Rodriguez Rodriguez v. U.S., No. CIV. 99-2115(HL).

• Decision Date: 11 December 2000
• Docket Number: No. CRIM. 94-274(HL).,No. CIV. 99-2115(HL).
• Parties: Jose Miguel RODRIGUEZ RODRIGUEZ, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

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130 F.Supp.2d 313

Jose Miguel RODRIGUEZ RODRIGUEZ, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV. 99-2115(HL).

No. CRIM. 94-274(HL).

United States District Court, D. Puerto Rico.

December 11, 2000.

COPYRIGHT MATERIAL OMITTED

Maria H. Sandoval, Santurce, PR, for plaintiff.

Guillermo A. Gil-Bonar, U.S. Attorney's Office District of P.R., Criminal Div., Hato Rey, PR, for defendant.

OPINION AND ORDER

LAFFITTE, Chief Judge.

Before the Court is a petition for post-conviction relief under 28 U.S.C. § 2255 filed by Jose Miguel Rodriguez Rodriguez ("Rodriguez") with the assistance of retained counsel. After a jury trial, Rodriguez was convicted of carjacking under 18 U.S.C. § 2119(1) and of using and carrying a firearm during and in relation to a crime of violence, namely carjacking, under 18 U.S.C. § 924(c)(1). He was sentenced to life imprisonment for the carjacking count and 60 months imprisonment for the fire-arm count. Judgment was entered on February 7, 1996. Rodriguez appealed, and on August 21, 1998, the First Circuit affirmed his conviction. See United States v. Rivera-Figueroa, 149 F.3d 1 (1st Cir. 1998). On October 5, 1998, the United States Supreme Court denied Rodriguez' petition for certiorari. See Rodriguez-Rodriguez v. United States, 525 U.S. 910, 119 S.Ct. 251, 142 L.Ed.2d 206 (1998).

Reyes then filed this, his first § 2255 petition. The first of Rodriguez' claims is that the district court imposed an illegal sentence of life imprisonment in contravention of the Supreme Court's decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).

Second, Rodriguez asserts that the district court refused to consider any grounds for a downward departure under the Sentencing Guidelines, including Rodriguez' age, family responsibilities, prior record, and role in the offense.

Rodriguez' third argument for relief is that he was denied his Sixth Amendment right to effective assistance of counsel. Rodriguez attacks several of his attorney's actions. First, Rodriguez claims that his trial attorney objected too late to the exclusion of an allegedly exculpatory statement and that his attorney failed to file a timely motion for severance of the other defendants, so that the statement could be admitted as to Rodriguez. Third, Rodriguez argues that his lawyer failed to object to the presentence report's assertion that life imprisonment, rather than 180 months' imprisonment, was the appropriate sentence. Fourth, Rodriguez' attorney "failed to seek explicitly a downward departure from the assumed guideline sentencing range of life imprisonment, rather than to argue vaguely for a lesser sentence than life imprisonment, as he did." Dkt. No. 1.

Rodriguez' fourth and final ground for relief is that the district court denied him his Sixth Amendment right to be confronted with the witnesses against him when it refused to allow Rodriguez' attorney to cross-examine certain witnesses regarding the previously excluded statement. For the reasons discussed below, the Court must deny Rodriguez' petition.

DISCUSSION

1. Claim of Illegal Sentence of Life Imprisonment

The instant petition for relief is Rodriguez' first under § 2255. Rodriguez bases his claim that the district court imposed on him an illegal sentence of life imprisonment on the Supreme Court's decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). The Jones decision was handed down on March 24, 1999, nearly six months after the Supreme Court denied Rodriguez' petition for certiorari on direct appeal. Thus, the threshold question for the persistence of Rodriguez' first claim is whether the rule announced in Jones is applicable to Rodriguez' case by virtue of its retroactivity to cases on collateral review.

On July 25, 2000, the United States Court of Appeals for the First Circuit decided that the rule announced by the Supreme Court in Jones is not retroactive to cases on collateral review. See Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir.2000) (holding that "it is clear that the Supreme Court has not made the [Jones] rule retroactive to cases on collateral review"). Because Jones does not apply to Rodriguez' case, any claim by Rodriguez based on the Jones decision fails. Thus, Rodriguez' first claim for relief under § 2255 is hereby denied.

