Alméstica-Torres v. United States
| Citation | 502 F.Supp.3d 667 |
| Decision Date | 24 November 2020 |
| Docket Number | Criminal No. 15-748 (FAB),Civil No. 17-1619 (FAB) |
| Parties | Eduardo ALMÉSTICA-TORRES, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Eduardo Alméstica-Torres, Miami, FL, pro se.
Mariana E. Bauza, Thomas F. Klumper, Julia Meconiates, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Respondent.
Before the Court is Eduardo Alméstica-Torres’ ("Petitioner" or "Alméstica-Torres") pro-se motion to vacate, set aside, or correct his sentence in Criminal Case No. 15-748, pursuant to Title 28, United Sates Code, section 2255 ("section 2255"), (Civil Docket No. 1); Petitioner's Memorandum in Support (Civil Docket No. 1-1); and the Government's Response, (Civil Docket No. 14). For the reasons set forth below, the Court dismisses with prejudice Petitioner's motion to vacate his sentence and accompanying Memorandum in Support (Docket Nos. 1 and 1-1).
On December 9, 2015, Alméstica-Torres was charged in a one-count Indictment with being a convicted felon in possession of a firearm in violation of Title 18, United States Code, section 924(d)(1) and Title 28, United States Code, section 2461(c). (Criminal Docket No. 12.)
On February 19, 2016, Petitioner pled guilty to the one-count indictment, pursuant to a Plea Agreement entered into with the Government. (Criminal Docket Nos. 27 and 28.)
On May 19, 2016, Petitioner was sentenced to a term of imprisonment of forty-two months (Criminal Docket No. 37.) Judgment was entered on May 30, 2016. (Criminal Docket No. 38.)
Alméstica-Torres did not appeal his sentence; on April 27, 2017, Petitioner filed a timely Motion to Vacate Sentence pursuant to Title 28, United States Code, section 2255. (Civil Docket No. 1.)
Pursuant to 28 U.S.C. section 2255, "[a] prisoner in custody under sentence of a court established by [an] Act of Congress ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "[T]he statute provides for post-conviction relief in four instances, namely, if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ). Claims that do not allege constitutional or jurisdictional errors are properly brought under section 2255 only if the claimed error is a "fundamental defect which fundamentally results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Id.
A motion filed pursuant to section 2255 is not a substitute for a direct appeal. Foster v. Chatman, ––– U.S. ––––, 136 S. Ct. 1737, 1758, 195 L.Ed.2d 1 (2016). As a result, "as a general rule, federal prisoners may not use a motion under 28 U.S.C. § 2255 to relitigate a claim that was previously rejected on direct appeal." Id. (citations omitted). Moreover, "[c]ollateral relief in a § 2255 proceeding is generally unavailable if the petitioner has procedurally defaulted his claim by failing to raise the claim in a timely manner at trial or on direct appeal." Bucci v. United States, 662 F.3d 18, 27 (1st Cir. 2011) (quotation marks and citations omitted). If a section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from judicial review unless the petitioner can demonstrate both (1) cause for the procedural default, and (2) actual prejudice resulting from the error asserted. Id.; United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).
In his 2255 petition, Alméstica-Torres makes the following allegations:
Ineffective assistance of counsel – Counsel was ineffective by failing to object to Petitioner's Criminal History Category of IV; counsel should have argued that Alméstica-Torres’ Criminal History Category was I.
Ineffective assistance of counsel – Counsel was ineffective by failing to advise Alméstica-Torres properly that the Plea Agreement did not stipulate a Criminal History Category.
Petitioner also makes an allegation of sentencing factor manipulation in one line.
Because they are intertwined, the Court will jointly address both allegations of ineffective assistance of counsel.
A. Ineffective assistance of counsel – Whether counsel was ineffective by failing to object to Petitioner's Criminal History Category of IV; counsel should have argued that Alméstica-Torres’ Criminal History Category was I. Whether counsel was ineffective by failing to advise Alméstica-Torres properly that the Plea Agreement did not stipulate a Criminal History Category.
To establish ineffective assistance of counsel, a defendant must show that:
1. His attorney's performance was deficient, and
2. The deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In order to establish deficiency, a defendant must establish that counsel's performance "fell below an objective standard of reasonableness under prevailing professional norms." Strickland 466 U.S. at 688, 104 S.Ct. 2052. Under Strickland, counsel is presumed to have acted within the range of "reasonable professional assistance," and it is defendant who bears the burden of "overcoming the presumption that, under the circumstances, that challenged action ‘might be considered sound trial strategy.’ " Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To show prejudice, a defendant must establish that Strickland, 466 U.S. at 694, 104 S.Ct. 2052. This assessment "must be a ‘fairly tolerant’ one [, however,] because ‘the Constitution pledges to an accused an effective defense, not necessarily a perfect defense or successful defense.’ " Moreno-Espada v. United States, 666 F.3d 60, 64 (1st Cir. 2012) quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994).
A claim of ineffective assistance of counsel "requires a court to assess, first whether ‘counsel's representation fell below an objective standard of reasonableness.’ " Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010). It is clear that Petitioner was obligated to show both that counsel's performance fell below an objective standard of reasonableness, and that prejudice resulted from it, Strickland, 466 U.S. at 687, 104 S.Ct. 2052. See also López-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990). He must do this for each particular instance in which he claims ineffective assistance of counsel. Counsel's performance must be examined "not in hindsight, but based on what the lawyer knew, or should have known, at the time his tactical choices were made and implemented." United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). The "range of reasonable professional assistance" is quite wide. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Therefore, the Supreme Court has stated that, "judicial scrutiny of counsel's performance must be highly deferential." See Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
Under Strickland, a petitioner is required to identify acts or omissions by counsel which need to be outside the wide range of professional competent assistance and the harm those actions caused. Furthermore, "a defendant's failure to satisfy one prong of the Strickland analysis obviates the need for a court to consider the remaining prong." Moreno-Espada v. United States, 666 F.3d 60, 64 (1st Cir. 2012) (quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) ).
Alméstica-Torres raises two claims of ineffective assistance of counsel, both related to the determination of his Criminal History Category (CHC). Petitioner alleges that had counsel properly explained to him the variations that were possible in the determination of his CHC, and that the determination was left open in the Plea Agreement, he would not have signed the Plea Agreement. Alméstica-Torres also alleges that counsel was ineffective by failing to advocate at sentencing that Petitioner's proper CHC was I.
The record does not support either of Petitioner's allegations.
A review of the Plea Agreement clearly states in paragraph eight that "The parties do not stipulate as to any Criminal History Category for defendant." Paragraph nine reads that, (Criminal Docket No. 28 at p. 4.)
Because the charge to which Petitioner pled guilty was being a felon in possession of a firearm, he must have had at least one prior conviction; it was left to the Probation Officer, in the preparation of the Presentence Investigation Report, to evaluate Alméstica-Torres’ criminal record and compute the applicable CHC.
Alméstica-Torres cannot allege that he was confused and did not understand these paragraphs of the Plea Agreement; he signed and initialed each page of the Plea Agreement. Furthermore, a review of the transcript of the Change of Plea Hearing clearly establishes that Petitioner was fully aware of the possibilities of his CHC computation and what his counsel was allowed to argue.
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