Rojas-Medina v. United States

290 F.Supp.3d 145

Toribio ROJAS–MEDINA, Petitioner,

v.UNITED STATES of America, Respondent.

Civil No. 16–2670 (FAB)

Criminal No. 15–718 (FAB)

United States District Court, D. Puerto Rico.

Signed February 14, 2018

Eric A. Vos, Federal Public Defender's Office, Hato Rey, PR, Franco Lorenzo Perez–Redondo, Federal Public Defender, San Juan, PR, for Petitioner.

Mainon A. Schwartz, Mariana E. Bauza, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Respondent.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is Petitioner Toribio Rojas–Medina ("Rojas")'s motion to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. section 2255 (" section 2255"). (Docket No. 1.) Rojas challenges the sentence this Court imposed in Criminal No. 15–718 (FAB), asserting that defense counsel Israel Alicea–Luciano ("Alicea") was ineffective in assisting him, in violation of the Sixth Amendment of the United States Constitution. Id. The United States responded, requesting that the Court hold an evidentiary hearing to address the factual assertions set forth in Rojas's section 2255 motion. (Docket No. 9.) The Court referred the matter to Magistrate Judge Bruce J. McGiverin. (Docket No. 2.)

Following an evidentiary hearing, the magistrate judge issued a Report and Recommendation ("R & R"), recommending that the Court grant Rojas's section 2255 motion. (Docket No. 33.) The United States objected to the R & R, and Rojas responded. (Docket Nos. 34 & 36.)

For the reasons set forth below, the Court rejects the magistrate judge's R & R, and DENIES Rojas's motion to vacate, set aside, or correct his sentence pursuant to section 2255. (Docket Nos. 1 & 33.)

I. Standard of Review

A district court may refer a pending dispositive motion to a magistrate judge for a R & R. See 28 U.S.C. § 636(b)(1)(B) ; Fed. R. Civ. P. 72(b) ; Loc. R. 72(a). Any party may file written objections to the R & R; a party that files timely objections is entitled to a de novo determination of those portions of the report to which specific objection is made. 28 U.S.C. § 636(b)(1) ; Loc. R. 72(d). In conducting its review, the Court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; accord Loc. R. 72(d).

The United States objected to all portions of the magistrate judge's R & R. (Docket No. 34.) Accordingly, the Court conducts a de novo review.

II. Factual Background¹

A federal grand jury returned a three-count indictment against Rojas, charging him with bringing in and harboring aliens in violation of 8 U.S.C. section 1324(a)(1)(A)(i), reentry of a removed alien in violation of 8 U.S.C. section 1326(b)(1), and failure to heave-to a vessel in violation of 18 U.S.C. section 2237(a)(1). (Criminal Docket No. 6.) Magistrate Judge Camille Velez–Rive appointed Alicea to represent Rojas. Subsequently, Rojas and the United States entered into a plea agreement. (Criminal Docket No. 26.)

A. The Plea Agreement

Pursuant to the plea agreement, Rojas pled guilty to the reentry of a removed alien charge. Id. The United States and Rojas adopted a joint sentence recommendation. Id. at p. 3. The plea agreement, however, stipulated that Rojas's sentence remained subject to the "sound discretion of the sentencing judge." Id. at p. 2. The parties "reserved the right to recommend a sentence at the lower end of the applicable Guideline Sentencing Range for a total offense level of 21 when combined with defendant's criminal history category as determined by the Court." Id. at p. 3. The parties made no stipulation as to Rojas's criminal history category. Id. at p. 4.

Pursuant to the plea agreement, Rojas could request that his sentence run concurrently with any pending state revocation sentence. Id. Furthermore, the United States would not oppose Rojas's request for a downward departure pursuant to U.S.S.G. section 4A1.3 because his criminal history purportedly overrepresented the seriousness of his criminal conduct. Id. The sentencing guidelines calculation table set forth the sentence ranges for criminal history categories I through VI, with a range of 57 to 71 months for criminal history category IV, and a range of 70 to 87 months for criminal history category V. Id.

Significantly, the plea agreement contains a waiver of appeal clause. Rojas "waiv[ed] the right to appeal the judgment and sentence" provided that the Court "sentence [Rojas] in accordance with the terms and conditions set forth in the Sentence Recommendation provision of the plea agreement."² Id. at p. 4.

