Pabon-Mandrell v. United States

• Decision Date: 10 March 2015
• Docket Number: Civil No. 11–2223ADC.
• Parties: Eduardo PABON–MANDRELL, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

91 F.Supp.3d 198

Eduardo PABON–MANDRELL, Petitioner

v.UNITED STATES of America, Respondent.

Civil No. 11–2223ADC.

United States District Court, D. Puerto Rico.

Signed March 10, 2015.

Javier A. Cuyar–Olivo, San Juan, PR, for Petitioner.

Nelson J. Perez–Sosa, Luke V. Cass, United States Attorneys Office, San Juan, PR, Jose Capo–Iriarte, United States Attorneys' Office, Hato Rey, PR, for Respondent.

OPINION AND ORDER

AIDA M. DELGADO–COLÓN, Chief Judge.

Before the Court is petitioner Eduardo Pabón–Mandrell's (“petitioner” or “Pabón–Mandrell”) motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (“ § 2255 motion”) (ECF No. 1 ), and U.S. Magistrate Judge Camille L. Vélez–Rivé's Report and Recommendation (“R & R”) that the § 2255 motion be denied on its merits. ECF No. 42.

Pabón–Mandrell raises seven claims, all related to alleged ineffective assistance of counsel rendered at the trial and appellate stages of his prosecution. ECF No. 1. Petitioner's first three claims address different aspects of the alleged closure of the trial courtroom by the U.S. Marshal Service during the jury selection process (“Claims 1, 2, and 3”). Id. at 5–18. Petitioner asserts in Claim 4 that the U.S. Marshal Service placed restrictions on his communications with counsel during trial (“Claim 4”). Id. at 18–20. Claim 5 pertains to counsel's alleged failure to advise on the right to testify on his own behalf (“Claim 5”). Id. at 20–24. The remaining two claims are related to the 21 U.S.C. § 851 information (“ § 851 Information”), as petitioner alleges that trial counsel failed to challenge the timeliness of the § 851 Information filed, and appellate counsel failed to raise the issue on direct appeal (“Claims 6 and 7”). Id. at 24–30. Petitioner submitted six affidavits in support of his motion, together with an unsworn declaration pursuant to 18 U.S.C. § 4004. ECF Nos. 1–3–1–9; 2.¹

After the government opposed petitioner's § 2255 motion (ECF No. 10 ), the Court referred the § 2255 motion to Magistrate Judge Vélez–Rivé for a R & R (ECF No. 11 ). Petitioner then filed a reply to the government's response (ECF No. 16 ). After conducting an evidentiary hearing on the limited issue of the alleged exclusion of petitioner's relatives and friends during jury selection (ECF No. 41 ), Magistrate Judge Vélez–Rivé issued the R & R on November 25, 2013, recommending dismissal of the § 2255 motion on its merits. ECF No. 42.

Petitioner filed a motion requesting the transcript of the evidentiary hearing on December 2, 2013 (ECF No. 43 ), and, on December 9, 2013, filed objections to the R & R, requesting leave to file a supplement to the objections 10 days after the transcript was provided (ECF No. 44 ). The Court granted petitioner's motion requesting the transcript of proceedings, and was allowed an additional 10 days after receipt of the transcript to supplement his objections. ECF No. 45. Petitioner then filed supplemental objections to the R & R after the transcript was provided. ECF No. 50.²

I. Review of a Magistrate Judge's Report and Recommendation

A district court may refer pending motions to a Magistrate Judge for a R & R. 28 U.S.C. § 636(b)(1)(B) ; Fed.R.Civ.P. 72(b) ; D.P.R. Civ. R. 72(a). Any party adversely affected by the recommendation issued may file written objections within fourteen (14) days of being served with the R & R. Fed.R.Civ.P. 72(d). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.”Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ). “The district court need not consider frivolous, conclusive, or general objections.” Rivera–García v. United States, No. 06–1004, 2008 WL 3287236, at *1 (D.P.R. Aug. 7, 2008) (citing Battle v. U.S. Parole Comm'n, 834 F.2d 419 (5th Cir.1987) ). Moreover, to the extent the objections amount to no more than general or conclusory objections to the R & R, without specifying to which issues in the report the party is objecting, or where the objections are repetitive of the arguments already made to the magistrate judge, a de novo review is unwarranted. Id. In conducting its review, the Court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate-judge.” 28 U.S.C. § 636(a), (b)(1) ; see also Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985) ; Alamo Rodriguez v. Pfizer Pharma., Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003).

