Opinion
Civil No. 02-2269 (HL), Criminal No. 96-337 (HL).
April 6, 2004
REPORT AND RECOMMENDATION
Petitioner (hereafter "Oliveras") filed a motion for post-conviction relief under 28 U.S.C. § 2255 on August 2, 2002 ( Docket entry #1). Respondent the United States of America (hereafter "the government") filed its response on March 2, 2004 ( Docket entry #10). The matter has been referred by the Honorable Court to the undersigned Magistrate Judge for report and recommendation ( Docket entry #11).
The record examined shows petitioner was convicted and judgment upon conviction was entered on July 29, 1998 in Criminal No. 96-337 (HL). He had entered a guilty plea to Count One for a conspiracy to possess with intent to distribute controlled substances. The sentence was imposed on November 3, 1998, for one hundred and thirty two months (132) of incarceration, a supervised release term of five (5) years, and a special monetary assessment of one hundred dollars ($100.00) in conformity with the plea agreement . The defendant had been granted a two point reduction for acceptance of responsibility and had been sentenced on the stipulated amount of controlled substance of at least fifteen (15) and no more than fifty (50) kilograms of cocaine for purposes of Sentencing Guideline calculations. The plea agreement and the colloquy at the change of plea hearing is pellucidly clear that upon stipulation of the drug quantities, the defendant agreed to no further adjustment to be made on account of the safety valve provision under Section 5C1.1 of the Sentencing Guidelines. There was no direct appeal for the conviction. Thereafter, the defendant filed a Motion to Correct Sentence Pursuant to Rule 35(A) on May 1, 2001 (Criminal No. 96-337, Docket entry #1648). After the government filed its reply to defendant's contention, which were similar to the ones now raised in the petition before this Magistrate Judge, the sentencing court denied same through a marginal order on June 13, 2001 (Criminal No. 96-337, Docket entry #1660).
Petitioner has now raised, among other grounds, ineffectiveness of counsel for failing to file a notice of appeal on his behalf although requested to do so. It is also submitted that he should have been entitled to a three, instead of a two, points reduction in his sentence for acceptance of responsibility; entitlement to a safety valve adjustment; and counsel should have submitted presentence arguments as to the defendant being a minor participant in the offense. Petitioner submits that his previous motion to correct sentence under Rule 35 should not have been construed as an initial § 2255 petition.
Since the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes significant substantial restrictions on petitioners, insofar as second or successive habeas petitions, the Court of Appeals for the First Circuit has held that when a district court, acting sua sponte, converts a post-conviction motion filed under some other statute or rule into a § 2255 motion to vacate, set aside or correct sentence without notice and an opportunity to be heard, or the pleader's informed consent, the recharacterized motion ordinarily will not count as a "first" habeas petition sufficient to trigger the gatekeeping requirements of the AEDPA with respect to second or successive petitions. 28 U.S.C.A. §§ 2244(b)(3)(A), 2255. The marginal order through which the sentencing court denied the defendant's Rule 35 request on June 13, 2001, does not establish it was considered or dispose of as a § 2255 petition. Accordingly, the present claim will be considered as petitioner's initial § 2255 petition.
Under the provisions of the Anti-terrorist and Effective Death Penalty Act of 1996 that are applicable to this § 2255 petition, petitioner's motion must have been filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1). Trenkler v. United States, 268 F.3d 16 (1st Cir. 2001). As such, as amended by AEDPA, § 2255 provides:
A 1-year statute of limitations shall apply to a motion under this section. The limitations period shall begin to run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. See Trenkler v. United States, 268 F.3d at 19.
Petitioner's judgment of conviction became final on December 10, 1998, that is, upon expiration of the ten (10) days period when he could have filed a direct appeal to his conviction. As such, petitioner had, under the provisions of AEDPA, until December 10, 1999, to file for post-conviction relief pursuant to § 2255. He waited, however, until August 21, 2002, to submit the underlying petition. Consequently, the present § 2255 petition is time barred. This procedural default should be enough to dismiss this petition. Still, upon considering the merits of petitioner's claims, this Magistrate Judge finds that the grounds raised lack merit.
