Opinion
Civil No. 05-1367 (SEC), [Related to Criminal No. 03-103 (SEC)].
December 12, 2005
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Javier Martínez-Rosado (hereafter "Martínez") filed a Motion under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ( Docket No. 1). Martínez claims that he was denied effective assistance of trial counsel. The government opposes the motion and submits that the claim lacks merit ( Docket No. 10).
This matter was referred to the undersigned for report and recommendation (Docket Nos. 11, 12). For the reasons set forth below, this Magistrate-Judge RECOMMENDS that the motion be DENIED.
I. Procedural and Factual Background
On April 9, 2003, Martínez and his brother were charged in a one count indictment with aiding and abetting each other in the illegal possession with intent to distribute in excess of five kilograms of cocaine. The drug quantity actually involved was in excess of 1,230 kilos Criminal Case No. 01-103(SEC), Docket No. 5. Pursuant to a plea agreement entered into between the parties, defendant entered a guilty plea on November 21, 2003. Id. at Docket Nos. 14, 55, 83. At the Rule 11 proceedings, an extensive colloquy was held with petitioner. During the same, the plea agreement was discussed. In the Plea Agreement, Martínez stipulated that he was responsible for the illegal distribution of at least 50 kilograms but less than 150 kilograms of cocaine. Other adjustments provided or stipulated within the plea agreement were a three level reduction for defendant's acceptance and responsibility and a two level reduction if Martínez met all the requirements of the "safety valve" guideline provision. Paragraph 9 of the Plea Agreement specifically states and reads as follows: "United States and Defendant agree that no further adjustments or departures to the Defendant's base offense level are warranted at this time." The Plea Agreement provided that assuming a Criminal History Category of I, the government would recommend a sentence at the low end of the applicable guideline range, which was estimated at 108 months of imprisonment. The record reflects that during the Change of Plea hearing, Martínez represented to the Court that he was satisfied with his attorney, Luz M. Ríos-Rosario and indicated that she had rendered effective legal assistance. The Plea Agreement also incorporated a Statement of Facts. Martínez agreed it provided a true and accurate summary of the facts and indicated that the same reflected and supported his acceptance of criminal responsibility. ( Criminal No. 03-103 (SEC), Docket No. 83.) The Statement of Facts provided in part that Martínez had aided and abetted to remove 1,236 kilos of cocaine from a shipping container located in the cargo yard, Pier F, Puerto Nuevo, Puerto Rico. He was observed by shipping line security personnel loading multiple duffle bags containing "bricks" of cocaine into a van. Martínez was subsequently arrested, and admitted he had been recruited to take part in a drug smuggling venture, that he acted as a "lookout" while others placed bags into the van, and that he was to receive payment for his participation in a sum ranging from $10,000 to $15,000. Martínez admitted responsibility and was held responsible for the illegal possession with intent to distribute at least 50, but less than 150 kilograms of the cocaine. He agreed the facts were accurate in every respect. The Plea Agreement and the Statement of Facts were signed and adopted by Martínez, on November 21, 2003.
A change of plea (Rule 11) hearing was held on November 21, 2003. Criminal Case No. 01-103(SEC), Docket No. 68, 83. Prior to entering his plea the following excerpted colloquy occurred between the undersigned Magistrate-Judge and Martínez.
THE MAGISTRATE: I advise you that in that indictment you are being charged and the government is claiming that on April the 8th, here in San Juan, you both, helping each other or assisting each other in an unlawful way and with knowledge and intention to possess narcotics. You were found in possession of such narcotics with intention to distribute. And the indictment specifically mentions 5 kilos or more of cocaine. Is that what you understand about the charges to which you are pleading guilty?JAVIER MARTINEZ-ROSADO: Yes, Your Honor. . . .
Changes of plea were held simultaneously for two defendants; Javier Martínez and his brother Eliezer Martínez.
Id. at Docket No. 83, p. 6.
