Feliciano-Rodriguez v. United States, Civil 11–1655CCC.

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Citation115 F.Supp.3d 206
Docket NumberNo. Civil 11–1655CCC.,Civil 11–1655CCC.
Parties Wilfredo FELICIANO–RODRIGUEZ, Plaintiff v. UNITED STATES of America, Defendant.
Decision Date29 May 2015

Edgar L. Sanchez–Mercado, ESM Law Office, San Juan, PR, for Plaintiff.

Desiree Laborde–Sanfiorenzo, Nelson J. Perez–Sosa, United States Attorney's Office, San Juan, PR, for Defendant.

JUDGMENT

CARMEN CONSUELO CEREZO, District Judge.

Having considered the Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (D.E. 1 ) and the Amended Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (D.E. 2 ) filed by petitioner Wilfredo Feliciano–Rodríguez, the United States' Response in Opposition (D.E. 6), petitioner's Reply to the Response (D.E. 8), and the Report and Recommendation issued by U.S. Magistrate–Judge Justo Arenas (D.E. 39), to which no objections have been filed, said Report and Recommendation is APPROVED and ADOPTED and petitioner's Motions Under 28 U.S.C. § 2255 are DENIED. Accordingly, it is ORDERED and ADJUDGED that judgment be and is hereby entered DISMISSING this action.

No certificate of appealability shall be issued, as petitioner has not made a substantial showing of the denial of a constitutional right within the meaning of Title 28 U.S.C. § 2253(c)(2). Miller–El v. Cockrell, 537 U.S. 322, 336–38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

SO ORDERED AND ADJUDGED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

Petitioner, a convicted drug trafficker, is seeking collateral review of his life sentences based upon ineffective assistance of his primary retained attorney Lorenzo Palomares Starbuck. He also attacks the performance of his retained appellate attorney Linda Backiel and his court-appointed attorney Bruce McGiverin. An evidentiary hearing was held on one of the many issues he has raised for collateral review. In this review he has sought the assistance of a jailhouse lawyer and has more recently been ably assisted by court-appointed counsel Edgar L. Sanchez–Mercado. See Owens v. United States, 483 F.3d 48, 60–61 (1st Cir.2007). With this nutshell as preface, I discuss the background of the case before entering into the two dozen issues raised.

On March 11, 2004, a grand jury sitting in Puerto Rico returned a six-count superceding indictment charging petitioner Wilfredo Feliciano–Rodriguez and eleven other defendants, with narcotic drug and weapons violations. Petitioner was charged in the first count in that, from on about 1998 up to and including the date of the indictment, in the District of Puerto Rico and elsewhere, and within the jurisdiction of this court, petitioner and the co-defendants, together and with others, known and unknown to the Grand Jury, did knowingly, intentionally and unlawfully 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: five kilograms or more of cocaine, and/or fifty grams or more of cocaine base ("crack"), both Schedule II Narcotic Controlled Substances, and/or in excess of one kilogram or more of a mixture or substance containing a detectable amount of heroin, and/or 1000 kilograms or more of marijuana, both Schedule I Narcotic Controlled Substances, inside or within 1,000 feet of real property comprising a housing facility owned by a public housing authority, that is, the Nuestra Señora de Covadonga Public Housing Project, Trujillo Alto, Puerto Rico, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(A), 846 and 860. All in violation of 21 U.S.C. § 846. (Criminal 04–052, Docket No. 60). Count Two charged petitioner and three other defendants with knowingly, intentionally and unlawfully conspiring, combining, confederating and agreeing together and with each other and with diverse other persons, to commit an offense against the United States, that is, to knowingly, willfully, intentionally and unlawfully possess, use, brandish, or carry 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 Title 18, United States Code, to wit: conspiracy to possess with intent to distribute and distribute narcotic controlled substances, an offense for which they can be prosecuted in a court of the United States as a violation of Title 21, United States Code, Section 946 as charged in Count One, all in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(o ). (Id. at 10). Counts Four and Six charge petitioner with knowingly, willfully, intentionally and unlawfully possessing, using, brandishing, or carrying a firearm (on two different dates), 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 Title 18, United States Code, to wit: conspiracy to possess with intent to distribute and distribute narcotic controlled substances, an offense for which he can be prosecuted in a court of the United States as a violation of Title 21, United States Code, Section 846 as charged in Count One, all in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii). Petitioner is described as a leader and organizer who also supervised the drug points in the housing project, overseeing the managers, runners, enforcers and sellers. During the years the criminal enterprise existed, he played different roles until he reached the top position of owner of the drug point.

