Forestier-Figueroa v. United States, CIVIL 14-1023 (PG)

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Writing for the CourtJUSTO ARENAS United States Magistrate Judge
Docket NumberCIVIL 14-1023 (PG),CRIMINAL 10-321 (PG)
PartiesMICHAEL FORESTIER-FIGUEROA, Petitioner v. UNITED STATES OF AMERICA, Respondent
Decision Date30 March 2015

MICHAEL FORESTIER-FIGUEROA, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

CIVIL 14-1023 (PG)
CRIMINAL 10-321 (PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 30, 2015


MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. PROCEDURAL HISTORY

Petitioner Michael Forestier-Figueroa, formerly a uniformed member of the Police of Puerto Rico, was indicted on September 9, 2010 in three counts of a four-count indictment in which another defendant, Juan Cruz-Ramos, was also indicted in a reverse sting operation. Petitioner was a uniformed member of the Police of Puerto Rico at the time of the acts alleged in the complaint.

Petitioner was charged in Count One in that on or about December 10, 2009, in the District of Puerto Rico and elsewhere within the jurisdiction of this court, he and Cruz-Ramos did knowingly and intentionally combine, conspire, confederate, and agree together with each other and others, both known and unknown to the Grand Jury, to commit an offense against the United States, that is, to possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance. All in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii)(II)

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and 846. (Criminal No. 10-0321 (PG), Docket No. 2). Count Two of the indictment is a corresponding substantive charge under 18 U.S.C. § 2 and 21 U.S.C. § 841 (a)(1). The two defendants are charged in that they aided and abetted each other in their attempt to possess with the intent to distribute cocaine on December 10, 2009. Count Three charges petitioner with a firearms offense committed the same date, that is with knowingly possessing a firearm in furtherance of a drug trafficking crime as defined in Title 18, U.S.C. § 924(c)(2), that is, a violation of Title 21, U.S.C. §§ 841(a)(1) and 846, involving a conspiracy and attempt to possess with intent to distribute five kilograms or more a mixture or substance containing a detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance, as charged in Counts One and Two of the Indictment herein, an offense, either of which may be prosecuted in a court of the United States, all in violation of 18 U.S.C. § 924(c)(1)(A)1.

Because of the particular circumstances of the case, the defendant was appointed counsel prior to the initial appearance. Petitioner was temporarily detained at the initial appearance on October 6, 2010 and was detained pending

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trial. (Criminal No. 10-0321 (PG), Docket No. 13). In the U.S. Magistrate Judge's Order of Detention, the following was noted:

In addition to the evidence proffered as to the nature of the offense, the fact this defendant was a law enforcement [officer] at the time of the commission of the offense charged and the presumption of the charges, evidence of video recorded illegal activities and information to be provided by a confidential human source shows, this defendant's participation in providing escort to the presumed controlled substances and the payment of monies to this defendant for the security provided to the presumed narcotic dealers, while defendant was armed. For this reason, defendant faces the additional charge of firearms in furtherance of a drug trafficking activity in violation of Title 18, United States Code, Section 924(c). There was strong evidence in support of government's request for detention for being a danger to the community upon participating in a drug trafficking conspiracy and the firearm charge in furtherance of a drug trafficking offense.

(Criminal No. 10-0321 (PG), Docket No. 13 at 2-3).

After initially pleading not guilty to the charges on October 12, 2010, petitioner moved to change his plea on January 19, 2011. (Criminal No. 10-0321 (PG), Docket No. 45). Petitioner entered a guilty plea on January 31, 2011 as to Counts One and Three of the indictment. (Criminal No. 10-0321 (PG), Docket No. 55). The terms of the agreement called for holding petitioner accountable for at least 400 grams but less than 500 grams of cocaine, thus establishing a base offense level of 24, pursuant to U. S. S. G. § 2D1.1, and a 3-level reduction for acceptance of responsibility, pursuant to U. S. S. G. § 3E1.1(a). (Criminal No. 10-0321 (PG), Docket No. 55 at 5). The parties agreed to a recommendation at the

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higher end of the applicable guideline, which was 37-46 months. This would mean 106 months (46 months for Count One and 60 months for Count Three to run consecutively to each other, assuming a Criminal History Category of I. Count Three relates to the indictment and petitioner's pleading guilty to "possess[ing] a firearm in furtherance of a drug trafficking crime". (Criminal No. 10-321 (PG), Docket Nos. 55 at 2).

