Opinion
Civil No. 02-2514(PG) [Related to Criminal No. 96-119(PG)]
May 14, 2003
Felix Corporán-Cuevas, Coleman, Florida, for plaintiff
H.S. Garcia, Nelson J. Perez-Sosa, San Juan, Puerto Rico, for defendant
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Félix Corporán-Cuevas (hereafter "Corporán"), proceeding pro se, filed a Verified Petition to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 ( Docket No. 1). Corporán asserts ineffective assistance of trial and appellate counsel. He asks the Court to vacate and set aside his sentence and conviction, and to permit him to proceed to trial to show his actual innocence. He also requests an evidentiary hearing. The government responds that Corporán's assignment of errors fails to present a cognizable claim for relief and as such the motion should be dismissed ( Docket No. 98). Corporán's trial counsel, Juan R. Acevedo-Cruz also responded to the grounds in the Petition that Corporán did not receive effective assistance of trial counsel ( Docket No. 8).
For the reasons set forth below, this Magistrate-Judge RECOMMENDS that the petition be DISMISSED and DENIED.
I. Background
Corporán is currently incarcerated at the FCC Coleman, Coleman, Florida. He was one of five defendants charged in a criminal action in the District of Puerto Rico. Corporán was charged in three counts of a five-count superseding indictment, as follows: Count One charged conspiracy to violate the federal Hostage Taking statute, in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1203; Count Two charged aiding and abetting in violation of 18 U.S.C. § 2 and the federal Hostage Taking statute, 18 U.S.C. § 1203; and Count Three charged aiding and abetting under 18 U.S.C. § 2 to unlawfully take a motor vehicle (carjacking) in violation of 18 U.S.C. § 2119(1) and (2).
The Hostage Taking Act, 18 U.S.C. § 1203, provides as follows:
(a) Except as provided in subsection (b) of this section, whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or conspires to do so, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.
(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless —
(A) the offender or the person seized or detained is a national of the United States;
(B) the offender is found in the United States; or
(C) the governmental organization sought to be compelled is the Government of the United States.
(2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.
(c) As used in this section, the term "national of the United States" has the meaning given such term in section 101(a)(22) of the Immigration and Nationality Act ( 8 U.S.C. § 1101(a)(22)).
The facts of the case as set forth by the First Circuit are as follows:
On April 18, 1996, in the District of Puerto Rico, defendant's alleged co-conspirator Felix Beras and an unidentified individual abducted thirteen-year old Carlos de la Rosa Berbera who was traveling in a car with his grandmother, Carmen Villar-Cordero. At gun-point, the two kidnapers ordered Mrs. Villar-Cordero out of the car and drove off with her grandson. Two hours later, Mrs. Villar-Cordero received a ransom call, ordering that she produce the child's parents or money in exchange for her grandson's freedom. By then, it appears that, in addition to Félix Beras, defendant Corporán and two other co-defendants were holding young Carlos. The FBI succeeded in rescuing the child four days later in Rio Piedras. Both Corporán and Beras were on the scene and were arrested.United States v. Corporán-Cuevas, 244 F.3d 199, 201 (1st Cir.), cert. denied, 534 U.S 880 (2001).
Corporán was represented in the district court proceedings by Attorney Juan R. Acevedo-Cruz (hereafter "Acevedo"). On October 28, 1996, the matter was set for trial and after the jury had been empaneled and preliminary instructions given by the Court, Corporán decided to plead guilty to counts one and two of the superseding indictment pursuant to a straight plea ( Docket No. 86)., Count Three was dismissed on the motion of the United States ( Docket No. 121). A presentence investigation report was filed with the Court on January 27, 1997, and the government filed objections to same ( Docket No. 111, 113). The case was called for sentencing on February 3, 1997, however, sentencing was not held and the matter was reset to February 7, 1997, and again to February 12, 1997 ( Docket Nos. 114, 117). At sentencing on February 12th, the Court determined that Corporán had a Total Offense Level of 36 and a Criminal History Category of I ( Docket No. 313). Corporán was sentenced to a term of imprisonment of 200 months in each of Counts One and Two to be served concurrently, and a supervised release term of three years as to Count One and five years as to Count Two was also imposed ( Docket No. 122). Judgment was entered on February 18, 1997 ( Docket No. 122).
Corporán, proceeding pro se, timely filed a notice of appeal on February 21, 1997, and the matter was subsequently remanded for re-sentencing ( Docket Nos. 124, 283). Attorney Bruce J. McGiverin was appointed as new counsel on appeal and he continued to represent Corporán upon remand. On appeal Corporán raised the following issues:
— The indictment failed to allege one of the essential elements of the crime of hostage taking (i.e. the international element).
— The Rule 11 colloquy before the district court was fatally flawed.
— There were violations of Fed.R.Crim.P. 32, concerning the timeliness with which Corporán was provided with a copy of the presentence report and the government's objections thereto.
— A sentencing error occurred in imposing a concurrent 200 month sentence for a conviction on Count I charging a violation of 18 U.S.C. § 371, which provides for imprisonment of not more than five years.Corporán-Cueuas, 244 F.3d at 202, 204-205.
The First Circuit held that any error resulting from the indictment's failure to allege international element of statute was harmless, the Rule 11 plea colloquy was adequate, the fact that sentencing took place less than 35 days after defendant was served with a copy of the presentence did not violate the Federal Rules of Criminal Procedure, and the concurrent 200 month prison sentence constituted as to each count reversible error. Accordingly, the matter was remanded for re-sentencing.
