Opinion
Civil No. 11–02262 ADC.
03-10-2015
Gabriel RIVERA–RODRIGUEZ, Petitioner, v. UNITED STATES of America, Respondent.
Gabriel Rivera–Rodriguez, Coleman, FL, for Petitioner. Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.
Gabriel Rivera–Rodriguez, Coleman, FL, for Petitioner.
Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.
OPINION AND ORDER
[Related to Crim. No. 07–00121(ADC) ]
AIDA M. DELGADO–COLÓN, Chief Judge.
Before the Court is petitioner Gabriel Rivera–Rodriguez's (“petitioner” or “Rivera–Rodriguez”) motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (“ § 2255 motion”) (ECF No. 1 ), and U.S. Magistrate Judge Camille L. Vélez–Rivé's Report and Recommendation (“R & R”) that the § 2255 motion be denied on its merits. ECF No. 14.
Petitioner claims ineffective assistance of trial and appellate counsel. He alleges that appellate counsel failed to: (1) argue that his sentence exceeded the statutory maximum prescribed for the least-serious, single drug for which he was convicted of conspiring to possess with intent to distribute (“Claim 1”), and (2) argue that the District Court erred in not applying the “clear and convincing evidence” standard in considering a cross-referenced murder (“Claim 2”); and that trial counsel failed to: (3) object to a weapons and supervisory role enhancement at sentencing (“Claim 3”), (4) inform him of a 235 month (19–year) plea offer (“Claim 4”), and (5) miscalculated the maximum sentence petitioner could receive if he rejected another 15–year plea offer (“Claim 5”). Id.
The government opposed petitioner's § 2255 motion (ECF No. 8), and petitioner filed a reply to the government's response (ECF No. 13). The Court referred the § 2255 motion to Magistrate Judge Velez–Rive for a R & R. ECF No. 11. On November 29, 2012, Magistrate Judge Velez–Rive issued the R & R, recommending dismissal of the § 2255 motion on its merits. ECF No. 14.
On December 20, 2012, petitioner objected to Magistrate Judge Vélez–Rivé's legal findings, conclusions, and actual recommendation as to Claims 3, 4, and 5, and re-iterated his initial arguments as to Claims 1 and 2. ECF No. 15. Later, on July 25, 2013, petitioner submitted a supplemental objection to the R & R. ECF No. 21.
Petitioner's objections, due December 17, 2012, were mailed three days late. See ECF Nos. 14, 15–2 .Still, petitioner's arguments are being considered as if timely.
I. Review of a Magistrate Judge's Report and Recommendation
A district court may refer pending motions to a Magistrate Judge for a R & R. 28 U.S.C. § 636(b)(1)(B) ; Fed.R.Civ.P. 72(b) ; D.P.R. Civ. R. 72(a). Any party adversely affected by the recommendation issued may file written objections within fourteen (14) days of being served with the R & R. Fed.R.Civ.P. 72(d). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ). “The district court need not consider frivolous, conclusive, or general objections.” Rivera–Garcia v. United States, No. 06–1004, 2008 WL 3287236, at *1 (D.P.R. Aug. 7, 2008) (citing Battle v. U.S. Parole Comm'n, 834 F.2d 419 (5th Cir.1987) ). Moreover, to the extent the objections amount to no more than general or conclusory objections to the R & R, without specifying to which issues in the report the party is objecting, or where the objections are repetitive of the arguments already made to the magistrate judge, a de novo review is unwarranted. Id. 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(a), (b)(1) ; see also Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985) ; Alamo–Rodriguez v. Pfizer Pharma., Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003).
Finally, “[a] district court is under no obligation to discover or articulate new legal theories for a party challenging a report and recommendation issued by a magistrate judge.” Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998) (additional citation omitted). “Instead, the report and recommendation is reviewed by the district judge for clear error.” Rivera–Garcia, 2008 WL 3287236, at *1 (citing Camardo v. Gen. Motors Hourly–Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) (“It is improper for an objecting party to ... submit[ ] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”)).
Petitioner did not object to the Magistrate Judge's summation of the procedural background of his criminal case and subsequent appeal. See ECF No. 14at 224–25. Therefore, the Court ADOPTSthe same in full, and INCORPORATES IT BY REFERENCEherein.
Reviewing the Magistrate Judge's R & R, the Court arrives at the same conclusions as to all claims, but supplements portions of the findings.
A. Ineffective Assistance of Appellate Counsel Claims
1. Claim 1
Petitioner first claims that appeal counsel failed to argue that his sentence exceeded the statutory maximum prescribed for less than 100 grams of heroin, the least-serious, single drug in conspiracy for which he was convicted. ECF No. 1–1 at 3–6. Magistrate Judge Velez–Rive found that Claim 1 lacked merit because this Court was not required to sentence petitioner below the statutory maximum for the least-serious drug, since the jury returned a specific verdict—rather than a general verdict—as to which drugs and what amount of drugs were part of the conspiracy. ECF No. 14 at 227–29. The Magistrate Judge reasoned that if appellate counsel had raised Claim 1 on appeal, it would have been unsuccessful, and appellate counsel is not required to raise every non-frivolous claim, and, much less, a frivolous claim, on appeal. Id. at 228–29.