2. Claim of Failure to Consider Grounds for Downward Departure

Rodriguez next asserts that the district court refused to consider any grounds for a downward departure under the Sentencing Guidelines, including Rodriguez' age, family responsibilities, prior record, and role in the offense. An unwavering line of First Circuit cases holds that a district court's refusal to grant a defendant a downward departure under the Sentencing Guidelines can not ground an appeal or collateral attack. See, e.g., United States v. Cruz, 213 F.3d 1, 5 (1st Cir. 2000) (noting that "refusal to depart on [the listed] grounds would not be reviewable in any event"); United States v. Robles-Torres, 109 F.3d 83, 87 (1st Cir.1997) (holding that an appeal can not successfully be based on a court's failure to grant a downward departure); United States v. Pierro, 32 F.3d 611, 619 (1st Cir.1994) (stating that "[i]t is by now axiomatic that a criminal defendant cannot ground an appeal on a sentencing court's discretionary decision not to depart below the guideline sentencing range"), cert. denied, 513 U.S. 1119, 115 S.Ct. 919, 130 L.Ed.2d 799 (1995); United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir.1992) (holding that "[a] district court's refusal to depart from a correctly calibrated sentencing range, regardless of the suggested direction, is simply not an appealable event"); United States v. Amparo, 961 F.2d 288, 292 (1st Cir.1992) (pointing out that "[i]t is an immutable verity that `absent extraordinary circumstances, a criminal defendant cannot ground an appeal on the district court's discretionary decision not to undertake a downward departure from the sentencing range indicated by the guidelines"'(quoting United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir.1990))), cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992).

Rodriguez' claim would be saved "if the record support[ed] an inference that the sentencing court's failure to depart did not represent an exercise of fact-finding or discretion, but was instead the product of the court's miscalculation about whether it possessed the authority to depart." Amparo, 961 F.2d at 292. Rodriguez' case is identical to that of the defendant in Amparo, though, in that Rodriguez "does not theorize that the sentencing judge was unaware of his power to depart or misconceived the legal standard." Id. Thus, Rodriguez' claim based on the district court's failure to grant him a downward departure is hereby denied.

3. Claim of Denial of Effective Assistance of Counsel

a. Claim that Trial Counsel Objected Too Late to Exclusion of Allegedly Exculpatory Statement and Failed to Make Timely Motion for Severance

The first of Rodriguez' claims of ineffective assistance of counsel stems from his assertion that his trial attorney failed to make a timely objection to the exclusion from evidence of a dying declaration. Before trial, Rodriguez' codefendants moved to suppress the dying declaration. The trial judge granted the motion in the absence of any objection by Rodriguez' trial counsel. Rodriguez now argues that the declaration, while inculpatory as to his codefendants, was exculpatory as to him. Rodriguez' attorney objected to suppression of the statement six months after the suppression hearing. This objection came in the form of a motion for severance, so that the declaration could be admitted solely as to Rodriguez. The severance motion having been made on the eve of trial, however, the trial judge denied it.

The Sixth Amendment guarantees a criminal defendant effective assistance of counsel in order to protect that defendant's fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Constitution does not guarantee a defendant a perfect or successful defense; rather, he is guaranteed "`reasonably effective assistance under the circumstances then obtaining.'" Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993) (quoting United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir.1991)). A court should evaluate the challenged conduct not with the benefit of hindsight, but from the attorney's perspective at the time of the trial. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Lema, 987 F.2d at 51.

A petitioner must show, first, that his counsel's performance was deficient and, second, that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Phoenix v. Matesanz, 233 F.3d 77, 80 (1st Cir.2000); Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir.1996); Bonneau v. United States, 961 F.2d 17, 20 (1st Cir. 1992). The petitioner has the burden of proving both prongs of this test, and the burden is a heavy one. Bucuvalas, 98 F.3d at 658. An attorney's performance is deficient if it is "`so inferior as to be objectively unreasonable.'" Id. (quoting United States v. McGill, 11 F.3d 223, 226 (1st Cir.1993)). There is a strong presumption that counsel's performance comes within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The defendant must overcome the presumption that his counsel's performance could "`be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). The court's scrutiny of the attorney's performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

For a defendant "[t]o establish prejudice, he `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different....