Opinion
Civil No. 02-1461 (HL), Criminal No. 00-056 (HL).
April 22, 2004
REPORT AND RECOMMENDATION
I. INTRODUCTION
Petitioner Ricky Padró Orta (hereafter "petitioner") filed a motion for post-conviction relief under 28 U.S.C. § 2255 on March 26, 2002 ( Docket entry #1). Respondent the United States of America (hereafter "the government") filed its response on July 28, 2003 ( Docket entry #5). The matter has been referred by the Honorable Court to the undersigned Magistrate Judge for Report and Recommendation ( Docket entry #8).
An original § 2255 petition, postmarked by the U.S. Postal Service on January 18, 2002, was received by the Clerk's Office but was returned for lack of petitioner's signature. (See Exhibit G of the government's response).
A review of the record shows petitioner was convicted and judgment upon conviction was entered on January 24, 2001 in Criminal Case No. 00-056 (HL). Petitioner entered a guilty plea to Count One for a conspiracy to possess with intent to distribute controlled substances. The sentence was imposed on January 18, 2001, for eighty seven (87) months of incarceration, a supervised release term of four (4) years, and a special monetary assessment of one hundred dollars ($100.00).
Petitioner now claims that his counsel rendered ineffective assistance during critical stages of the proceedings. The government argues the § 2255 petition is time-barred and that petitioner's arguments of ineffective assistance of counsel are without merit.
II. DISCUSSION
A. Timeliness.
Under the provisions of the Anti-terrorist and Effective Death Penalty Act of 1996 ("AEDPA") 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.
The government argues that petitioner's § 2255 is time-barred. In the instant case, the judgment of conviction became final on February 2, 2001, that is, upon expiration of the ten (10) days period when petitioner could have filed a direct appeal to his conviction. As such, petitioner had, under the provisions of AEDPA, until February 2, 2002, to file for post-conviction relief pursuant to § 2255. An original unsigned § 2255 petition, postmarked January 18, 2002, was sent to the Clerk's Office for filing. On March 5, 2002, the original petition was returned by the Clerk's Office for lack of petitioner's signature. (See Exhibit G of the government's response).
First, we need to address when is a pro-se § 2255 motion deemed filed. This district, following jurisprudence from the United States Supreme Court and the First Circuit, has ruled that a pro-se prisoner's motion under 28 U.S.C. § 2255 or § 2254 is filed on the date that it is deposited in the prison's internal mail-system for forwarding to the district court, provided that the prisoner utilizes, if available, the prison's system for recording legal mail. Morales-Rivera v. United States, 184 F.3d 109, 110 (1st Cir. 1999). See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988); Reid v. State of New Hampshire, 56 F.3d 322, n. 16 (1st Cir. 1995).
The record shows that petitioner's original § 2255 petition was postmarked by the U.S. Postal Service on January 18, 2002. (See Exhibit G of the government's response). Therefore, the § 2255 petition must have been deposited in the prison's internal mail system on January 18, 2002 or before. Accordingly, the petition was timely filed. Morales-Rivera, 184 F.3d at 110.
Nonetheless, we need to determine whether the original § 2255 petition was valid even though it was not signed. The answer is in the affirmative.
The First Circuit has ruled that an omission of a signature on a timely-filed petition to vacate, set aside, or correct a sentence was a technical error, which was cured by the filing of a signed petition, even though the signed petition was filed after expiration of the limitations period for the petition. De Aza-Paez v. United States, 343 F.3d 552 (1st Cir. 2003).
In the instant case, the timely § 2255 petition was not signed by the pro-se petitioner. However, as in Aza-Paez, there was no doubt about who was filing or what judgment was attacked. As a result, the signed copy of the petition, received by the Clerk's Office and filed on March 26, 2002 (Docket entry #1), almost two (2) months after the deadline for the § 2255 filing had passed, cured the timely but unsigned petition.
For these reasons, petitioner's petition pursuant to 28 U.S.C. § 2255 is timely.