The Magistrate Judge found that, if the jury had returned a general verdict without specifying which drugs they had found were part of the conspiracy, the trial court would have been required to sentence petitioner below the statutory maximum for the least punishable drug in the conspiracy. Id. at 227–28 (citing United States v. Rhynes, 196 F.3d 207 (4th Cir.1999) ). In Rivera–Rodriguez's case, however, the jury returned a specific verdict, finding him guilty of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack), less than 100 grams of heroin, 5 kilograms or more of cocaine, and 100 kilograms or more of marijuana. See Crim. No. 07–121(ADC), ECF No. 1124. The Court adds that the proper way to determine a base offense level for a conviction involving several controlled substances, as in Rivera–Rodriguez's case, is to use the Drug Equivalency Tables of the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov.2007), comment, (n. 10). This is precisely what the Court described at sentencing: “When you have different types of drugs you just take those drugs and convert everything to marijuana, and you make an analysis of what is the base offense level ...” See Crim. No. 07–121(ADC), ECF No. 1935 at 11. This analysis, however, was unnecessary in Rivera–Rodriguez's case since the Court applied the cross-reference, drug-related murder in establishing a base offense level of 43.
It should be noted that the Court balanced other factors to sentence Rivera–Rodriguez to 43 years of imprisonment, rather than the statutory maximum penalty of life imprisonment. See Crim. No. 07–121(ADC), ECF No.1936at 19–22.
Finding Claim 1 unmeritorious, the Court ADOPTS the Magistrate Judge's recommendation as supplemented herein, and DENIES that claim.
2. Claim 2
Petitioner argues that appellate counsel provided ineffective assistance of counsel by not arguing on appeal that the District Court erred when it failed to apply the “clear and convincing evidence” standard to a cross-referenced murder. ECF No. 1–1 at 7–11. The Magistrate Judge first found that a court may establish by a preponderance of the evidence that there had been a killing that would constitute murder under 18 U.S.C. § 1111. See ECF No. 14 at 229 (citing, inter alia, United States v. Reyes–Echevarria, 345 F.3d 1, 7 (1st Cir.2003) ). Next, the Magistrate Judge determined that there was evidence presented at trial that implicated Rivera–Rodriguez in the murder. Id. at 229–30.
The Court adds that at petitioner's sentencing, the Court cited to substantial evidence that provided a more than adequate basis for attributing a murder to petitioner:
According to the testimony of Carlos Brito–Pacheco, ... Defendant Axel Muniz, ... along with the Defendant Gabriel Rivera–Rodriguez, ... Mr. Carlos Rivera–Moreno, ... and Wilbert Arroyo–Rosario, ... killed Ricardo Haddock–Collazo, ... out in the woods of Guayama.
This information was provided by Defendant Axel Muniz to Defendant Brito–Pacheco. And, as I mentioned, this was while acting in furtherance of the conspiracy and while seeking Mr. Brito's help in disposing or hiding of the body to either avoid or delay police detection.
According to the testimony, [Mr. Haddock] was hit with a stick ... or a heavy object over the head because he was cooperating with local authorities providing information regarding the drug distribution activities occurring at the Borinquen Ward, Guayama. This clearly establishes the motives for such murder.
This witness also stated that the victim had been tied and beaten up. And, as previously mentioned, all circumstances or ways in which the body was found, the body was dressed, were clearly depicted by this witness as testifying of his personal observations when he got to the place, and what had been done and where the body had been moved to.
Crim. No. 07–121(ADC), ECF No 1936 at 14–15. The Sentencing Court also found that Brito–Pacheco's testimony was corroborated by the testimony of a Puerto Rican police officer from the homicide division and a forensic pathologist. Id. at 15.
Furthermore, as the Magistrate Judge points out, petitioner has failed to make a requisite showing of prejudice. ECF No. 14 at 229–30. “Even if such cross reference murder guideline was not applied, the amount of drugs attributed to Rivera–Rodriguez ... would have still allowed for the sentence imposed ..., making such a sentencing mistake, if any, and failure to raise said grounds in the direct appeal to be harmless.” Id. Indeed, the Sentencing Court made clear, “a life sentence is also warranted based on other applicable guideline adjustments.” Id. The Court found that a base offense level of 38 could have been established for 4.5 kilograms of crack cocaine. Id. Two points could have been added because the distribution occurred in a protected location, and since petitioner possessed weapons, such as a 9–mm pistol and rifle, another two point enhancement would have been warranted. Id. at 231–32. Finally, since petitioner was a supervisor of one of the drug points and owner of the crack cocaine being distributed at Borinquen Ward, at least another two points could have been added.Id. at 231–32. “So, technically here, with this type of Offense Level, that would bring it to an adjusted Offense Level of forty-four, which, in essence, is adjusted once back again to a forty-three that provides for a life sentence. So, from either perspective, this is what this Defendant will be facing.” Id. at 232.
The Sentencing Court found petitioner responsible for a total of more than 4.5 kilograms of crack cocaine, based on testimony of the government's two cooperating witnesses. Crim. No. 07–121(ADC), ECF No. 1935at 32. On appeal, Rivera–Rodriguez argued that his sentence was based on an unreliable calculation of the quantity of drugs attributable to him. United States v. Rivera–Rodriguez, 617 F.3d 581, 606–07 (1st Cir.2010). The First Circuit Court of Appeals held that the district court did not clearly err in relying on a forensic chemist's estimate of the average weight of a capsule of crack cocaine to formulate its calculations for sentencing. Id. at 606.
Finding Claim 2 lacking in merit, the court ADOPTS the Magistrate Judge's recommendation as supplemented herein, and DENIES that claim.
B. Ineffective Assistance of Trial Counsel Claims
1. Claim 3
Petitioner argues that trial counsel provided ineffective assistance when he failed to object to the weapon and supervisory role enhancement at sentencing. ECF No. 1–1 at 12–15. The Magistrate Judge found that neither a weapons or a supervisor role enhancement were considered by the Court at the time of sentencing, and thus, the record defies petitioner's averments as to Claim 3. ECF No. 14 at 225. Petitioner, himself, concedes that “the record will reveal that no such enhancements were actually considered in the final calculus at the time of sentencing.” ECF No. 15 at 4. Thus, the Court ADOPTS the Magistrate Judge's recommendation as to Claim 3, and DENIES that claim.
