Colon-Perez v. United States, CIVIL 16-1408CCC
| Decision Date | 20 September 2018 |
| Docket Number | CIVIL 16-1408CCC |
| Parties | RUFINO COLON-PEREZ Plaintiff v. UNITED STATES OF AMERICA Defendant |
| Court | U.S. District Court — District of Puerto Rico |
Before the Court are a Motion filed under 28 U.S.C. § 2255 by petitioner Rufino Colón Pérez (d.e. 1) and the government's opposition (d.e. 7). For the reasons discussed below, said petition is hereby DENIED.
Petitioner Colón Pérez was charged together with thirty-three other defendants in Counts 1 and 4 of a five-count indictment in Criminal 10-412(CCC).
Count One (1) charged that:
From in or about the year 2000, and continuing up to and until the return of the instant Indictment, in the District of Puerto Rico, elsewhere, and within the jurisdiction of this Court, [16] Rufino Colon Perez, a/k/a "Pipino," and thirty-three other co-defendants, the defendants herein, did knowingly and intentionally combine, conspire, and agree with each other and with diverse persons known and unknown to the Grand Jury, to commit an offense against the United States, that is, to knowingly and intentionally possess with intent to distribute in excess of five (5) kilograms of a mixture or substance containing detectable amount of cocaine, a Schedule II, Narcotic Drug Controlled Substance, as prohibited by Title 21, United States Code, Section 841(a)(1). All in violation of Title 21, United States Code, § 846.
(d.e. 3, pages 1-5 in Cr. 10-412(CCC)).
The object of the conspiracy was to distribute cocaine in southern Puerto Rico, including but not limited to, the Municipalities of Ponce, Juana Díaz, Villalba and Yauco, all for significant financial gain and profit (d.e. 3, at page 5).
Count Four (4) charged that:
From in or about the year 2000, continuing to and until the return of the instant Indictment, in the District of Puerto Rico, elsewhere and within the jurisdiction of this Court, [16] Rufino Colón Pérez, a.k.a. "Pipino," along with thirty-three additional co-defendants, the defendants herein, aiding and abetting each other, did knowingly and intentionally possess with intent to distribute in excess of five (5) kilograms of a mixture or substance containing a detectable amount of cocaine, a Schedule II, Narcotic Drug Controlled Substance. All in violation of Title 21, United States Code, § 841(a)(1) and Title 18, United States Code, § 2.
(d.e. 3, pages 18-20 in Cr. 10-412(CCC)).
On May 29, 2012, petitioner, represented by court-appointed counsel, filed a Motion for Change of Plea (d.e. 725 in Cr. 10-412(CCC)).
Pursuant to a Plea Agreement with the government, petitioner plead guilty to Count One of the indictment. On June 29, 2012, Colón Pérez's Change of Plea Hearing was held (d.e. 766 and d.e. 767 in Cr. 10-412(CCC)). On September 10, 2012, a Pre-Sentence Report was disclosed and on September 27, 2012, petitioner filed a Sentencing Memorandum in which he referred to his health and drug and alcohol abuse, to be considered as mitigating factors at sentencing (d.e. 903 in Cr. 10-412(CCC)).
His October 9, 2012 sentencing was not held since the Government informed that he had not met the safety valve provisions. Defense counsel then requested that petitioner be debriefed once more since he remembered some information he had not disclosed or, in the alternative, that he be mentally evaluated. The Court instructed the Government to file in sealed form the 302 and email from the case agent stating the reasons why petitioner did not meet the safety valve provisions. Petitioner was given time to respond to the Government's motion (d.e. 923 in Cr. 10-412(CCC)). On October 16, 2012, the United States provided, under seal, the reasons for petitioner not meeting the safety valve provisions (d.e. 925 in Cr. 10-412(CCC)).
On January 31, 2013, the Court entered a Sealed Order on the safety valve issue. The Court essentially accepted the Government's claim on petitioner's untruthfulness. Further debriefing was committed to its discretion (d.e. 1041 in Cr. 10-412(CCC)). On February 13, 2013, the Government filed a motion informing that it would not conduct any further safety valve debriefings of Colón Pérez (d.e. 1051 in Cr. 10-412(CCC)).
