Opinion
Civil No. 14-1290 (JAF) Criminal No. 11-260
06-12-2014
RICARDO DEL-VALLE-DÍAZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
Petitioner, Ricardo Del-Valle-Diaz, brings this pro-se petition under 28 U.S.C. § 2255 for relief from sentencing by a federal court, alleging that the sentence imposed violated his rights under federal law. He requests an order to vacate, set aside, or correct the sentence imposed in Crim. No. 11-260. (Docket No. 1.)
I.
Background
On July 7, 2011, the grand jury rendered an indictment against the petitioner for coercing a minor to engage in sexually-explicit conduct. (Crim. No. 11-260, Docket No. 12.) On September 6, 2011, the petitioner agreed to plead guilty. (Crim. No. 11-260, Docket No. 28.) The plea agreement recommended the statutory minimum term of fifteen years. This recommendation was based on a predicted total adjusted offense level of 35 and a criminal history category of I—yielding an imprisonment guideline range of 168-210 months. The Presentence Investigation Report, however, calculated the petitioner's total offense level at 37, resulting from the addition of a two-level enhancement for the vulnerability of the victim. With this two-level enhancement, the advisory sentencing range was 210 to 262 months. On May 8, 2012, the petitioner was sentenced to 210 months. (Crim. No. 11-260, Docket No. 45.) The petitioner timely appealed his conviction. The First Circuit affirmed. United States v. Del Valle-Diaz, No. 12-1723 (1st Cir. March 20, 2013). The petitioner did not request a petition for a writ of certiorari. The petitioner's conviction became final on June 18, 2013. On April 4, 2014, the petitioner filed this petition, alleging, among other things, various types of ineffective assistance of counsel. (Docket No. 1.) The government opposed. (Docket No. 3.)
II.
Legal Standard
A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner may challenge his sentence on the ground that, inter alia, it "was imposed in violation of the Constitution or laws of the United States." Id. A petitioner cannot be granted relief on a claim that has not been raised at trial or direct appeal, unless he can demonstrate both cause and actual prejudice for his procedural default. See United States v. Frady, 456 U.S. 152, 167 (1982). Indeed, "[p]ostconviction relief on collateral review is an extraordinary remedy, available only on a sufficient showing of fundamental unfairness." Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). Claims of ineffective assistance of counsel, however, are exceptions to this rule. See Massaro v. United States, 538 U.S. 500, 123 (2003) (holding that failure to raise ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255 review).
III.
Discussion
Because the petitioner appears pro se, we construe his pleadings more favorably than we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, the petitioner's pro-se status does not excuse him from complying with procedural and substantive law. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
The petitioner alleges several species of ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a movant must show (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for his counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. A. Counsel was not ineffective for failing to object to the charging statute as vague or overbroad
The petitioner alleges that counsel failed to object to the charging statute, 18 U.S.C. § 2251(a), as vague or overbroad.
The standard used to determine whether a statute is void for vagueness is whether men of common intelligence can guess its meaning. Broderick v. Oklahoma, 413 U.S. 601, 607 (1973). The petitioner does not even attempt to specify what part of the statute is vague. Nor does the petitioner cite to any authority supporting his contention that § 2251(a) is vague on its face or as applied. This might be because the force of precedent moves decisively against his claim. See, e.g., United States v. Frabizio, 459 F.3d 80, 84- 86 (1st Cir. 2006) (federal child pornography statute is not unconstitutionally overbroad); United States v. Robinson, 137 F.3d 652 (1st Cir. 1998); see also United States v. Gallo, 239 F.3d 572 (3d Cir. 2001) (upholding constitutionality of §§ 2251(a) and 2252(a)(4)(B)). As such, the petitioner's claim fails. B. Counsel was not ineffective for failing to negotiate a plea agreement under Rule 11(c)(1)(C)
The petitioner alleges that counsel failed to negotiate a plea agreement with the government under Rule 11(c)(1)(C) that, according to the petitioner, would have obligated us to impose a sentence based on the specific sentence or sentencing range agreed to by the parties. Again, the petitioner fails to supply his contention with the support of the record. Instead, the petitioner asserts that his counsel failed to inform that we were not bound by the plea agreement he entered into with the government. And yet, at the change of plea hearing, we apprised the petitioner that we were not bound by any sentencing recommendation and that we retained sole sentencing discretion. The petitioner acknowledged this. (Crim. No. 11-260, Docket No. 52 at 18.)