2. Claim 4
Petitioner claims that trial counsel was ineffective for failing to inform him of a 19–year plea offer made by the government. ECF No. 2–1 at 3–8. In support of his claim, petitioner alleges in an affidavit that trial counsel “never relayed [the 19–year] plea offer to me nor did he offer me any legal advice as to whether or not to accept the plea offer.” ECF No. 2–5 at 2. He claims that he was unaware of this offer until appellate counsel sent Rivera–Rodriguez a copy of the case file that contained the 19–year plea offer letter dated October 22, 2007, indicating that the offer would remain in effect until October 31, 2007. ECF Nos. 2–1 at 5, 2–3.
Petitioner also submits a Motion for Extension of Time filed by trial counsel on December 14, 2007, stating that Rivera–Rodriguez had been unable to reasonably consider a plea offer extended on November 9, 2007. ECFNo. 2–4. A further review of the record reveals, however, that the November 9, 2007 plea offer referenced in the motion, was as to another co-defendant, Jose J. Colon–Bou. See Crim. No. 07–121(ADC), ECF Nos. 666,679.Thus, this evidence is irrelevant to petitioner's October 22, 2007, 19–year plea offer.
Accepting petitioner's allegations as true, allowing the 19–year plea offer to expire without advising petitioner or allowing him to consider it constituted ineffective assistance. See Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012) (“[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”). However, petitioner must still establish prejudice, or “a reasonable probability [he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel.” Id. at 1409. The Magistrate Judge found petitioner's “mere averment” that “[h]ad [trial counsel] relayed this plea offer to me and explained all of the facts to me I would have accepted this plea offer” ECF No. 2–5 at 3, “is speculative, at most.” ECF No. 14 at 225–26. Indeed, the record reflects that petitioner rejected a later, 15–year plea offer and agreement, and decided to proceed to trial (see Claim 5, infra). It is not reasonably probable that Rivera–Rodriguez would have accepted an earlier plea offer for a less-favorable term of 19–years.
Since petitioner has failed to satisfy the prejudice requirement of Strickland, the Court ADOPTS the Magistrate Judge's recommendation as supplemented herein, and DENIES Claim 4.
3. Claim 5
Petitioner alleges that he was denied his Sixth Amendment right to effective assistance of counsel by trial counsel's erroneous advice with regard to a 15–year plea offer. ECF No. 2–1 at 8–12. Petitioner states in his affidavit that “[a]t the start of trial there was a plea offer for 15 years.”ECF No. 8 at 11. Petitioner alleges that he rejected this offer and chose instead to go to trial because trial counsel had told him that, “at the most if I lost trial I would be a level 38 and a Criminal History I and that based on my criminal history and the fact Judge Delgado–Colon was very fair I could expect a sentence of 19 years 7 months if I was found guilty. The low end of the guidelines.” ECF No. 2–5 at 3. According to petitioner, trial counsel “told me ... that I did not have to worry about anything related to the alleged murder of Mr. Haddock as the evidence would show this.” Id. He claims that if he had known he was facing a life sentence or even a 43–year sentence, “and not the guideline sentence [trial counsel] told me to expect if I was found guilty, I would not have hesitated, and I would have accepted the plea offer of 15 years.” Id.
For purposes of the instant analysis, even accepting as true petitioner's allegation that trial counsel misadvised him as to the applicable sentence, the Magistrate Judge found that an inaccurate prediction concerning a sentence is not enough, standing alone, to demonstrate ineffective assistance of counsel. ECF No. 14 at 225–26; see Moreno–Espada v. United States, 666 F.3d 60, 65 (1st Cir.2012) (determining that attorney's failure to account for defendant's potential sentence exposure—whether objectively reasonable or not—does not satisfy Strickland's prejudice requirement); United States v. LaBonte, 70 F.3d 1396,1413 (1st Cir.1995), rev. on other grounds, 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) (“An attorney's inaccurate prediction of his client's probable sentence, standing alone, will not satisfy the prejudice prong of the ineffective assistance test.”).
Furthermore, the record defies petitioner's assertions regarding his knowledge of his sentence exposure. Petitioner was made aware of his potential exposure of life imprisonment before the start of trial. See Crim. No. 07–121(ADC), ECF No. 2381 at 6. Petitioner was present at a hearing prior to the commencement of trial wherein the Court discussed and gave notice to all defendants facing trial, defendant among them, of the government's intent to file notices for enhanced penalties, under § 851, against six of the ten defendants who were proceeding to trial. Id. at 3–4. Speaking directly to Rivera–Rodriguez, the Court informed him that, “the mandatory will be increased once the notice is filed from a minimum of 10 years to a minimum of 20 years with also an exposure of life imprisonment.” Id. at 6. Rivera–Rodriguez's counsel even asked the Court to clarify for defendant the definition and scope of life in prison. Id. at 8. The Court explained, “Life imprisonment in the Federal prison is natural life. Which means you will not go out for the rest of your life.” Id.
The Court made clear that defendants may decide to “exercise[ ] [their] right to go to trial knowing what are the pros and cons of exercising [their] right to trial or ... consider[ ] the possibility of entering into a plea agreement with the government in exchange of a plea of guilty.” Id. at 7. The Court explained:
Of course you have the Constitutional right to go to trial, and to be presumed innocent and it is the government that has the burden of presenting evidence against you. But, the attorneys have investigated this case and conducted discovery, and they have had the time to discuss options with you and when I say options I mean plea offers made by the government. I also understand that probably those offers are not as good as you may wish, but these type of cases are complex, these type of cases carry very harsh penalties that the attorneys cannot change and that the Court cannot change because that is what the law says.