The sentencing hearing was held on March 7, 2013. After hearing the parties, petitioner was sentenced on Count One of the indictment to a term of imprisonment of one hundred and twenty (120) months, a term of supervised release of five (5) years and a special monetary assessment of one hundred dollars ($100.00). Count Four of the indictment was dismissed (d.e. 1090 in Cr. 10-412(CCC)). Judgment was entered on March 8, 2013 (d.e. 1092 in Cr. 10-412(CCC)).
Colón Pérez filed a timely Notice of Appeal on March 21, 2013 (d.e. 1121 in Cr. 10-412(CCC)). On September 22, 2014, his counsel filed a brief pursuant to Andres v. California, 386 U.S. 739 (1967) and informed the First Circuit that "he could not identify any non-frivolous issues on appeal" (2014 WL 7232346 (C.A.1). Shortly thereafter Colón Pérez filed several pro se arguments to be considered by the Appeals Court. On June 2, 2015, the First Circuit entered its Judgment agreeing with defense counsel's assessment that no non-frivolous grounds for appeal existed in this case and summarily affirmed the District Court's Judgment (d.e. 1647 in Cr. 10-412(CCC)).
On June 30, 2015, Colón Pérez filed a Motion to Reduce Sentence Pursuant to Amendment 782 (d.e. 1651 in Cr. 10-412(CCC)). The U.S. Magistrate-Judge issued a Report and Recommendation on July 18, 2015 stating that petitioner was not eligible for the reduction in sentence as established in Amendment 7821 (d.e. 1653 in Cr. 10-412(CCC)).
On November 11, 2015, he filed a pro se Motion to Reduce Sentence from the one hundred and twenty (120) months to sixty (60) months of incarceration2 (d.e. 1663, page 2 in Cr. 10-412(CCC)). The Court adopted the Magistrate-Judge's Report and Recommendation as to sentencing reduction on November 12, 2015 and denied it (d.e. 1664 in Cr. 10-412(CCC)).
On March 8, 2016, Colón Pérez filed a timely Motion to Vacate Sentence under 28, United States Code, § 2255 (d.e. 1). The Court's analysis and disposition follows.
Colón Pérez raised the following allegations of ineffective assistance of counsel in his Section 2255 Petition:
Title 28 U.S.C. § 2255 allows a federal prisoner to move to vacate, set aside, or correct a sentence if one of the following are present: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
A court may dismiss a Section 2255 Motion without an evidentiary hearing if "the motion and files and records of the case show conclusively that the movant is not entitled to relief." It is well settled that a Section 2255 Motion is not a substitute for an appeal. Defendant must first raise his claims on direct appeal before bringing the claims in a Section 2255 Motion. United States v. Essig, 10 F.3d 968 (3rd Cir. 1993). If a defendant fails to preserve his claim on direct appeal, a court may not consider the claim in a subsequent Section 2255 Motion unless the defendant can establish "cause and prejudice." United States v. Frady, 456 U.S. 152, 167 (1982); or a "fundamental miscarriage of justice". Murray v. Carrier, 477 U.S. 478, 496 (1986). The exception to the exhaustion requirement is ineffective assistance of counsel which may be raised for the first time in a Section 2255 Motion.
The standard for an ineffective assistance of counsel claim is whether counsel's conduct so undermined the proper functioning of the adversarial process that the proceeding cannot be relied upon as having produced a just result. Strickland v. Washington, 466 U.S. 668 (1984); Lema v. United States, 987 F.2d 48 (1st Cir. 1993). Petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Argencourt v. United States, 78 F.3d 14 (1st Cir. 1996); Darden v. Wainwright, 477 U.S. 168 (1986); Lockhart v. Fretwell, 506 U.S. 364 (1993).
Petitioner bears a "very heavy burden" to have his sentence vacated premised on an ineffective assistance of counsel claim. Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996); Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993). Under the Strickland standard, "a lawyer's performance is deficient, only where given facts known at the time show counsel's choice was so patently unreasonable that no competent attorney would have made it." United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir. 2012), quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010), which in turn quotes Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006). To successfully satisfy the first prong of the Strickland test, petitioner must show that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Tejada v. Dubois, 142 F.3d 18, 22 (1st Cir. 1998) (quoting Strickland, 466 U.S. at 690). That is, he must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Smullen v. United States, 94 F.3d 20, 23 (1st Cir. 1996) (quoting Strickland at 689). A court shall review counsel's actions deferentially and should make every effort "to...
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