Vázquez-Castro v. United States

Decision Date30 September 2014
Docket NumberCivil No. 13–1230 CCC.,Criminal No. 06–0210 CCC.
Citation53 F.Supp.3d 514
CourtU.S. District Court — District of Puerto Rico
PartiesJosé A. VÁZQUEZ–CASTRO, Plaintiff v. UNITED STATES of America, Defendant.

José A. Vazquez–Castro, Inez, KY, pro se.

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

JUDGMENT

CARMEN CONSUELO CEREZO, District Judge.

Having considered the Motion to Vacate, Set Aside, or Correct Sentence filed by petitioner José A. Vázquez–Castro on March 19, 2013 (docket entry 1), the United States' Response in Opposition filed on October 17, 2013 (docket entry 3), the supplemental pleading filed by petitioner on August 1, 2014 (docket entry 5), and the Report and Recommendation filed by U.S. Magistrate–Judge Justo Arenas on August 18, 2014 (docket entry 6), which remains unopposed, said Report and Recommendation is APPROVED and ADOPTED and petitioner's 28 U.S.C. § 2255 Motion (docket entry 1) and supplemental pleading (docket entry 5) are DENIED. Accordingly, it is ORDERED and ADJUDGED that judgment be and is hereby entered DISMISSING this action, with prejudice.

No certificate of appealability shall be issued should petitioner file a notice of appeal, since he has failed to make a substantial showing of the denial of a constitutional right within the meaning of Title 28 U.S.C. § 2253(c)(2). Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

SO ORDERED AND ADJUDGED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255, AS SUPPLEMENTED

JUSTO ARENAS, United States Magistrate Judge.

I
A. PROCEDURAL BACKGROUND: TRIAL LEVEL

Petitioner Jose A. Vazquez–Castro was indicted on June 28, 2006 in a three-count indictment together with five other defendants. (Crim. No. 06–210, Docket No. 20). Count One charged that, beginning in or about February 16, 2006, and continuing up to the date of the indictment, in the District of Puerto Rico and within the jurisdiction of this court, petitioner and others knowingly and intentionally combined, conspired, confederated and agreed together and with each other and other persons known and unknown to the grand jury, to possess with intent to distribute a narcotic drug controlled substance, that is, five (5) kilogram or more of cocaine, a Schedule II Narcotic Drug Controlled Substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 846. Count Two charges the corresponding aiding and abetting offense under 18 U.S.C. § 2. Count Three of the indictment charges that on or about June 23, 2006, in the District of Puerto Rico and within the jurisdiction of this court, petitioner and others, aiding and abetting each other, did possess, use and carry firearms, as that term is defined in 18 United States Code Section 921(a)(3) to wit: a .45 caliber Ruger pistol, model P97DC, serial number 66333684, loaded, in furtherance of a drug trafficking crime, as that term is defined in Title 18, United States Code, Section 924(c)(2), that is, the possession with the intent to distribute controlled substances, as charged in Counts One and Two, offenses for which defendants may be prosecuted in a court of the United States. All in violation of Title 18, United States Code §§ 924(c)(1)(A) and 924(c)(1)(A)(i). (Crim. No. 06–210, Docket No. 20).

Petitioner was arraigned before me on July 3, 2006 and entered a not guilty plea. (Crim. No. 06–210, Docket No. 35). Petitioner was represented by attorney Guillermo Godreau Marrero. On September 15, 2006, petitioner pro se asked for court-appointed counsel, since counsel Godreau Marrero passed away. Attorney Ramon Garcia–Garcia was then appointed to represent petitioner on October 23, 2006, and proceeded to file a flurry of motions. (Crim. No. 06–210, Docket Nos. 61, 63–67, 73). Counsel Garcia–Garcia moved to withdraw representation on August 1, 2007 and attorney Rachel Brill, also court-appointed, assumed representation. (Crim. No. 06–210, Docket Nos. 191, 196). Petitioner asked for another court-appointed counsel which request was initially denied. Counsel Brill filed a motion to suppress statement on February 6, 2008. (Crim. No. 06–210, Docket No. 238). On May 23, 2008, petitioner was appointed attorney Jason Gonzalez–Delgado in the middle of settings of the suppression hearing. (Crim. No. 06–210, Docket Nos. 267, 268). On October 30, 2008, the court set the jury trial for November 12, 2008. Prior to trial, plea offers were made to petitioner and the other defendants, and petitioner alone proceeded to trial which then began on November 24, 2008 and ended on December 16, 2008 with a guilty verdict on all counts. (Crim. No. 06–210, Docket Nos. 301, 319, 321). A comprehensive motion for acquittal under Fed.R.Crim.P. 29(c)(1) was filed on December 24, 2008. (Crim. No. 06–210, Docket No. 329).