On June 4, 2001, Corporán filed objections to the presentence report and on August 6, 2001, he filed a sentencing memorandum in opposition to a sentencing enhancement based on the use of a dangerous weapon ( Docket Nos. 299, 308). Upon re-sentencing, the Court found that Corporán had a Total Offense Level of 34, as opposed to his original Total Offense Level of 36, and a Criminal History Category of I ( Docket No. 313). Corporán was re-sentenced on August 17, 2001, to a term of imprisonment of 60 months as to Count One and 160 months as to Count Two, said terms to be served concurrently with each other ( Docket No. 311). The terms of supervised release were again three years as to Count One and five years as to Count Two, also to be served concurrently. Id Corporán did not appeal the sentence imposed upon re-sentencing on August 17, 2001, although he continued to seek relief through the direct appeal of the initial plea and sentencing proceedings. Subsequent to the decision of the First Circuit of the issues raised on direct appeal, Corporán filed a petition for a writ of certiorari with the United States Supreme Court. It was denied on October 1, 2001 ( Docket No. 1, Ex. B).
The previous sentence of 200 months of imprisonment was reduced to 160 months.
Corporán now seeks relief pursuant to 28 U.S.C. § 2255. As discussed above, Corporán was re-sentenced on August 17, 2001, and received a lesser sentence than when he was sentenced on February 12, 1997. His § 2255 motion does not, however, address any issues regarding re-sentencing.
II. Analysis
A. Standard
Pursuant to 28 U.S.C. § 2255 there are four grounds upon which a federal prisoner may base a claim for relief: 1) that the sentence was imposed in violation of the Constitution or laws of the United States; 2) that the court was without jurisdiction to impose such sentence; 3) that the sentence was in excess of the maximum authorized by law; and, 4) that the sentence is otherwise subject to collateral attack. 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.
The Supreme Court has narrowly confined the scope and availability of collateral attack for claims that do not allege constitutional or jurisdictional errors. Such claims are properly brought under § 2255 only if the claimed error is "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Even if the claims are the proper subject of a § 2255 motion, failure to raise them either at trial or on direct appeal bars a collateral attack unless the movant can demonstrate "cause" excusing the default and "actual prejudice." United States v. Frady, 456 U.S. 152, 167-68 (1982); Knight, 37 F.3d at 774. Finally, 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).
Corporán claims that he is actually innocent. Additionally, he raises the issue of ineffective assistance of counsel. He contends that trial counsel was ineffective:
1. For failing to timely challenge the indictment inasmuch as the indictment was jurisdictionally defective.
2. Because of his failure to ascertain that Corporán would be sentenced correctly under the sentencing guidelines, his failure to timely review the presentence report with Corporán and to defend Corporán's rights pursuant to Fed R Grim P 32(b)(6)(A).
3. For failing to object to the three level enhancement pursuant to U.S.S.G. § 2A4.1(b)(6), for allegedly placing the hostage victim in the custody of others.
4. For failing to argue that the Hostage Taking Act, 18 U.S.C. § 1203 deprived Corporán of his right to equal protection.
5. For failing to obtain a voice identification expert, and to appeal the District Court's denial of the motion to suppress identifications and statements.
6. For providing unprofessional and ill advice to Corporán to plead guilty and by scaring or coercing Corporán into pleading guilty.
7. For failing to file a direct appeal on Corporán's behalf. 8. For failing to object to Corporán's three level enhancement under the provisions of U.S.S. G. § 3B1.1(b), as a manager or supervisor, when said enhancement was not noticed in the presentence report.B. Issues Raised on Direct Appeal, Grounds A, B and F
The undersigned turns first to the government's position that Corporán may not relitigate issues previously raised on direct appeal. The government argues that Corporán raised and argued in the First Circuit arguments closely related to those now raised. It further argues that since the court of appeals settled the issues regarding the indictment's failure to allege the international element of the Hostage Taking Act, violations of Rule 11 proceedings, violations of Rule 32 of the Federal Rules of Criminal Procedure and sentencing, said rulings are fatal to Corporán's present claims and his request for an evidentiary hearing. The government contends that even though the claims are not identical to Corporán's present allegations, they serve as a procedural bar to same and he cannot renew those claims through a collateral proceeding.
Corporán is not entitled on collateral review to relitigate issues raised on direct appeal, absent an intervening change in the law. Davis v. United States, 417 U.S. 333, 342 (1974) (holding that a § 2255 hearing is permitted on an issue previously addressed on direct appeal when there has been an intervening change in the law). Cf. Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1993) ("`[I]ssues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion.'" (quoting Dirring v. United States, 370 F.2d 862, 864 (1st Cir. 1967)); United States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990) ("We note that certain other claims raised in the § 2255 motion were decided on direct appeal and may not be relitigated under a different label on collateral review."). Additionally, Corporán is not entitled to relitigate issues that could have been raised on direct appeal, but were not, absent a showing of cause excusing the default and actual prejudice resulting from the error of which he complains. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993) (holding that a party must show cause and prejudice to raise an objection not argued on direct appeal in a § 2255 motion (citing Frady)).
Notably, several of the grounds raised by Corporán in his § 2255 motion are the same or similar to those raised on direct appeal, albeit they are now clothed as ineffective assistance of counsel.
Corporán's first ground for § 2255 relief (Ground 1) is that his attorney provided ineffective assistance of counsel when he failed to object to the fact that the indictment failed to state an offense under 18 U.S.C. § 1203 because of the lack of a jurisdictional fact (i.e., at least one of the defendants was not a national of the United States). Corporán raised an almost identical issue on appeal when he argued that the indictment failed to allege one of the essential elements of the crime of hostage taking — the "so-called international element" — (i.e., the indictment did not state that he or any person were not nationals of the United States). The First Circuit resolved this issue finding that even if the "so-called international element" should have been pleaded in the indictment, any error resulting from that omission was harmless inasmuch as Corporán freely admitted that he was not a United States national. Corporán-Cueuas, 244 F.3d at 202. The First Circuit stated, "[n]othing in the record suggests that Corporán could in any way have been prejudiced by the indictment's failure to have alleged his Dominican citizenship." Id. Ground A was decided on direct appeal and may not be relitigated in this § 2255 motion.