It is a well-established principle of law that a defendant's "declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v. Torres-Rosario, 447 F.3d 61, 69 (1st Cir. 2006) (holding that a court is entitled to give weight to assurances made at change of plea hearings absent a sound reason for disregarding them); United States v. Padilla-Galarza, 351 F.3d 594, 598 (1st Cir.2003) ("Ordinarily, a defendant is stuck with the representations that he himself makes in open court at the time of the plea."); United States v. Parrilla-Tirado, 22 F.3d 368, 373 (1st Cir.1994) (stating that the court will not permit a defendant to turn his back on his own representations to the court merely because it would suit his convenience to do so); United States v. Lemaster, 403 F.3d 216, 221 (4th Cir.2005) (a defendant's solemn declarations in open court affirming a plea agreement carry a strong presumption of verity because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy). Because he does not offer any valid reasons why we should disregard his prior assurances that he offered a knowing and voluntary guilty plea, the petitioner's claim fails. C. Counsel was not ineffective for failing to negotiate a plea agreement under a different statute or charge
The petitioner claims that counsel was ineffective for failing to negotiate a plea agreement under a different statute or charge. The petitioner seems to ignore that the charging function rests with the prosecutor. It is well-settled that the decision to charge a defendant, and with what charges, traditionally rests with the individual prosecutor. See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997) ("[T]he discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect...is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors; United States v. Armstrong, 517 U.S. 456, 464 (1996) (the decision whether or not to prosecute and what charge to file generally rests entirely within the discretion of the prosecutor). As such, the petitioner's counsel was not ineffective for not usurping or interfering with the prosecutor's charging discretion. D. Counsel was not ineffective for failing to challenge the factual basis of his guilty plea
The petitioner argues that his counsel was ineffective for failing to challenge the factual basis of his guilty plea. However, the record belies the petitioner's assertion. We reminded the petitioner that the factual basis of his guilty plea was stipulated in writing. Thereafter, we recited the factual basis of his guilty plea and the petitioner acknowledged the account as correct and accurate. (Crim. Docket No. 52 at 16-18.) Therefore, the factual basis for the plea is readily apparent from the record and our Rule 11 colloquy with the petitioner. Coupled with the petitioner's failure to bring nothing more than conclusory allegations to support this claim, the petitioner's claim fails. E. Counsel was not ineffective for failing to fully explain the Presentence Investigation Report
Next, the petitioner claims that his counsel was ineffective for failing to fully explain the Presentence Investigation Report. Again, the record contradicts the petitioner's assertions.
The record clearly shows that the petitioner had ample opportunity to both discuss and raise objections to the Presentence Investigation Report:
THE COURT: Let me ask you this, Ms. Carrillo: Is there any valid, legal objection to the contents of the Presentence Report? You may argue whatever you want of course. There is an adjustment that I think I should not consider, all those things, but aside from that, from these issues, I can go one way or the other. Is there any valid, legal objection to the contents of the Presentence Report prepared by Ms. Davila?(Crim. Docket No. 51 at 4-5.) The fact that petitioner was aware that he could be subject to an enhanced sentence due to factors detailed in the Presentence Investigation Report, reflects his knowledge and understanding of the report. Here, again, the petitioner fails to provide any details concerning what his attorney should have investigated and how the information ascertained from such investigation would have helped his cause. See, e.g., Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994) (without a specific, affirmative showing of what the missing evidence or testimony would have been, a habeas court cannot even begin to apply Strickland's standards). The petitioner's claim fails. F. Counsel was not ineffective for failing to object to sentencing enhancements
MS. CARRILLO: No, Your Honor. There is no valid, legal argument.
