Fernandez-Garay v. United States, 043021 FED1, 18-1400

Docket Nº18-1400
Opinion JudgeMCELROY, DISTRICT JUDGE.
Party NameJEAN C. FERNANDEZ-GARAY, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee.
AttorneyTim Bower Rodriguez on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.
Judge PanelLynch and Kayatta, Circuit Judges, and McElroy, District Judge.
Case DateApril 30, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (1st Circuit)

JEAN C. FERNANDEZ-GARAY, Petitioner, Appellant,

v.

UNITED STATES OF AMERICA, Respondent, Appellee.

No. 18-1400

United States Court of Appeals, First Circuit

April 30, 2021

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, U.S. District Judge]

Tim Bower Rodriguez on brief for appellant.

W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

Lynch and Kayatta, Circuit Judges, and McElroy, [*] District Judge.

MCELROY, DISTRICT JUDGE.

Habeas Petitioner Appellant Jean C. Fernandez-Garay ("Fernandez" or "petitioner") pled guilty to one count of possession of a firearm in connection with a drug trafficking crime and entered into a plea agreement with the government which included a sixty-month joint sentencing recommendation. The Presentence Investigation Report ("PSR") provided to the district court by the United States Probation Office included two accounts of Fernandez's violative conduct under 18 U.S.C. § 924(c)(1)(A). One account reflected the facts recited in the plea agreement ("plea version") and the second version included facts found by the probation officer ("probation version"). The difference between these versions concerns petitioner's alleged conduct in handling the firearm. Trial counsel for Fernandez made no objection to the probation version contained in the PSR before the sentencing hearing.

At sentencing, the district court imposed a 120-month sentence instead of the mandatory minimum sentence of sixty months that was recommended by both parties. Following a direct sentencing appeal in which this Court affirmed the 120-month sentence, Fernandez filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence, asserting ineffective assistance of counsel for his attorney's failure to object to the discrepancy between the two versions of events contained in the PSR. The district court denied the relief sought and declined to issue a certificate of appealability, finding that our previous decision was "law of the case" and precluded Fernandez from relitigating the issue in the § 2255 petition. This Court granted a certificate of appealability as to petitioner's claim of ineffective assistance of counsel. Fernandez asks us to reverse the trial court and remand with instructions to vacate the sentence, to order a new PSR, and to hold a new sentencing hearing or, in the alternative, to remand the case for an evidentiary hearing.

For the following reasons, we affirm the denial of the petition but, as will become clear, we do so for a different reason than that given by the district court.

Background

In 2012, members of the Puerto Rico Police Department and Agents of the United States Department of Homeland Security arrested Fernandez and a grand jury indicted him for drug offenses and possession of a firearm. At the time of his arrest Fernandez was wearing a mask, carrying a backpack containing drugs and an extended magazine of bullets, and holding a gun, which he threw to the ground as he tried to evade police.1

In 2013, just before his trial was set to begin, Fernandez entered into a plea agreement and pled guilty to possessing a firearm in furtherance of a drug-trafficking crime under 18 U.S.C. § 924(c)(1)(A). The parties agreed to a joint recommendation of a sixty-month prison sentence, the mandatory minimum. Prior to the sentencing hearing, a PSR was submitted to the district court that included two different versions of the gun possession facts. The plea version, reflecting the facts contained in the agreement, described a masked Fernandez holding a backpack containing drugs and an extended magazine for a gun in one hand and carrying a Glock handgun in the other. The PSR also included the probation version that mirrored the plea version with two exceptions. The first, not important here, detailed the specific drug quantities contained in the backpack. The second, the focus of his habeas argument, described Fernandez pointing the gun at a police officer before turning to run.2 Trial counsel for Fernandez made no objection to the "pointed gun" described in the PSR.

At sentencing, and relying on the facts included in the PSR, the district court imposed a 120-month prison sentence, rejecting the joint recommendation of the sixty-month mandatory minimum sentence of imprisonment. The trial judge offered the following explanation at sentencing: Before the Court is a 25-year-old U.S. citizen. Mr. Fernandez has four previous dismissed cases and one acquitted at state level. He has ten siblings, and he has a relationship -- an absent relationship with his father for the past two years. He's also the father of two young daughters. He had an 11th grade high school education but has earned his GED while being incarcerated. Nonetheless, the Court also takes into consideration the seriousness of the offense charged.

This defendant was wearing a . . . mask, was hiding his identity. He was carrying a .40 caliber Glock pistol loaded with an extended magazine containing 22 rounds of .40 caliber ammunition. And he also had a backpack containing 22 rounds of .40 caliber ammunition -- I'm sorry, in a backpack containing 119 small bags of marijuana, 119 small bags of cocaine, 262 parcels of heroin, 38 parcels of crack, and three pills of an unknown substance. A small notebook was also in the backpack, which contained assorted drug sales.

Finally, during the intervention of the police, Mr. Fernandez also pointed the gun that he was carrying at a Police of Puerto Rico officer and threw the backpack towards the officer. The officer ran after him, at which point he saw Mr. Fernandez throwing the gun to the ground.

Therefore, it is the judgment of this Court that Mr. Fernandez-Garay is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 120 months.

Only after the district court pronounced its sentence did defense counsel object to the PSR description of Fernandez "pointing" the gun. The district judge cut off trial counsel's objections and Fernandez appealed his sentence on both procedural and substantive grounds. Fernandez-Garay, 788 F.3d at 2. After careful review, this Court affirmed.3

Fernandez then filed a petition for habeas corpus[4] with the district court and sought to vacate his conviction and sentence based upon ineffective assistance of counsel pursuant to § 2255. The district court denied the petition. Although the district court identified the two-prong test that must be satisfied to prevail on an ineffective assistance of counsel claim, it did not undertake the analysis established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Concluding, at least in part, [5] that Fernandez was attempting to relitigate the reasonableness of his sentence and the court's use of the PSR facts, issues already decided by this Court on direct appeal, the trial court determined that the law of the case doctrine barred Fernandez from "a second bite at the apple."

While we agree that the law of the case doctrine applies to previously litigated issues, we disagree with the trial court's application of that principle to petitioner's ineffective assistance claim. Fernandez has not previously sought relief for ineffective assistance of counsel. This is his first bite at that particular apple.

Standard of Review

We granted a certificate of appealability with respect to the claim in the § 2255 petition that counsel provided ineffective assistance by failing to make a timely objection to the PSR writer's conclusion that the petitioner had pointed a firearm at a police officer. We undertake a de novo review of the district court's legal conclusions and apply a clear error standard to its factual findings. Cody v. United States, 249 F.3d 47, 52 (1st Cir. 2001) (citing Familia-Consoro v. United States, 160 F.3d 761, 764-65 (1st Cir. 1998)).

Discussion

The right to legal representation in a criminal proceeding, and by extension the right to a fair...

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