Id. at 6. The Court then gave defendants and their attorneys ten minutes to discuss these matters before the start of jury selection. Id. at 7. Petitioner fails to allege that his counsel repeated any alleged misadvise after the Court's warning that he faced exposure to life imprisonment if convicted. As such, petitioner has failed to establish prejudice given that he was made fully aware of his sentence exposure.
Without a showing of prejudice, Claim 5 fails; thus, the court ADOPTS the Magistrate Judge's recommendation as supplemented herein, and DENIES that claim.
Even though the supplemental motion was filed after the one-year statute of limitations had expired, and is also arguably successive, the Court will address whether Alleyne applies here.
Petitioner filed a supplemental § 2255 motion on July 31, 2013, in which he claims that Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), should retroactively apply to his case. In Alleyne, the Supreme Court held that “[f]acts that increase the mandatory minimum sentence are ... elements and must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2158. As an initial matter, Alleyne was decided on June 17, 2013. Petitioner, meanwhile, was sentenced on February 27, 2008. Thus, contrary to petitioner's contention, it was not possible for this Court to have violated Alleyne in sentencing him as that decision had not been handed down when he was sentenced. Moreover, for purposes of the instant proceeding, the Supreme Court has not held Alleyne to be retroactively applicable on collateral review. Jeanty v. Warden, FCI–Miami, 757 F.3d 1283, 1284 (11th Cir.2014) ; In re Mazzio, 756 F.3d 487, 489–92 (6th Cir.2014) ; United States v. Winkelman, 746 F.3d 134, 136 (3d Cir.2014) ; In re Payne, 733 F.3d 1027, 1029–30 (10th Cir.2013) ; Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013) ; In re Kemper, 735 F.3d 211, 212 (5th Cir.2013) ; United States v. Redd, 735 F.3d 88, 91–92 (2d Cir.2013). Thus, that decision is not applicable here. See Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 2482, 150 L.Ed.2d 632 (2001) (holding that a “a new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to be retroactive.”). As such, Alleyne offers petitioner no retroactive relief under § 2255. In addition, the record clearly shows that defendant was advised of the mandatory minimum sentence as charged and under the § 851 enhanced penalties.
III. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, a “district court must issue or deny a certificate of appealability (“COA”) when it enters a final order adverse to the applicant.” To merit a COA, an applicant must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Here, because petitioner has failed to demonstrate a denial of his Sixth Amendment right to effective assistance of counsel, the Court finds that petitioner is not entitled to a COA. Therefore, a COA is DENIED.
IV. Conclusion
For the reasons discussed herein, the § 2255 motion and supplemental motion (ECF Nos. 1, 21 ) are DISMISSED WITH PREJUDICE. Petitioner is DENIED a COA. The Clerk is instructed to enter judgment accordingly.
SO ORDERED.
REPORT AND RECOMMENDATION
CAMILLE L. VELEZ–RIVE, United States Magistrate Judge.
INTRODUCTION
On March 19, 2007, petitioner Gabriel Rivera–Rodríguez (hereinafter “petitioner Rivera–Rodríguez”) was charged in Criminal No. 07–121(ADC), together with other codefendants, in a two-count Indictment with violations related to drug trafficking offenses. Count One charged a conspiracy to possess with intent to distribute and distribution, on date unknown but no later than 2003, in excess of one (1) kilogram of heroin, a Schedule I, Narcotic Controlled Substance; in excess of five (5) kilograms of cocaine, a Schedule II, Controlled Substance; in excess of fifty (50) grams of cocaine base, a Schedule II Controlled Substance; and in excess of one hundred kilograms of marihuana, a Schedule I, Controlled Substance, as prohibited by Title 21, United States Code, Sections 841(a)(1) and 860. All in violation of Title 21, United States Code, Section 846.
The second count of the Indictment refers to a narcotic forfeiture allegation. (Criminal No. 07–121, Docket No. 1).
Petitioner Rivera–Rodríguez was convicted at a jury trial as to said Count One. The jury verdict showed that the jury unanimously agreed that it was proven beyond a reasonable doubt that the quantities of controlled substances which defendant Rivera–Rodríguez conspired to possess with intent to distribute were the following: mixture or substance containing cocaine base (crack) was fifty (50) grams or more; heroin was less than one hundred (100) grams; the mixture or substance containing a detectable amount of cocaine was five (5) kilograms or more, and the quantity of a mixture or substance containing a detectable amount of marijuana was one hundred (100) kilograms or more. (Criminal No. 07–121, Docket No. 1124, Verdict Form).
This special verdict form is important because petitioner raises a claim as to the sentence that had to be imposed for the jury determined the amount of heroin being less than one (100) hundred grams.
Petitioner Rivera–Rodríguez was sentenced to forty-three (43) years of imprisonment followed by supervised release of fifteen (15) years. Then after, petitioner Rivera–Rodríguez filed a direct appeal to the Court of Appeals for the First Circuit which issued its decision affirming the conviction and sentence imposed. See United States v. Rivera–Rodríguez, 617 F.3d 581 (1st Cir.2010). (Criminal No. 07–121, Docket No. 2021).
On December 28, 2011, petitioner Rivera–Rodríguez filed a motion for post-conviction relief on grounds of ineffective assistance of counsel at trial and on appeal, under Title 28, United States Code, Section 2255. (Docket No. 1). Mainly, petitioner claims ineffectiveness regarding lack of opposition to the sentence imposed by enhancements for his supervisory role and weapons by his trial counsel. As to his appeal counsel, petitioner submits no allegations on appeal were submitted for miscalculation for the amount of drugs he should be held liable in the conspiracy based on a finding the amount of heroin was less than one hundred (100) grams and should have been sentenced for the least serious conspiracy related to heroin, as well as objected to the sentence imposed based on a murder being used as cross-reference.