THE COURT: You find that it's --
MS. CARRILLO: I understand, Your Honor that this is according to the law. There is a two level enhancement in this case. Even though at the time that the Government and I negotiated this case, we did take into account the reality of the case and the reality of the victim, and both parties were aware that this victim was someone that was a vulnerable victim, but due to the facts and circumstances of the case, we did agree to a sentence of 15 years and not to take into account that --even though it was taken into account because she is a victim for the purpose of guidelines, we did not take
it into account, Your Honor. So -- but legally wise, we do understand that it could be applied.
THE COURT: Okay. And what is your client's concern, if I may know, that I see him like -
MS. CARRILLO: Your Honor, my client has expressed that he is -- it's too many years he's confronting. I don't know if this Court remembers at the time of the change of plea, he was stating about 15 years is too many years.
And right now he's in a state of trying to defend himself or avoid being sentenced to even something more than the 15 years, which will be the recommendation given by probation, according to the PSR.
So he's very concerned as to that. He feels that in some way he was kind of pressured, but I do understand why the reason he's stating that is survival of himself or trying not to -- it's very difficult for him accepting the fact that he's facing probably more than 15 years, even though he does understand that there's a statutory minimum in this case and that the parties recommend the 15 years. He's still very scared of this two additional years or whichever amount of years this Court decides to impose as to him. So that's his concern right now, Your Honor.
THE COURT: Very well. Let me ask you, Mr. Del Valle, do you have any objection to the contents of the Presentence Report? Do you have any have any objection to the contents of the Presentence Report?
THE DEFENDANT: I don't know I - I don't even know what to say, to say the truth. I'm really very scared, and this is the first time -
THE COURT: Well, you know --
THE DEFENDANT: I apologize to everyone, because this is the first time this happens to me. I lost my family, my wife, and I'm very truly repentant. But I'm really not that kind of person.
THE COURT: Well --
THE DEFENDANT: I'm just scared. I don't know.
The petitioner claims that his counsel failed to object to sentencing enhancements. Because the petitioner was well aware of both the mandatory and maximum sentences—and of our discretion in structuring and imposing sentence—this claim is without merit. See United States v. Chavez, 40 Fed. Appx. 482, 484 (9th Cir. 2002) (a defendant informed by the court as to applicable minimum and maximum sentences, and also the advisory nature of the sentencing guidelines, is adequately informed and counsel cannot be ineffective for failing to warn of a more severe sentence.). Moreover, the petitioner fails to argue how any alleged miscalculation of enhancements by his counsel would have resulted in a different outcome. As such, he fails to show that he suffered any prejudice from any alleged error of his counsel. See Garuti v. Roden, 773 F.3d 18, 25 (1st Cir. 2013). The petitioner's claim fails. G. Counsel was not ineffective for failing to object to our jurisdiction
Finally, the petitioner makes a conclusory allegation—devoid of references to the record or applicable case law—that his counsel failed to challenge our jurisdiction. The petitioner fails to recall that at the change of plea hearing we detailed the proof required for jurisdiction to attach. There, the petitioner repeatedly acknowledged understanding the requirements for jurisdiction to attach. (Crim. Docket No. 52 at 8-9). Again, the petitioner cannot challenge the knowing and voluntary admissions made under oath at a change of plea hearing. Torres-Rosario, 447 F.3d at 69 (1st Cir. 2006). Moreover, the petitioner merely asserts this claim without further development or any reliance on the record. Mere assertions without any evidentiary support are insufficient to warrant collateral relief. Cody v. United States, 249 F.3d 47, 53 n. 6 (1st Cir.2001). As such, the petitioner's claim fails.
IV.
Certificate of Appealability
In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever issuing a denial of § 2255 relief we must concurrently determine whether to issue a certificate of appealability ("COA"). We grant a COA only upon "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this showing, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While the petitioner has not yet requested a COA, we see no way in which a reasonable jurist could find our assessment of his constitutional claims debatable or wrong. The petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22.
V.
Conclusion
For the foregoing reasons, we hereby DENY Petitioner's § 2255 motion (Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court.
IT IS SO ORDERED.
San Juan, Puerto Rico, this 12th day of June, 2014.
__________
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE