García-PagáN v. United States, CIVIL NO. 17-1273 (PG)

• Decision Date: 22 October 2018
• Docket Number: CIVIL NO. 17-1273 (PG)
• Parties: Luis A. García-Pagán, Petitioner v. United States of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

Luis A. García-Pagán, Petitioner v. United States of America, Respondent.

CIVIL NO. 17-1273 (PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

October 22, 2018

Related Crim. No. 13-123 (PG)

OPINION AND ORDER

Before the court is petitioner Luis A. García-Pagán's ("Petitioner" or "García-Pagán") amended motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 13), and the United States' (or the "government") response in opposition thereto (Docket No. 39). For the reasons explained below, the court DENIES Petitioner's motion to vacate.

I. BACKGROUND

On February 28, 2013, a grand jury returned a two-count indictment charging García-Pagán and co-defendant Ricardo Urbina-Robles ("Urbina") of aiding and abetting a carjacking, in violation of 18 U.S.C. § 2119(1) ("Count One"), and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count Two"). See Crim. No. 13-123 (PG) (hereinafter "Crim."), Docket No. 11.

A. The Facts

For expediency purposes, the court takes the facts relevant to the matter at hand directly from the First Circuit Court of Appeals' decision in United States v. García-Pagán, 804 F.3d 121, 122-124 (1st Cir. 2015).

At approximately 1:40 a.m. on February 4, 2013, three men broke into the home of Dr. Noel De León-Roig in Puerto Nuevo, Puerto Rico. All three intruders wore masks and carried firearms. One of the men woke De León by straddling his head and hitting him in the face. When the lights in the room came on, De León saw his twelve-year-old son with the other two assailants. One was pushing a revolver into the boy's mouth. The other held a gun to the back of the boy's head. At that point, one of the assailants said, "Doctor, lower your eyes. Lower your arms. This is a robbery, you son of a bitch."

Over the next hour and a half, the three assailants terrorized De León and his son. They took tens of thousands of dollars from De León's safe, along other valuables. The intruders tied up the doctor and his son, hit them with guns, and threatened to execute them. Around 3:00 a.m., the assailants left in De León's car, and De León called the police.

For a stretch of time during the invasion, the robbers removed their masks in order to eat pizza and drink soda that they had found in De León's kitchen. And so De León saw their faces. De León later identified García as one of the assailants from a group of nine people in a photo array within one minute of being shown the photographs. De León made that identification very soon after the break-in, at approximately 9:00 a.m. the same day. De León identified García again in the courtroom at trial. De León described García as "the focused one" of the three assailants, and he described one of the other assailants, Ricardo Urbina-Robles, as the leader of the group.

García argued at trial that he had been misidentified. He introduced the alibi testimony of his wife, his mother, and a friend. Together, these three people testified that García saw a film with his family on the evening of February 3, and then, sometime in the early hours of February 4, returned with his family to the housing complex where García lived. García's wife testified that, after their return from the film, García was in bed the entire night.

After the close of the evidence and before closing arguments, defense counsel requested a continuance in order to move for a writ of habeas corpus ad testificandum for Urbina, to enable Urbina, who was then incarcerated and awaiting sentencing following his guilty plea for his involvement in this same crime, to be present and testify in person on García's behalf.¹See 28 U.S.C. § 2241(c)(5) (providing for such a writ). The court denied the request.

B. Conviction and Sentence

Following trial by jury, the court sentenced García-Pagán to a total term of 420 months--180 months as to Count One, plus 240 months as to Count Two, to be served consecutively. See Crim. Docket No. 201. García-Pagán filed a notice of appeal on May 9, 2014. See Crim. Docket No. 239.

The First Circuit affirmed García-Pagán's conviction and sentence and dismissed without prejudice two claims of ineffective assistance of counsel. The appellate court held that the district court did not abuse its discretion in denying García-Pagán's request for a continuance of trial for counsel to file a motion for writ of habeas corpus ad testificandum. See García- Pagán, 804 F.3d at 126 (1st Cir. 2015).

On February 23, 2017, García-Pagán filed a motion to vacate, set aside or correct his sentence. See Docket No. 1. He later amended his motion. See Docket No. 13.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to imposesuch sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).

Moreover, the Sixth Amendment guarantees that in all criminal prosecutions, the accused have a right to the assistance of counsel for their defense. U.S. Const. amend. VI. It has long been recognized that the right to counsel means the right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). Where, as here, García-Pagán moves to vacate his sentence on an ineffective assistance of counsel basis, he must show that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland, 466 U.S. at 686; see also Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (a petitioner seeking to vacate his sentence based on the ineffective assistance of counsel bears a very heavy burden).

For García-Pagán's claim to succeed, he must satisfy a two-part test. First, García-Pagán needs to show that "counsel's representation 'fell below an objective standard of reasonableness.'" Padilla v. Kentucky, 599 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688). Second, petitioner must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to him. See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013) (citing Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012)). Thus, the petitioner must demonstrate both incompetence and prejudice. Failure to prove one element proves fatal for the other. See United States v. Caparotta, 676 F.3d 213, 219 (1st Cir. 2012). Nonetheless, the court "need not address both requirements if the evidence as to either is lacking." Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007). Thus, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice...that course should be followed." Strickland, 466 U.S. at 697.

III. DISCUSSION

In the pending motion, García-Pagán claims that defense counsel rendered ineffective assistance because she did not secure alibi witness testimony from co-defendant Urbina; failed to investigate and secure evidence in Petitioner's favor and failed to advocate for mitigation at sentencing. See Docket No. 13. He also challenges his conviction under Section 924(c)'s residual clause arguing that it is unconstitutionally vague after Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II). See id.

In its response, the government submits these claims fail because (1) counsel's failure to present the testimony of co-defendant Urbina as an alibi witness did not fall below an objective standard of reasonableness and, at any rate, Petitioner was not prejudiced as a result; (2) counsel did not fail to investigate and secure evidence in favor of Petitioner; (3) counsel neither failed to advocate for mitigation nor failed to object to a leadership role enhancement at the sentencing stage, and (4) Johnson II does not support Petitioner's collateral attack to his Section 924(c) conviction. See Docket No. 39.

A. Ineffective Assistance of Counsel Claims

1. Failure to Secure Testimony of Co-Defendant Awaiting Sentence

As noted earlier, García-Pagán claims attorney Shepard-De-Mari rendered him ineffective assistance because she did not request a writ of habeas corpus ad testificandum to procure Urbina as an alibi witness. He avers that counsel's failure prejudiced his defense. See Docket No. 13 at 9. Attached to Petitioner's motion to vacate is an affidavit where Urbina states he is willing to testify that "all [he] knows is that Luis García Pagán has nothing to do with the events in this case because I do not know him." See Docket No. 19-1.

The government counters that counsel's "failure" to call Urbina was a tactical decision made as part of her overall trial strategy and that, at any rate, Petitioner has not demonstrated that there is a substantial likelihood that the testimony in question would have secured a different, favorable result. See Docket No. 39 at 12. In support, the government points to notes obtained by Petitioner's attorney from the forensic investigator who interviewed Urbina back in 2013—and concluded he would be an unreliable witness. See id. at 14. The government further argues that his testimony would have been against the testimony of the government's witnesses, including the victim's. See id. at 14-15 (citing Gonzalez-Soberal v. United States, 244 F. 3d 273, 278 (1st Cir. 2001)) (discussing the elements with which to evaluate whether counsel's performance for failure to call a prospective witness, including the potential value of the witness's testimony in undermining the credibility of the prosecution's witnesses).

As the First Circuit...