Finally, “[a] district court is under no obligation to discover or articulate new legal theories for a party challenging a report and recommendation issued by a magistrate judge.” Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998) (additional citation omitted). “Instead, the report and recommendation is reviewed by the district judge for clear error.” Rivera–García, 2008 WL 3287236, at *1 (citing Camardo v. Gen. Motors Hourly–Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) (“It is improper for an objecting party to ... submit[ ] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”)).

II. Petitioner's Objections to the R & R³

After reviewing the filings and applicable law, and holding a hearing on the limited issue of the alleged exclusion of petitioner's relatives and friends during the jury selection, Magistrate Judge Vélez–Rivé recommended that petitioner's § 2255 motion be denied. ECF No. 42. Petitioner objects to the Magistrate Judge's determination that his ineffective assistance of counsel claims regarding access to the courtroom (Claims 1, 2, and 3) and his § 851 notification claims (Claims 6 and 7) all lack merit. ECF No. 50. He does not object to the Magistrate Judge's findings that petitioner is not entitled to post-conviction relief on Claim 4 or Claim 5. Id.

With respect to Claims 1, 2, and 3, petitioner makes specific objections to the Magistrate Judge's findings as a result of the evidentiary hearing. Id. Petitioner argues that the government witness' testimony, who was counsel for another co-defendant, “lacks personal knowledge to testify about the matter in controversy due to her poor recollection of events,” and thus, “the magistrate judge's finding [that the jury selection was open to the public] is the product of error caused by a failure to properly adduce and weigh the pertinent facts.” Id. at 2, 7. As to his own witness, Ashley M. Ortíz–Suárez (“Ortíz”), petitioner avers that, contrary to the Magistrate Judge's finding that she had no personal knowledge of what was happening inside the courtroom on February 11, 2008, at 9:00 a.m., Ortíz knew that jury selection had begun because a court security officer told her as much. Id. at 7. As to his own testimony, petitioner concedes that he had no personal knowledge what happened outside the courtroom during jury selection.Id. at 9. He nonetheless argues that he could “credibly attest to the fact that his family members were deprived from entering the courtroom during jury selection.” Id.

Petitioner makes the inference that since the trial was scheduled to begin at 9:00 a.m., jury selection commenced during the hours of 9:00 to 11:00 a.m., the time in which his family was denied access to the courtroom. Id. at 12. As a corollary to this argument, petitioner submits, with respect to Claims 6 and 7, that the filing of the § 851 enhancement or charges was untimely, since it was filed at 11:00 a.m., after jury selection had commenced. Id.

The two hours in question can easily be accounted for from a review of the minute entry from the first day of trial and the trial transcripts. Crim. No. 07–121(ADC), ECF Nos. 1034, 2381, 1889. The record irrefutably shows that jury selection did not begin until 11:00 a.m., and that between the hours of 9:00 a.m. and 11:00 a.m., the Court handled a number of preliminary matters with counsel in chambers, and later, with counsel and defendants in another courtroom. Id.

The minute entry for proceedings from the first day of trial state that: (1) the parties met in chambers to discuss housekeeping matters, (2) the government gave notice of its intent to file a § 851 Information, (3) outside the presence of the jury, six of the ten defendants proceeding to trial were brought to court (assisted by counsel and an interpreter), and advised of the government's intent and the consequences of the § 851 Information, (4) all ten defendants were brought to Court, and (5) jury selection was held. Id., ECF No. 1034. The transcript from the preliminary matters hearing confirms that these events occurred:

[T]oday this case is to commence trial in another courtroom, there is a full group of perspective jurors from which the jury panel that is to try this case is going to be selected. Actually during the morning, early morning hours I met with the prosecutors and all defense attorneys in chambers to discuss several housekeeping matters in order to move forward with the jury selection process. As it was anticipated the government gave notice that they intend to file notices for enhanced penalties against six of the ten defendants that so far are going to trial. That is, that they will be as to these six defendants requesting that penalties be enhanced and that because of prior convictions or prior records of each one of you. The government alerted and gave notice to the defense attorneys and it has been agreed that we were to step in here in this courtroom and give you this notice before the document is actually filed.

Id., ECF No. 2381 at 3–4.

It was at this hearing that the Court (aside from any notice provided by defense counsel) gave...