In Corporán's second ground for relief (Ground 2), he asserts that his attorney was ineffective for failing to ascertain whether he was being sentenced correctly under the sentencing guidelines and that counsel failed to review the presentence report with Corporán and to ensure that Corporán's rights under Fed.R.Crim.P. 32(b)(6)(A) were not violated by the untimely disclosure of the presentence report. The record reflects that on direct appeal, the First Circuit discussed the alleged violations of Rule 32 and found no merit to Corporán's argument on appeal for re-sentencing based upon such a procedural (Rule 32) error. Id. at 205. The First Circuit Court of Appeals made the following determinations: 1) Corporán waived the lengthy 35 day time period provided for in Rule 35; 2) the district court informed Corporán on the record that unless the government prevailed on its objections the sentencing guideline range would be 188 to 235 months; 3) Corporán had notice of the sentencing range and could not be heard now to claim surprise; 4) Corporán's attorney advised the court that he basically agreed with all of the government's objections; and, 5) defense counsel assurances to the district court regarding his advising Corporán of the sentencing guideline and the agreement with all of the government's objections conformed with case law in the circuit that requires the district court to ascertain from the defendant and his counsel that they have had an opportunity to read and discuss the presentence report. Id. at 205. The First Circuit also found that Corporán was given an opportunity to explain his position regarding sentence and sentencing process but he chose not to make a statement to the court. Id. Accordingly, the First Circuit found no plain error in the district court's administration of Rule 32. Thus, the record clearly shows that, as with Ground 1, Ground 2 was examined and decided by the First Circuit on direct appeal. Corporán may not relitigate this ground.
In Ground 6 Corporán raises the issue that he would have insisted on going to trial and would have taken his guilty plea back but for the unprofessional and ill advice of his counsel, and that counsel scared him by telling him to keep his mouth shut. He also asserts that the Court and his counsel failed to explain the basic elements of the offense to him. On direct appeal Corporán argued that the district court failed to provide a meaningful explanation concerning the nature of the charges and elements of the offense to which he was pleading guilty. In regards to Corporán's argument, the First Circuit found "nothing in the record of the Rule 11 colloquy to indicate that the district court's description of the offenses charged was inadequate to provide the defendant with an understanding of the elements material to his case." Id. at 203. Additionally, the First Circuit noted that the district court found the defendant [Corporán] to be alert and intelligent, a factor further confirming his understanding of the charges. Id. at 204. Accordingly, Corporán may not now relitigate that portion of Ground 6 regarding the adequacy of the explanation concerning the elements of the offenses to which he plead guilty. The other grounds raised in Ground 6 will be addressed hereinafter.
The First Circuit previously decided on direct appeal all of the issues raised in Grounds 1 and 2 of this § 2255 motion. The First Circuit also decided one issue raised by Corporán in Ground 6, that being that during the Rule 11 colloquy Corporán was fairly put on notice of the substances of the crimes for which he was charged. Consequently, Corporán is precluded from raising them again in this collateral proceeding.
C. Assistance of Counsel
As noted above, Corporán raises several grounds in support of his claim that his counsel was ineffective. The U.S. Supreme Court has set forth a two-prong test to determine whether a defendant has been denied his constitutional right to effective representation of counsel. 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 Panzardi-Alvarez v. United States, 879 F.2d 975, 982-83 (1st Cir. 1989).
In applying this test, first announced in Strickland v. Washington, "judicial scrutiny of counsel's performance must be highly deferential." 466 U.S. at 687. Hence there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. As a corollary, "the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Further, "[j]udicial scrutiny of counsel's performance must be highly deferential." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or an adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Burger v. Kemp, 483 U.S. 776, 788 (1987). 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.
In a post-conviction proceeding, the burden is on the petitioner to demonstrate ineffective assistance by a preponderance of the evidence. Lema v. United States, 987 F.2d 48, 51 (1st Cir 1993). Here, Corporán's claim of ineffective assistance of counsel is not borne out by the record. More so, inasmuch as he was re-sentenced and did not appeal any issues as a result of said re-sentencing, the majority of his claims of ineffective assistance of counsel with regard to the proceedings prior to his re-sentencing on August 17, 2001 are moot.
1. Enhancements (Grounds 3 and 8)
The undersigned takes into consideration the effect that Corporán's re-sentencing has on his claim that counsel was ineffective at the time of his initial sentencing. When Corporán was re-sentenced, he was represented by the same attorney who had represented him on appeal. Defense counsel McGiverin filed objections to the Presentence Report claiming that the one level enhancement under U.S.S.G. § 2A4.1(b)(4)(B) and the two level enhancement under § 2A4.1(b)(3) were inapplicable. It appears that the Court found inapplicable the two point enhancement for use of a dangerous weapon and as a result concluded that the total offense level was 34, as opposed to the initial sentencing finding that the total offense level was 36. Corporán did not appeal his re-sentence or any issues pertaining to re-sentencing. Accordingly, any issues with regard to his enhancements of his initial sentence and the alleged ineffective assistance of counsel by trial counsel Acevedo are either moot or if any error did occur, said error was harmless. Regardless, the undersigned will address Corporán's claims.
If the victim was not released before seven days had elapsed, increase by 1 level. U.S.S.G. § 2A4.1(b)(4)(B).
If a dangerous weapon was used, increase by 2 levels. U.S.S.G. § 2A4.1(b)(3).
In Grounds Sand 8 Corporán claims his attorney was ineffective for failing to object to enhancements in the sentencing guideline computation that led to the sentence imposed upon him. The government argues that Corporán raised sentencing errors in his direct appeal and that since the First Circuit decided same, Corporán is precluded from raising them in this collateral proceeding. It is noted that the First Circuit did address a sentencing issue that related to the maximum statutory penalty for sentencing (i.e. 5 years) under Count I of the indictment. However, the First Circuit did not address sentencing enhancement issues.
At the time of his change of plea Corporán agreed with the prosecutor's version of facts set forth below. See Docket No. 272, p. 12.
[O]n April 18, 1996, at approximately six o'clock in the morning, Mrs. Carmen Villar Cordero was about to depart from her house with her 13-year-old grandson, Carlos de la Rosa Berbere; that while she was in her vehicle, suddenly two individuals, one of those individuals being Mr. Félix Beras, and an unidentified individual, approached her with a weapon.