On August 9, 2012, respondent United States of America (hereinafter “respondent”) filed its response in opposition. (Docket No. 8). Petitioner Rivera–Rodríguez requested and was granted an opportunity to file a traverse which appears filed on October 18, 2012. On October 16, 2012, the matter was referred to a Magistrate Judge for report and recommendation. (Docket Nos. 11, 12 and 13). LEGAL ANALYSIS
In petitioner's post-conviction relief motion, he raises ineffective assistance of counsel as a violation to defendant's Sixth Amendment right for the following reasons:
(1) Appeal counsel failed to argue that defendant was sentenced above the statutory maximum for the least serious single conspiracy he was convicted, insofar as the jury having found only a limited amount of drugs in regard to the possession with intent to distribute heroin;
(2) Appeal counsel failed to argue the sentencing court erred by applying the standard to a cross-reference of a murder;
(3) Trial counsel failed to object the enhancements at sentence for weapons and a supervisory role;
(4) Trial counsel failed to inform there had been a plea offer of nineteen (19) years of imprisonment (235 months) made by the government;
(5) As to a previous plea offer of fifteen (15) years, trial counsel miscalculated the maximum sentence defendant would receive if he rejected said plea.
A. Ineffective Assistance by Trial Counsel.
To succeed on an ineffective assistance of counsel claim, petitioner has the burden of showing that: (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996).
In applying this test, first announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), judicial scrutiny of counsel's performance must be highly deferential. There is, in other words, a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
Insofar as claims three, four and five as mentioned above, the record clearly defies petitioner's averments as to his trial counsel. The third claim that trial counsel failed to object the enhancements at sentence for weapons and a supervisory role, the record shows no such enhancements were considered by the Court at the time of sentence and, thus, none was applied. (Criminal No. 07–2262, Docket No. 1935, Transcript Sentencing Hearing).
The claim raised by petitioner as item four, which states that trial counsel failed to inform there had been a plea offer of nineteen (19) years of imprisonment (235 months) made by the government and item five, as to a previous plea offer of fifteen (15) years, evidently show from petitioner's own averments that he was not willing to accept the plea offer even for the lower sentence of fifteen (15) years, which was indeed rejected. Thus, Rivera–Rodríguez' averment that he may have considered a higher plea offer rather than going to trial, without more, is clearly also defied by the record.
Furthermore, the available record and the presentence report statements of defendant Rivera–Rodríguez further indicate he opted tote he opted to go to trial since he wanted to prove that the main government witnesses were all liars with absolutely no credibility. (Presentence report p. 11; Criminal No. 07–121, Docket No. 550; Docket No. 723 (consideration of plea offer with a total offense level 36 pending full discovery); Docket No. 902 (minutes setting trial for defendants who had not accepted plea offers); Docket No. 886 (defendant Rivera–Rodríguez' informative motion trial ready); Docket No. 980 (joinder to co-defendants' pretrial motions). Under such evidence as to petitioner's unwillingness to accept any plea offer but rather to go to trial, his mere averment in the petition for post-conviction relief regarding the possibility of a plea offer for more time than what he clearly rejected, is speculative, at the most.
To establish defendant Rivera–Rodríguez' position as to having wanted to prove lack of credibility of witnesses as a defense the record shows he requested during trial to be able to present an expert as to the effect of crack consumption by government witness José I. Rivera Díaz. (Criminal No. 07–121, Docket No. 1048; Id., Docket No. 1081). Defendant Rivera–Rodríguez also attempted to impeach the handwriting of said witness in a handwritten document. (Id., Docket No. 1080; Id., Docket No. 1094).
The allegation of trial counsel's miscalculation as to the offense insofar of what could be the maximum sentence Rivera–Rodríguez would receive if he rejected said plea and such miscalculation would have made a difference in the decision to go to trial or to take a plea offer does not favor petitioner Rivera–Rodríguez in the claim of ineffective assistance. An inaccurate prediction concerning a sentence is not enough, standing alone, to demonstrate ineffective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ; United States v. Sweeney, 878 F.2d 68 (2d Cir.1989) ; Hill v. Lockhart, 894 F.2d 1009, 1010–11 (8th Cir.1990) (rejecting claim of ineffective assistance based solely on allegation that counsel erroneously estimated the defendant's possible sentencing range under the Sentencing Guidelines).
Even when pleading guilty, all pertinent facts cannot be known and all advice offered by counsel need not withstand a retrospective examination in a post-conviction hearing.
Even if we consider as true petitioner's claim of his trial counsel's advice as to the applicable sentence, such a miscalculation of the applicable sentencing guidelines has also been considered, in a case where a defendant has waived his right to appeal under a plea agreement, as the kind of garden variety claims of error that are insufficient to find the waiver of appeal, under ordinary circumstances, or as a reversible error. Sotirion v. United States, 617 F.3d 27, 39 (1st Cir.2010). Neither is such miscalculation considered sufficient to raise the miscarriage of justice criteria to set aside a sentence. United States v. Calderón–Pacheco, 564 F.3d 55, 59 (1st Cir.2009).
The concept of miscarriage of justice criteria which is meant to be applied only for egregious cases and sparingly, without undue generosity. United States v. Teeter, 257 F.3d 14, 25–26 (1st Cir.2001).
