Campuzano v. United States

• Decision Date: 30 September 2013
• Docket Number: Civil No. 10–1392CCC.
• Citation: 976 F.Supp.2d 89
• Parties: Rodrigo CAMPUZANO, Plaintiff v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

976 F.Supp.2d 89

Rodrigo CAMPUZANO, Plaintiff

v.UNITED STATES of America, Defendant.

Civil No. 10–1392CCC.

United States District Court,

D. Puerto Rico.

Sept. 30, 2013.

Rodrigo Campuzano, Philipsburg, PA, pro se.

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

ORDER

CARMEN CONSUELO CEREZO, District Judge.

Having considered the Motion to Vacate, Set Aside, and/or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Rodrigo Campuzano (Campuzano) (docket entry 1), the United States' Response in Opposition (docket entry 7), the Report and Recommendation (R & R) issued by U.S. Magistrate–Judge Justo Arenas on August 22, 2013 (docket entry 19) and the Objections to said R & R filed by petitioner Campuzano on September 30, 2013 (docket entry 22), said Report and Recommendation is APPROVED and ADOPTED and Campuzano's 28 U.S.C. § 2255 Petition is DENIED and ORDERED DISMISSED in its entirety. Judgment shall be entered accordingly.

SO ORDERED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

A. PROCEDURAL BACKGROUND

On July 24, 2001, a grand jury sitting in Puerto Rico returned an indictment charging petitioner Rodrigo Campusano ¹ and two other defendants, Jaime Pinillos–Prieto (“Pinillos”) and Nolgie Rodriguez–Zamot (at times referred to as Rodriguez–Zamo) with drug offenses resulting from a DEA directed “reverse sting operation.” Petitioner was charged in the first count in that, from on about early July 2001 up to and including July 11, 2001, in the District of Puerto Rico, petitioner and the co-defendants did knowingly, wilfully, intentionally and unlawfully conspire, confederate, and agree together and with each other and with diverse other persons known and unknown to the Grand Jury, to knowingly, intentionally and unlawfully possess with intent to distribute and distribute in excess of five kilograms or more of cocaine, a Schedule II Narcotic Drug Controlled Substance, in violation of 21 U.S.C. § 846. (Crim. No. 01–520, Docket No. 10). Count Two of the indictment charged the defendants, aiding and abetting each other, with knowingly, intentionally, and unlawfully attempting to possess with intent to distribute in excess of five kilograms of cocaine, in violation of Title 21, United States Code, Section 841(a)(1), and Title 18, United States Code, Section 2.

At the arraignment held before me on July 27, 2001, the three defendants entered not guilty pleas. Informal discovery, a very active motion practice and plea negotiations followed, these up to one year before trial. Those plea negotiations ended in late September, 2002 without bearing fruit.

B. TRIAL

On October 17, 2002, the jury trial commenced and petitioner, represented by attorney Lydia Lizarribar–Masini, Esq., was convicted on October 25, 2002. The other two defendants were also convicted. The trial arena may be summarized as the uniform testimonies of two cooperating individuals and Colombian nationals, Nelson Rodriguez, known as “Rafa” in the investigation, and Nataya Posada, known as “Princesa” in the investigation, and a Puerto Rico law enforcement officer, Anthony Toro Zambrana, Special Agent with the Special Investigations Bureau of the Puerto Rico Department of Justice, against the testimonies of the three defendants, as well as the grandmother and uncle of one of the co-defendants, Nolgie Rodriguez–Zamot, and an employee of a car rental company, whose testimony was related to a car rental by co-defendant Rodriguez–Zamot. The defendants each testified offering innocent, interwoven explanations for the few meetings with the government agents, also including a family visit, sightseeing, and dealing in computers but not in narcotic drugs. United States v. Campusano, 556 F.3d 36, 41 (1st Cir.2009); United States v. Pinillos–Prieto, 419 F.3d 61, 66 (1st Cir.), cert. denied sub nom. Rodriguez–Zamot v. United States, 546 U.S. 1070, 126 S.Ct. 817, 163 L.Ed.2d 643 (2005); United States v. Pinillos, 2007 WL 1341228 (May 3, 2007).