At that time they ordered her to leave — to get out of the vehicle and asked her for her daughter Zuleika. They took Carlos de la Rosa and . . . kept him in the vehicle and took Mrs. Villar Cordero's vehicle at that time.
These two individuals later on left the Mitsubishi Mirage which was owned by Mrs. Carmen Villar . . . about two or three blocks from the residence of Mrs. Villar and took the child and put him in another vehicle, which was a pickup truck.
After that the two individuals, one of them being Mr. Felix Beras, took the child to a house in "Barriada" Israel in Rio Piedras. There they basically took the kid and put him under the custody of Felix Corporán, Maria Altagracia de Jesus, and Alexis Alcántara Foster, which [sic] are co-defendants in this case.
That about two hours after the child was kidnaped from his grandmother, Mrs. Carmen Villar Cordero started receiving calls from the kidnapers. One of those calls was from Defendant Felix Beras in which essentially they were requesting Mrs. Carmen Villar to, one, produce the child's mother or father, or two, to produce money in exchange for the release of the child.
That for a period . . . from April 18th to April 22nd Felix Beras, Felix Corporán, and other unidentified individuals, and a person by the name of Sandy Pichardo, kept making these calls to the grandmother, essentially threatening that should the mother not appear or the money not appear, they would kill Carlos de la Rosa Berbere.
That pursuant to a Title 3 order . . . the United States was able to intercept a call where co-defendant Alexis Alcántara was informing Francia Bernice Martinez, a friend of his, that they would soon be receiving the money.
The FBI was able to track Mrs. Francia Bernice. She cooperated with the authorities at that time and told them where the child was being kept . . . in "Barriada" Israel.
On April 22, 1996, the FBI was able to rescue safely Carlos de la Rosa, and at the house was Defendant Felix Corporán, Maria Altagracia de Jesus, and Alexis Alcántara. All three persons admitted their involvement in the instant offense.
Criminal No. 96-119(PG), Docket No. 272, pp. 10-12.
Thereafter, the Court sentenced Corporán under U.S.S.G. § 2A4.1 for the offense of conspiracy and actual hostage taking. It was determined the offense had a base offense level of 24 ( Docket No. 253, p. 8). Based on the offense characteristics, the Court added the following enhancements: ransom demand, 6-level enhancement under § 2A4.1(b)(1); dangerous weapon used in the commission of offense, 2-level enhancement pursuant to § 2A4.1(b)(3); victim was a minor, where in exchange for money or other consideration, was placed under the custody of another person who had no legal right over him, 3-level enhancement § under 2A4.1(b)(6). Additionally, the following adjustments were made: supervisor in a scheme which involved five or more individuals, 3-level enhancement under § 3B1.1(b); and acceptance of responsibility, 2-level decrease pursuant to § 3A1.1 (a), for a total adjusted offense level ("AOL") of 36. Id. at 8-9.
"[A] sentencing court may consider facts contained in the PSI Report as reliable evidence." United States v. Cruz, 120 F.3d 1, 2 (1st Cir. 1997). Here, the Presentence Report indicates that when Corporán was interviewed on December 23, 1996, he accepted responsibility for his involvement in the commission of the instant offense. Corporán explained that the parents of the boy owed him money, so he decided to kidnap the minor's mother, but since that was not possible, they abducted her child. The Presentence Report also indicates that co-defendant Alexis Manuel Alcántara-Foster ("Alcántara") participated in a telephone conversation wherein Alcántara stated that he would receive over $20,000 for his participation in the kidnaping.
When Corporán was sentenced on February 12, 1997, and although the Presentence Report did not take into consideration Corporán's role in the kidnaping, at the time of sentencing the government made a specific argument for an adjustment of three levels for Corporán's role as a supervisor in the offense ( Docket No. 113). It also submitted that § 2A4.1(b)(6) applied as the victim was a minor, and that in exchange for money or other consideration the minor had been placed under the custody of another person who had no legal right over him ( Docket No. 113).
The Court first ruled on the objections raised to the Presentence Report. In support of its request for enhancement, the government clarified that Corporán was the person who made the telephone call to the child's grandmother in which the 300 kilos of narcotics were mentioned as the reason leading to the kidnaping. Id. at 3-4. Additionally, the government, in highlighting Corporán's supervisory role, stated, "[a]s this Court knows, it was this defendant (i.e., Corporán) that called in Alexis Alcántara Foster and Maria Altagracia de Jesus to participate in this offense. . . . he was supervising both these defendants that were (sic) illegal in Puerto Rico, and he called them into this offense." Id. at 6. In making its findings the Court found that Corporán was a supervisor in a scheme which involved five or more individuals and, as a result, a three-level increase was warranted pursuant to U.S.S.G. § 3B1.1(b) ( Docket No. 253, p. 4). Prior to sentencing Corporán, the Court also made the determination that "as the victim was a minor [who in] exchange for money or other consideration [had been] placed under the custody of another person who had no legal right over him, an additional three-level adjustment is warranted." Id. at 8.
Corporán claims his attorney was ineffective when he failed to object to an enhancement under U.S.S.G. § 2A4.1(b)(6) which increased the base offense level of 24 by three levels. The record reflects that once the government concluded its objections and arguments, counsel for Corporán stated to the Court that "they basically agree[d] with all of them, and the evidence [is] sufficient." ( Docket No. 253, p. 2)
Section 2A4.1(b)(6) provides that
If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels.
U.S.S.G. § 2A4.1(b)(6).
Corporán contends that trial counsel failed to research this issue and that said enhancement does not apply to the offense conduct of this case inasmuch as there was no exchange of money or of any other consideration and the members of the alleged conspiracy did not place the child in the custody of others because the child was maintained at the home of the alleged conspirators and co-conspirators. He contends that § 2A4.1(b)6) is only applicable "if the child has been kidnaped and sold for profit into another person or persons if the victim was placed on the hand of others promising . . . money or any other consideration for the keeping of the victim." Corporán contends that he did not arrange for the child to be kept anywhere and he did not place the child in the custody of anyone.
