Medina-Villegas v. United States

Hernardo Medina-Villegas, Petitioner v. United States of America, Respondent.

CIVIL NO. 14-1113 (PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

July 29, 2016

Related CRIM. NO. 02-117(PG)

OPINION AND ORDER

Before the court are Hernardo Medina-Villegas' (hereinafter, "petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, and the Government's opposition thereto. See Civ. No. 14-1113, D.E. 1 and D.E. 7.¹ After reviewing petitioner's claims, the court hereby DENIES the motion to vacate as to counts two, four, six and eight of the indictment against petitioner for the reasons explained below. The court nonetheless GRANTS petitioner's motion as to count nine.

I. BACKGROUND

On March 22, 2005 a jury convicted petitioner on nine counts stemming from conspiracy to commit robbery and the murder of a guard in the course of a robbery. Specifically, petitioner was convicted of the following charges:

Count 1. Conspiracy to commit robbery of an armored vehicle, in violation of 18 U.S.C. § 1951(a).

Count 2. Aiding and abetting the use of a firearm in relation to count one, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii).

Count 3. Aiding and abetting the robbery of an armored vehicle, in violation of 18 U.S.C. §§ 2, 1951(a).

Count 4. Aiding and abetting the use of a firearm in relation to count three, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii).

Count 5. Aiding and abetting a carjacking, in violation of 18 U.S.C. §§ 2, 2119(1).

Count 6. Aiding and abetting the use of a firearm in relation to count five, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii).

Count 7. Aiding and abetting the robbery of an armored vehicle, in violation of 18 U.S.C. §§ 2, 1951(a). (referring to a different robbery than that in count three)

Count 8. Aiding and abetting the use of a firearm in relation to count seven, resulting in the murder of a guard in the course of a robbery, in violation of 18 U.S.C. §§ 2, 924(j).²

Count 9. Aiding and abetting the use of a firearm in relation to count seven, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii).

See Crim. No. 02-117, D.E. 85, D.E. 390, and D.E. 498.

Petitioner was sentenced as follows:

1. As to counts one, three and seven, petitioner was sentenced to imprisonment for a term of twenty (20) years, to be served concurrently with each other.

2. As to count two, petitioner was sentenced to imprisonment for a term of fifteen (15) years to be served consecutively to counts one, three and seven.

3. As to counts four and six, petitioner was sentenced to imprisonment for a term of twenty-one (21) years to be served concurrently with each other and with count two, but consecutively to counts one, three and seven.

4. As to count five, petitioner was sentenced to a term of imprisonment for a term of fifteen (15) years to be served concurrently with counts one, three and seven.

5. As to count eight, petitioner was sentenced to life in prison without the possibility of parole ("LWOP").

6. As to count nine, petitioner was sentenced to imprisonment for a term of thirty (30) years to be served concurrently with counts two, four and six, but consecutively to counts one, three and seven.

See Crim. No. 02-117, D.E. 519, and D.E. 594. Additionally, petitioner was fined a special assessment of $100 per each count, except count eight.

During the count eight penalty phase of petitioner's trial, this court instructed the jury to recommend either the death penalty or LWOP, and informed the jury that if they failed to reach unanimity on either, the court would sentence petitioner to LWOP. See Crim. No. 02-117, D.E. 513. Petitioner did not object to the sentencing instructions. The jurydid not reach unanimity and, therefore, petitioner was sentenced to LWOP. See Crim. No. 02-117, D.E. 498 and D.E. 519.

Petitioner appealed, challenging "1) the sufficiency of the evidence supporting the conviction of count eight (the murder count), 2) the sufficiency of the evidence supporting counts five and six (the carjacking counts), 3) the district court's failure to allow him the opportunity for allocution before being sentenced to life imprisonment on count eight, and 4) the district court's calculation of the guideline sentencing range on count eight."³ United States v. Catalan-Roman, 585 F.3d 453, 472 (1st Cir.2009). The First Circuit Court of Appeals agreed with petitioner's third argument and vacated his sentence on count eight and remanded for resentencing. However the First Circuit affirmed all other convictions and sentences. See Catalan-Roman, 585 F.3d at 475.

