De–La–Cruz v. United States

• Citation: 865 F.Supp.2d 156
• Decision Date: 06 March 2012
• Docket Number: Criminal No. 04–303 (DRD).,Civil No. 09–1273 (DRD).
• Parties: Juan DE–LA–CRUZ, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

865 F.Supp.2d 156

Juan DE–LA–CRUZ, Petitioner,

v.UNITED STATES of America, Respondent.

Civil No. 09–1273 (DRD).

Criminal No. 04–303 (DRD).

United States District Court,

D. Puerto Rico.

March 6, 2012.

Juan De–La–Cruz, Youngstown, OH, pro se.

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

OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Before the Court is Petitioner Juan De–La–Cruz's writ of habeas corpus under 28 U.S.C. § 2255 filed on March 19, 2009 (Docket No. 1). The Government opposed Petitioner's motion on August 3, 2009 (Docket No. 7) and Petitioner filed a reply on August 27, 2009 (Docket No. 8).

On March 19, 2009, Petitioner filed the instant complaint (Docket No. 1) with this Court alleging that his prior counsel in 04–cr–303 was ineffective when he failed to request the two level safety valve reduction and an additional one level reduction for acceptance of responsibility for sentencing purposes. Petitioner also filed an affidavit (Docket No. 1–2) attesting that his counsel told Petitioner that he satisfied the five requirements for the safety valve and that obtaining the benefits of the safety valve was “a sure thing.” (Docket No. 1–2, page 2). Petitioner further states that “he cooperated with the authorities in making recorded telephone calls to co-conspirators which led to the arrest and conviction of two of the organizers/leaders or supervisors of the charged conspiracy.” Id. Petitioner thus argues that but for counsel's failure to raise the matter of his eligibility for the safety valve and his acceptance of responsibility, the Court would have had the elements to sentence him to a lesser sentence.

On August 3, 2009, the Government opposed Petitioner's § 2255 motion (Docket No. 7). Therein, the Government notes that the First Circuit has previously addressed Petitioner's safety value argument. The Circuit Court briefly stated the following:

We have reviewed the record and the parties' submissions, and we affirm. Because the appellant, Juan De La Cruz (“De La Cruz”), did not request application of the safety valve in the district court, he waived any claim to its benefit. See United States v. Escobar–Figueroa, 454 F.3d 40 (1st Cir.), cert. denied,, 127 S.Ct. 568 (2006). “Even if this claim is not waived, it is forfeited, and we see no plain error in the court's failure to award him the benefit of the safety valve. It is far from clear that De La Cruz's limited cooperation with the government revealed all that he knew about the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5) and U.S.S.G. C1.2(a)(5). The burden was on De La Cruz to show that he had provided all of the information in his possession about the conspiracy. See United States v. Feliz, 453 F.3d 33, 36 (1st Cir.2006). His belated assertion on appeal that he knew nothing more than the information he revealed upon his arrest is insufficient to meet this burden, especially upon plain error review. Affirmed.

United States v. De La Cruz, Appeal No. 06–2195 (1st Cir. April 9, 2008); (Cr. No. 04–0303, Docket No. 487)(emphasis in the original). Accordingly, the Government posits that Petitioner is not entitled to relitigate this matter through a collateral proceeding. Additionally, the Government advances that as Petitioner failed to raise his claim for an additional one level reduction to the offense level for acceptance of responsibility at sentencing or on appeal, Petitioner has defaulted on this claim.

In regard to Petitioner's ineffective assistance of counsel argument, the Government asserts that Petitioner fails to meet the requisite test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Government also avers that Petitioner should not be resentenced to obtain the benefit of a downward departure for acceptance of responsibility as the Court was not without jurisdiction to impose such a sentence nor was it otherwise unconstitutional; further, the Government argues that because Petitioner failed to raise this argument at sentencing or on appeal, he procedurally defaulted on asserting that claim in the instant 2255 litigation.

On August 27, 2009, Petitioner filed a reply to the Government's opposition (Docket No. 8). Petitioner states that while he accepts the decision of the First Circuit, their decision only further underscores his claims of counsel's ineffectiveness for failing to raise the issue of the safety valve. Further, he claims that his counsel informed him that he provided all the information needed to satisfy the safety valve and that the Government failed to oppose it. Additionally, Petitioner avers that counsel's representation fell well below the objective standard of reasonableness in failing to raise the issue of the safety valve and the acceptance of responsibility and that but for these lapses in judgment, Petitioner would have almost certainly obtained a lower sentence.

On February 10, 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. 10).

On February 13, 2012, Magistrate Judge Arenas submitted a Report and Recommendation (Docket No. 11) to the Court. Therein, the Magistrate Judge notes that Petitioner's guilty plea was a straight plea unaccompanied by any plea agreement with the prosecution. The Magistrate opined that if counsel made promises and assurances which were ultimately broken regarding Petitioner receiving the benefit of the safety valve, then counsel's performance fell below an objective standard of reasonableness and the first prong of the Strickland test was thus satisfied. However, the Magistrate Judge determined that the second prong was not met as Petitioner could not demonstrate that but for counsel's error to raise the safety valve issue at sentencing the resulting of the proceedings would have been different. Magistrate Judge Arenas stated:

it is clear that the matter of the safety valve was squarely addressed by the court of appeals and the clear message of the judgment shows that there was not or would have not been compliance with the requirements of the safety valve due to petitioner's lack of candor with the authorities and his limited cooperation with the government. A collateral petition cannot take the place of appellate review, particularly an unsuccessful one deciding the same issue. As it has been stated, “issues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion[.]” Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1994) (quoting United States v. Dirring [ Dirring v. U.S.], 370 F.2d 862, 864 (1st Cir.1967)).

(Docket No. 11, page 11).

I. Referring Dispositive Motions to a U.S. Magistrate Judge

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Fed.R.Civ.P. 72(b); Rule 72(a), Local Rules, District of Puerto Rico; Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate Judge's Report and Recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72(d); Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1) (2009), 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.

(emphasis added).

“Absent objection ... [a] district court has 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). Moreover, “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 on appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992); see also Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir.2000); see also Henley Drilling Co. v. McGee, 36 F.3d 143, 150–151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); see also 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”); see also Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); see also Borden v. Secretary 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”); see also United States v. Valencia–Copete, 792 F.2d 4, 6 (1st Cir.1986); see also Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

In the instant case, neither party filed an opposition to Magistrate Judge Arenas' Report and Recommendation. As no objections to the Magistrate's Report and Recommendation were filed, the Court, in order to accept the unopposed Report and Recommendation, needs only satisfy itself that the Report and Recommendation contains 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 unobjected-to legal conclusions of a magistrate judge); see also Nettles v. Wainwright,...