Section 2A4.1 (b) contemplates the situation of "kidnaping for hire," similar to a murder for hire case (i.e., Defendant A is hired to kidnap Victim for $10,000 and to turn Victim over to Defendant B). See United States v. Matthews, 225 F. Supp.2d 893 (N.D. Ill. 2002).
It is undisputed that Corporán did not participate in the actual taking of the kidnap victim. However, other facts were elicited during the course of the case which support the Court's finding of the additional three-level adjustment. Of note is that the sentencing judge presided over an evidentiary hearing on a motion to suppress filed by Corporán. During the hearing there was testimony that following the kidnaping of the child, he was taken to a home rented by Corporán and others. The facts as a whole support the conclusion that Corporán solicited others to kidnap the child for a fee ($20,000) and to have the child delivered to Corporán's home. The facts as a whole support the conclusion that Corporán solicited others to kidnap the child for a fee of $20,000 and to have the child delivered to Corporán's home. The facts indicate that subsequently Corporán then sought to obtain a ransom for the child and left the child under the custody of others he had joined in the conspiracy.
Certainly, counsel cannot be deemed ineffective for failing to pursue futile arguments. See Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999), cert. denied, 528 U.S. 1163 (2000). In light of this discussion, it cannot be said that Corporán's attorney was ineffective when he did not argue against the three-point enhancement. Indeed, given the factual scenario Corporán cannot show that his counsel's representation fell below an objective standard of reasonableness just because he admitted to what the government's evidence plainly demonstrated. Strickland, 466 U.S. at 687-88. More so, as discussed above, inasmuch as Corporán was resentenced and he did not appeal his re-sentence, any objection to an enhancement in his initial sentence is moot.
Corporán also argues that his attorney was ineffective when he failed to object to an enhancement to the base offense level based upon his participation in the conspiracy as an organizer, supervisor or manager, pursuant to U.S.S.G. § 3B1.1(b). The section provides
Based on the defendant's role in the offense, increase the offense level as follows:
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
U.S.S.G. § 3B1.1(b).
Corporán asserts that the record lacks any indicia pointing to Corporán as an organizer, supervisor or manager. He further argues that it is evident that he did not perform as such. Corporán argues that Special Agent Cases testified that Corporán was under investigation for having provided a place for the keeping of the child. Corporán further contends that the District Court abused its discretion when it did not conduct a hearing or further inquiry to reasonably determine if this enhancement was warranted. Corporán posits that the Court found that the enhancement was applicable just because the government petitioned for it. He argues that defense counsel was ineffective in not objecting to the enhancement.
The record reflects that the three-level enhancement for Corporán's managerial or supervisory role was supported by evidence. Although neither "supervisor" nor "manager" is defined under § 3B1.1, it is sufficient that a defendant recruited, instructed or supervised at least one other person. United States v. Rodriguez Aluarado, 985 F.2d 15, 20 (1st Cir. 1993).
At the sentencing hearing, the Court had before it the Presentence Report which states that Corporán decided to undertake the kidnaping of the child because the child's parents owed him money. The Presentence Report also refers to money that co-defendant Alcántara was to receive for participating in the kidnaping. Also, the sentencing judge presided over a suppression hearing wherein testimony was presented establishing that the kidnaped child was taken to the residence of Corporán and his wife, that Corporán's wife guarded the kidnaped child and that Corporán was referred to as "the boss" ( Docket No. 88, p. 86). Additionally, the record reflects that the sentencing judge presided over the guilty pleas of co-defendants Alcántara and Altagracia prior to the time that Corporán was sentenced. See Criminal Case No. 96-119(PG), Docket Entries No. 52 and 86, dated July 16, 1996, and October 28, 1996, respectively. The government brought this to the Court's attention at the time of sentencing when it reminded the court that it was Corporán who called in Alcántara and Altagracia to participate in the offense and that Corporán supervised both defendants who were illegally in Puerto Rico ( Docket No. 253, p. 6). Accordingly, there was sufficient evidence for the sentencing court to conclude that the "defendant, in committing the crime, exercised control over, or was otherwise responsible for overseeing the activities of, at least one other person." United States v. Cali, 87 F.3d 571, 578 (1st Cir. 1996) (quoting United States v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993)).
As there clearly was sufficient evidence to support the finding that Corporán was a supervisor, it cannot be said that Corporán's attorney was ineffective when he did not argue against the three point enhancement given the overwhelming evidence to support said adjustment. The undersigned reiterates that counsel cannot be deemed ineffective for failing to pursue futile arguments. See Vieux v. Pepe, supra. Given the facts in the record Corporán cannot show that his counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Finally as with the previous ground raised by Corporán, inasmuch as he was re-sentenced and did not appeal his re-sentence, any objection to an enhancement when calculating his initial sentence is moot.
2. Equal Protection — Hostage Taking Act (Ground 4)
Corporán next argues that his counsel was ineffective for failing to argue that the Hostage Taking Act, 18 U.S.C. § 1203 deprived him of his right to equal protection as it impermissibly classifies offenders on the basis of alienage. A cursory review of case law reveals that a number of circuits have held that the Hostage Taking Act does not violate a defendant's right to equal protection through its differing treatment of aliens and United States citizens. See United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001), cert. denied, 535 U.S. 1028 (2002); United States v. Montenegro, 231 F.3d 389 (7th Cir. 2000); United States v. Santos-Riviera, 183 F.3d 367 (5th Cir. 1999 United States v. Lue, 134 F.3d 79 (2d Cir. 1998); United States v. Lopes-Flores, 63 F.3d 1468 (9th Cir. 1995).
While the First Circuit has not ruled on this issue, other circuits have spoken to the issue and all have found no deprivation of a defendant's right to equal protection. Attorney Acevedo cannot be said to have rendered ineffective counsel for not arguing that the Hostage Taking Act deprived Corporán of his right to equal protection. More so, based upon the case law of the circuits, there is no indication that the result of the proceedings would have been different.
