned the government was receptive to a plea, but it would have to be for everyone. Id. at 4. The prosecutor pointed out that as soon as the defendants were back in this District, the lead prosecutor in the case (AUSA Olga Castellon) would meet with the attorneys to discuss possibilities for a plea agreement. Id.

iii. November 12, 2015

During the conference of November 12, 2015, Allison Koury (Mr. Perez-Mercado's attorney) expressed that counsel for all of the defendants had met individually with their clients as well as collectively, and that some of the attorneys had met with AUSA Castellon, who told them that in order to discuss changes of plea, there must be a change of plea as to all defendants. Id., Docket No. 4735, pp. 3-4. According to AUSA Castellon, the government was trying to fashion a reasonable plea agreement that took into consideration the verdict; the evidence; possible enhancements; and the First Circuit's opinion. Id. at p. 5. Attorney Fernandez said that he had met with the prosecutor; that they had a very meaningful discussion; and that his client was facilitating the process. Id. at pp. 6-7.

iv. January 22, 2016

During the conference of January 22, 2016, AUSA Castellon expressed that the previous day, the government had tendered plea offers to the 5 defendants. Id., Docket No. 4740, pp. 4-5. She indicated that the offers were final, as the government had considered all possible scenarios, including trial transcripts; the evidence; applicable enhancements; and the First Circuit's decision. Id. at p. 5. Judge Besosa asked if any of the defendants' counsel wished to express anything. Id. Attorney Koury responded that nobody should want to retry this case. Id. at p. 6. But, she added, that from the defense's perspective, the case was in pretrial, meaning that they still had to decide whether to plead guilty or go to trial, and that she was troubled by the disparity in treatment between the defendants who had pled guilty and those that remained in the case. Id. Juan J. Hernandez-Lopez de Victoria (the Petitioner's attorney) indicated that the government's offer should not be a final offer, and he would have to sit down with AUSA Castellon and her supervisor to discuss the case. Id. at 7.

Judge Besosa said he understood that the matter had been discussed “all the way to the top.” Id., Docket No. 4740, p. 7. Attorney Hernandez replied that in the plea negotiation process attorneys are given the opportunity of sitting down with the supervisor or, if necessary, the U.S. Attorney, and the defendants' attorneys should have that opportunity as an extra step because no one wanted to retry the case. Id. at pp. 7-8. Judge Besosa remarked that it was up to the U.S. Attorney to see if he wanted to discuss the case with counsel. Id. at p. 8. Further, Judge Besosa stated that he was going to give the parties some time to discuss this matter with their clients. Id. at p. 9. So, he would set a change of plea hearing/pretrial conference for the week of February 8th, and if by that date motions to change plea had not been filed, he would schedule trial. Id. at p. 10.

v. February 11, 2016

During the conference of February 11, 2016, Judge Besosa expressed that he had granted a motion from Attorney Fernandez on behalf of all defendants requesting until February 12, 2016 to move for change of plea. Id., Docket No. 4741, p. 3. The prosecutor indicated that the First Assistant (Timothy Henwood) had informed defense counsel that if they wished to make a counterproposal they had until February 11th (that is, the day of the status conference), at 3:00 p.m. Id. at...