Petitioner was sentence on March 26, 2003 to 235 months imprisonment on each count, to be served concurrently with each other. (Crim. No. 01–520, Docket No. 237).² A notice of appeal was filed on the same date. (Crim. No. 01–520, Docket No. 240). Petitioner's conviction was affirmed on August 17, 2005. (Crim. No. 01–520, Docket No. 295). However, the case was remanded for re-sentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) which was decided seven months earlier. Counsel Lizarribar–Masini was relieved from legal representation of petitioner on November 3, 2005, and was then replaced by attorney Jose R. Olmo–Rodriguez, who continued to represent petitioner until relieved on March 22, 2006. (Crim. No. 01–520, Docket 342). On March 27, 2006, attorney Benito Rodriguez–Masso was appointed to represent petitioner. The appointment ended on July 12, 2006.

C. APPEAL & RE–SENTENCING

The appellants argued the insufficiency of evidence to sustain the convictions since they were dealing in computers and laptops and not controlled substances. The appeals court noted that notwithstanding the defense positions, the words related to computers were code words as described by two of the government witnesses. Lack of being able to reach an agreement was also raised and dispatched. This issue was raised by petitioner in particular. Only the sentencing issue, preserved by all defendants was deemed to have merit and thus the remand. All of the defendants protested being held accountable for 100 kilos of cocaine since they were not reasonably capable of purchasing that amount of cocaine due to the lack of money to purchase anywhere near the quantities of cocaine alleged. United States v. Pinillos–Prieto, 419 F.3d at 66. On this first appeal, petitioner was represented by Stephen J. Golembe, Esq.

On May 9, 2007, petitioner was re-sentenced to another term of 235 months imprisonment. He also received a term of supervised release term of ten years. (Crim. No., 01–520, Docket Nos. 421, 423). Petitioner filed a notice of appeal on May 14, 2007. (Crim. No. 01–520, Docket No. 422). The sentence was affirmed on February 13, 2009. United States v. Campusano, supra. A petition for a writ of certiorari was denied on June 15, 2009. Campusano v. United States, 557 U.S. 912, 129 S.Ct. 2809, 174 L.Ed.2d 305 (2009). On this second appeal, petitioner was represented by Johnny Rivera–Gonzalez, Esq. who assumed legal representation on July 12, 2006. (Crim. No. 01–520, Docket No. 375). This was the last of the four attorneys to represent petitioner at the trial level.

D. COLLATERAL REVIEW

This matter is before the court on timely motion to vacate, set aside or remand sentence filed by petitioner Rodrigo Campusano on May 12, 2010. (Docket No. 1). Petitioner presses before the court thirteen mostly intertwined grounds for vacating his sentence in a comprehensive 46–page motion and memorandum of law. He also engages in a recital of pretrial proceedings, pretrial negotiations, and the evidence presented at trial, as well as complaints about his trial, sentencing and appellate counsel. Ultimately he seeks an evidentiary hearing since many of his allegations concern matters that do not appear in the record.

The United States filed a 26–page response in opposition to petitioner's motion on August 3, 2010. (Docket No. 7). It argues that some issues lack merit, others were not raised on appeal and therefore are foreclosed on collateral review, and yet others were disposed of on direct appeal. A thorough 37–page reply to the response was filed on September 24, 2010. (Docket No. 10). Petitioner further expanded the record on December 20, 2010. (Docket No. 11), and supplemented the 2255 motion on October 12, 2012. (Docket No. 13).

I will be addressing ad seriatim the interwoven but well thought issues raised by petitioner. Because petitioner appears pro se, his pleadings are considered more liberally, however inartfully or opaquely pleaded, than those penned and filed by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Proverb v. O'Mara, 2009 WL 368617 (D.N.H. Feb. 13, 2009). As in the case of co-defendant Pinillos, there is nothing inartful in these pleadings. Nevertheless, having reviewed the record, and having considered the several attested pleadings of petitioner, as well as the arguments of the parties and for the reasons set forth below, I disagree with petitioner's arguments and recommend that petitioner Rodrigo Campusano's motion to vacate, set aside, or correct sentence be DENIED without evidentiary hearing.

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; Hill v. United States, 368 U.S. 424, 426–27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); David v. United States, 134 F.3d 470, 474 (1st Cir.1998).

It is well settled that the Sixth Amendment right to counsel guarantees effective counsel. See Strickland v. Washington, 466 U.S. 668, 686–87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Ortiz, 146 F.3d 25, 27 (1st Cir.1998). Nevertheless, petitioner bears a “very heavy burden” in his attempt to have his sentence vacated premised on an ineffective assistance of counsel claim. See Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996); Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). This is particularly true in this circuit where a lawyer's performance is deficient under Strickland “... only where, given the facts known at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it.” United States v. Rodriguez, ...