3. Voice Identification Expert/Show-up Identification (Ground 5)
Corporán next raises as ground for his petition the argument that counsel was ineffective in failing to obtain a voice identification expert and for failing to file an interlocutory appeal of the district court's denial of the motion to suppress identification and statements. Corporán contends that his due process rights were violated when he was identified during a "show-up" process. Corporán acknowledges that Attorney Acevedo moved to suppress the show-up identification, moved to suppress identification on the basis of voice identification and objected to the court's method of in court identification. Corporán argues however, that Attorney Acevedo failed to appeal the denial of the motions to suppress, abandoned him on direct appeal, and that the motions were not presented by the subsequent attorney (Attorney McGivern) appointed to represent Corporán during his direct appeal. Corporán also argues that Attorney Acevedo provided ineffective assistance of counsel when he failed to move the court to obtain a voice identification expert.
The undersigned will address the appellate issues hereinafter.
The government argues that the error is non-existent and that Corporán misconstrues his appeal rights. More particularly, the government contends that Corporán was not entitled to appellate review until after conviction and sentencing inasmuch as the rulings on the motions to suppress did not fall into the collateral order doctrine exception for interlocutory appeals.
The government's position is well-taken. Interlocutory appeals in criminal cases have been limited to the denial of three types of motions, none of which are applicable here. Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989). In criminal proceedings denial of pretrial motions relating to discovery and motions to suppress have been held nonappealable. United States v. Ryan, 402 U.S. 530, 533 (1971) (motion to quash subpoena); DiBella v. United States, 369 U.S. 121 (1962) (motion to suppress). Had Corporán's attorney chosen to file an interlocutory appeal on the denials of the motion to suppress it would have been an exercise of futility. Accordingly, there was no ineffective assistance of counsel.
The undersigned also determines that there was no ineffectiveness because trial counsel did not retain an expert witness for voice identification. During the change of plea hearing Attorney Acevedo advised the court, "[t]here were several tape recordings." Copies were made for the defendant which were given to him at MDC and they were reviewed with counsel, those that were pertinent to his case" ( Docket No. 272, p. 14). After reviewing the record, it is apparent that once Corporán heard tape recordings made by the government he decided to change his previous not guilty plea to one of guilty.
The use of an expert witness is generally considered within the realm of counsel's discretion of trial strategy. More so, after reviewing the file it is apparent that the tape recordings were not the only evidence that comprised the government's case. Hence, given the evidence against Corporán, no reasonable probability exists that the results of the proceeding would have been different even had Corporán retained an expert witness for voice identification.
4. Rule 11 (Ground 6)
Corporán contends that he would have withdrawn his guilty plea and insisted upon going to trial but for the unprofessional advice of his trial attorney. He asserts that his attorney scared him by telling him that "you better keep your mouth shut or you will get the judge angry." More particularly, he contends that he entered into a plea agreement with the government and that he pled guilty based upon his attorney's representations regarding the applicability of different sentencing guidelines and guideline range. At sentencing the government breached the agreement. Corporán asserts that he instructed his attorney to withdraw his guilty plea and assumed that would happen at the February 12, 1997, hearing, but to his "great surprise" he found himself being sentenced. Corporán posits that 1) either his attorney coerced him into entering his guilty plea and later intimidated him into not speaking to the judge about the representations regarding sentence that Attorney Acevedo had made to him or 2) the government breached its agreement. In essence Corporán contends his plea was involuntary and his attorney coerced him into pleading guilty.
Corporán's trial counsel, Acevedo denies that he told Corporán that he had "better keep [his] mouth shut or [he] will get the judge angry." Acevedo advises the Court that this statement is "absolutely false." He further advises that Corporán never asked to withdraw his plea of guilty, even after Corporán met with Acevedo and Acevedo explained the contents of the presentence report to Corporán. Acevedo states that Corporán's allegations have no foundation.
Turning to the issue of Corporán's plea, it is first noted that if a defendant's guilty plea has not been entered voluntarily, it has been obtained in violation of due process and is therefore void. Boykin v., Alabama, 395 U.S. 238, 242 (1969); United States v. McDonald, 121 F.3d 7, 10 (1st Cir. 1997). In order to satisfy the due process guarantee, a guilty plea must be entered "with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970); United States v. Noriega-Millán, 110 F.3d 162, 166 (1st Cir. 1997). In order to facilitate the entry of voluntary guilty pleas, Federal Rule of Criminal Procedure 11(c), in relevant part, requires district courts to proceed in the following manner prior to accepting a guilty plea:
(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; and
(2) if the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant; and
(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination; and
(4) that if a plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial . . .
Compliance with the procedures of Rule 11 enables the district court to determine for itself the voluntariness of the plea and "facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary." United States v. Lopez-Pineda, 55 F.3d 693, 696 (1st Cir. 1995) (citations omitted); accord, Noriega-Millán, 110 F.3d at 166. If a habeas petitioner maintains that his statements at the Rule 11 hearing were inaccurate, he must "present valid reasons why he should be relieved of his statements". Ouellette v. United States, 862 F.2d 371, 375 (1st Cir. 1988) (quoting Walker v. Johnston, 312 U.S. 275, 286 (1941)); accord, Panzardi-Alvarez v. United States, 879 F.2d 975, 982 (1st Cir. 1989).
In support of his argument, Corporán contends he pled guilty because he was coerced and intimidated by his attorney. The voluntariness of the plea is determined by considering all of the relevant circumstances surrounding the plea. Brady, 397 U.S. at 749.
The record clearly reflects that the Court explained to Corporán the guidelines and made inquiry into the voluntariness of Corporán's plea. First Corporán was found competent to enter a guilty plea ( Docket No. 272, p. 4). The presiding judge advised Corporán of the maximum possible penalty for the offense charged in Count One and Two, that being five years and life imprisonment, respectively. Id. at p. 7. The Court also inquired whether Corporán had discussed with his attorney the sentencing guidelines and how they applied to his case and Corporán replied, "Yes, he talked with me about that". Id. at p. 8. The Court then specifically discussed the guidelines with Corporán as follows:
THE COURT: Do you realize that the Court will not be able to determine the specific guideline applicable to your case until the Court receives the presentence report? Do you so acknowledge?THE DEFENDANT: Yes, sir.