B. Ineffective Assistance of Counsel.
Petitioner contends that his counsel was ineffective during critical stages of the criminal proceedings for the following reasons:
i. Failure to file an appeal.
ii. Failure to argue and obtain a four (4) level reduction in the offense level for "minimal participation" in a drug distribution conspiracy, pursuant to U.S.S.G. § 3B1.2(a) and (b).
iii. Failure to argue at the sentencing hearing that his role was not a leadership role.
iv. Failing to argue that the evidence was insufficient to support the conspiracy charge.
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 conceitedly 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).
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 petitioner 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).
i. Failure to file an appeal.
Petitioner claims that his counsel was ineffective whereas he was instructed to file an appeal and he failed to do so.
In Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court applied the standard for claims of ineffective assistance of counsel when a defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken. In Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961 (1999), the Highest Court held that, "petitioner is not entitled to habeas relief based on a Rule 32(a)(2) violation when he had independent knowledge of the right to appeal and so was not prejudiced by the trial court's omission." Id. 119 S.Ct. at 965. See also United States v. Torres-Otero 192 F.3d 12 (1st Cir. 1999).
Fed.R.Crim.P. 32(j) states: Defendant's Right to Appeal.
(1) Advice of a Right to Appeal.
(A) Appealing a Conviction. If the defendant pleaded not guilty and was convicted, after sentencing the court must advise the defendant of the right to appeal the conviction.
(B) Appealing a Sentence. After sentencing — regardless of the defendant's plea — the court must advise the defendant of any right to appeal the sentence.
(C) Appeals Cost. The court must advise a defendant who is unable to pay appeal costs of the right to ask for permission to appeal in forma pauperis.
(2) Clerk's Filing of Notice. If the defendant so requests, the clerk must immediately prepare and file a notice of appeal on the defendant's behalf.
Still, even a violation to Rule 32 would not entitle a petitioner to § 2255 relief in all circumstances. In general, a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the court's error. United States v. Torres-Otero, supra at 13.
The record shows that petitioner was fully aware of his right to appeal because the sentencing court appraised petitioner of his right to file an appeal within ten (10) days (Tr. 1/18/01, p. 13).
Furthermore, contrary to petitioner's contentions, the record shows that petitioner never instructed his counsel to file a direct appeal to his conviction. The record contains an uncontested "Declaration Under Penalty of Perjury" of Attorney Guillermo A. Macari-Grillo, petitioner's counsel, in which he affirms petitioner never requested him to file an appeal even though Mr. Macari-Grillo visited petitioner several times for this purpose. (See Exhibit E of the government's response).
In view of the foregoing, petitioner chose to waive his right to appeal. As such, petitioner is not entitled to relief.
ii. Failure to argue and obtain a four (4) level reduction in the offense level for "minimal participation" in a drug distribution conspiracy, pursuant to U.S.S.G. § 3B1.2(a) and (b).
A plea of guilty is in itself a conviction, which because of its confessional nature, removes from the fact finder not only reasonable doubt, but all doubt as to the criminal nature of the acts admitted. By entering a guilty plea, a defendant effectively waives several constitutional rights. "For that waiver to be valid, due process requires that the plea amount to a voluntary and 'intentional relinquishment or abandonment of a knowing right or privilege.'" McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166 (1969); Miranda-González v. United States, 181 F.3d 164, 165 (1st Cir. 1999).
The Rule 11 colloquy in this case shows that petitioner entered into a voluntary and knowing plea. Petitioner admitted he received a copy of the indictment and he discussed the charges with his attorney. (Tr. 9/12/00, pp. 4 and 26). Petitioner was advised of his rights and those rights that are waived by entering a plea. Petitioner understood the rights being waived and voluntarily waived them indicating that he wished to plead guilty. (Tr. 9/12/00, pp. 6-11). Petitioner was informed of the maximum penalty provided by law in his case. (Tr. 9/12/00, pp. 11-12). In addition, on several occasions petitioner indicated that he was voluntarily and knowingly entering into the plea agreement and that he was not coerced, forced or threatened. (Tr. 9/12/00, pp. 5, 12-13, and 23-24). Petitioner also stated on various occasions that he was satisfied with the assistance of his counsel and the legal services provided by Mr. Macari-Grillo. (Tr. 9/12/00, pp. 5, 19). In addition, petitioner admitted that he fully discussed the plea agreement with his counsel. (Tr. 9/12/00, pp. 13-14). The Court explained to petitioner that it was not bound by the terms of the plea agreement. (Tr. 9/12/00, p. 15). Furthermore, it was stipulated that petitioner was going to receive a four (4) level increase due to his leadership role in the offense. (Tr. 9/12/00, pp. 16-17). Petitioner also accepted the government's version of facts in which he was depicted as a leader in the commission of the offense (Tr. 9/12/00, p. 20); and admitted the government's evidence to sustain the charges. (Tr. 9/12/00, pp. 21-22).