The record also provides prior notice to defendant Rivera–Rodríguez of the government's intention to seek enhancement of defendant's minimum mandatory sentence to the mandatory minimum term of twenty (20) years because of his prior felony drug offenses convictions. (Docket No. 1027, Information in Accordance with 21 U.S.C. § 851 ). The minutes of the Court further advised defendants of the government's notice of filing the information as to the prior convictions of various co-defendants, including Rivera–Rodríguez, who were apprised by the Court individually prior to trial (Docket No. 1034). As such, petitioner Rivera–Rodríguez cannot claim he was prejudiced by alleged trial counsel's error as to what he may have considered the sentence to be if convicted.
B. Ineffective Assistance by Appeal Counsel.
Petitioner Rivera–Rodríguez also claims he should have been sentenced under the least serious drug trafficking offense determined by the jury which he construes as only less than one hundred (100) grams of heroin, a mistake he attributes to appeal counsel.
First, the evidence as to petitioner Rivera–Rodríguez established he participated in the drug trafficking conspiracy initially when “Las Avispas Dos” (the second “Wasp” organization) group was reorganized since a meeting was held in the year 2003 and was then in charge of the crack cocaine that was distributed through the drug points at Borinquen Ward. There was also evidence he participated in the murder of one Haddock, in furtherance of the drug conspiracy. One of the government cooperators identified Rivera–Rodríguez as transporting crack cocaine to the Luis Palés Matos Public Housing Project from Borinquen Ward. Police surveillance placed Rivera–Rodríguez in his house providing narcotics to runners of the drug points. Testimonies were represented of some of the co-conspirators/cooperators to sustain these findings made when the Court ruled on the Rule 29 presentation referring to his participation in the conspiracy meeting, working initially as runner for the crack substance and being in control of the drug point of La Pluma, making personal delivery of crack to runners or sellers and distributing drugs at Luis Palés Matos Public Housing Project. Police officers José Bermúdez and Marilyn Torres also testified as to seizure of marihuana and drug paraphernalia at premises where Rivera–Rodríguez was present. In regard to a murder related to the controlled substance distribution, there was testimony from Carlos Brito and José Rivera Díaz, corroborated by César Alicea, who identified defendant Rivera–Rodríguez as participating in the killing of Ricardo Haddock and subsequently moving the body, which was prompted by the belief Haddock was cooperating with law enforcement. Testimony from the Homicide Division established through one undercover agent (Sepúlveda) that he bought drugs from Rivera–Rodríguez. There was testimony as to the amounts of drugs sold by each shift and these illegal activities taking place within a thousand (1,000) feet from a school, including surveillance activities conducted at the drug point by Carmelo Pérez. (Criminal No. 07–121, Docket No. 1892, pp. 28–32).
Secondly, the jury returned a special verdict form in regards with the specific amount of drugs to be attributed to defendant Rivera–Rodríguez under the conspiracy charged in Count One of the Indictment. As raised by petitioner, there was a determination that Rivera–Rodríguez was involved solely with less than one hundred (100) grams of heroin. Still, his participation as to the additional remaining controlled substances object of the single conspiracy refers to being found by the jury involved with fifty (50) grams or more of cocaine base, five (5) kilograms or more of cocaine and one hundred (100) kilograms or more of marijuana. (Criminal No. 07–121, Docket No. 1124, Verdict Form; Docket No. 1935, Sentencing Transcript, pp. 9–12).
With the first and second predicates above, the sentence of the Court allowed for an enhanced penalty of a minimum of twenty (20) years and a maximum of life, for the doubling of the penalties had been clearly apprised to defendants when the government notified and the Court explained the filing of the information under Section 851.
When a jury has determined solely the conspiracy involved a type and quantity of drugs sufficient to justify a sentence above the default statutory maximum and has found a particular defendant guilty of participating in the conspiracy, the sentencing court may then lawfully determine the drug quantity attributable to that defendant and sentence him accordingly. Derman v. United States, 298 F.3d 34, 43 (1st Cir.2002).
Petitioner Rivera–Rodríguez argues he should not have been sentenced above the least amount of statutory maximum prescribed for less than a hundred (100) grams of heroin as determined by the jury regarding to his participation in the conspiracy, which was twenty (20) years. For such argument, petitioner relies on United States v. Rhynes, 196 F.3d 207 (4th Cir.1999) in that a defendant cannot be sentenced for more than the statutory maximum for “the least-serious, single drug conspiracy of which he may have been convicted”.
After the decisions in Apprendi and in Rhynes a sentencing court in the imposition of a sentence is not to exceed the statutory maximum applicable to an indeterminate quantity of the least-punished drug that was an object of the conspiracy. As argued by the government herein, such mandatory maximum term to be applied to the least-punished drug alleged in an indictment applies when we are dealing with a general verdict form to the jury and, thus, the jury did not determine the drug type involved. Such is not the situation in petitioner Rivera–Rodríguez' case.
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (other than the fact of a prior conviction, any fact that increases penalty for the crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt).
The special verdict form attributed drug quantity beyond reasonable doubt by the jury as to each particular defendant, not merely a finding of a conspiracy-wide drug quantity. (Criminal No. 07–121, Docket Nos. 1121, 1122, 1123, 1125, and 1126). Thus, we are not facing a situation where the sentencing court had to make an individualized finding as to drug quantity, for the special jury verdict considered the matter and there was ample trial evidence regarding defendant Rivera–Rodríguez' participation in the drug offense, the amount of drugs that were moved through the time of distribution examined and calculation by an expert as to the weight of particular quantity of drugs, sufficient for the sentencing court to sentence the defendant Rivera–Rodríguez as it did. United States v. González–Vélez, 466 F.3d 27 (1st Cir.2006) (the special jury form to determine the conspiracy-wide drug quantity, made a finding that the court would need for sentencing).
