Portillo v. United States

RIGOBERTO HERNANDEZ PORTILLO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. 1:07-cr-00081-GBL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

ENTERED: July 17, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Petitioner Rigoberto Hernandez Portillo's Motion to Vacate, Set Aside or Correct his Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 243). This case concerns the circumstances surrounding Petitioner's conviction for conspiracy to commit murder and aggravated assault in aid of racketeering. Contrary to the advice of his trial counsel, Petitioner rejected the Government's numerous plea offers, proceeded to trial where he was convicted, and received a harsher sentence than he would have received had he accepted a plea offer.

There are six issues before the Court. The first issue is whether Petitioner has demonstrated by clear and convincing evidence that he was actually innocent. The second issue is whether Petitioner has demonstrated the existence of judicial bias and misconduct where he failed to raise this issue by motion before or during the proceedings and did not raise the issue on appeal. The third issue is whether the Court was deprived of jurisdiction under Johnson v. Zerbst which holds that under the Sixth Amendment, federal courts have no authority to deprive an accused of his life or liberty, unless he is assisted by counsel or has waived his right to assistance of counsel. The fourth issue is whether Petitioner was entitled to a defense of entrapment whereImmigrant and Customs Enforcement ("ICE") agents released him from custody to monitor the activity of the MS-13 gang. The fifth issue is whether the prosecutors engaged in misconduct by allegedly giving the jury secret additional instructions and where the prosecutors allegedly had knowledge that Petitioner was innocent. The final issue is whether Petitioner had effective assistance of counsel during the plea bargaining stage, during witness selection and trial, and on appeal.

First, Petitioner's claims of actual innocence, judicial bias and misconduct, lack of jurisdiction, entrapment, and prosecutorial misconduct during trial are not properly before the Court on a § 2255 motion because they were either addressed during his appeal or could have been pursued on direct appeal, but were not. Additionally, even if these claims were properly pursued, Petitioner has failed to meet his burden to show "cause and actual prejudice" or a fundamental miscarriage of justice.

With respect to Petitioner's claim of actual innocence, the Court holds that he has not demonstrated his innocence by clear and convincing evidence because Petitioner relies on the same evidence that he presented to the Fourth Circuit on appeal denying involvement in the attack. The Court holds that the claim of judicial bias and misconduct fails because Petitioner's allegation of "judicial-court overreaching, lack of impartiality, bias, prejudice, discriminations, and conflicting interests" is conclusory and unsupported by the evidence. To the extent that Petitioner alleges judicial misconduct based upon the Court's alleged denial of his right to testify, Petitioner has not demonstrated the prejudice necessary for relief based on this claim. The Court holds that Petitioner's citation to Johnson v. Zerbst as divesting the Court of jurisdiction is inapplicable to the facts of this case because Petitioner was represented by counsel during his trial. The Court holds that Petitioner's claim of entrapment fails because the government agents'actions of releasing Petitioner to assist in preventing gang activity does not qualify as inducement to participate in a brutal attack. The Court holds that Petitioner's prosecutorial misconduct claim based on alleged additional jury instructions fails because there is no evidence in the record of inappropriate contact between the prosecutors and the jury.

The Court construes Petitioner's claim of prosecutorial misconduct for the alleged withholding of exculpatory evidence as a Brady violation. Although this claim is properly before the Court on a § 2255 motion, the Court finds that Petitioner has failed to adduce evidence of improper and prejudicial prosecutor conduct. The Court holds that the prosecutors' conduct did not amount to a Brady due process violation because the agents with whom Petitioner worked testified at trial and therefore, Petitioner could have solicited the supposedly exculpatory testimony through cross-examination of these witnesses.

Additionally, while Petitioner's claims of ineffective assistance of counsel are properly before the Court on a § 2255 motion, the Court holds that Petitioner's trial counsel rendered constitutionally effective assistance, by repeatedly presenting Petitioner with favorable plea agreements. Moreover, even if the Court were to find that counsel's conduct was unreasonable, Petitioner was not prejudiced because he never exhibited any intention to plead guilty, choosing instead to assert his innocence in the present motion. The Court holds that trial counsel's decision not to call two witnesses was not unreasonable as to amount to ineffective assistance of counsel where first, one of the witnesses decided on her own not to testify and second, Petitioner has not alleged that the second witnesses possessed exculpatory testimony. The Court holds that trial counsel's actions of soliciting the Court to conduct a colloquy regarding Petitioner's rights to testify and to remain silent also does not amount to ineffective assistance of counsel. Finally,Petitioner's claim that he was deprived of effective assistance of counsel on appeal fails because there is no constitutional right to appointed counsel beyond the first appeal.