Moreover, the plea agreement specifically indicated that, based on petitioner's leadership role in the commission of the offense and pursuant to § 3B1.1(a), the base offense level shall be increased by four (4) levels. Also, the plea agreement proscribed any further adjustments or departures to the base offense level.
In view of the foregoing, it is clear that petitioner made a knowing and voluntary plea in which he admitted his leadership role pursuant to the plea agreement. Accordingly, petitioner's counsel could not ask for a (4) level reduction for an alleged "minimal participation" because it would have been a breach of the plea agreement. Thus, petitioner's claims of ineffective assistance of counsel at the change of plea stage are without merit.
iii. Failure to argue at the sentencing hearing that his role was not a leadership role.
Insofar as the sentencing stage, petitioner claims ineffectiveness because his counsel did not challenge the enhancement to the role in the offense.
Petitioner's counsel could not challenge petitioner's role in the offense because petitioner admitted his leadership role during his change of plea hearing pursuant to the plea agreement, as explained above.
Furthermore, as previously mentioned, the plea agreement specifically indicated that, based on petitioner's leadership role in the commission of the offense and pursuant to § 3B1.1(a), the base offense level shall be increased by four (4) levels. Also, the plea agreement proscribed any further adjustments or departures to the base offense level. Therefore, petitioner's counsel was not in a position to argue at the sentencing hearing that petitioner was not involved in a leadership role.
Contrary to petitioner's contentions, petitioner's counsel provided him with effective assistance of counsel at the sentencing hearing. Petitioner's counsel vehemently argued and requested that petitioner be sentenced at the lower end of the guideline range because petitioner had already served in state court for the same facts. (Tr. 1/18/01, pp. 6-7). For this reason, petitioner's counsel successfully obtained a sentence at the lower end of the guideline range. (Tr. 1/18/01, pp. 11-12). Accordingly, instead of being sentenced to ninety six (96) months of imprisonment, pursuant to the plea agreement, petitioner was sentenced to eighty seven (87) months of imprisonment. (Tr. 1/18/01, pp. 11-12).
Thus, petitioner's allegations of ineffective assistance of counsel during the sentencing hearing are without merit.
iv. Failure to argue that the evidence was insufficient to support the conspiracy charge.
Petitioner claims that his counsel was ineffective because he failed to argue that the evidence to prove the conspiracy charge was not sufficient because he was allegedly imprisoned at the time of the conspiracy.
Petitioner's counsel explains in his uncontested "Declaration under Penalty of Perjury" that petitioner's incarceration was addressed by him on several motions (Cr. Case 00-0056 (HL), Docket entries #44, 47, 48 and 64). (See Exhibit E of the government's response). Accordingly, Hon. Héctor M. Laffitte at the time of sentencing was aware of petitioner's incarceration.
Furthermore, petitioner's counsel recognizes in his Declaration that the weight of the evidence against petitioner in this case was heavy because there were three (3) witnesses who were going to testify against petitioner. Moreover, petitioner admitted being a part of the conspiracy when he voluntarily entered a guilty plea and accepted the government's version of facts.
Hence, it was reasonable under these circumstances for petitioner's counsel not to question the sufficiency of the evidence to support the conspiracy charge. Petitioner cannot now blame his counsel for alleged ineffective assistance.
III. CONCLUSION
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).
Thus, it is recommended that the § 2255 petition 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").