Martínez acknowledged to the Court that he had been advised by counsel of the possible maximum penalties, and based on the Court's inquiry it concluded that Martínez was fully aware of the nature of the charges and the maximum penalties to which he was exposed. Id. at p. 8. The Court also determined that Martínez was fully aware of his constitutional rights and consequences of pleading guilty and that he had discussed his rights with his attorney. Id. at p. 14. Additionally, Martínez while under oath; advised the Court that he was satisfied with the services of his attorney. Id. at p. 14. He further indicated that he had discussed the contents of the plea agreement with his attorney. Id.
Next, the Court discussed with Martínez the contents of the plea agreement, and petitioner acknowledged that he understood its contents and what he had stipulated to. Id. at pp. 15-23. During the hearing and while discussing the nature of the charge to which he was pleading guilty, Martínez indicated that he was aware that he would be held responsible for at least 50 kilos, but less than 150 kilos of cocaine and that called for a level 36 on the guideline scale. Petitioner knew the plea agreement provided for a three point adjustment based on his acceptance of responsibility. Id. at p. 20. The government then provided to the Court a summary of the evidence it intended to present against Martínez. In pertinent part, the evidence was summarized as follows: AUSA DANIEL VACCARO: both defendants, Javier Martínez-Rosado and Eliezer Martínez-Rosado . . ., aided and abetted each other and others to remove approximately 1,236 kilos of cocaine from a shipping container located at the cargo yard in the area of Pier F in Puerto Nuevo, Puerto Rico. . . . In the case of Javier Martínez-Rosado, he and others were observed by the Security Personnel of the shipping line loading multiple yellow duffle bags containing the bricks of the cocaine from the back of the container into a white rental van that had been parked at the scene, next to the shipping container. . . . After his arrest he was advised of his rights and provided a statement in which he admitted that he had been recruited to take part in this smuggling venture for approximately one month before he was arrested and that he was actually the lookout while others were placing the bags in the back of the rented van. . . . the net weight of the cocaine that was possessed by the defendant Javier Martínez and his brother Eliezer Martínez-Rosado for distribution with others was approximately 1,236 kilograms of cocaine.
Id. at pp. 25-27.
Martínez acknowledged that he understood what the government had proffered in regards to his participation in the offense charged. Id. at p. 28. He had no objections to the statements provided by the government. Id. at pp. 28-29. Actually, he was specifically asked whether he admitted every single factual allegation made by the government. To these questions, petitioner answered in the affirmative. Id. at p. 28-30. More so, petitioner admitted to assisting his brother, the co-defendant, in attempting or trying to remove 1,236 kilos of cocaine from a shipping container located at Pier F in Puerto Nuevo. Id. at p. 29, 32. Petitioner admitted that he was observed carrying bags where the cocaine was concealed from the container into a rented white van. Id. at p. 33. He also admitted that his role was that of acting as a lookout while others were to place bags of cocaine into the van. Id. at p. 33.
Based on Martínez' Responses to a detailed and clear questioning, the Court found that Martínez's plea was voluntary and that there was a basis in fact as to every element of the offense charged in Count One. Id. at p. 34. A Report and Recommendation was issued recommending that Martínez's plea be accepted, and the same was adopted on December 18, 2003. Criminal Case No. 01-103(SEC), Docket Nos. 62, 64. Martínez never objected to the contents of the Report and Recommendation or the judgment entered.
Sentencing was held on April 16, 2004. Id. at Docket No. 68. At that time the Court imposed a term of imprisonment of 108 month, a supervised release term of five years and a special monetary assessment of $100. Id. at. Docket Nos. 68, 71. Judgment was entered on April 22, 2004. Criminal Case No. 03-103(SEC), Docket No. 71. Martínez did not file a direct appeal.
On April 6, 2005, Martínez filed the present petition pursuant to 28 U.S.C. § 2255 (Docket No. 1). He raises a single issue as a ground for relief. Martínez claims that his trial counsel was ineffective in that she failed to argue that his role in the instant offense was that of a minor participant, and further asserts that he should have been sentenced by utilizing U.S.S.G. § 3B1.2.
