Cosme-Torres v. United States
| Decision Date | 26 June 2013 |
| Docket Number | Civil No. 12–1553 (DRD). |
| Citation | 29 F.Supp.3d 44 |
| Parties | Angel L. COSME–TORRES, Petitioner v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
OPINION TEXT STARTS HERE
Motion denied.
Angel L. Cosme–Torres, White Deer, PA, pro se.
Myriam Y. Fernandez–Gonzalez, Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.
On May 27, 2008, Petitioner Angel L. Cosme–Torres (“Cosme”) was indicted along with one hundred and ten other individuals. Cosme was charged with conspiring to distribute controlled substances; possession with intent to distribute heroin, cocaine base, cocaine, marijuana; and a criminal forfeiture count (08–cr–204, Docket No. 3). Pending before the Court is Petitioner's writ of habeas corpus under 28 U.S.C. § 2255 filed on July 10, 2012 (Docket No. 3) on the basis of ineffective assistance of counsel purportedly by two attorneys.
Cosme pled not guilty to the charges on June 20, 2008 (08–cr–204, Docket No. 436). On August 13, 2008, a status conference was held for those co-defendants described as runners in the indictment, such as Cosme (08–cr–204, Docket No. 705). Therein, the United States announced that plea offers had been made to all defendants and the United States set a deadline of October 1, 2008 to accept the offer. Cosme's attorney, Jose R. Gaztambide, was present at this conference.
On October 31, 2008, Attorney Gaztambide requested a forty-five day extension of time to execute a plea agreement, conditioned upon Cosme's consent (08–cr–204, Docket No. 903). On November 5, 2008, the Court noted this motion and extended the deadline to file a change of plea motion, for all defendants, to December 1, 2008 (08–cr–204, Docket No. 906). The deadline was extended three more times to February 5, 2009 (08–cr–204, Docket No. 1007), March 23, 2009 (08–cr–204, Docket No. 1112) and March 31, 2009 (08–cr–204, Docket No. 1207). On the date of the final deadline, March 31, 2009, Cosme filed a motion for a change of plea (08–cr–204, Docket No. 1293). The motion states that Cosme “is entering into this plea after receiving a plea agreement and after discussing the agreement, the guidelines and the evidence received from the government in the case before the court.” Id. The plea agreement called for 108 months of imprisonment and a Criminal History Category of I or II (Docket No. 7, page 9).
A plea hearing was held on April 24, 2009 before U.S. Magistrate Judge Camille L. Velez–Rive (08–cr–204, Docket No. 1535). At the hearing, Attorney Gaztambide stated Id. As a result, the United States withdrew its offer. Cosme's trial was reset for May 8, 2009 (08–cr–204, Docket No. 1618).
On May 6, 2009, the United States filed an Information pursuant to 21 U.S.C. § 851(a) seeking an enhanced penalty upon Cosme's conviction (08–cr–204, Docket No. 1658). This Information served to potentially double the mandatory minimum sentence from ten years to twenty years. Two days later, on May 8, 2009, the United States withdrew the Information without prejudice (08–cr–204, Docket Nos. 1682 and 1685).
On May 8, 2009, the United States offered a straight plea to Cosme and three other defendants also included in the Information. Cosme's trial was reset for May 12, 2009 (08–cr–204, Docket No. 1682). On May 11, 2009, Cosme, along with three other defendants, entered a straight guilty and thereby pled guilty to all counts.
In an effort to streamline Cosme's sentencing, the Court ordered that the United States provide an individualized assessment of each defendant's, including Cosme's, foreseeable drug quantity (08–cr–204, Docket No. 2219).
On September 17, 2009, and again on October 21, 2009, Cosme moved pro se to withdraw his guilty plea (08–cr–204, Docket Nos. 2297 and 2423). His first motion was on the grounds of ineffective assistance of Attorney Gaztambide. 1
On November 9, 2009, the Court held a hearing on Cosme's motions to withdraw his guilty plea (08–cr–204, Docket No. 2535) and found that these motions were insufficient as a matter of law. The Court also appointed new counsel, which turned out to be Attorney Jorge E. Vega Pacheco.
On July 28, 2010, Petitioner filed a motion to rescind his previous motion to withdraw his guilty plea (08–cr–204, Docket No. 4047).2 The following day, the Court granted Petitioner's (08–cr–204, Docket No. 4058).