The plea agreement was duly fulfilled. There is no argument as to the voluntariness and validity of the plea nor the conviction entered. Petitioner has solely argued aspects of his sentence in that he should have been awarded an additional point for acceptance of responsibility and additional consideration because of the safety valve provisions in USSG § 5C1.2. Since petitioner did not appeal the sentence, grounds for collateral relief are paraphrased as ineffectiveness of counsel for failing to seek above. A defendant who accepts responsibility for the offense of conviction receives a basic two-level decrease in his offense level. See USSG § 3E1.1(a); United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990). Under certain circumstances, however, a defendant who qualifies for a two-level decrease under section 3E1.1(a) may receive an additional one-level decrease if he "timely notif[ies] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." The sentencing court gave the appellant the basic two-level reduction, but not the extra level. United States v. Martinez-Vargas, 321 F.3d at 248 (1st Cir. 2003).
Summary dismissal of a § 2255 motion is appropriate when the petition is inadequate on its face or is conclusively refuted as to the alleged facts by the files and record of the case, or where the alleged grounds for relief are based on bald allegations without sufficiently key particular and supportive factual allegations. Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992).
Dismissal of the post-conviction motion is appropriate when key factual averments are contradicted by the record. United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995); United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993). Through his guilty plea colloquy, defendant waived his rights and indicated he was satisfied with the services of his counsel. The record also contains as attachment to the previous Rule 35 motion, a sworn statement by defendant's counsel indicating no appeal had been requested, more so when there were no appealable issues that require a notice of appeal to be filed, and no facts are in controversy insofar as the plea proceedings.
In regard with petitioner's argument as to counsel's failure to request at sentencing application of the safety valve, the "safety valve" permits a court to sentence a first-time offender to less than a mandatory minimum sentence if the defendant demonstrates compliance with its requirements. 18 U.S.C. § 3553(f); United States v. Matos, 328 F.3d 34, 36 (1st Cir. 2003). Section 5C1.2 of the Sentencing Guidelines provides that: "(a) Except as provided in subsection (b), in the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below:
(1) The defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of 4A1.3 (Departures Based on Inadequacy of Criminal History Category);
(2) The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) The offense did not result in death or serious bodily injury to any person;
(4) The defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
(b) In the case of a defendant (1) who meets the criteria set forth in subsection (a); and (2) for whom the statutorily required minimum sentence is at least five years, the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than level 17."
To comply with the above-stated requisites of the safety valve, a defendant must provide the government with all the information he has "concerning the offense or offenses that were part of the same course of conduct or a common scheme or plan," and the sentencing court would then determine if the safety valve applies. United States v. Ventura-Cruel, 356 F.3d 55, 57 (1st Cir. 2003); United States v. White, 119 F.3d 70, 72 (1st Cir. 1997). See United States v. Marquez, 280 F.3d 19, 23 (1st Cir. 2002). Petitioner has proffered no evidence that had he applied for the safety valve, he would comply with its requirements. As to the alleged ineffectiveness of counsel claimed by petitioner, the Supreme Court of the United States has recognized that "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441 (1970). So as to avoid a miscarriage of justice, evidence of innocence is a requisite, when not even the existence of a concededly meritorious constitutional violation is considered sufficient, to allow the court to reach the merits of a barred habeas claim, so that a petitioner can cross through the gateway and argue the merits of the underlying claims in his successive habeas petition. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995).
A defendant bears the burden of showing that he made appropriate and timely disclosures to the government for the safety valve to apply. United States v. Matos, supra.
Counsel can deprive a defendant of the right to effective assistance, simply by failing to render "adequate legal assistance" Cuyler v. Sullivan, 446 U.S. 335, 435-350, 100 S.Ct. 1708 (1980), (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective). There is a two-prong test for evaluating claims of ineffectiveness of counsel. First, the petitioner must show that his counsel's performance was deficient and secondly, must show that the deficient performance prejudiced the defense.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Unless a defendant makes both showings, it cannot be said that the conviction or sentence resulted from a breakdown in the adversary process that renders the result unreliable.Strickland, supra, at 687. The essence of an ineffective assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842 (1993); Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574 (1986). Petitioner has not established, had the petition not being considered time-barred, that counsel was ineffective, for which he is not entitled to relief.
Thus, it is recommended that the petition, which is time-barred, and additionally one without merits, BE DISMISSED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. 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, 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").