Hernandez v. United States

• Decision Date: 28 April 2014
• Docket Number: 11 Civ. 4955 (JSR)(HBP)
• Parties: JAIRO GABRIEL MONTOYA HERNANDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of New York

JAIRO GABRIEL MONTOYA HERNANDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

11 Civ. 4955 (JSR)(HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: April 28, 2014

REPORT AND

RECOMMENDATION

PITMAN, United States Magistrate Judge:

TO THE HONORABLE JED S. RAKOFF, United States District Judge,

I. Introduction

Pro se petitioner Jairo Gabriel Montoya Hernandez moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct the sentence imposed on him by the Honorable Judge Jed Rakoff, United States District Judge, in the criminal case bearing Docket No. 07 Cr. 197 (JSR).

Petitioner claims that he received ineffective assistance of counsel at sentencing because his counsel failed to challenge evidence offered by the Government that tended to show that he was an organizer or leader of the charged narcotics conspiracy, and that rendered him ineligible for relief from anotherwise mandatory minimum sentence. For the reasons set forth below, I respectfully recommend that the motion be denied.

II. Facts

A. Petitioner's Underlying Offenses

Petitioner is a Colombian national who, from at least as early as 2005, conspired with others to import heroin from Colombia into the United States (Ex. A to the Government's Opposition, dated January 10, 2012, ("Opp'n") at ¶¶ 14, 28). Petitioner brokered heroin sales, set courier travel routes, arranged accommodations for couriers upon their arrival in the United States, laundered the money earned from drug sales and distributed the proceeds to investors (Opp'n at 2).

B. Procedural History

1. The Indictment and Petitioner's Guilty Plea

Petitioner and seven co-defendants were indicted on March 15, 2007 and charged with participating in a conspiracy to import and to distribute in the United States one or more kilograms of heroin in violation of 21 U.S.C. §§ 846, 963 (Ex. A to Opp'n at ¶¶ 2-3). Petitioner was arrested in and extradited fromColombia to face the charges in the indictment on June 18, 2008 (Ex. A to Opp'n at 1).

On January 21, 2009, petitioner pled guilty to both counts of the indictment. Petitioner had no agreement with the Government concerning his plea (Ex. A to Opp'n at ¶ 5).

2. Sentencing

Prior to petitioner's sentencing, the Probation Department prepared a Presentence Report¹ ("PSR") that calculated the applicable guidelines sentence pursuant to the United States Sentencing Guidelines (the "Guidelines"). The PSR noted that petitioner's base level was thirty-six and that a four-level enhancement was warranted because petitioner was an organizer or leader of a conspiracy involving five or more participants (Ex. A to Opp'n at ¶¶ 45, 48). The Probation Department did not reduce petitioner's offense level for acceptance of responsibility because it found that petitioner "ha[d] not truthfully admitted the conduct comprising the offense of the conviction" (Ex. A toOpp'n at ¶ 51). The PSR concluded that his Guidelines range was 292 to 365 months (Ex. A to Opp'n at ¶ 51).

Petitioner, through his new counsel,² requested an evidentiary hearing concerning his sentence pursuant to United States v. Fatico, 603 F.2d 1053, 1055 (2d Cir. 1979); the hearing commenced on September 23, 2009 (Ex. C to Opp'n). At the outset of the hearing, petitioner contended that he was eligible for relief from the mandatory minimum sentence pursuant to the "safety valve" provision of 18 U.S.C. § 3553(f)(4) (Ex. C to Opp'n at 3). The Government claimed that petitioner was ineligible for safety valve relief because he played a leadership role in the charged narcotics conspiracy (Ex. C to Opp'n at 3).

During the hearing, the Government offered the testimony of petitioner's son and co-defendant, Mauricio Montoya Macias ("Macias"). Macias testified that he and petitioner were involved in six or seven shipments of heroin between 2005 and 2007 (Ex. C to Opp'n at 27-28). Macias and petitioner were responsible for obtaining heroin from suppliers in Medellín,Colombia and packaging and shipping it to Cucuta, Colombia where it would change hands and eventually make its way to the United States. Petitioner was also responsible for raising money from investors to purchase the heroin and for distributing the sales proceeds back to investors (Ex. C to Opp'n at 32, 37-38). Petitioner also decided which routes couriers were to take from Colombia to New York and where they should stay upon arrival. Petitioner was in contact with the couriers and the intended customers to coordinate deliveries of the heroin (Ex. C to Opp'n at 33-36). On cross examination, Macias testified that he and petitioner also negotiated the price and quantity of heroin with customers in the United States (Ex. C to Opp'n at 39-40). However, Macias denied that petitioner's role included recruiting couriers or instructing individuals how to conceal the heroin for transportation (Ex. C to Opp'n at 41).

