United States v. Robles

UNITED STATES OF AMERICA, Plaintiff/Respondent,

v.LORENZO ROBLES, Defendant/Petitioner.

D.C. CV. NO. 2005-091

Ref: CR. No. 2001-027

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

Dated: March 23, 2012

Copies to:

Ruth Miller, Magistrate Judge

United States Attorney

Lorenzo Robles, Pro Se (Please Mark: "LEGAL MAIL")

MEMORANDUM OPINION

FINCH, Senior Judge.

This matter comes before the Court on Petitioner Lorenzo Robles' ("Robles" or "Petitioner") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and the government's responses in opposition thereto. For the reasons set forth below, Robles' § 2255 motion will be denied.

The Court need not order an evidentiary hearing where the motion, files and records of the case conclusively show that petitioner is not entitled to relief. See Rules Governing Section 2255 Proceedings, Rule 8; United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005) (citations omitted). "Vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). The record conclusively demonstrates that an evidentiary hearing is not warranted and Robles is not entitled to relief.

I. FACTS AND PROCEDURAL HISTORY

On the evening of June 28, 1996, Robles and two co-conspirators ambushed Eugene Freeman ("Freeman") as he was walking to his car. Robles placed a gun to Freeman's face, ordered him to the ground, and then struck him in the head with the gun. Robles ordered Freeman to hand over the contents of his pockets, which included two hundred fifty dollars ($250.00), and he and his co-conspirators left Freeman on the roadside as they drove away in Freeman's car.

At approximately 1:00 A.M., Robles cut off an oncoming car, forcing the car to stop. Robles gave his gun to one of his co-conspirators who ordered the driver, Jose Garcia ("Garcia"), to the back seat. Robles and his two co-conspirators drove away in the car with Garcia still in the back seat. When Garcia tried jumping from the back seat, one of Robles' co-conspirators beat Garcia with the gun and placed him in the trunk. They drove Garcia to a secluded area and ordered him to jump from a cliff. Robles and a co-conspirator then set the car on fire. Garcia survived the jump and was able to seek help.

Weeks later, on July 17, 1996, Robles and a co-conspirator approached Michael George ("George") who was sitting in his truck outside his home. Robles pointed a gun at George and forced him out of the car. Robes and his co-conspirator then tied up George and his sister inside the house and stole a television and a pair of sneakers. Robles and his co-conspirator then drove away in George's truck.

Robles was charged in a thirteen-count indictment with carjacking, use of a firearm during the commission of a crime of violence, possession of a firearm by a drug user, possessionof a firearm by a felon, and use of fire to commit a felony.¹ On December 14, 2001, after a jury trial in which the government's evidence included the testimony of one of Robles' co-conspirators, Robles was convicted on all 13 counts.²

In a June 23, 2003 Amended Judgment,³ Robles was sentenced to 151 months on the carjacking and firearm possession counts (Counts 1 thru 8, 10, 12, 13); 60 months on the use of fire offense (Count 9); and 480 months on the use of a firearm during the commission of a crime of violence (Counts 6 and 11). These sentences were to run consecutively for a total of 691 months (57.8 years).

On appeal to the Court of Appeals for the Third Circuit ("Third Circuit"), Robles argued violations of his Fifth Amendment right to due process and Sixth Amendment right to a speedy trial and the Government's failure to present sufficient evidence to support his conviction. In a May 6, 2005 opinion, the Third Circuit held: 1) that the District Court did not err in denying Robles' motion to dismiss his indictment for violations of his Fifth Amendment right to due process and Sixth Amendment right to a speedy trial; 2) that each carjacking involved Robles' orhis co-conspirator's use of a gun and Robles and his co-conspirators accosted and physically harmed two of their victims and brandished a gun at two others, therefore, there was ample evidence for the jury to have concluded Robles' intent to cause his victims serious harm if necessary to steal the car; and 3) that evidence of the defendant's drug use on a single occasion is insufficient to support a conviction under 18 U.S.C. § 922(g)(3). Having found that the evidence was insufficient to support a conviction as to Counts 3, 7, and 12, the Third Circuit vacated Robles' conviction as to those Counts, and affirmed the judgment in all other respects. United States v. Robles, 129 Fed. Appx. 736 (3d Cir. 2005). The Third Circuit's ruling, which did not change Robles' sentence, was entered on May 31, 2005. His conviction became "final" 90 days later,⁴ and he filed this timely motion pursuant to 28 U.S.C. § 2255 on June 13, 2005, shortly after the Third Circuit ruled on his appeal.