On July 30, 2010, Petitioner was sentenced to 121 months imprisonment, to be served concurrently, on all counts (08–cr–204, Docket Nos. 4071, 4072). 3
Attorney Vega Pacheco, on behalf of Petitioner, filed a notice of appeal on August 6, 2010 (08–cr–204, Docket No. 4099). On July 12, 2011, the appeal was voluntarily dismissed upon an unopposed motion by Petitioner pursuant to Fed. R.App. P. 42(b).
On July 10, 2012, Petitioner filed the instant complaint (Docket No. 3) with this Court alleging ineffective assistance of counsel of Attorneys Gaztambide and Vega Pacheco. Petitioner avers that Attorney Gaztambide failed to communicate a global plea offer that was available to Petitioner. Petitioner asserts that Attorney Gaztambide was aware of a plea offer and told Petitioner that no such offer was available; further, Petitioner alleges that Attorney Gaztambide advised him that the best he could do was to enter into a straight plea without the benefit of a plea agreement.
Petitioner argues that Attorney Vega Pacheco was ineffective for failing to communication a plea offer and failing to move to withdraw his plea. Petitioner states:
Jorge E. Vega Pacheco was ineffective when instructed by Petitioner to inquire if a plea offer existed as the one all his co-defendants got. Defense counsel informed Petitioner that no plea offer existed for anyone, and that the “straight up plea” was the his best option. When Petitioner showed defense counsel copies of his codefendant's plea offers, counsel got defensive and states that it was too late and [that] he could not withdraw the change of plea. At sentencing, defense counsel informed Petitioner that there was an early plea offer made that [had] now expired.
(Docket No. 3, page 4). Additionally, Petitioner posits that Attorney Vega Pacheco failed to file an appeal at Petitioner's direct request.
On August 27, 2012, the Government opposed Petitioner's § 2255 motion (Docket No. 7). First, regarding the purported failure to request withdrawal of the guilty plea, the Government argues that Petitioner made a knowing and voluntary withdrawal of his request to withdraw his guilty plea as evidenced by the Sentencing Hearing transcript (08–cr–204, Docket No. 4314). Second, the Government reviews the relevant case history as to the withdrawal of the plea. The Government states that on April 18, 2009, the prosecutor relayed the proposed plea agreement to Attorney Gaztambide proposing a sentencing recommendation of 108 months. However, Petitioner rejected the offer on April 24, 2009, and elected to go to trial. The Government then withdrew the offer. Petitioner replied in the affirmative when the Court inquired as to whether he understood the proceedings taking place. Petitioner subsequently entered a straight plea. Petitioner then requested the withdrawal of the straight plea premised on ineffective assistance of counsel.
In response, Attorney Gaztambide provided the Court with a detailed filing enumerating the multitude of meetings he had with Petitioner and meetings Petitioner had with counsel of other co-defendants who explained the risks by electing to go to trial. During a conference in the District Courtroom in Hato Rey, members of the Federal Bar explained to all defendants the risks of going to trial (08–cr–204, Docket No. 2393, page 2). Afterwards, Attorney Gaztambide personally spoke with the Petitioner.
On May 11, 2009, additional members of the bar explained to Petitioner the enhancement filed by the United States and the consequences of a straight plea (08–cr–204, Docket No. 2393, page 2). Attorney Gaztambide, again, consulted with Petitioner about the straight plea and sentencing. Then, later that afternoon, Petitioner entered his straight plea after the Court made sure he understood the consequences of his actions (08–cr–204, Docket No. 2393, page 2) (for more detail see infra p. 52 n. 8).
Under these facts, the Government concludes that Petitioner cannot satisfy the requisite legal standard for ineffective assistance of counsel. Finally, the Government notes that Attorney Vega Pacheco did timely file a notice of appeal a mere three days after the District Court entered Judgment.
On September 24, 2012, Petitioner replied to the Government's opposition brief (Docket No. 12). Petitioner again states that Attorneys Gaztambide never presented him with a written plea agreement of 108 months. Petitioner also argues that there must have a previous plea offer since the 108 months offer was called the final agreement. Petitioner further disagrees with the representations made by Attorney Gaztambide. Petitioner additionally argues that counsel's failure to present him with the formal plea offer renders ineffective assistance of counsel and triggers the need for an evidentiary hearing.
On August 28, 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. 9).
On October 25, 2012, Magistrate Judge Arenas submitted a Report and Recommendation to the Court (Docket No. 12). The Magistrate noted that at sentencing, the Court asked Petitioner if he was rescinding his motion to withdraw plea and whether he was reverting to his status...
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