The jury differentiated the amount of each controlled substance as to each of the defendants in the conspiracy in Criminal No. 07–121. As to co-defendants José Rivera–Moreno, Eduardo Pabón–Mandrell, José E. Torres–Canales, and Excel A. Muñiz–Massa, they were found to have one (1) kilogram or more of heroin; as to co-defendant Christian Arzola–Martínez, similar to petitioner herein, he was found to have participated in a conspiracy to possess with intent to distribute less than one hundred (100) grams of heroin.
The maximum statutory penalty available to the district court at sentencing for a defendant convicted of a drug conspiracy is based on the drug quantity and amount reflected in the jury verdict attributable to the conspiracy as a whole. United States v. González–Vélez, 466 F.3d at 35–36 ; United States v. Irizarry, 404 F.3d 497, 504 (1st Cir.2005) (explaining that in a drug conspiracy case, the jury sets the maximum penalty available to the district court at sentencing by determining the amount of drugs attributable to the conspiracy as a whole); see United States v. De La Cruz, 514 F.3d 121, 137 n. 7 (1st Cir.2008).
Thus, the first claim of ineffective assistance of counsel raised by petitioner Rivera–Rodríguez as to his appeal counsel regarding entitlement to sentencing under the lesser amount of drugs of the jury verdict does not prosper. Having indeed filed a direct appeal, appeal counsel is not required to raise therein every non-frivolous claims but may select from among them in order to maximize the likelihood of success on appeal. Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (claim that counsel failed to make a particular argument on appeal).
A second claim of ineffective assistance of appeal counsel refers to the sentencing court having erred by applying the standard to a cross-reference murder and appeal counsel not presenting such argument on direct appeal.
The sentencing court determined the evidence established at trial there had been a killing that would constitute murder under Title 18, United States Code, Section 1111, and as such, it was also reflected in the presentence report and the guideline discussed for up to a sentence of life.
The Sentencing Guideline at 2D1.1(d)(1) provides:
(d) Cross Reference
(1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate, if the resulting offense level is greater than that determined under this guideline.
A court may apply the murder cross reference to a drug conspiracy conviction to sentence a defendant up to life in prison had it been established by a preponderance of the evidence. See U.S.S.G. § 2D1.1(d)(1) ; United States v. Rodríguez–Marrero, 390 F.3d 1 (1st Cir.2004) ; United States v. Reyes–Echevarría, 345 F.3d 1, 6 (1st Cir.2003).
See U.S.S.G. § 2D1.1(d)(1) (cross-referencing to first degree murder guideline “[i]f a victim was killed under circumstances that would constitute murder ... had such killing taken place within the territorial or maritime jurisdiction of the United States”). The first degree murder guideline, in turn, mandates a life sentence. See id. § 2A1.1 (setting base offense level of forty-three for first degree murder); id. Ch. 5 Pt. A (mandating life sentence for offense level of forty-three).
Said murder was referred in Criminal No. 07–121 as an overt act in the conspiracy regarding the death of Ricardo Haddock as per page 7 of the Indictment. There was also evidence presented at trial that placed petitioner Rivera–Rodríguez participating in such a killing. Even if such cross reference murder guideline was not applied, the amount of drugs attributed to Rivera–Rodríguez under the special jury verdict would have still allowed for the sentence imposed because of the amount of drugs attributed to Rivera–Rodríguez, making such a sentencing mistake, if any, and a failure to raise said grounds in the direct appeal to be harmless.
The application of the same sentence was further discussed in the government's response to above petition. The government submits the sentencing guideline that could be calculated for petitioner Rivera–Rodríguez, with or without the murder cross-reference, would have yielded the same results. Thus, no prejudice can be established without the murder reference for the evidence and the conviction obtained would have allowed for the same sentencing calculation as to this defendant Rivera–Rodríguez.
Besides the determination as to the amount of drugs as to defendant for the conspiracy charged and the special verdict form, the Court found these drugs were being distributed within one thousand (1,000) feet from a public housing or elementary school or park, and defendant was previously convicted in a court of law for a felony drug offense, a Class A felony. Additionally, it was found that, under Guideline Section 2D1.1(d)(1), a victim was killed under circumstances that would constitute a murder. (Criminal No. 07–121, Docket No. 1936, Sentencing Hearing).
More importantly, the government avers defendant was not sentenced beyond the statutory maximum of a life sentence. The government discusses the applicable enhancement regarding the supervisory role in the offense for Rivera–Rodríguez was clearly established as the owner of the drug point for crack cocaine at the Borinquen Ward. The amount of drugs moved therein could also be easily established for a base offense level of thirty eight (38). Then, two (2) points would be added for the illegal activity took place in a protected location for a total offense level of forty (40). There was also evidence that defendant possessed a gun, raising the total offense level to forty-two (42), and because of his supervisory role the two (2) additional level would raise the final offense level to forty-four (44), which when adjusted back to forty-three (43) would have still provided for a life sentence to be imposed. Since with the level forty-three (43) found by the sentencing court through the murder-cross reference guideline, petitioner Rivera–Rodríguez was sentenced to forty-three (43) years of imprisonment, special supervised release term of fifteen (15) years and no fine, with the special monetary assessment of one hundred dollars ($100.00).
The special verdict of the jury found petitioner Rivera–Rodríguez, beyond reasonable doubt, responsible for each of the drugs and quantities mentioned in Count One of the Indictment, except as to heroin, where the responsibility found was for less than one hundred (100) grams.
The government's position is a reflection of the sentencing court's determining at the sentencing hearing wherein the Court clarified that even in the absence of the cross-reference to murder guideline, a life sentence was also warranted on other applicable guideline adjustments. (Criminal No. 07–121, Docket No. 1936, pp. 15–17).