II. DISCUSSION

A. Issues

Robles is now before the Court on a motion pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel on the following grounds: 1) failure to pursue an appeal on hisbehalf; 2) that the evidence was insufficient to convict him of possession of a firearm by a drug user pursuant to 18 U.S.C. § 922(g)(3), and that he was "actually innocent";⁵ 3) that the jury did not find that the 924 (c) charges in Counts 6 and 11, were second and subsequent offenses, and the Court made such findings and used the offense to enhance his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004); 4) that the jury did not find that he used a firearm; that bodily injury resulted from the offense; and that the offense involved carjacking, therefore, the Court improperly used these findings to increase his sentence in violation of Apprendi, Blakely, and United States v. Booker, 543 U.S. 220 (2005);⁶ and 5) that his counsel⁷ was ineffective in allowing the Court to use his prior state conviction over which it had no jurisdiction, and he was entitled to notice of use of the conviction under 21 U.S.C § 851 before the conviction could be used to place him in a criminal history category II.

The Government counters that Robles' claim that he was denied effective assistance by his counsel's failure to file an appeal on his behalf is without merit because his trial counsel did in fact file an appeal from the June 20, 2003 judgment of conviction and also filed an appellate brief. The Government also argues that Robles incorrectly claims that the jury did not find that the 924(c) charges in Counts 6 and 11 were second and subsequent offenses. The Governmentfurther argues that Robles' claim that the jury did not find that he used a firearm; that bodily injury resulted from the offense; and that the offense involved carjacking - findings Robles claims were used to enhance his sentence - were necessarily found by the jury and did not illegally increase Robles' sentence. The Government also contends that it is unaware of any prior state/territorial conviction that was used to raise Robles' criminal history category for sentencing purposes. Lastly, the Government concedes and argues moot, Robles' claim that there was insufficient evidence to convict him of possession of a firearm by a drug user under § 922(g)(3).

In his November 2011 supplemental § 2255 motion, Robles raises two new arguments: 1) that his counsel, provided ineffective assistance by allowing him to answer to a crime over which this Court lacked subject matter jurisdiction due to an expired statute of limitation; and 2) that his counsel was ineffective at trial in allowing him to be convicted where the evidence was insufficient to convict him of carjacking and firearms possession because the government failed to produce a victim who had been exposed to a weapon and carjacked and who testified that Robles was responsible for those acts. The Government counters that: 1) the response was untimely and should be summarily denied; 2) Robles was charged within the 5-year statute of limitations; 3) counsel raised the sufficiency of the evidence on all counts on appeal and the Third Circuit concluded that there was sufficient evidence to sustain the carjacking convictions; and 4) Robles' claims lack merit.

B. Applicable Legal Standards

A § 2255 motion is not a substitute for a direct appeal and serves only to protect a petitioner from a violation of the constitution or from a statutory defect so fundamental that a complete miscarriage of justice has occurred.⁸ It may not be used to relitigate matters decided adversely on appeal.⁹ Section 2255 permits a court to afford relief "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Therefore, to prevail on the instant Section 2255 motion, Robles must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); see also Cancel v. United States, No. CV. 2010-036, 2011 WL 4374960, at *2 (D.V.I. Sept. 19, 2011). Even an error that may justify a reversal on direct appeal will not necessarily sustain a collateral attack. See United States v. Addonizio, 442 U.S. 178, 184-85 (1979).

"[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not guarantee such a trial." United States...