On January 29, 2009, retained counsel Alexander Zeno filed a notice of appearance. (Crim. No. 06–210, Docket No. 335). Petitioner was sentenced on July 9, 2009 to 120 months imprisonment on Counts One and Two, to be served concurrently, and a consecutive sentence of 60 months on Count Three, as required by 18 U.S.C. § 924(c)(1)(D)(ii). (Crim. No. 06–210, Docket No. 387). A notice of appeal was filed on July 20, 2009. (Crim. No. 06–210, Docket No. 390).

B. PROCEDURAL HISTORY: APPELLATE LEVEL

On April 7, 2011, the United States Court of Appeals for the First Circuit affirmed the conviction. United States v. Vazquez–Castro, 640 F.3d 19 (1st Cir.2011). Petitioner argued that the evidence was insufficient to prove a violation as to Count Three, and also argued that the court erred by instructing the jury on the Pinkerton theory of liability. See Pinkerton v. United States, 328 U.S. 640, 645 n. 6, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The court found that it was reasonably foreseeable to petitioner that one of his co-conspirators would carry a firearm, following the Pinkerton theory, and therefore did not consider the evidence under a higher showing of aiding and abetting. United States v. Vazquez–Castro, 640 F.3d at 27.

Petitioner did not seek further relief by way of certiorari, although he sought rehearing, which was denied on May 4, 2011. His conviction became final 90 days after that date, on August 4, 2011. Rule 13.3 of the United States Supreme Court Rules. Therefore this petition would have had to be filed no later than one year later, August 4, 2012, in order to be considered timely filed. Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ; Herbert v. Dickhaut, 695 F.3d 105, 107 (1st Cir.2012) ; Close v. United States, 336 F.3d 1283, 1285 (11th Cir.2003) ; Derman v. United States, 298 F.3d 34, 40–42 (1st Cir.2002) ; Torres–Santiago v. United States, 865 F.Supp.2d 168, 172 n. 1 (D.P.R.2012).

II. COLLATERAL REVIEW

On July 26, 2012, petitioner asked the court to contact his attorney and ask him why this motion was not filed in a timely fashion. (Crim. No. 06–0210, Docket No. 430). The motion was denied. (Crim. No. 06–0210, Docket No. 431).

This matter is before the court on pro se petitioner's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, filed on March 19, 2013. (Docket No. 1). Petitioner argues that he did not receive effective assistance of counsel when he, petitioner, was not present during a critical stage of his trial. On December 16, 2008, a proceeding addressing a written note for the jury was held in chambers without the presence of petitioner. The note requested the testimony transcript of Bobby Cruz, Marcos Nunez (government witnesses), and Jose Vazquez Castro. The court denied the request and informed the jury with another note and an explanation. (Docket No. 1 at 5). Petitioner argues that a part of the agreed-to message to the jury was left out, the part which qualified the request in that a specific portion of the testimony would be read but not six hours worth. Petitioner also complains of the lack of preparation for trial and effectiveness in the examination of petitioner who incriminated himself on the witness stand, or was also not credible, thus undermining his defense. Petitioner stresses that the prosecutor, Assistant U.S. Attorney Vernon Miles, made “mincemeat” of him on cross-examination. (Docket No. 1 at 8). Petitioner stresses that his trial counsel was ineffective under the standard of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner informs that the motion is timely because the mandate of the court of appeals was entered on May 16, 2011. (Docket No. 1 at 3). Petitioner apparently signed the motion on some day in April 2012. (Docket No. 1 at 12). However, it is impossible to know when petitioner signed the motion since it appears that the same petition was sent to him without changes, including the month of April.

Accompanying his motion is a letter from Alvin E. Entin of the law offices of Entin & Della Fera, P.A. in Fort Lauderdale, Florida dated July 20, 2012 explaining that petitioner had been sent the application for a writ of habeas corpus on April 6, 2012 for him to file it directly with this court. (Docket No. 1–1). Since petitioner said he did not receive the same, another petition was then enclosed. The letter ends thus: “Since you are outside the 1 year period of limitation, you will need to request the Court allow you to file the Application out of time.” A letter to the Clerk blames Mr. Entin for the untimely filing and informs that petitioner will pursue his complaint against Mr. Entin in another forum. He states that attorney Entin was paid to file the motion by petitioner's family.

In a short brief, the government tersely replies that the petition is time-barred. It does not address the merits of the petition and only repeats what is apparent from reviewing two dockets, that is, that the motion was filed months after the limitations period expired. (Docket No. 3 ...

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