Petitioner was arrested on June 1, 2004 and arraigned on June 7, 2004. (Criminal No. 04–052, Docket No. 104). Court-appointed counsel Bruce McGiverin represented petitioner at the time. During the following months, several codefendants entered guilty pleas based upon agreements with the government and eventually all entered guilty pleas in this case except for one who died after indictment. In a companion case, petitioner is mentioned as an unindicted co-conspirator.1 Attorney McGiverin represented petitioner for seven months. On January 27, 2005, counsel McGiverin moved to withdraw representation and retained counsel Lorenzo J. Palomares–Starbuck entered a notice of appearance on behalf of petitioner. (Criminal No. 04–052, Docket Nos. 265, 269). After a very active motion practice period, petitioner alone proceeded to trial a year later2 . United States v. Rodriguez, 525 F.3d at 93.

Trial began on January 17, 2006 and ended with a guilty verdict on February 15, 2006. (Criminal No. 04–052, Docket No. 430). Petitioner was sentence on November 6, 2006 to life imprisonment on Counts One and Two, to be served concurrently, followed by a term of seven years as to Count Four and twenty-five years as to Count Six, to be served consecutively to each other and to the sentences for Counts One and Two. (Criminal No. 04–052, Docket No. 463). A notice of appeal was filed. On appeal, petitioner argued that the cumulative effect of errors deprived him of a fair trial, and that the evidence varied impermissibly from the information in the indictment. The sentence was also challenged as unreasonable, and further stressed errors as to drug quantity calculations, and the brandishing of a firearm, that a sentence above the statutory maximum was imposed, and that erroneous consecutive sentence were imposed for the convictions under 18 U.S.C. § 924(c). Petitioner was then represented by retained counsel Linda Backiel.

In a lengthy discussion, petitioner's convictions as to Counts One and Two were affirmed on May 13, 2008, but the sentence as to Count Two was vacated with instructions for the district court to sentence petitioner to a term of no more than twenty years. (Criminal No. 04–052, Docket No. 512) (Mandate). The conviction and sentence as to Count Four was vacated and the conviction as to Count Six was affirmed with instructions to sentence petitioner to the statutory minimum term of five years, to run consecutively to the sentences imposed on Counts One and Two. United States v. Rodriguez, 525 F.3d 85, 112 (1st Cir.2008).

On remand, and prior to re-sentencing, petitioner sought the appointment of counsel, specifically attorney Linda Backiel. (Criminal No. 04–052, Docket No. 527). Therefore counsel Palomares–Starbuck was relieved from legal representation and counsel Linda Backiel was appointed to represent petitioner on November 6, 2008. (Criminal No. 04–052, Docket No. 531).

Petitioner was re-sentenced on December 9, 2008. (Criminal 04–052, Docket No. 536). An appeal followed. On March 5, 2010, the court of appeals affirmed the sentences in a detailed judgment. United States v. Feliciano–Rodriguez, No. 09–1124 (1st Cir. March 5, 2010). (Criminal No. 04–052, Docket No. 567).

The court noted that it was not plain error for the district court not to group Counts One and Two pursuant to U.S.S.G. § 3D1.2(c). In any event, no substantive rights were affected since petitioner's total sentence was not thus lengthened.

The argument that the 20–year sentence on Count Two was substantively unreasonable was also rejected since it was the only sentence possible under the guideline range, and the district court adequately explained the reasons for the same.

II. COLLATERAL REVIEW

This matter is before the court on timely 43–page motion with accompanying 21–page memorandum of law to vacate, set aside or remand sentence filed by petitioner Wilfredo Feliciano–Rodriguez on July 18, 2011, amending a motion filed a week previously. (Docket Nos. 1, 2). Also before the court is petitioner's supplemental motion filed on December 18, 2012, and another supplemental motion filed on October 2, 2013. (Docket Nos. 10, 11).

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