In accordance, with the First Circuit's instructions, this court resentenced petitioner on August 18, 2011. See Crim. No. 02-117 D.E. 750. At the hearing, petitioner argued that his conviction on count nine violated the Double Jeopardy Clause. However, this court considered that argument to fall outside the scope of the remand and dismissed it. This court again imposed LWOP after allowing petitioner to present his allocution.

Petitioner again appealed. This time petitioner challenged the procedural and substantive reasonableness of this court's LWOP sentence, and in addition raised the Double Jeopardy claim he unsuccessfully tried to argue at the resentencing hearing. The First Circuit rejected petitioner's arguments and affirmed this court's decision.⁴ See United States v. Medina-Villegas, 700 F.3d 580, 585 (1st Cir.2012).

Pending now before this court are petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and respondent's timely opposition thereto. See Civ. No. 14-1113, D.E. 1 and D.E. 7. Petitioner submitted a memorandum of law in support of his motion and areply to respondent's opposition, as well as a supplement with additional pleadings. See Civ. No. 14-1113, D.E. 1; D.E. 8; and D.E. 10.

In his § 2255 petition, petitioner set forth the following arguments:

1. That both trial and appellate counsel were ineffective for failing to raise claims against an alleged error in the jury instructions provided by this court as to petitioner's sentencing on count eight, which was certified for the death penalty. See Civ. No. 14-1113, D.E. 1.

2. That petitioner's conviction as to count nine violates the Double Jeopardy Clause, and that both trial and appellate counsel were ineffective for failing to raise that claim. See Civ. No. 14-1113, D.E. 1.

3. That 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague, thus warranting the vacation of petitioner's convictions as to counts two, four, six and nine. See Civ. No. 14-1113, D.E. 10.

4. That count one, a conspiracy charge, cannot be categorized as a violent crime for the purposes of petitioner's conviction as to count two under 18 U.S.C. § 924(c)(3). See Civ. No. 14-1113, D.E. 10.

II. DISCUSSION

A. Count Eight

Petitioner argues that the court committed an error during the penalty phase of his trial, by instructing the jury to sentence him to either the death penalty or to LWOP, and omitting the alternative of a lesser sentence. Petitioner claims trial counsel was ineffective for failing to object to said instruction. Petitioner further claims that appellate counsel was ineffective for failing to raise the issue on direct appeal.

i. Ineffective Assistance of Trial Counsel

To review a claim of ineffective assistance of counsel, a 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, 105 S.Ct. 2052, 2064 (1984). To succeed in a claim of ineffective assistance of counsel, 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). That is to say, petitioner must demonstrate both incompetence and prejudice. 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).

The court will assume, arguendo, that the alleged error was committed in order to determine if it would have led to the prejudice necessitated by Strickland.

Petitioner argues that he suffered prejudice because, had trial counsel objected to the jury instructions, and had the jury been offered the alternative of a lesser sentence, there was a reasonable probability that the jury would have opted for a lesser sentence. Petitioner cites the jury's failure to reach unanimity as support for this contention. However, a jury split between the death penalty and LWOP does not imply that the option of a lesser sentence would have resulted in unanimity for that alternative.

It is highly improbable that jurors who voted to sentence petitioner to the highest penalty would have sprung for the most lenient sentencing option. That some jurors held out against imposing the death sentence does not create a reasonable probability that the jury would choose a lesser sentence unanimously.

In Jones, for example, the Supreme Court observed that even in light of an alleged error in jury instructions "it is just as likely that the jurors, loath to recommend a lesser sentence, would have compromised on a sentence of life imprisonment as on a death sentence." See Jones v. United States, 119 S.Ct. 2090, 2105 (1999). The circumstances of Jones and the issue before us are different, but the Supreme Court's reasoning is equally applicable. If this court were to accept petitioner's flawed claims of prejudice, it would engage in speculation and forego reasoned judgment. See Romano v. Oklahoma, 114 S.Ct. 2004, 2013 (1994)(holding that inadmissible evidence would have had little, if any, effect on the jury, and to decide otherwise would merely be a...