Cosme v. United States

• Decision Date: 28 March 2018
• Docket Number: CIVIL 14-1695CCC
• Parties: JOSE L. CABRERA COSME Plaintiff v. UNITED STATES OF AMERICA Defendant
• Court: U.S. District Court — District of Puerto Rico

JOSE L. CABRERA COSME Plaintiff v. UNITED STATES OF AMERICA Defendant

CIVIL 14-1695CCC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 28, 2018

(Related Crim. 06-0299-05CCC)

OPINION AND ORDER

Pending before the Court are the following filings:

(1) Motion under 28 U.S.C. § 2255 filed by Petitioner José L. Cabrera Cosme (hereinafter "Petitioner" or "Cabrera Cosme") (d.e. 1),

(2) Petitioner's pro se Memorandum in Support (d.e. 1-1),

(3) First Supplemental Motion under 28 U.S.C. § 2255 (d.e. 6),

(4) Second Supplemental Motion under 28 U.S.C. § 2255 (d.e. 8),

(5) Third Supplemental Motion under 28 U.S.C. § 2255 (d.e. 20),

(6) United States' Response in Opposition to Motion under 28 U.S.C. § 2255 (d.e. 17), and

(7) Petitioner's Reply in Opposition to Government's Response (d.e. 21).

For the reasons discussed below, the § 2255 Motion as well as the Supplemental Petitions filed by José L. Cabrera Cosme are all DENIED.

I. BACKGROUND

Petitioner Cabrera Cosme was charged with other defendants in a four-count Second Superseding Indictment (d.e. 1060 in Crim. 06-0299CCC), specifically in Counts One and Two. He was ultimately tried with three other defendants and found guilty on both counts.

Count One charged that:

From on or about January 2003, and continuing up to on or about August 2006, in the District of Puerto Rico, elsewhere, and within the jurisdiction of this Court, [5] José L. Cabrera Cosme, a/k/a "Luis Villalobos," and four other co-defendants, the defendants herein, along with other unindicted co-conspirators to the Grand Jury known and unknown, did knowingly and intentionally combine, conspire, confederate and agree together and with each other, and with diverse other persons, to commit an offense against the United States, that is, to possess with intent to distribute, and distribute narcotic controlled substances, to wit: fifty (50) grams or more of cocaine base ("crack"), a Schedule II Narcotic Drug Controlled Substance; and a mixture or substance containing a detectable amount of marihuana a Schedule I Controlled Substance, within one thousand (1,000) feet of the real property comprising a housing facility owned by a public housing authority, that is, the Nemesio R. Canales Public Housing Project, and within one thousand (1,000) feet of public elementary and secondary schools, that is, Nemesio R. Canales School Number 1 and the Nemesio R. Canales School Number 2, and the Head Start pre-school centers in violation of Title 21, United States Code, §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(D) and 860.

(d.e. 1060 at pp. 1-2 in Crim. 06-0299CCC).

Count Two charged:

From on or about January 2003, and continuing up to on or about August, 2006, in the District of Puerto Rico, and elsewhere, and within the jurisdiction of the court, [5] José L. Cabrera Cosme, a/k/a "Luis Villalobos," and four additional co-defendants, the defendants herein, along with other unindicted co-conspirators to the Grand Jury known and unknown, did knowingly, intentionally, and unlawfully conspire, combine, confederate, and agree together and with each other and with other persons, to commit an offense against the United States, that is, to knowingly, willfully, intentionally and unlawfully possess, use, carry, brandish, and discharge firearms as that term is defined in Section 921(a)(3), of Title 18, United States Code, in furtherance of, or during and in relation to a drug trafficking crime, as that term is defined in Section 924(c)(2), of the Title 18, United States Code, to wit:

conspiracy to possess with the intent to distribute and distribute narcotics and controlled substances, an offense which can be prosecuted in a court of the United States as a violation to Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A) & (b)(1)(D), and 860. All in violation of Title 18, United States Code, Sections 924(c)(1)(A)(i), (c)(1)(A)(ii), (c)(1)(A)(iii) and 924(o).

(d.e. 1060 at pp. 12-13 in Crim. 06-0299CCC).

What follows is a narrative of relevant events in the criminal proceeding.

On July 23, 2007, Petitioner filed a pro se Informative Letter Regarding Evidence (d.e. 345 in Crim. 06-0299CCC)¹ and on August 29, 2007, an Order was issued to his counsel, Michael R. Hasse, to submit his views as to the pro se letter (d.e. 431 in Crim. 06-0299CCC). On September 3, 2007, Mr. Hasse filed a Motion in Compliance with Court Order (d.e. 4312) (d.e. 438 in Crim. 06-0299CCC).²

On October 22, 2007, Cabrera Cosme filed a pro se Motion for Return of Property (d.e. 476 in Crim. 06-0299CCC).³ On November 7, 2007, the Courtissued an Order denying his pro se request for return of property (d.e. 476) (d.e. 498 in Crim. 06-0299CCC).

