Colón-Díaz v. United Statesa

• Decision Date: 20 September 2012
• Docket Number: Criminal No. 05–0194 (DRD).,Civil No. 09–1472 (DRD).
• Citation: 899 F.Supp.2d 119
• Parties: Edwin COLÓN–DÍAZ, Petitioner v. U.S.A., Respondent.
• Court: U.S. District Court — District of Puerto Rico

899 F.Supp.2d 119

Edwin COLÓN–DÍAZ, Petitioner

v.U.S.A., Respondent.

Civil No. 09–1472 (DRD).

Criminal No. 05–0194 (DRD).

United States District Court, D. Puerto Rico.

Sept. 20, 2012.

Alexander Zeno, Washington, DC, for Petitioner.

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

OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before this Court is a motion filed by petitioner Edwin Colón–Díaz (“Petitioner”) to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (“Section 2255 Motion”) (Docket No. 1.), which was referred to Magistrate Judge Justo Arenas for a Report and Recommendation (Docket No. 29).

Upon review of Magistrate Judge's Report and Recommendation (Docket No. 32) and Plaintiff's opposition thereto (Docket No. 35), the Court hereby ACCEPTS, ADOPTS and INCORPORATES the Report and Recommendation as outlined below and DENIES Petitioner's motion filed under 28 U.S.C. § 2255.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was found guilty by a jury trial on June 30, 2006 after rejecting to enter into a plea agreement on numerous occasions. His conviction was the result of an indictment in all counts of a five-count superseding indictment in Criminal No. 05–194. Petitioner was sentenced to 240 months imprisonment in each of the five counts to be served concurrently with each other. Petitioner appealed; however, the First Circuit affirmed the conviction. During his trial, Petitioner was represented by Attorney Antonio Bauzá, while his counsel at the appeal was Attorney Rafael Castro Lang, both which were retained by the District Court and the Appellate Court (Docket No. 1).

In the instant Section 2255 Motion, Petitioner alleges violation of his right to effective assistance of competent counsel at the trial as well as the appellate level.¹ Specifically,Petitioner claims that his trial counsel failed to: (1) file motions to suppress evidence as to the searches and seizures held at various locations; (2) object to certain jury instructions; (3) object to the government's failure to produce the rough notes of an enforcement agent that were allegedly adopted by a witness during her testimony; and (4) request a jury instruction as to whether or not the jury should consider a witness' testimony in connection with a particular evidentiary matter. Also, Petitioner contends that his appellate counsel failed to allege that: (1) the testimony of two witnesses should not have been allowed as expert testimony during the trial; and (2) the testimony of a confidential informant should have been considered as testimony of a cooperator (Docket No. 1). Lastly, Petitioner alleges violations to his due process rights when the trial court failed to instruct the jury about the possibility of returning a non-unanimous verdict. Petitioner subsequently withdrew such contention (Docket No. 13, page 1).

The Court referred Petitioner's Section 2255 Motion to Magistrate Judge Justo Arenas (Docket No. 29) for a Report and Recommendation (“R & R”). In his R & R (Docket No. 32), Magistrate Judge Arenas fully examined the record of Petitioner's Criminal Case and the lengthy opinion issued by the First Circuit in Petitioner's appeal. After extensively reviewing the record and the pertinent law, Magistrate Judge Arenas found that although the performance of Petitioner's trial counsel fell below an objectively reasonable standard that would be tantamount to a violation of Petitioner's Sixth Amendment rights, Petitioner failed to show that such performance prejudiced him in the criminal proceeding. Magistrate Judge Arenas, applying Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), stated that to prove that Petitioner was prejudiced as a result of his counsel's deficient performance, Petitioner had to show that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thus, Magistrate Judge Arenas found that because Petitioner failed to prove that the trial counsel's errors affected Petitioner's final verdict, Petitioner's claim of ineffective assistance of counsel against his trial counsel falls short of the required threshold pursuant to the R & R entered by Magistrate Judge Arenas.

Magistrate Judge Arenas further found that Petitioner failed in his challenge to his appellate counsel's performance because Petitioner failed to meet the burden of proof for both elements of the two-part test: that counsel's representation fell below an objective standard of reasonableness; and that the deficient performance prejudiced his defense. Further, after examining the First Circuit opinion on Petitioner's appeal, the arguments posed by the appellate counsel, and the manner in which the appellate counsel directed the Court of Appeals, Magistrate Judge Arenas found that Petitioner's appellate counsel was ingenious and that he chose what counsel considered were the best possibilities on appeal. Thus, Magistrate Judge Arenas found that Petitioner's claim of ineffective assistance of counsel against his appellate counsel to be ultimately meritless.

Petitioner opposed the R & R alleging, that the conclusions reached as to the trial counsel are ambiguous and incompatible. Also, as to the conclusions reached regarding the appellate counsel, Petitioner contends that Magistrate Judge Arenas did not understand his concerns that the appellate counsel should have used better or stronger issues on appeal, instead of arguing “a bad issue.” (Docket No. 35).

II. MAGISTRATE'S REPORT AND RECOMMENDATION

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See alsoFed.R.Civ.P. 72(b); D.P.R. Civ. R. 72(a), Local Rules, District of Puerto Rico; and Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Nonetheless, an adversely affected party may contest the Magistrate Judge's Report and Recommendation by filing its objections to the recommendations made. Fed.R.Civ.P. 72(b). In such respect, 28 U.S.C. § 636(b)(1), 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 judge.

(Emphasis added).

“Absent objection, ... [a] district court ha[s] 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). Additionally, “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 upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150–51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate's recommendation, as well as the magistrate's failure to make additional findings); 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”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Sec. 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”); United States v. Valencia, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

The Court, in order to accept unopposed portions of the Magistrate Judge's Report and Recommendation, needs only satisfy itself that there is 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 un-objected 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 un-objected to findings of magistrate judge reviewed for “plain error”); Nogueras–Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (finding that the “Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous”) (adopting the AdvisoryCommittee note regarding FED. R.CIV. P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) (finding that “when no objections are filed, the district court need only review the record for plain error”).

An adversely affected party may “contest the [m]agistrate [j]udge's report and recommendation by filing objections ‘within ten ² days of being served’ with a copy of the order.” United States v. Mercado Pagan, 286 F.Supp.2d 231, 233 (D.P.R.2003) (citing 28 U.S.C. § 636(b)(1)). If objections are timely filed, the district judge shall make a de novo determination of those portions of the report or specified findings or recommendation to which an objection is made. See Bonefont–Igaravidez v. International Shipping Corp., 659 F.3d 120 (1st Cir.2011); and Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006). In reviewing objections, this Court need not “consider frivolous, conclusive, or general objections.” Espada–Santiago v. Hospital Episcopal San Lucas, Civil No. 07–2221, 2009 WL 702350 at *1 (D.P.R.2009); see also Howard v. Secretary of Health & Human Servs., ...