Pinillos v. United States

Citation990 F.Supp.2d 83
PartiesJaime PINILLOS, Plaintiff v. UNITED STATES of America, Defendant.
Decision Date29 November 2013
CourtU.S. District Court — District of Puerto Rico

OPINION TEXT STARTS HERE

Jaime Pinillos, Loretto, PA, pro se.

Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Defendant.

ORDER

CARMEN CONSUELO CEREZO, District Judge.

Having considered the Motion to Vacate, Set Aside, and/or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by petitioner Jaime Pinillos–Prieto (Pinillos) (docket entry 1), the United States' Response in Opposition (docket entry 4), and the Report and Recommendation (R & R) issued by U.S. Magistrate–Judge Justo Arenas on July 29, 2013 (docket entry 24), which remains unopposed, said Report and Recommendation is APPROVED and ADOPTED and Pinillos' 28 U.S.C. § 2255 Petition is DENIED and ORDERED DISMISSED in its entirety. Judgment shall be entered accordingly.

SO ORDERED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255

JUSTO ARENAS, United States Magistrate Judge.

I
A. PROCEDURAL BACKGROUND: TRIAL LEVEL

Petitioner Jaime Pinillos–Prieto was indicted on July 24, 2001 in a two-count indictment. (Crim. No. 01–520, Docket No. 10). Two other defendants, Rodrigo Campusano and Nolgie Rodriguez–Zamot were also indicted. Petitioner was charged in the first count in that, from on about early July 2001 up to and including July 11, 2001, in the District of Puerto Rico, petitioner and the codefendants did knowingly, wilfully, intentionally and unlawfully conspire, confederate, and agree together and with each other and with diverse other persons known and unknown to the Grand Jury, to knowingly, intentionally and unlawfully possess with intent to distribute and distribute in excess of five kilograms or more of cocaine, a Schedule II Narcotic Drug Controlled Substance, in violation of 21 U.S.C. § 846. (Crim. No. 01–520, Docket No. 10). Nineteen overt acts are pleaded in Count One, all related to meetings, conversations and agreements focused on the purchase of 100 kilos of cocaine, which, in the theory of the government, was the purpose of the conspiracy.

Count Two of the indictment charged the defendants, aiding and abetting each other, with knowingly, intentionally, and unlawfully attempting to possess with intent to distribute in excess of five kilograms of cocaine, in violation of Title 21, United States Code, Section 841(a)(1), and Title 18, United States Code, Section 2; see United States v. Pinillos–Prieto, 419 F.3d 61, 66 (1st Cir.2005). The charges stemmed from a reverse sting operation in which government agents 1 offered to sell drugs to persons suspected of being drug buyers, in this case, the three defendants, including petitioner. Id. at 63; see Pinillos v. United States, 2013 WL 2356137 (D.P.R. May 29, 2013).

Petitioner and the other two defendants were arrested on July 11, 2001 and enteredpleas of not guilty before me on July 27, 2001. (Crim. No. 01–520, Docket Nos. 14, 15, 16). An active motion practice by all defendants followed, including motions to suppress, to sever and to dismiss. Petitioner suffered a psychotic episode during his detention at the federal metropolitan detention facility (MDC) and was evaluated by a forensic psychiatrist, Dr. Jose Fumero. Plea offers were eventually made to petitioner and the other defendants. The government's original offer was of 120 months and petitioner counter-offered 72 months excluding the possibility of his meeting the safety valve criteria. (Docket No. 1–5 at 10). The final offer made by the government was of 96 months imprisonment. The deadline for acceptance of the last offer expired on September 25, 2002. None of the defendants accepted.

Trial began on October 17, 2002 and ended on October 25, 2002. (Crim. No. 01–520, Docket Nos. 154, 168). The evidence presented was primarily testimonial with videotapes and audiotapes of poor quality which tended to support the fact of the meetings between defendants and government agents, and also lent support to some of the overt acts related in Count One of the indictment. The jury clearly believed the government agents over the testimony of the three defendants. The trial transcript reflects hard fought, intense activity of all involved. All defendants were found guilty as to both counts of the indictment. (Crim. No. 01–520, Docket No. 168). Motions for judgment of acquittal were argued and denied during trial.