On January 16, 2008, Cabrera Cosme's Court-appointed attorney filed an Emergency Motion to Appoint Counsel (d.e. 537 in Crim. 06-0299CCC) .⁴

On February 4, 2008, the Court granted Hasse's withdrawal and ordered the appointment of new counsel (d.e. 555 in Crim. 06-0299CCC). On November 21, 2008, Cabrera Cosme filed a pro se Motion to Appoint New Counsel (d.e. 801 in Crim. 06-0299CCC).⁵ On January 7, 2009, Cabrera Cosme filed a pro se Motion Requesting Order for Counsel to File a Motion to Dismiss Indictment (d.e. 820 in Crim. 06-0299CCC).⁶ On January 21, 2009, through counsel, defendant filed a Motion Requesting Severance (d.e. 835 in Crim. 06-0229CCC).⁷

On January 28, 2009, attorney Méndez filed an Informative Motion Regarding Defendant's Pro Se Motion to Appoint New Counsel (d.e. 801) (d.e. 841 in Crim. 06-0299CCC).⁸

On April 15, 2009, Petitioner filed a pro se Motion to Appoint New Counsel (d.e. 890 in Crim. 06-0299CCC).⁹ On April 20, 2009, the Court denied his request for appointment of new counsel (d.e. 900 in Crim. 06-0299CCC). On May 19, 2009, Petitioner filed a pro se Informative Motion (d.e. 969 in Crim. 06-0299CCC).¹⁰ On June 12, 2009, Cabrera Cosme filed a pro se Motion Requesting Order for Change of Court-Appointed Counsel (d.e. 972 in Crim. 06-0299CCC).¹¹ On June 24, 2009, the Court issued an Order instructing that dockets entries 969 and 972 be sent to Cabrera Cosme'sdefense counsel, attorney Méndez, and that Méndez respond to the allegations raised by Petitioner in both of his filings (d.e. 986 in Crim. 06-0299CCC).

Cabrera Cosme once again requested on June 29, 2009 that the sum of $250.00 as well as a gold chain taken at the time of his arrest be returned to him (d.e. 988 in Crim. 06-0299CCC).

On June 30, 2009, counsel Méndez filed a Motion in Compliance with Order (d.e. 989 in Crim. 06-0299CCC).¹² On that same day, Petitioner, through counsel, filed a Motion for Change of Plea (d.e. 990 in Crim. 06-0299CCC).

On July 2, 2009, the Court issued an Order denying Petitioner's two motions requesting new counsel (d.e. 969 and d.e. 9972 in Crim. 06-0299CCC) and stated: "The Court is convinced that Mr. Cabrera Cosme's complaints are not related to lack of diligence on the part of his attorney but, rather, withcircumstances having to do with his expectations regarding potential agreements with the government" and further ordered that his pro se Motion for Return of Property (d.e. 988 in Crim. 06-0299CCC) be stricken from the record. Petitioner was instructed that all his motions had to be filed through his attorney (d.e. 997 in Crim. 06-0299CCC).

On July 7, 2009, Petitioner filed a pro se Motion for Status of Motion for Change of Plea (d.e. 1002 in Crim. 06-0299CCC).¹³

On July 30, 2009, the government filed a Motion in Compliance with Brady and Giglio requirements (d.e. 1010 in Crim. 06-0299CCC) and there informed that it had become aware that certain perjured testimony had been given before the grand jury and that based in part on said perjured testimony the grand jury had returned the First Superseding Indictment. The United States also advised that, after a thorough review of the matter, it was determined that a new superseding indictment should be sought after the presentation of new evidence, not tainted or compromised by any perjured testimony (d.e. 1010 at pp. 7-10 in Crim. 06-0299CCC).

On August 4, 2009, Cabrera Cosme, through his counsel, filed a Motion to Adopt other Co-Defendants' Motions, Motion to Continue Change of Plea Hearing (d.e. 1019 in Crim. 06-0299CCC). He requested that the scheduled change of plea hearing be postponed until the problem with the perjured testimony be solved and a status conference held regarding the matter(d.e. 1019 in Crim. 06-0299CCC). On August 4, 2009, the Court granted his request (d.e. 1019 in Crim. 06-0299CCC), and scheduled Change of Plea Hearing for September 8, 2009 (d.e. 1020 in Crim. 06-0299CCC).

On August 28, 2009, Cabrera Cosme filed a pro se Motion Requesting Order for Jury Trial and Testimony of Witnesses (d.e. 1042 in Crim. 06-0299CCC).¹⁴

On August 31, 2009, Petitioner filed, through counsel, a Motion to Adopt Other Co-Defendants Motions (d.e. 1046 in Crim. 06-0299CCC). He joined pending motions that requested an order to hold in abeyance the government's request for leave to file second superseding indictment (d.e. 1010 in Crim. 06-0299CCC); as well as the joint motion requesting immediate imposition of conditions of release (d.e. 1017 in Crim. 06-0299CCC) (d.e. 1046 in Crim. 06-0299CCC).

On September 7, 2009, he filed through counsel an Emergency Motion to Vacate Change of Plea Hearing and to Withdraw Document for Change of Plea (d.e. 1050 in Crim. 06-0299CCC).¹⁵

The September 8, 2009 Change of Plea Hearing was not held since defense counsel was not present. Counsel Méndez was ordered to show cause why sanctions should not be imposed for his failure to appear and ordered he to appear in court on September 11, 2009 prepared to answer the allegations made by Petitioner in his pro se filing (d.e. 1042 and d.e. 1051 in Crim. 06-0299CCC). On September 9, 2009, counsel Méndez filed his Response to docket entry 1051, Order to Show Cause (d.e. 1055 in Crim. 06-0299CCC). He informed the Magistrate-Judge of the pending issues with the perjured testimony as well as his...