Petitioner testified on his own behalf at the hearing, stating that he was simply an intermediary that collected money from investors (Ex. C to Opp'n at 19). He denied investing in more than 950 grams of heroin or recruiting or instructing couriers (Ex. C to Opp'n at 19-20).

In reaching a decision concerning sentencing, Judge Rakoff also considered (1) petitioner's letters to the Court, (2) notes of petitioner's post-arrest interview given on June 1, 2007and (3) an exhibit summarizing several of petitioner's intercepted telephone calls from 2005 to 2007 (see, e.g., Letter of Jairo Gabriel Montoya Hernandez to the Honorable Judge Rakoff, dated May 19, 2009, ("May 2009 Letter"); Government Ex. 11, annexed to Ex. D to Opp'n, ("DEA Report"); Government Ex. 20, annexed to Ex. D to Opp'n, ("Call Summary")).

In a November 4, 2009 Memorandum Order, Judge Rakoff found that petitioner was an "organizer, leader, manager, or supervisor of others in the offense" and that he was, therefore, ineligible for "safety valve" relief. United States v. Montoya Hernandez, 07 Cr. 197-01, 2009 WL 3642868 at *4 (S.D.N.Y. Nov. 4, 2009) (Rakoff, D.J.). Judge Rakoff noted that although "Macias tempered his testimony in an effort to protect his father," "large portions of his testimony" regarding petitioner's supervisory role were credible. United States v. Montoya Hernandez, supra, 2009 WL 3642868 at *2. He also noted that Macias's testimony was corroborated by petitioner's statements in (1) his post-arrest interview on June 1, 2007, (2) intercepted telephone calls and (3) petitioner's May 2009 Letter to the Court. By contrast, Judge Rakoff found that petitioner's testimony was not credible, particularly his statements that he was merely an intermediary and that he did not recruit or supervise couriers.

From these findings, Judge Rakoff determined that petitioner's Guidelines range was 210 to 262 months (Ex. E to Opp'n at 11). Judge Rakoff, however, departed from the Guidelines range and imposed a sentence of 150 months imprisonment to be followed by five years of supervised release (Ex. E to Opp'n at 18-19).

3. Petitioner's Appeal

Petitioner appealed his sentence to the Court of Appeals for the Second Circuit. On appeal, he argued that the District Court committed two errors -- by imposing the burden on him to prove that he was not an organizer, leader, manager, or supervisor of others in the charged offense and by requiring him to testify at the Fatico hearing in violation of the Fifth Amendment -- and that his counsel was ineffective at the Fatico hearing. Petitioner contended that his counsel was ineffective at the Fatico hearing for failing to object to (1) the misallocation of the burden of proof; (2) the alleged violation of petitioner's Fifth Amendment privilege; (3) Judge Rakoff's consideration of several of petitioner's letters; (4) various statements made by co-defendants about him in safety valve proffers and (5) the Government's proffer of his post-arrest DEA interview.

In a Summary Order dated March 25, 2011, the Second Circuit affirmed the District Court's judgment in all respects. United States v. Hernandez, 416 F. App'x 91, 92 (2d Cir. 2011). With respect to the first claim, the Second Circuit noted that "as this Court has yet to address the issue, the district court's placing the burden on the defendant to prove eligibility for safety valve purposes cannot constitute plain error." United States v. Hernandez, supra, 416 F. App'x at 93. The Court dismissed petitioner's Fifth Amendment claim, finding that because petitioner "chose to contest his eligibility for safety valve relief at a Fatico hearing" and must "provide a truthful proffer to the government about 'all he knows concerning both his involvement and that of any co-conspirators'" pursuant to 18 U.S.C. § 3553(f)(4), the District Court properly required him to testify.

Turning to petitioner's five specifications of ineffective assistance of counsel,

[i]n accord with our determinations of Hernandez's arguments regarding burden of proof and a Fifth Amendment violation, we hold that the first two bases offered by Hernandez in support of his ineffective assistance claim are without merit. Additionally, we hold that his counsel's failure to object to the court's consideration of Hernandez's various letters to the court as well as counsel's failure to "call into question" statements co-defendants made about Hernandez also lack merit because Hernandez has failed to show prejudice given the district court's limited relianceon the letters and statements in reaching its decision. In absence of a more fully developed record concerning the DEA's interview with Hernandez, however, we conclude that this issue would be better addressed in the first instance by the district court. See, e.g., United States v. Iodice, 525 F.3d 179, 186 (2d Cir. 2008). We therefore deny that portion of the appeal asserting this argument but do so without prejudice to it being raised in a 28 U.S.C. § 2255 proceeding.

United States v. Hernandez, supra, 416 F. App'x at 94.

4. The Instant Petition

Petitioner timely filed the...