Landrón-Class v. United States

• Decision Date: 11 February 2015
• Docket Number: Criminal No. 09–329 FAB.,Civil No. 14–1289 FAB.
• Parties: Reynaldo LANDRÓN–CLASS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

86 F.Supp.3d 64

Reynaldo LANDRÓN–CLASS, Petitioner

v.UNITED STATES of America, Respondent.

Civil No. 14–1289 FAB.

Criminal No. 09–329 FAB.

United States District Court, D. Puerto Rico.

Signed Feb. 11, 2015.

Reynaldo Landron–Class, Coleman, FL, pro se.

Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.

MEMORANDUM AND ORDER

BESOSA, District Judge.

A district court may refer a pending motion to a magistrate judge for a report and recommendation.See 28 U.S.C. § 636(b)(1)(B) ; Fed.R.Civ.P. 72(a) ; Loc. Rule 72(b). Any party adversely affected by the report and recommendation may file written objections within fourteen days of being served with the magistrate judge's report. Loc. Rule 72(d). See 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Ramos–Echevarria v. Pichis, Inc., 698 F.Supp.2d 262, 264 (D.P.R.2010) ; Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987). In conducting its review, the court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(a), (b)(1) ; Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985) ; Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez–Mejias v. General Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing LaCedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125–126 (D.R.I.2004) ).

On January 22, 2015, the United States magistrate judge issued a Report and Recommendation (“R & R”) (Docket No. 13), recommending that petitioner Landron–Class' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1) be denied without an evidentiary hearing. The magistrate judge also recommended that no certificate of appealability be issued because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2252(c)(2). The parties had until February 10, 2015 to object to the R & R. Neither party did. Therefore, the petitioner and the United States have waived the right to further review in the district court. Davet, 973 F.2d at 30–31.

The Court has made an independent examination of the entire record in this case and ADOPTS the magistrate judge's findings and recommendations.

Accordingly, petitioner Landron–Class' section 2255 motion is DENIED.

This case is DISMISSED with prejudice.

Judgment shall be entered accordingly.

If petitioner files a notice of appeal, no certificate of appealability shall issue because petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

I. INTRODUCTION

Petitioner was indicted on September 30, 2009 along with Myriam Daisy Perez–Perez in a five-count superceding indictment, the last two counts of which were forfeiture allegations as to each defendant. Petitioner was charged in the first count in that beginning on or about January, 2005 and continuing to on or about September 4, 2007, in the District of Puerto Rico and within the jurisdiction of this court, he did knowingly and intentionally combine, conspire, confederate and agree with other persons known and unknown to the Grand Jury, to possess with the intent to distribute and dispense forty-four point forty-six (44.46) kilograms (gross weight) or more of a mixture or substance containing a detectable amount of Oxycodone, a Schedule II Controlled Substance, outside the scope of professional practice and not for a legitimate medical purpose, in violation of Title 21, United States Code, Sections 841(a)(1), (b)(1)(C), and 846. All in violation of 21 U.S.C. § 846. (Criminal 09–329(FAB), Docket No. 1). Count Two is dedicated to the co-defendant. Count Three is similar to Count One except for the amount of Oxycodone and the addition of the co-defendant. In any event, Count Three was later voluntarily dismissed by the United States.

Trial began as scheduled on June 1, 2010. (Criminal 09–0329, Docket No. 193). Petitioner was found guilty by a jury on June 7, 2010, and was sentenced on November 9, 2010 to 240 months imprisonment. (Criminal 09–0329, Docket Nos. 203, 237). Petitioner appealed his conviction and sentence. (Criminal 09–0329, Docket No. 240). On August 29, 2012, the judgment of conviction was affirmed in a lengthy opinion. United States v. Landron–Class, 696 F.3d 62 (1st Cir.2012). Petitioner employed a battery of arguments against his conviction and sentence, from error in conducting the voir dire to the details of his sentence. Petitioner complained of evidentiary rulings made during trial, the court's failure to order the production of certain documents as Jencks Act material¹ , and the denial of a Rule 29, Federal Rules of Criminal Procedure motion for judgment of acquittal. Aside from agreeing with petitioner as to one argument related to evidence of guilty pleas by former co-defendants, the judgment remained intact because the error committed was harmless. Id. at 70–71. A petition for a writ of certiorari was denied on March 18, 2013. Landron–Class v. United States, ––– U.S. ––––, 133 S.Ct. 1621, 185 L.Ed.2d 605 (2013).

