Maldonado-Torres v. United States

• Decision Date: 29 July 2016
• Docket Number: CIVIL NO. 14-1374(PG)
• Parties: RUBEN MALDONADO-TORRES, Petitioner v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of Puerto Rico

RUBEN MALDONADO-TORRES, Petitioner v. UNITED STATES OF AMERICA, Respondent.

CIVIL NO. 14-1374(PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

July 29, 2016

Related to Crim. No. 10-322(PG)

OPINION AND ORDER

Before the court are Ruben Maldonado-Torres' (hereinafter, "petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, and respondent's opposition thereto. See Civ. No. 14-1374, D.E. 1 and D.E. 5.¹ After review of petitioner's claims, the court hereby concludes that the petition shall be DENIED. Petitioner is not entitled to habeas relief on his claims, which shall be DISMISSED WITH PREJUDICE.

I. BACKGROUND

On February 10, 2011, a jury convicted petitioner on three counts stemming from a drug sting carried out by federal agents in an undercover investigation deemed "Operation Guard Shack". Specifically, petitioner was convicted of the following charges:

Count 3. Conspiracy to possess with intent to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(ii)(II).

Count 4. Aiding and abetting to attempt to possess with intent to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(ii)(II), and 18 U.S.C. § 2.

Count 6. Possession of a firearm in relation to counts three and four, in violation of 18 U.S.C. § 924(c)(1)(A).

See Crim. No. 10-322, D.E. 2 and D.E. 46.

At trial, defense counsel made no opening arguments, and petitioner did not give his testimony. See Crim. No. 10-322, D.E. 72. The court instructed the jury that all elements require proof beyond a reasonable doubt. See Crim. No. 10-322, D.E. 72. In special verdict forms, the court asked the jury to provide their findings as to petitioner's guilt, as well as to the quantity of the controlled substance. See Crim. No. 10-322, D.E. 46 and D.E. 72.

Petitioner was sentenced as follows:

1. As to counts three and four, imprisonment for a term of 121 months.

2. As to count six, imprisonment for a term of 60 months, to be served consecutively to counts three and four, for a total of 181 months.

See Crim. No. 10-322, D.E. 59. This court later granted a Motion to Reduce Sentence, and lowered petitioner's sentence as to counts three and four to 120 months, for a new total term of imprisonment of 180 months. See Crim. No. 10-322, D.E. 81; D.E. 84; and D.E. 85.

Petitioner's appellate counsel submitted brief pursuant to Anders v. Sate of Cal. and a motion to withdraw to the First Circuit Court of Appeals. Petitioner filed a pro se supplemental brief. See Anders v. State of Cal., 87 S. Ct. 1396, 1400 (1967). After reviewing both, and the record on appeal, the First Circuit concluded that there were no non-frivolous claims to be raised, summarily affirmed this court's judgment, and granted counsel's motion to withdraw. See United States v. Maldonado-Torres, No. 11-1715 (1st Cir. Feb. 1 2013), slip op. at 1; Crim. No. 10-322, D.E. 78.

Pending now before this court are petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and respondent's timely opposition thereto. See Civ. No. 14-1374, D.E. 1 and D.E. 5. Petitioner submitted a memorandum of law in support of his motion and a reply to respondent's opposition See Civ. No. 14-1374, D.E. 1 and D.E. 7.

In his § 2255 petition, petitioner set forth the following arguments:

1. That the court allowed the prosecution to constructively amend the indictment against petitioner, leading to petitioner being convicted of a crime different to that he was charged with, and that trial counsel was ineffective for failing to raise that issue.

2. That the court committed an Alleyne error by failing to instruct the jury that the quantity of the controlled substance in counts three and four was an element of the crime that required proof beyond a reasonable doubt, and that trial counsel was ineffective for failing to raise that issue.

3. That petitioner's guideline range was based on sentencing manipulation, and that trial counsel was ineffective for failing to raise that issue.

4. That trial counsel's decision to forego opening statements constitutes ineffective assistance of counsel.²

5. That appellate counsel's failure to raise a single issue in favor of petitioner constitutes ineffective assistance of counsel.

See Civ. No. 14-1374, D.E. 1 and D.E. 7.