Petitioner was sentenced on September 13, 2012 to 37 months as to the narcotics offense, to run consecutively to the 60 months provided for in the firearms offense. (Criminal No. 10-0321 (PG), Docket Nos. 90, 94). The remaining count was then dismissed, as provided for in the plea agreement. No post-sentence motions followed but petitioner did file a notice of appeal on September 22, 2011. (Criminal No. 10-0321 (PG), Docket No. 93).

On August 19, 2013, The First Circuit Court of Appeals issued a judgment affirming the conviction. A brief was filed in which counsel could identify no non-frivolous issue on appeal. See Anders v. California, 386 U.S. 739 (1967). Advised of his right to file a pro se supplemental brief, petitioner did not so file, either before or after the sixty days allowed to file such a brief. The court found the waiver of appeal clause in the plea agreement binding and saw no non-frivolous basis for arguing that enforcement of the waiver would result in a miscarriage of justice. (Criminal No. 10-321 (PG), Docket No. 116).

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II. MOTION TO VACATE, SET ASIDE OR VACATE SENTENCE

This matter is before the court on petitioner Michael Forestier-Figueroa's timely motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, filed on February 16, 2012. (Docket No. 1.) Petitioner argues the following points: 1) while he pleaded guilty to possession of a firearm in furtherance of a drug trafficking crime, there was no evidence of any type reflecting that he carried a weapon on the day the offensive conduct occurred. He blames his trial counsel2for the unneeded self-incrimination; 2) petitioner blames trial counsel for not comprehending the established doctrines concerning when an off-duty officer's service weapon automatically creates an "in furtherance of" charge. He notes that petitioner's status as a law enforcement officer was never mentioned; 3) petitioner complains of the distorted translation regarding a Mexican dialect, so that in the context of the events, petitioner was a dupe and not a participant. Counsel's failure to investigate is arguably the reason for the guilty plea, since petitioner is actually innocent of the charge.

Petitioner argues further he did not know that he could have proceeded to trial on just the weapons charge. He speculates as to what his likely sentence would have been had he proceeded to trial since he was a minor participant. Petitioner continues to complain about the translations. He stresses that a correct

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translation would have reflected that he was present for a jewelry transaction. The government is also accused of serious misconduct in duping the court about the inaccurate translations and duping the defendant. Petitioner presents a defense lacking mens rea, emphasizing the deception and subterfuge of government agents who trapped him notwithstanding his innocence.

Petitioner argues that his appellate attorney3 did not raise any of these issues on direct appeal and that this is the first time he has been able to raise them. He does not cite any case law in support of his request for extraordinary relief.

On January 30, 2014, in response to the section 2255 motion, the government notes that petitioner is a former police officer from the Puerto Rico Police Department who was indicted for providing armed protection in a 7-kilogram drug transaction (sham cocaine) on behalf of a person he believed was a drug trafficker. The government notes that petitioner is actually attacking the weight and sufficiency of the evidence, something that cannot be done via collateral attack. It also notes the extremely beneficial plea agreement that was negotiated. The lack of development of the argument regarding an off-duty officer is also noted. As to the claim of actual innocence, the government refers to the transcript of the colloquy at the change of plea hearing which not only

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reflects the core questioning of a Rule 11 proceeding, but which quotes petitioner's own words where he admits the delictive conduct as outlined by the Assistant United States Attorney. The government stresses that petitioner agreed to facts which he now denies. The government emphasizes that petitioner has procedurally defaulted on his claims because he should have raised them on appeal. Because he did not raise the issues of the voluntariness of his plea, he has therefore procedurally defaulted on the argument he now raises for the first time.

Because petitioner appears pro se, his pleadings are considered more liberally, however inartfully or opaquely pleaded, than those penned and filed by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007); Valdivia-Delgado v. United States, 2015 WL 736342 at *8 (D.P.R. Feb. 20, 2015); Proverb v. O'Mara, 2009 WL 368617 (D.N.H. Feb. 13, 2009). Notwithstanding such license, petitioner's pro se status does not excuse him from complying with both procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

Having considered petitioner's arguments and the government's response, and for the reasons set forth below, I recommend that petitioner Forestier-Figueroa's motion to vacate, set aside, or...

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