II. MOTION UNDER 28 U.S.C. § 2255

This matter is before the court on petitioner Reynaldo Landron–Class's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, filed on April 4, 2014. (Docket No. 1.) Petitioner argues that he received ineffective assistance of counsel because of counsel's failure to adequately explain to petitioner the benefits of accepting the government's plea offer before the offer expired. He claims globally that he received ineffective assistance of counsel at pretrial, trial, and appeal stages of his case by Assistant Federal Public Defender Hector Ramos² and counsel Rafael Castro Lang.³ He continues his argument by stressing that the cumulative effect of the errors committed rendered the process unfair. (Docket No. 1 at 4).

Petitioner argues that his attorneys violated the “retroactively Applicable Ruling” in Lafler v. Cooper, 566 U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), since Assistant United States Attorney Scott H. Anderson had offered a favorable guilty plea of 70 or 80 months imprisonment, the cutoff date for acceptance was September 16, 2009, and petitioner rejected both offers after communicating with counsel Castro–Lang, accepting his advice⁴ . (Docket No. 1 at 10).

Petitioner lists a series of instances which arguably reflect his being denied effective assistance of counsel. One such instance was the stop and search of his vehicle without a warrant, which search included his wife's purse. (Docket No. 1 at 11). Another instance of ineffective assistance of counsel is the failure to move to dismiss the indictment based upon a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 –74. (Docket No. 1 at 12). Yet another instance is trial counsel's failure to object to lay opinion testimony of two witnesses. Petitioner also complains of defense counsel's failing to advise him of the right to testify and offer his version of the story, and he also complains of the trial court's failure to inquire into his knowledge of the right to testify on his own behalf.⁵ (Docket No. 1 at 17). Petitioner stresses his ignorance of being informed by counsel of the maximum penalty he faced by going to trial, and that had he known that he could be sentenced for drugs he did not possess or distribute, he would have accepted a plea offer of 70 or 78 months. (Docket No. 1 at 14).⁶

Petitioner argues that at sentencing, counsel failed to object to the guideline calculations attributing a leadership role to him. (Docket No. 1 at 14–15). Petitioner notes that when he was taken out of the courtroom in shackles by U.S. Marshals, the jury viewed him and counsel failed to object. Petitioner argues that the cumulative effect of these errors provided him ineffective assistance of counsel and an unfair trial. Petitioner concludes that he is entitled to relief or an evidentiary hearing where he can show he is entitled to relief.

In response to the section 2255 motion filed on July 22, 2014 (Docket No. 7), the government notes that petitioner's initial swipe at defense counsel's performance is conclusory and fails to show how counsel was deficient to the point where petitioner suffered prejudice as a consequence. See Peralta v. United States, 597 F.3d 74 (1st Cir.2010). It also points to a number of alleged errors which are deemed defaulted since they are brought for the first time on collateral review. (Docket No. 7). Those errors are the suppression issue, the Speed Trial violation, improper testimony, explaining to defendant the right that he had to testify, the plea offer, and being seen by jurors in handcuffs and shackles.

In his October 23, 2014 reply to the government's response, petitioner stresses reliance on key Supreme Court and First Circuit case law, law mentioned below in part, emphasizes reliance on Lafler v. Cooper, 566 U.S. ––––, 132 S.Ct. 1376, and cites seminal case law regarding search and seizure. While he again mentions the violation of Speedy Trial, the argument remains undeveloped even when couched in Sixth Amendment terms of ineffective assistance of counsel. Again he emphasizes that he was not told by his attorney of the right to testify, and raises an issue of misapplication of ...