THE COURT: And do you realize that once the specific guideline has been established, the Court has the authority under certain limited circumstances to impose a more or less severe sentence than the one call for by the guideline? Do you so acknowledge?THE DEFENDANT: (Indicating in the affirmative.)
THE COURT: And do you realize that because this is a straight plea, that the sentence you will receive is left to the sound discretion of the Court, to be imposed within the parameters, within the confines of the Sentencing Guidelines? Do you so acknowledge?THE DEFENDANT: Yes, sir.
THE COURT: And do you realize that if your plea of guilty is accepted, you cannot — you will not be able to withdraw your guilty plea, you will not have a right to withdraw the guilty plea as a result of the sentence imposed?THE DEFENDANT: Yes, sir.
Criminal No. 96-119(PG), Docket No. 272, pp. 8-9.
The Court next addressed the issue of the voluntariness of Corporán's plea when it asked:
THE COURT: Have you been threatened, coerced, or intimated by anyone?THE DEFENDANT: No, sir.
THE COURT: Have you been coerced or threatened or intimated to plead guilty by your co-defendant?THE DEFENDANT: No, sir.
THE COURT: Has anyone made you any promise in exchange of a guilty plea?THE DEFENDANT: No, sir.
Criminal No. 96-119(PG), Docket No. 272, p. 9.
The Court also inquired of Corporán whether he was satisfied with the legal representation he had received from trial counsel, asking, "Are you satisfied with your counsel and the way he had been representing you?" Id. Corporán replied, "Yes, sir". Id.
Additionally, at the time of sentencing the Court offered Corporán an opportunity to speak to the court, stating:
THE COURT: Let me hear from the defendant. THE DEFENDANT: No, I don't have anything to say.
THE COURT: Well, you have to right to allocution. You waive it, that's okay. But I just want to tell you that you have the right to address the Court. But that's all right if you don't want to address the Court.THE DEFENDANT: (Indicating in the negative).
THE COURT: Very well. Let the record show that he's shaking his head in a "no" — indicating a "no response, that he doesn't want to address the Court.
Criminal No. 96-119(PG), Docket No. 253, p. 5.
Corporán 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 Court explained the guidelines to Corporán and the Court was advised and satisfied that Attorney Acevedo had also explained the sentencing guidelines to Corporán. The Court was quite clear in its explanation that it alone would decide the sentence to be imposed upon Corporán. Further, the record is clear that Corporán was competent and fully aware of his actions. He was thoroughly examined and responded several times in the negative that he was in no way coerced or threatened into pleading guilty and that he wanted to waive his right to a trial. Moreover, Corporán indicated that he satisfied with the representation by his attorney. Corporán admitted that he committed the offenses charged and agreed with the summary of evidence presented by the government. All of this he did while under oath. Additionally, at the time of sentencing he was given an opportunity to speak to the court, but rather than do so, he waived his allocution. If he had concerns, including his alleged desire to withdraw his guilty plea, he had an opportunity to voice his concerns at that time, yet instead chose not to address the Court. After he had been sentenced, and on the same day that he filed a notice of appeal, Corporán filed a pro se motion for reconsideration of the judgment and/or to withdraw his plea, which was denied by the Court March 4, 1997 ( Endorsed Order, Criminal No. 96-119(PG), Docket No. 125).
There is nothing before the undersigned that indicates that Corporán's plea was involuntary or a result of duress. Inasmuch as Corporán failed to come forward with sufficient evidence to demonstrate "a fundamental defect which inherently results in a complete miscarriage of justice, Corporán is not entitled to relief under 28 U.S.C. § 2255 as to the issue of duress and the voluntariness of the plea.
Corporán also alleges that his attorney provided unprofessional advice by advising him to plead guilty. Even if this accusation were true, it would not constitute grounds for the withdrawal of Corporán's guilty plea, as any potential prejudice was cured by the trial court's thorough advisement of all relevant constitutional rights, and by Corporán's affirmation that he understood those rights, immediately prior to the entry of the guilty plea. See United States v. Home, 987 F.2d 833, 835 (D.C. Cir. 1993) (despite mistaken advice of counsel regarding applicable sentencing range, defendant suffered no prejudice where the trial court correctly apprized him of the statutory penalty).
The record contains no evidence that Corporán was dissatisfied with counsels' services or that his attorneys failed to adequately advise him of his legal rights. It was not until after he was sentenced that Corporán found fault with Attorney Acevedo's representation of him. Under these circumstances, the undersigned finds that Corporán's claim of inadequate legal advice is conclusively refuted by the files and records of the case. See Lema v. United States, 987 F.2d 48 51-52 (1st Cir. 1993). Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992).
For these reasons the undersigned finds that Corporán has failed to prove that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial.
5. Appeal (Ground 7)
Corporán claims that he requested that Attorney Acevedo file a notice of appeal and that he failed to do so. Acevedo responds stating that after Corporán was initially sentenced, Corporán immediately filed a pro se appeal to his sentence and conviction. Acevedo was notified by the Court of Appeals that Corporán had filed a pro se petition and upon notice immediately requested permission to withdraw as counsel since he had not filed the notice of appeal.
Corporán also argues that his appellate counsel was ineffective for having failed to challenge on appeal the District Court's denials of the motions to suppress.
a. Notice of Appeal
Pursuant to Fed.RApp.P.4(b), in a criminal case, a defendant shall file the notice of appeal in the district court within 10 days after the entry either of the judgment or order appealed from, or of a notice of appeal by the Government. A judgment or order is entered within the meaning of this subdivision when it is entered on the criminal docket. Fed.R.App.P.4(b).