B. Change of Plea Hearing

At the change of plea hearing, Rojas and Alicea both affirmed to the Court that they discussed the indictment and the plea agreement with each other.³ (Criminal Docket No. 49 at p. 10.) Rojas asserted that he understood the terms of the plea agreement, including the provision providing that the Court could "impose a sentence on [Rojas] that is either more or less severe than any sentence [Rojas] may anticipate, or even the sentence being recommended in the plea agreement." Id. at p. 11. With regard to the appeal waiver, the Court stated to Rojas and Rojas answered:

The Court: Do you understand that if I do sentence you according to the terms, conditions and representations contained in the plea agreement, you waive and surrender your right to appeal your sentence and the judgment in the case?

Rojas: Yes.

Id. at p. 11. Furthermore, the Court confirmed with Rojas that "sentencing within the sentencing guidelines is a matter for the Court to decide." Id. at p. 14. The Court is satisfied that Rojas understood and consented to the plea agreement, including the appeal waiver.

C. Sentencing Hearing

In Rojas's sentencing memorandum, and at sentencing, Alicea requested a downward departure pursuant to U.S.S.G. section 4A1.3 and a sentence of 46 months according to an offense level of 21 in conjunction with criminal history category III. (Criminal Docket No. 33 at pp. 7-9; Docket No. 45 at p. 5.) The United States complied with the plea agreement by recommending a sentence at the lower end of the applicable sentence guideline range. (Criminal Docket No. 45 at p. 7.)

At sentencing, the Court corrected a miscalculation in the Pre–Sentence Instigation Report regarding Rojas's criminal history.⁴ Id. at p. 3. The Court applied a criminal history category of V, exposing Rojas to a sentence between 70 and 87 months. Id. at p. 9. The Court imposed a sentence of 70 months to run consecutively with any sentence on revocation. Id. at p. 12. Despite the waiver of appeal clause in the plea agreement, the Court informed Rojas that if he wished to file an appeal, he must do so within 14 days of judgment. Id. The Court entered judgment on May 13, 2016.⁵ The record reflects that no appeal was subsequently filed.

The same day as the sentencing hearing, Alicea filed a motion for reconsideration on Rojas's behalf.⁶ (Criminal Docket No. 37.) In the motion for reconsideration, Rojas repeated the arguments set forth at the sentencing hearing. Id. According to Alicea, the sentence imposed by the Court was "extremely harsh" and "greater than necessary to fulfill the purposes of sentencing under U.S.S.G. Section 3553(a)." (Criminal Docket No. 37 at pp. 2 & 3.) The Court denied the motion to reconsider, holding that "[c]ontrary to what the Probation Officer may suggest in the PSR, the Court specifically found that defendant Rojas' criminal history was not overrepresented." (Criminal Docket No. 38.)

III. The Section 2255 Motion

Two months after sentence and judgment, Rojas submitted a handwritten letter dated July 18, 2016. (Criminal Docket No. 40). In the letter, Rojas requested a copy of the docket sheet to review "certain information" regarding an appeal.⁷ Id. at p. 1.

Rojas filed the section 2255 motion on September 15, 2016. (Criminal Docket No. 42.) Section 2255 permits a "prisoner in federal custody" to "petition the sentencing court to vacate, set aside or correct the sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States." Conley v. United States, 323 F.3d 7, 22 (1st Cir. 2003) ; 28 U.S.C. § 2255.

Rojas requests that the Court grant him a certificate of appealability pursuant to 28 U.C.C. section 2253(c)(2) ("section 2253"), permitting Rojas to appeal a denial of his 2255 motion to the First Circuit Court of Appeals.⁸ (Civil Docket No. 31 at p. 11.) According to Rojas, a certificate of appealability is appropriate because the issues presented by the section 2255 are debatable among reasonable jurists. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (certificate of appealability is justified when the petitioner "demonstrate[s] that reasonable jurists would find the courts assessment of the constitutional claims debatable or wrong"). The Court concurs with Rojas on this ground.

Rojas premises his section 2255 claim on a purported violation of the Sixth Amendment. The Sixth Amendment of the United States Constitution provides that in all criminal prosecutions "the accused shall enjoy the right to a speedy and public trial [...]" U.S. CONST. amend VI. According to Rojas, he received ineffective assistance of counsel because his attorney failed to file a notice of appeal. In the current legal landscape, reasonable jurists would disagree regarding the merits of Rojas's Sixth Amendment claim.

Because the Court proceeds to address the merits of Rojas's section 2255 motion, the Court may only certify an appeal if: (1) the issues are datable among jurists of reason, (2) the court could resolve issues in a different manner, or (3) the legal question presented is "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ; Garcia–Parra v. Administracion De Correccion, No. 13–1144 (FAB), 2015 WL 1186418, 2015 U.S. Dist. LEXIS 32071 (D.P.R. Mar. 16, 2015) ...