II. Conclusions of Law
1) Section 2255 Claim
A. Legal Standard
Pursuant to 28 U.S.C. § 2255 there are four grounds upon which a federal prisoner may base a claim for relief. The prisoner may assert that: 1) the sentence was imposed in violation of the Constitution or laws of the United States; 2) the court was without jurisdiction to impose such sentence; 3) the sentence was in excess of the maximum authorized by law; and, 4) that the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255; See also Hill v. United States, 368 U.S. 424, 426-427 (1962). A federal prisoner may claim "the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . ." 28 U.S.C. § 2255. However, such a petition may be summarily denied where it contains mere bald assertions without specific factual allegations. Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992). Consequently, it is the petitioner's burden to show his entitlement to relief including his entitlement to an evidentiary hearing, Cody v. United States, 249 F.3d 47, 54 (1st Cir. 2001); David v. United States, 134 F.3d 470, 474 (1st Cir. 1968). Thus, even a facially adequate petition may be denied without a hearing where the alleged facts are conclusively refuted by the files and records of the case. Id.; accord, Lema v. United States, 987 F.2d 48, 51-52 (1st Cir. 1993). In the present case, Martínez did not request for an evidentiary hearing. A review of the record indicates that it was not necessary to hold one.
2. Ineffective Assistance of Counsel
Martínez rests his claim for § 2255 relief on the basis that trial counsel was ineffective at sentencing for not seeking a guideline sentencing adjustment on petitioner's alleged minor role or participation in the offense charged. The U.S. Supreme Court has set forth a two-prong test to determine whether a defendant has been denied a Sixth Amendment right to the effective assistance of counsel. It is a well settled principle that a conviction may be set aside because of ineffective assistance of counsel if: (a) considering all the circumstances, counsel's performance fell below an objective standard of reasonableness; and (b) there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668 (1984); accord, Cofske v. United States, 290 F.3d 437, 441 (1st Cir. 2002). "It is well settled that this right to effective assistance of counsel attaches at all critical stages of the trial, United States v. Wade, 388 U.S. 218 (1967), including sentencing. Gardner v. Florida, 430 U.S. 349, 358 (holding that "sentencing is a critical stage of the criminal proceeding at which [defendant] is entitled to the effective assistance of counsel")." United States v. Colón-Torres, 382 F.3d 76, 85 (1st Cir. 2004). In a post-conviction proceeding, the burden is on the petitioner to demonstrate ineffective assistance by a preponderance of the evidence. Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir. 1994) ; Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993).
The Supreme Court has noted that in the context of a challenged representation, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland v. Washington, 466 U.S. at 690. Because of the wide range of tactical decisions that a criminal defense attorney may be presented with in any given trial, judicial scrutiny of the attorney's performance must be "highly deferential' and indulge a strong presumption that the challenged action "might me considered sound trial strategy." Id. At 689. Indeed, "[a] fair assessment of attorney performance required that every effort be made to eliminate the distorting effect of hindsight." Id.
Martínez contends that his attorney was ineffective in failing to argue that his role in the instant offense was that of a minor participant. He argues that the court should have considered an adjustment under § 3B1.2 and sentenced him accordingly. Under § 3B1.2s provides that based upon the defendant's role in the offense, the offense level will be decreased by two levels if the defendant was a minor participant in any criminal activity. U.S.S.G. § 3B1.2(b). The minor participant role applies to a defendant who is less culpable than most other participants, but whose role could not be described as minimal. U.S.S.G. § 3B1.2 Application Note. 5.