Regardless of the above government's contentions as to the available sentences allowed by the enhancements that were established during trial, the fact is the jury determined quantities of drug attributed to the defendants under the conspiracy, which statutory maximum would have still be life imprisonment. After all, the statutory maximum for a cocaine conspiracy that involves more than five (5) kilograms is life imprisonment and only if no quantity of cocaine has been determined it would then be imprisonment of twenty (20) years. The court sentenced Rivera–Rodríguez to forty-three years (43) of imprisonment, a sentence that is less than the statutory maximum penalty of life imprisonment, which would not be in violation of defendant's rights. See United States v. Villarmán–Oviedo, 325 F.3d 1, 18 (1st Cir.2003) ; United States v. Johnstone, 251 F.3d 281, 285–286 (1st Cir.2001) (sentence that was below the statutory maximum which would have applied had the jury failed to identify any specific amount of drugs attributable to defendant under the convicted drug conspiracy involving therein required amounts, rendered inapplicable the rule under Apprendi, 530 U.S. at 466, 120 S.Ct. 2348 ). C. Cause and Prejudice Standard.
See sentencing court calculation of the sale of crack cocaine at the drug point managed by defendant Rivera–Rodríguez even when minimum shifts of three (3) times a week being at least larger than four point five (4.5) kilos, which starting with an offense level of thirty eight (38), with the enhancements allowed and discussed above, even without the cross murder reference, would have also yielded a guideline range of forty-three (43). (Criminal No. 07–121, Docket No. 1936, Sentencing Transcript pp. 2–3).
Additionally, a petitioner must establish that counsel's action for the acts claimed to constitute ineffective assistance were objectively unreasonable. Cause is not synonymous with a ground for relief and even a finding of cause and prejudice would not entitle a petitioner to habeas relief, but merely allow a federal court to consider the merits of a claim that otherwise would have been procedurally default. Then petitioner must establish actual prejudice.
Actual prejudice that needs to be shown refers to a reasonable probability that, but for counsel's unprofessional errors the result of the proceedings would have been different. Strickland, 466 U.S. 668, 694, 104 S.Ct. 2052 (1984) ; see Roe v. Flores–Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (holding that counsel's failure to raise a particular claim on appeal is to be scrutinized under the cause and prejudice standard when that failure is treated as a procedural default by the state courts. Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial).
A review of the several grounds raised on appeal as to petitioner Rivera–Rodríguez and the remaining co-defendants under the Court of Appeals' opinion refers to a spate of claims in the process, including challenges to certain evidentiary rulings, challenges to the sufficiency of the evidence, ex-parte communications with prospective jurors and challenges to the sentencing process and their outcomes.
Insofar as co-defendant Rivera–Rodríguez, the Court of Appeals for the First Circuit found no error in finding him individually responsible for at least four point five (4.5) kilograms of crack cocaine, an issue contested by appeal counsel as to the average vial of each vial of crack cocaine when the Court applied a mathematical formula. On appeal it was found the government presented evidence that defendants, including co-defendant Rivera–Rodríguez, conspired to distribute heroin, cocaine, cocaine base and marijuana and killed and attempted to kill individuals to further intimidate and exert control, with specific reference as to having killed Ricardo Haddock on or about September 12, 2004, upon a belief he was providing information about the drug distribution organization to law enforcement authorities. (Criminal No. 07–121, Docket 2021, Opinion Court of Appeals, First Circuit, pp. 3, 5–6, 49). Murders committed in the course of a drug conspiracy can be taken into account when sentencing for the drug crimes. There is no Apprendi violation for it does not apply to findings made for purpose of sentencing guidelines were defendants are held accountable for murder in connection with the drug conspiracy. United States v. Martínez–Medina, 279 F.3d 105 (1st Cir.2002). Insofar as appeals counsel's alleged errors, ineffective assistance faces a higher hurdle for appellate counsel need not and should not raise every non-frivolous claim. Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. 746, 145 L.Ed.2d 756 ; Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), and to succeed in making a showing that counsel was objectively unreasonable is evidently more difficult. Regardless, the Strickland test need not be addressed in a particular order, if it is easier to dispose of an ineffective claim on lack of sufficient prejudice, such course is deemed proper. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. When an appeal has been duly filed, generally only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome. Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (reference to Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986) ).
On appeal it was determined the trial court acted within its discretion to rely on the expert testimony of a chemist from the Forensic Science Institute, in assessing the drug quantity for which Rivera–Rodríguez was responsible.
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Considering the above discussed, petitioner Rivera–Rodríguez has not established cause and prejudice as to the alleged ineffective assistance of counsel's claims in that alleged counsel's unprofessional errors so upset the adversarial balance that the trial was rendered unfair. Neither has petitioner established that counsel's representation fell below an objective standard of reasonableness and there exists a reasonable probability that, but for such errors by counsel, the result of the proceedings would have been different. Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) ; Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Therefore, petitioner has not established that the identified omissions or acts of counsel were outside the wide range of professionally competent assistance nor that he suffered prejudice, for which in the absence of cause and prejudice, the post-conviction motion lacks merit.
CONCLUSION
In view of the above, and there being no merit to the motion for post-conviction relief, it is recommended that petitioner' Section 2255 claim (Docket No. 1) be DENIED.
IT IS SO RECOMMENDED.
The parties have fourteen (14) days to file any objections to this report and recommendation. Amended Fed. R. Crim. P. 59(b)(2). See also Amended Local Rules. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150–151 (1st Cir.1994) ; United States v. Valencia–Copete, 792 F.2d 4 (1st Cir.1986). See Paterson–Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir.1988) (“Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round”).