Caraballo–Torres v. United States

Decision Date13 July 2012
Docket NumberCriminal No. 08–0204 (DRD).,Civil No. 10–2085 (DRD).
Citation887 F.Supp.2d 387
PartiesJose M. CARABALLO–TORRES, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — District of Puerto Rico

OPINION TEXT STARTS HERE

Jose M. Caraballo–Torres, FCI Miami, Miami, FL, pro se.

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

OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Petitioner Jose M. Caraballo–Torres was indicted for being a leader of a drug trafficking organization which included at least one hundred eleven (111) members. Petitioner acted as leader of at least five other individuals by accepting a four point enhancement (08–cr–204, Docket No. 4429, page 25). The organization distributed drugs in the Municipalities of Juana Diaz and Ponce for over five years and distributed over 4.5 kilograms of cocaine base a month (08–cr–204, Docket No. 4430, page 9). The main drug distribution point for this conspiracy was Ernesto Ramos Antonini Public Housing Project, which contains a public school within its boundaries. (08–cr–204, Docket No. 4429, page 25).1

Petitioner and the Government reached and executed a plea agreement (Docket Nos. 1958 and 1959) whereby Petitioner would plead guilty as to Counts 1 and 6 and the remaining charged counts would be dismissed.2 The plea agreement further contemplates that Government would recommend a total term of imprisonment of 210 months as to Count 1 and that Petitioner would recommend a term of 180 months; the parties also agreed to recommend a term of 180 months as to Count 6 to run concurrently with the term imposed for Count 1.

On October 29, 2009, the Court imposed a term of imprisonment of 192 months as to each count, which are to be served concurrently (Docket No. 4430, page 15).

I. Procedural History

Pending before the Court is Petitioner Jose M. Caraballo–Torres' writ of habeas corpus under 28 U.S.C. § 2255 filed on November 5, 2010 (Docket No. 1). Therein, Petitioner posits that his attorney, Sonia Torres–Pabon, provided ineffective assistance of counsel. Petitioner avers that Attorney Torres–Pabon failed to properly investigate his role in the offense (Docket No. 1, page 5); failed to investigate facts that would warrant a downward departure at sentencing (Docket No. 1, page 5); failed to object to the Presentence Report (Docket No. 1, page 5 and Docket No. 3, page 3); and failed to argue against the four point role enhancement (Docket No. 3, page 3).

On July 1, 2011, the Government opposed Petitioner's § 2255 motion (Docket No. 6). The Government submits that Petitioner's claim are contrary to the record developed in open court at Petitioner's plea colloquy and at sentencing. Further, the Government asserts that Petitioner had ample opportunities to reject the plea agreement, but decided to accept the agreement due to the benefits he derived from it.

On May 7, 2012, the Court directed the Clerk of the Court to refer the instant matter to Magistrate Judge Justo Arenas for his Report and Recommendation (Docket No. 7).

On May 17, 2012, Magistrate Judge Arenas submitted a Report and Recommendation to the Court (Docket No. 9). The Magistrate Judge determined that Petitioner's assertions of ineffective assistance of counsel were belied by the record and thus recommended that Petitioner's § 2255 motion be denied without an evidentiary hearing. Magistrate Judge Arenas stated:

The defendant, by his own acknowledgment, was the leader of this organization although he now attacks his attorney's not arguing against the same position he adopted as part of the plea agreement, at a time he was under oath. After listening to the prosecutor, petitioner agreed with the statement of that prosecutor who described petitioner as the leader of at least five other individuals at the drug distribution point in question. (Crim. No. 08–204, Docket No. 4429 at 25–26.)

A comparison of petitioner's position in this motion to vacate, and in his actions at the hearings held before the court reflect that there is no credible evidence to support the petitioner's claim that his attorney's representation fell below an objective standard of reasonableness. What the record supports is the conclusion that petitioner now espouses a position completely at loggerheads with a well-negotiated plea agreement, without which he could have been exposed to lengthier sentences, including life imprisonment.... Petitioner overlooks the fact that his attorney negotiated a favorable plea agreement with the government, and if one considers what sentence he might have received after trial or after a straight plea.... It is clear then that the petitioner was adequately represented by his counsel and that his allegations are meritless.

(Docket No. 9, pages 10–12).

To date, neither Petitioner nor Respondent have filed an opposition to the Report and Recommendation.

II. Referring Dispositive Motions to a U.S. Magistrate Judge

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Fed.R.Civ.P. 72(b); Rule 72(a), Local Rules, District of Puerto Rico; Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate Judge's Report and Recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72(d); Fed. R. Civ. P. 72(b). Moreover, 28 U.S.C. § 636(b)(1) (2009), in pertinent part, provides that:

[w]ithin fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

(emphasis added).

“Absent objection ... [a] district court has a right to assume that [the affected party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992); see also Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir.2000); see also Henley Drilling Co. v. McGee, 36 F.3d 143, 150–151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); see also Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that [o]bjection to a magistrate's report preserves only those objections that are specified”); see also Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); see also Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”); see also United States v. Valencia–Copete, 792 F.2d 4, 6 (1st Cir.1986); see also Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

In the instant case, neither party filed an opposition to Magistrate Judge Arenas' Report and Recommendation. As no objections to the Magistrate's Report and Recommendation were filed, the Court, in order to accept the unopposed Report and Recommendation, needs only satisfy itself that the Report and Recommendation contains no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996)(en banc)(extending the deferential “plain error” standard of review to the unobjected-to legal conclusions of a magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982)(en banc)(appeal from district court's acceptance of unobjected-to findings of magistrate judge reviewed for “plain error”); see also Nogueras–Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001)(Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate Judge's recommendation was clearly erroneous”)(adopting the Advisory Committee note regarding Fed.R.Civ.P. 72(b)); see also Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990)(“when no objections are filed, the district court need only review the record for plain error”).

III. Analysis

As previously explained, because the Magistrate Judge's Report and Recommendation is unopposed, this Court needs only ascertain that there is no “plain error” as to the Magistrate Judge's conclusions, in order to adopt the same. After a careful analysis, the Court finds no such “plain error” and agrees with the Magistrate Judge's conclusions. The Court would have reached the same decision even if the Petitioner had objected to the Report and Recommendation. Thus, the Court ACCEPTS, ADOPTS and INCORPORATES by reference the Magistrate's Report and Recommendation (Docket No. 9) to the instant Opinion and Order. The Court briefly explains below.

The Court wholeheartedly agrees with Magistrate Judge Arenas' determination that Petitioner can not demonstrate that his counsel's performance fell below an objective standard of reasonableness; nor can Petitioner demonstrate that but for counsel's alleged errors, Petitioner would have elected to wait for a better plea agreement or proceeded to trial. Thus, Petitioner fails to satisfy the applicable Strickland test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).3

The Court additionally concurs with the Magistrate Judge Arenas' finding that Petitioner's sworn testimony at the plea colloquy...

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