David v. United States

• Decision Date: 10 August 2022
• Docket Number: CIVIL 20-1420 (DRD),Cr. 17-124-4 (DRD),17-193-1 (DRD)
• Parties: BENNY RAMOS DAVID, Petitioner, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Puerto Rico

BENNY RAMOS DAVID, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

CIVIL No. 20-1420 (DRD)

Cr. Nos. 17-124-4 (DRD), 17-193-1 (DRD)

United States District Court, D. Puerto Rico

August 10, 2022

OPINION AND ORDER

Daniel R. Dominguez United States District Judge

Pending before the Court is Petitioner, Benny Ramos David's (hereinafter “Ramos David”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (hereinafter, “§ 2255 Petition”). See Docket No. 1. The Government, in turn, filed its response in opposition thereto^[1]. See Docket No. 11.

For reasons stated herein, the Court DENIES Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.

I. FACTUAL AND PROCEDURAL BACKGROUND

Sometime between January 2015 and February 2017, Petitioner and four (4) other co defendants engaged in a series of carjackings while brandishing a firearm, and at least one robbery. See Cr. Nos. 17-124-4 (DRD) and 17-193 (DRD). Specifically, on March 1, 2017, a Grand

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Jury returned a Two-Count Indictment wherein five (5) defendants, including the Petitioner, were charged with a carjacking offense in violation of 18 U.S.C. §§ 2119(1) (hereinafter, “Count One 17-124”); and brandishing a firearm during and in relation with a crime of violence, namely, a carjacking in violation of 924(c)(1)(A)(ii) and (2) (hereinafter, “Count Two 17-124”). See Indictment, Docket No. 3 in Cr. No. 17-124 (DRD).

On May 31, 2017, a Grand Jury returned a Four Count Indictment against the Petitioner wherein he was charged with three (3) carjacking offenses in violation of 18 U.S.C. §§ 2119(1), 1951 and 2 (hereinafter “Counts One through Three 17-193”); and a robbery offense in violation of 18 U.S.C. §§ 1951 and 2 (hereinafter “Count Four 17-193”). See Superseding Indictment, Docket No.17 in Cr. No. 17-193 (DRD). On June 26, 2018, both cases were consoli Dated: the request of the government. See Docket Nos. 129 and 132 in Cr. No. 17-124 (DRD) and Docket Nos. 42 and 45 in Cr. No. 17-193 (DRD).

On February 12, 2019, Ramos David entered a guilty plea as to all charges in the consolidated cases. See Plea and Forfeiture Agreement, Docket No. 231 in Cr. No. 17-124 (DRD).

On July 30, 2019, the Petitioner was sentenced to a term of 97 months as to Count One in Cr. No. 17-124 (DRD) and Counts One through Four in Cr. No. 17-193 (DRD) and 72 months as to Count Two in Cr. No. 17-124 (DRD) to be served consecutively with each other for a total term of imprisonment of 169 months. See Judgment, Docket No. 255 in Cr. No. 17-124 (DRD). The Court accepted the sentence recommendation of 97 months as to all charges except for the § 924(c) offense. See Docket No. 267 at 32 in Cr. No. 17-124 (DRD). Essentially, the Court

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considered a prior weapon offense^[2], to conclude that “he has a pattern of using weapons when he is involved in these robberies.” Id. As a result thereof, the Court sentenced the Petitioner to 72 months of imprisonment as to Count Two in Criminal Case 17-124 to be served consecutively^[3]to Count One in Criminal Case 17-124 and Counts One through Four in Criminal Case 17-193, for a total of 169 months. See Docket No. 255 in Cr. No. 17-124 (DRD).

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 2255, a federal prisoner may petition to vacate, set aside, or correct his or her sentence by showing that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” However, “[r]elief under [§ 2255] is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” See Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citations omitted); see Knight v. United States, 37 F.3d 769, 772-73 (1st Cir. 1994).

A petitioner may not employ a petition to vacate, set aside or correct sentence to relitigate claims already raised and considered in a prior petition or on direct appeal. See Pitcher v. U.S., 371 F.Supp.2d 246 (E.D. N.Y. 2005). A § 2255 motion to vacate, set aside, or correct

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sentence is not substitute for direct appeal; nor can it be used to relitigate questions which were raised and considered on direct appeal. See Graff v. U.S., 269 F.Supp.2d 76 (E.D. N.Y. 2003).

III. ANALYSIS

A. INEFFECTIVE ASSISTANCE OF COUNSEL

In order to succeed on a claim of ineffective assistance of counsel under 28 U.S.C. § 2255, Petitioner has the burden of showing that (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland v. Washington, 466, U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996); Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994); Lema, 987 F.2d at 51; Lopez-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990) (citing Strickland, 466 U.S. at 687). “When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. However, the Supreme Court also has recognized that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

There is no doubt that Strickland also applies to representations outside of the trial setting, which would include plea bargains, sentence and appeal. See Missouri v. Frye, 132 S.Ct. 1399, 1408-10, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Hill v. Lockhart, 474 U.S. 52, 57 (1985); Bonneau v. United States, 961 F.2d 17, 20-22 (1st Cir. 1992); United States v. Tajeddini, 945 F.2d 458, 468-69 (1st Cir. 1991)(abrogated on other

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grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000)); cf. Panzardi-Alvarez v. United States, 879 F.2d 975, 982 (1st Cir. 1989); Lopez-Torres v. United States, 876 F.2d 4, 5 (1st Cir. 1989) (abrogated on other grounds by the First Circuit in Bonneau). Failure to satisfy one of the Strickland prongs is fatal and, therefore, the court is free to tackle either prong first. See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013); Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007) (the court need not address both requirements if the evidence as to either is lacking).

In examining whether the Petitioner's representation was below the objective standard of reasonableness, Courts should always provide a determination as to whether Petitioner received from counsel the constitutional right to an adequate representation. “In all criminal prosecutions, the accused shall enjoy the [right] [. . .] to have the Assistance of Counsel for his defen[s]e.” See U.S. Const. amend. VI. The first prong of Strickland is satisfied when the Petitioner proves that counsel's performance fell under an objective standard of reasonableness. “When a convicted defendant complains...