Barrow v. United States

• Decision Date: 21 November 2013
• Docket Number: Criminal No. 03–328 (FAB).,Civil No. 07–1970 (FAB).
• Parties: Tony BARROW, Petitioner v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

990 F.Supp.2d 76

Tony BARROW, Petitioner

v.UNITED STATES of America, Respondent.

Civil No. 07–1970 (FAB).

Criminal No. 03–328 (FAB).

United States District Court, D. Puerto Rico.

Nov. 21, 2013.

Tony Barrow, Petersburg, VA, 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. See28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); 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). See28 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 October 29, 2013, the United States magistrate judge issued a thorough Report and Recommendation (“R & R”) (Docket No. 33), recommending that petitioner's Supplemental Motion to Vacate, Set Aside or Correct Sentence (Docket No. 31), be DENIED for lack of jurisdiction. The parties had until November 15, 2013 to object to the R & R, but no objection was filed. Therefore, they 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's Supplemental Motion to Vacate, Set Aside or Correct Sentence (Docket No. 31) is DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

I. INTRODUCTION

This matter is before the court on petitioner Tony Barrow's supplemental motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, filed on September 30, 2013. (Docket No. 31). While he titles the motion supplemental, it is not supplemental to anything since there is nothing pending in this court which invites supplementation. I previously issued a report and recommendation in this case and use my previous report as a framework for the new issues raised by again petitioner. Having considered the arguments he raises, and for the reasons set forth below, I recommend that petitioner Barrow's supplemental or second motion to vacate, set aside, or correct sentence be DENIED for lack of jurisdiction.

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 18, 2003, a federal grand jury in the District of Puerto Rico charged Tony Barrow in a two-count indictment. (Criminal 03–0328, Docket No. 5.) Count one charged that on or about November 16, 2003, the defendant knowingly, intentionally, and unlawfully imported into the United States from a place outside thereof, that is, St. Marten, Netherlands Antilles, 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance, in violation of 21 U.S.C. § 952(a), and 960(a)(1) and (b)(2)(B). ( Id.) Count two charged that on or about the same date the defendant knowingly, intentionally, and unlawfully possessed with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). ( Id.) Petitioner entered a plea of not guilty at arraignment. Motion practice followed.

Petitioner decided that he would exercise his right to trial by jury. On August 4, 2004, the United States filed an information under 21 U.S.C. § 851 seeking an enhanced penalty upon conviction. The jury trial began on August 5, 10, 2004 and petitioner was convicted on August 11, 2004. He was sentenced on November 16, 2005 to two concurrent 262–month terms of imprisonment. The sentence was appealed and affirmed. United States v. Barrow, 448 F.3d 37 (1st Cir.2006). A petition for a writ of certiorari was denied on October 2, 2006. Barrow v. United States, 549 U.S. 871, 127 S.Ct. 176, 166 L.Ed.2d 124 (2006).

On October 16, 2007, petitioner filed a section 2255 motion attacking the performance of his defense counsel on all levels. I issued a report and recommendation denying the motion on December 7, 2009. (Docket No. 14). It was unopposed and the court, after making an independent examination of the entire record, adopted the same on December 30, 2009 and directed the entry of judgment accordingly. (Docket Nos. 15, 16). The judgment of dismissal was appealed.

On March 12, 2010, the court issued an order denying a certificate of appealability, (Docket No. 21), because petitioner had failed to make a substantial showing of the denial of a constitutional right. Title 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336–38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Petitioner appealed and the court of appeals denied the request for a certificate of appealability on June 14, 2010, noting that he had failed to establish entitlement to an evidentiary hearing, and had not made a substantial showing of the denial of a constitutional right. Title 28 U.S.C. § 2253(c)(2); Moreno–Morales v. United States, 334 F.3d 140 (1st Cir.2003). (Docket No. 29).

III. DISCUSSION

Under section 28 U.S.C. § 2255, a federal prisoner may move for post conviction relief if:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....

28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426–27 n. 3, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); David v. United States, 134 F.3d 470, 474 (1st Cir.1998). Collateral attack on nonconstitutional and nonjurisdictional “claims are properly brought under section 2255 only if the claimed error is ‘a fundamental defect which inherently results in a complete miscarriage of justice’ or ‘an omission inconsistent with the rudimentary demands of fair procedure.’ ” Knight v. United States, 37 F.3d 769, 772 (1st Cir.1994) (quoting Hill v. United States, 368 U.S. at 428, 82 S.Ct. 468). A claim of ineffective assistance of counsel is one such constitutional violation that may be raised by way of a section 2255 motion. See United States v. Kayne, 90 F.3d 7, 14 (1st Cir.1996).

A. Ineffective Assistance of Counsel

“In all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence.” U.S. Const. amend. 6. To establish a claim of ineffective assistance of counsel, a petitioner “must show that counsel's performance was deficient,” and that the deficiency prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[T]he ‘Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.’ ” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir.2007) (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003)). The two part test for constitutionally ineffective assistance of counsel was set forth in the Strickland case. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052; see also Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996); Knight v. United States, 37 F.3d at 774. The petitioner “must show that ‘counsel's representation fell below an objective standard of reasonableness,’ and that ‘the deficient performance prejudiced his defense.’ ” Owens v. United States, 483 F.3d 48, 63 (1st Cir.2007) (quoting Strickland v. Washington, 466 U.S. at 687–88, 104 S.Ct. 2052). The defendant bears the burden of proof for both elements of the test. See Cirilo–Muñoz v. United States, 404 F.3d 527, 530 (1st Cir.2005) (citing Scarpa v. Dubois, 38 F.3d 1, 8–9 (1st Cir.1994)).

“ ‘[J]udicial scrutiny of counsel's performance must be highly deferential,’ and ‘every effort [should] be made to eliminate the distorting effects of hindsight.’ ” Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996) (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052). The test includes a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Smullen v. United States, 94 F.3d at 23 (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052).

The second element of the Strickland test “also presents a high hurdle. ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ ” Argencourt v. United States, 78 F.3d at 16 (quoting Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. 2052). There must exist a reasonable probability that, “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Dugas...