II. DISCUSSION

A. Ineffective Assistance of Counsel Standard

To review a claim of ineffective assistance of counsel, a court must assess whether 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. See Strickland v. Washington, 105 S. Ct. 2052, 2064 (1984). To succeed in a claim of ineffective assistance of counsel, petitioner must show that counsel's representation fell below an objective standard of reasonableness, andthat there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to petitioner. See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013). That is to say, petitioner must demonstrate both incompetence and prejudice. Furthermore, the Strickland test is bifurcated. See Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010). Failure to prove either prong proves fatal for the other. See United States v. Caparotta, 676 F.3d 213, 219 (1st Cir. 2012).

B. Constructive Amendment to the Indictment

Petitioner claims that the court allowed the prosecution to constructively amend the indictment against petitioner, leading to petitioner being convicted of a crime different to that he was charged with, and that trial counsel was ineffective for failing to raise that issue.

Constructively amending an indictment "is prohibited in order to preserve the right of the person accused of a crime to have a grand jury vote on an indictment, to prevent reprosecution for the same offense, and to protect the right of the accused to be informed of the charges." United States v. Pierre, 484 F.3d 75, 81 (1st Cir. 2007))(citing United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir.1993))(quotation omitted). A constructive amendment occurs "when the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them." United States v. Dowdell, 595 F.3d 50, 67 (1st Cir. 2010)(internal citations omitted)(citing United States v. Dunn, 758 F.2d 30, 35 (1st Cir. 1985)). That is to say, in order to succeed when claiming a constructive amendment, a defendant must show that it is uncertain whether defendant was convicted of the conduct charged by a grand jury. See United States v. Stierhoff, 500 F. Supp. 2d 55, 69 (D.R.I. 2007), aff'd, 549 F.3d 19 (1st Cir. 2008). A constructive amendment is considered per se prejudicial, and, as such, warrants reversal of the conviction. See United States v. Brandao, 539 F.3d 44, 59 (1st Cir. 2008).

Petitioner claims his indictment was constructively amended because the government referred to him as a "corrupt correctional officer" and stated in his opening arguments that "this case is about two corrupt correctional officers." He alleges that he was convicted for "being a corrupt officer" and for "not arresting" the participants of the staged drug deal.

It is true that "mischaracterization or overuse of a potentially inflammatory phrase may in some exaggerated circumstances be deemed prejudicial." United States v. Sanchez-Berrios, 424 F.3d 65, 73-74 (1st Cir. 2005). See also United States v. Felton, 417 F.3d 97, 103 (1st Cir. 2005)("One can imagine situations in which an epithet carries connotations well beyond the crime charged ... or cases in which a description is gratuitously inflammatory, serving no reasonable purpose in summarizing the government's position."). However, in Sanchez-Berrios, the court held that referring to the defendant as a "corrupt police officer" was justified by the evidence, and that using that epithet was additionally safeguarded by adequate jury instructions. See Sanchez-Berrios, 424 F.3d at 73 (holding also that the frequency and manner of the use of that phrase was not excessive in that case). In the instant case, it would follow that the similar epithet used by the prosecution is equally permissible.

Witnesses did in fact offer testimony about how petitioner did not arrest the participants of the staged drug deal. However, such testimony does not rise to the standard of a constructive amendment. The government sought such testimony as part of a prosecution strategy designed to prove the charges as stated in the indictment by demonstrating that petitioner, at the time of the events, was engaged in the alleged conduct rather than acting as a law enforcement agent. Furthermore, the proof offered at trial supported the charges as stated in the indictment rather than altering them as to cast uncertainty on whether defendant was convicted of the conduct charged by the grand jury. The jury was also adequately instructed as to the counts charged against petitioner.

Moreover, even though constructive amendments are prejudicial per se, when raising that issue within the bounds of an ineffective assistance of counsel claim because it has been procedurally defaulted, petitioner is nonetheless required to satisfy the prongs of the Strickland test. Petitioner has not even attempted to demonstrate that the results of the proceeding would have been more favorable to him absent the alleged error. Thus, his claim necessarily fails.

C. Alleyne Error

In Alleyne, the Supreme Court held that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). "Therefore, a district court errs by applying a statutory mandatory minimum as the sentencing starting point without a jury finding on the fact that triggers that minimum." United States v. Pizarro, ...