Thus, the Court DENIES Petitioner's Motion to Vacate, Set Aside or Correct his Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 243).

1. BACKGROUND

A. Case History

On August 9, 2007, Petitioner was indicted for conspiracy to commit murder and aggravated assault in aid of racketeering under 18 U.S.C. §§ 2, 1959(a)(3), (5)-(6). (Doc. 278.) Specifically, Petitioner was charged as a member of the Mara Salvatrucha ("MS-13") gang for an October 15, 2005 brutal attack by thirteen members of MS-13 on M.N., a fifteen-year-old member of a rival gang, and two of his friends outside a mall in Springfield, Virginia. Id.; United States v. Hernandez Portillo, 397 F. App'x 921, 922 (4th Cir. 2010). Dwight E. Crawley was appointed to represent Petitioner in this matter as his trial counsel. (Doc 243.) On August 21, 2007, Petitioner pled not guilty to all four counts in the Second Superseding Indictment and requested a jury trial. (Arraignment, Aug. 21, 2007.)

A two-week jury trial commenced on December 3, 2007. Petitioner chose not to testify on his own behalf. (Trial Tr. Dec. 12, 2007, at 1546-50.) The jury found Petitioner and his four co-defendants guilty of four counts of committing violent crimes in aid of racketeering ("VICAR"), in violation of 18 U.S.C. § 1959. Hernandez Portillo, 397 F. App'x at 922. The four counts consisted of: 1) conspiring to commit murder, 2) conspiring to commit aggravated assault, 3) aiding and abetting the aggravated assault of M.N., and 4) aiding and abetting the attempted murder of M.N. (Doc. 314, at 1.)

On March 25, 2008, Petitioner was sentenced to 288 months of incarceration, three years of supervised release, and a $100 special assessment. (Doc. 161.) Petitioner appealed his conviction to the Fourth Circuit, challenging the sufficiency of evidence supporting his conviction and the admission of relevant testimony. Petitioner was represented by Dwight Crawley on appeal as well. On October 15, 2010, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction. The Court noted that after having thoroughly reviewed the record on appeal, it found "more than sufficient evidence to sustain the jury's verdict on all four counts in the indictment." Hernandez Portillo, 397 F. App'x at 922.

On September 9, 2011, Petitioner filed a motion requesting financial assistance of counsel, process, redress of grievances, protections and privileges on collateral writ of habeas corpus that was subsequently denied. (Doc. 242; Doc. 244.)

On October 7, 2011, Petitioner, proceeding pro se, filed this Motion to Vacate, Set Aside and/or Correct his Sentence Pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). (Doc. 243.) The Petitioner's pro se § 2255 Motion alleges six grounds for relief: (1) actual innocence of the convicted crimes; (2) judicial misconduct; (3) lack of jurisdiction; (4) entrapment; (5) prosecutorial misconduct; and (6) ineffective assistance of counsel.

On November 22, 2011, Petitioner requested leave to file an interlocutory appeal of the Court's Order denying his motion for financial assistance of counsel, process, redress of grievances, protections and privileges on collateral writ of habeas corpus. (Doc. 245.) That motion was denied on March 8, 2012. (Doc. 248.) On March 26, 2012, Petitioner filed a petition for extraordinary writ of mandamus redress, process, privileges and protections with the Fourth Circuit citing 28 U.S.C. §§ 1361, 1651, 2255, and 1331. On June 20, 2012, the Fourth Circuit dismissed the interlocutory appeal for lack of jurisdiction and denied Petitioner's request for aWrit of Mandamus. United Stales v. Hernandez Portillo, 474 F. App'x 221, at *1 (4th Cir. 2012). The Court noted that "mandamus relief is available only when the Petitioner has a clear right to the relief sought, In re First Fed. Sav. Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988), which is not the case here." Id.

Petitioner's § 2255 Motion is now before this Court asserting claims of actual innocence, judicial misconduct, lack of jurisdiction, entrapment, prosecutorial misconduct, and ineffective assistance of counsel.

On December 9, 2013, the Court appointed Joan Robin to represent Petitioner for the purpose of an evidentiary...