In the past, the First Circuit followed a rule in habeas corpus actions finding per se ineffective assistance of counsel where the defense attorney failed to file a direct appeal, absent an express waiver by the defendant. See United States v. Tajeddini, 945 F.2d 458, 466 (1st Cir. 1991). Under Tajeddini, a petitioner was presumed to be prejudiced by his attorney's failure to appeal, and was relieved of the requirements of Strickland. See Tajeddini, 945 F.2d at 468. The per se treatment afforded under Tajeddini, however, was abrogated by the Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470 (2000). In Flores-Ortega the Supreme Court held that a § 2255 petition asserting ineffective assistance of counsel as the basis for a failure to appeal must actually establish ineffective assistance under Strickland, and cannot benefit from Tajeddini's presumption of prejudice., See Flores-Ortega, 528 U.S. at 476-77.
The Supreme Court set forth criteria for applying the Strickland two prong test in this context. First, to determine whether counsel's assistance was reasonable, the determinative question is whether the attorney had a duty to consult with the defendant about the advantages and disadvantages of appeal, and then determine whether the defendant wished to pursue one. See Flores-Ortega, 528 U.S. at 478-79. The Court answered the question by holding that there is a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Id. at 480. In making this inquiry, a court should examine the totality of the circumstances, and consider all the information that the attorney knew or should have known. See id. Considerations are whether the conviction was the result of a guilty plea, and whether the petitioner received the sentence for which he bargained. See id. A guilty plea is probative because it reduces the potential for appealable issues and indicates a desire to terminate judicial proceedings. See id.
The second prong of Strickland, requires a showing of actual prejudice. Id. at 484. This translates into a showing that, but for counsel's failure to consult about an appeal, Petitioner would have timely appealed. Id. Relevant factors to consider may include whether there were nonfrivolous grounds for appeal, or whether the defendant promptly expressed a desire to appeal. Id. at 486.
Judgment on the initial sentence was entered on February 18, 1997 ( Docket No. 122). Three days later Corporán filed a pro se appeal and a motion to proceed in forma pauperis ( Docket No. 124). When Attorney Acevedo was notified by the Court of Appeals that Corporán had filed a notice of appeal, Acevedo moved the appellate court to withdraw as counsel inasmuch as he had not filed the Notice of Appeal. The motion was granted and subsequently Bruce McGiverin was appointed to represent Corporán on appeal. As previously discussed, in its opinion the First Circuit remanded the matter to the District Court for re-sentencing.
Given the facts of this particular case, even if Corporán had requested that Attorney Acevedo file an appeal and he failed to do so, Corporán remains unable to show prejudice. The record is clear that Corporán timely filed a notice of appeal, sought leave to and was allowed to proceed in forma pauperis and was appointed counsel to represent him in his direct appeal. Corporán cannot show that the result of the proceedings would have been different inasmuch as a direct appeal was filed and he was duly represented by counsel on appeal.
b. Appellate Counsel
The last ground that Corporán raises is that his appellate counsel McGiverin was ineffective when he failed to raise as an issue the denial of the motions to suppress. Corporán briefly addresses this issue, but makes no real arguments regarding same, instead the main thrust of his argument is that Attorney Acevedo failed to file a direct appeal. Regardless, the undersigned addresses the issue of ineffective appellate counsel.
After reviewing the record, the Court finds that Corporán fails to satisfy either prong of the Strickland test. He has not shown that his appellate counsel's performance fell below any objective standard. Indeed, appellate counsel acted reasonably in raising a number of issues before the appellate court. Notably, he was successful in having the matter remanded for re-sentencing. As is well known, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Here, Corporán has failed to overcome the presumption that appellate counsel's action (to raise certain issues as opposed to others) on direct appeal might be considered something other than sound appellate strategy.
D. Evidentiary Hearing
Corporán requests an evidentiary hearing. As is well known, a § 2255 petitioner is not entitled to an evidentiary hearing as a matter of right. David v. United States, 134 F.3d 470, 477 (1st Cir. 1998). A district court may deny such a request if it is plainly apparent from the face of petitioner's pleadings that he is not entitled to relief; if the allegations, even if true, would not warrant relief; if the allegations are merely "conclusory prognostications and perfervid rhetoric;" or if the petitioner's allegations are contradicted by the record or contain inherently incredible allegations. Id.; United States v. LaBonte, 70 F.3d 1396, 1412-13 (1st Cir. 1995), rev'd on other grounds, 520 U.S. 751 (1997); United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993). The petitioner has the burden of showing that a hearing is necessary in his case. McG/7/, 11 F.3d at 225,
In light of the prevailing standard for the celebration of an evidentiary hearing and the nature of petitioner's allegations and claims, Corporán has failed to show that he is entitled to an evidentiary hearing in this case.
E. Actual Innocence
Corporán asserts he is innocent of the charges of Hostage Taking and that if he plead guilty, he did so under coercion, duress, and threats and intimidation that he was subjected to by his court appointed attorney.
To establish actual innocence, an individual must show that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Deb, 513 U.S. 298, 327 (1995). The actual innocence exception was created by the Court to prevent a "fundamental miscarriage of justice," and was created with the understanding that the "exception would remain `rare' and would only be applied in the `extraordinary case.'" Id. at 321. Actual innocence requires a showing of "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Corporán has not made a showing of factual innocence. The Presentence Report states that Corporán admitted his involvement in the commission of the crimes for which he was charged. Also, he admitted his guilt during the Change of Plea hearing and agreed with the government's version of facts. Finally, in a letter to the trial judge, dated August 19, 2002, he admits his involvement when he states that others found out the kidnaped child's parents had wronged him, and included him in the plot though he was not the one who "planned, organized or masterminded anything" ( Docket No. 1, Ex.A). This admission is followed by the statement that he never planned, organized or masterminded anything whatsoever. Id. Accordingly, Corporán is not entitled to relief under § 2255 under the theory of "actual innocence."
III. Conclusion
After analyzing petitioner's allegations, the undersigned concludes that Felix Corporán-Cuevas cannot prevail despite the issues he raises. Therefore, this Magistrate-Judge RECOMMENDS that petitioner's motion under § 2255 ( Docket No. 1) be DISMISSED and DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 504.3 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 510.1, 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).