Martínez argues that the plea agreement clearly sets forth that his status as a "look-out" man in the conspiracy makes him eligible for a downward departure under § 3B1.2, in that he played a minor role in the instant offense. He further contends that there exists no evidence other than that which establishes his role as that of a look-out in the conspiracy. According to Martínez, any other alleged evidence is unsupported and constitutes speculative assumptions which are inadmissible. Also, Martínez notes (although, incorrectly)that within the plea agreement he admitted responsibility for a maximum of 5 kilograms of cocaine, but argues that sentencing cannot be based upon calculations that are merely speculative. He also contends that there is no evidence to support the Court's findings making him responsible for "conspiring" to possess and possessing from 3.5 to 5 kilos of cocaine. He argues that his attorney was ineffective for failing to argue that pursuant to the guidelines his sentence was limited to a level 30.
Martínez also refers to his role as a "driver".
The government responds first that Martínez is incorrect in asserting that he was charged in a conspiracy. Indeed, Martínez was charged with aiding and abetting in the illegal possession with intent to distribute five kilograms or more of cocaine. Next, the government correctly notes that the record clearly reflects that Martínez was to be held accountable for the illegal possession with intent to distribute at least 50 but less than 150 kilograms of grams of cocaine, not 3.5 to 5 kilos of cocaine as argued by Martínez.
It was his brother and co-defendant who was held accountable with possessing with intent to distribute at least 3.5 to 5 kilograms of cocaine.
Initially, the undersigned notes that during the change of plea hearing Martínez agreed with the facts as set forth in the plea agreement. Martínez acknowledged in open court, under oath; that he was aware of the contents of the plea agreement, and acknowledged that he understood the same. Petitioner also acknowledged that he was aware that he would be held responsible for at least 50 kilos, but less than 150 kilos of cocaine and that called for a level 36 on the guideline scale, but that the offense level would be reduced by three points for acceptance and responsibility. Finally, he acknowledged that he understood what the government stated with regard to his participation in the offense charged, and that he had no objections to the statements provided by the government.
The law of this Circuit is firm and establishes that a litigant is bound by his statements to the Court. 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. Parrilla-Tirado, 22 F.3d 368, 373 (1st cir. 1994 (citing United States v. Pellerito, 878 F.2d 1535, 1539 (1st Cir. 1989)). More so, "the accuracy and truth of an accused's statements at a Rule 11 proceeding in which his guilty plea is accepted are `conclusively' established by that proceeding unless and until he makes some reasonable allegation why this should not be so. United States v. Butt, 731 F.3d 75, 79 (1st Cir. 1984). "A defendant should not be heard to controvert his Rule 11 statements in a subsequent § 2255 motion unless he offers a valid reason why he should be permitted to depart from the apparent truth of his earlier statement[s]." Id. (citing Crawford, supra, 519 F.2d at 350; United States v. Goodman, 590 F.2d 705, 710 (8th Cir. 1979); Walker v. Johnston, 312 U.S. 275, 286 (1941).
Great consideration is given to the transcript of Rule 11 hearing, and because it is contemporaneous with the entering of a defendant's guilty plea, it is highly relevant and provides competent evidence. Butt, 731 F.2d at 78-79. Inasmuch as a major purpose behind the Rule 11 inquiry is to promote the finality of litigation, see Ouellette, 862 F.2d at 374, Martínez has the burden of coming forward with reasons to show why the prior testimony, given under oath, was not accurate. Panzardi-Alvarez v. United States, 879 F.2d 975, 982 (1st Cir. 1989). This he has failed to do.
More so, there is no showing that his counsel was ineffective at sentencing for failing to promote the theory that Martínez was a "minor participant". The fact that some other co-defendant could have been considered more culpable, does not automatically qualify a defendant for a "minor" participant nor entails the minor role adjustment. United States v. Atanda, 60 F.3d 196, 198 n. 1 (5th Cir. 1995). Such an adjustment is appropriate only for "a defendant [who] was substantially less culpable than the average participant." Id. "A sentencing court's assessment of the defendant's role in criminal activity is highly fact-specific and depends upon the nature of the defendant's relationships to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise". United States v. Shonube, 998 F.2d84 (2nd cir. 1997.) A defendant bears the burden of proving his minor role by a preponderance of the evidence. United States v. Zuñiga, 18 F.3d 1254, 1261 (5th Cir. 1994). Notably, the plea agreement, agreed to and signed by Martínez, provides for no such adjustment. More so, the extent of petitioner's admissions before the court clearly established he knew of the scope and nature of the drug smuggling venture and the fact that large quantities of narcotics were to be smuggled. Quite simply, Martínez fails to show that he was entitled to a minor role adjustment and, thus, that his counsel was ineffective for failing to seek the two point reduction. See United States v. Mitchell, No. 98-20913, 263 F.3d 162 (5th Cir. 2001).