Presentence reports were transmitted to all counsel on February 5, 2003. On March 3, 2003, the United States moved the court to find that petitioner and one other defendant had obstructed the administration of justice. (Crim. No. 01–520, Docket No. 212). Petitioner opposed the motion on March 10, 2003 and also moved for downward departure, based in part on his mental state. (Crim. No. 01–520, Docket Nos. 221, 222). Petitioner was sentence on March 26, 2003 to 235 months imprisonment on each count, to be served concurrently with each other. (Crim. No. 01–520, Docket No. 237). A notice of appeal was filed on the same date. (Crim. No. 01–520, Docket No. 240)

B. PROCEDURAL HISTORY: APPELLATE LEVEL

All defendants appealed. On August 17, 2005, the United States Court of Appeals for the First Circuit affirmed the conviction but remanded for re-sentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which had been decided on January 12, 2005. See United States v. Pinillos–Prieto, 419 F.3d at 74–75. Since petitioner challenged the court's calculation of the drug quantity as 100 kilograms of cocaine, and also preserved the sentencing claim under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), remand was directed in light of Booker. The court of appeals addressed arguments related to the sufficiency of the evidence, for example, whether any agreement was related to the sale of Compaq Presario laptops or to cocaine. Id. at 68. The defense argument was that the parties never mentioned “cocaine” or “kilos” (raised by petitioner). Also addressed were the arguments of lack of criminal agreement, lack of actual money to purchase a large amount of cocaine (raised by petitioner), and the court's improperly allowing expert testimony by a law enforcement officer related to the modus operandi of drug trafficking organizations. Id. at 69. Composition of membership of the conspiracy and drug quantity calculations were also raised as issues on appeal. Id. at 72–75.

C. PROCEDURAL HISTORY: REMAND FOR RE–SENTENCING

Prior to re-sentencing, petitioner objected to his pre-sentence investigation report, which objections were overruled by the court. (Crim. No. 01–520, Docket Nos. 389, 416, 445, 454); see United States v. Pinillos, 2007 WL 1341228 (D.P.R. May 3, 2007).

On August 10, 2007, petitioner pro se moved for a judgment of acquittal and for new trial in a broad, well-documented and late motion. (Crim. No. 01–520, Docket No. 451). The motion was primarily based upon the alleged irregularities in the audiotape transcripts which contained the words kilo or kilos instead of primo (cousin) or primos (cousins), and also on the authenticity of the audiotape referred to throughout as N–2. Petitioner includes extensive comparisons of audiotape transcript translations as well as a lengthy exculpatory history of his business dealings with informant Nelson Rodriguez having to do with computers, as well as issues with Colombian customs and taxes. Indeed, the motion has a 2–volume, 3–inch thick appendix with over 500 pages of materials under 21 separate tabs. Some of the material is in the Spanish language with no accompanying translation. The motion for new trial was denied as untimely in open court, three days after it was submitted. (Crim. No. 01–520, Docket No. 455).

Upon re-sentencing on August 13, 2007, petitioner was again sentenced to 235 months imprisonment on both counts of the indictment, to be served concurrently. (Crim. No. 01–520, Docket No. 461). Petitioner then filed a notice of appeal of the amended judgment. (Crim. No. 01–520, Docket No. 460).

D. PROCEDURAL HISTORY: SECOND APPEAL

The court of appeals addressed the sentencing issues raised by petitioner and affirmed his sentence of August 13, 2007 on February 13, 2009. United States v. Campusano, 556 F.3d 36 (1st Cir.2009). It determined that the drug quantity determination of 100 kilograms of cocaine was warranted, that petitioner was not entitled to a lower drug quantity in determining the sentence due to alleged sentencing factor manipulation by the government, see id. at 40, (a variation of entrapment of sorts), that the obstruction of justice sentencing enhancement was warranted (based on petitioner's testimony at trial), and that the 235–month sentence was reasonable. No petition for a writ of certiorari was filed by petitioner.

II

A. PROCEDURAL HISTORY: COLLATERAL REVIEW

This matter is before the court on pro se petitioner Jaime Pinillos–Prieto's timely motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, filed on July 22, 2010. (Docket No. 1.) Petitioner argues that he was denied effective assistance of counsel by Assistant Federal Public Defender Joannie Plaza Martinez (at the trial phase), and Ramon Garcia Garcia, (at the re-sentencing phase), as well as by appellate counsel Jean Philip Gauthier Inesta (at the first appeal), due to their having failed to timely file either motions, objections or requests when they were acting as petitioner's attorneys. (Docket No. 1 at 1–2). Petitioner attacks the performanceof counsel in every possible manner and in much detail.2 Because of their clear errors and deficient performances, petitioner was arguably subjected to a sentence of 235 months. Petitioner focuses on the arguably clear error on the part of the sentencing court in maintaining that he was to be held responsible for 100 kilos of cocaine, and in refusing to entertain a downward...

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