Further, during the Change of Plea hearing the government provided evidence that Martínez was observed loading multiple yellow duffle bags containing bricks of cocaine into the white rental van, that Martínez admitted he had been recruited to take part in the smuggling venture, that he was the lookout while other placed the bags in the back of the van, and that he was to receive remuneration for his participation. Also, it was determined through analysis that the van contained 1,236 kilograms of cocaine. The Court specifically asked Martínez if he had any objection to the statements provided by the government in terms of the evidence available or the extent of his participation, and he replied, "No". Indeed, Martínez admitted he was assisting his brother in the loading of the shipment of cocaine. More so, after hearing the government summary of the evidence, Martínez was asked if he wished to plead guilty, and he replied, "Yes".
Martinez was fully informed of the conditions and consequences of his plea by the Court during his change of plea hearing, and expressly acknowledged such understanding. The record is clear that Martínez was competent and fully aware of his actions. He was thoroughly examined and more than once assured he was not forced into signing the plea agreement. The plea agreement made specific mention of the base offense level and the adjustment to which the parties had stipulated. It also specified that the base offense level would be reduced pursuant to U.S.S.G. § 3E1.1, and if met, the safety valve provision under U.S.S.G. § 5C1.2, he would be entitled to a further reduction of two points in the offense level. Noteworthy is that the plea agreement makes specific mention that other than § 3E1.1 and § 5C1.2 adjustments, "there are no further adjustments or departures to the Defendant's base offense" that were warranted. It is also important to consider that despite the fact that the van contained 1,236 kilograms of cocaine, the plea agreement provided that Martínez would be held accountable for a far less amount, that is; at least 50 kilograms but less than 150 kilograms of cocaine. The stipulation in which the defense entered with the government, had a significant impact in the applicable sentencing range and it was beneficial for petitioner. Martínez acknowledged before the court, that he was aware that by pleading guilty the government would recommend a sentence of 108 months of imprisonment, and that is exactly the sentence he received. Finally, Martínez's statements at the plea proceeding clearly establish that he agreed with the contents of the plea agreement and fully understood its contents and implications at all times.
Another factor that must be considered is that Martínez "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland v. Washington, 466 U.S. 668, 689 (1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689. The record of the underlying criminal case belies petitioner's present claims inasmuch as, prejudice is concerned. He pled guilty pursuant to a plea agreement and was sentenced under its most favorable terms. See, e.g., United States v. Flowers, 2004 WL 1088767 *8 (D.Kan. 2004) (counsel not deficient where defendant received bargained-for sentence); Jolaoso v. United States, 142 F.Supp.2d 306, 308 (E.D.N.Y. 2001) (same); Ryan v. United States, 97 F.Supp.2d 190, 195 (DMUS. 2000) (same). Martínez has failed to overcome the presumption that his attorney's actions were nothing but sound trial strategy, and has not shown prejudice as a result of his attorney's actions. Finally, Martínez does not claim he would otherwise not have pled guilty and has failed to show any prejudice from his bargained-for sentence. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
III. Conclusion
Based upon the foregoing analysis, IT IS RECOMMENDED that motion for relied under 28 U.S.C. § 2255 ( Docket No. 1) be DENIED and DISMISSED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation waives the right to review by the District Court, and waives the right to appeal the District Court's order. United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).
SO RECOMMENDED.