Rodriguez-Rodriguez v. United States
| Decision Date | 08 July 2013 |
| Docket Number | CRIM. NO. 94-274 (DRD),CIVIL NO. 13-1235 (JA) |
| Parties | JOSE MIGUEL RODRIGUEZ-RODRIGUEZ, Petitioner v. UNITED STATES OF AMERICA, Respondent |
| Court | United States District Courts. 1st Circuit. District of Puerto Rico |
As the result of party-goers going bad, petitioner Jose Miguel Rodriguez-Rodriguez was charged on December 7, 1994, in a two-count superceding indictment with crimes related to a murderous carjacking. (Criminal No. 94-274 (DRD), Docket No. 70). Six other defendants were also charged. Specifically all defendants were charged in Count One of the indictment with carjacking, in violation of 18 U.S.C. § 2119(3). Count Two charged petitioner and the other defendants with the use and carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). The superceding indictment charged aiding and abetting in addition to direct participation. See 18 U.S.C. § 2(b). The tangled motives for the victim's murder by a group ofrevelers included jealousy, envy and greed. See United States v. Rivera-Figueroa, 149 F.3d 1, 3 (1st Cir. 1998).
Three defendants, including petitioner, proceeded to trial on October 19, 1995. (Criminal No. 94-274 (DRD), Docket No. 197). Among the witnesses were three other defendants that testified against the ones that proceeded to trial. Trial concluded on October 31, 1995 with all three defendants convicted on both counts. (Criminal No. 94-274 (DRD), Docket No. 212). On February 7, 1996, petitioner was sentenced to a term of life imprisonment as to Count One and five years in Count Two, to be served consecutively. (Criminal No. 94-274 (DRD), Docket No. 247).
Petitioner filed a notice of appeal from the judgment of conviction on February 12, 1996. (Criminal No. 94-274 (DRD), Docket No. 250). Among the issues raised, which included the constitutionality of the carjacking statute, petitioner and the others argued prosecutorial misconduct, exclusion of a dying declaration, and failure of the sentencing judge to depart downward in sentencing. United States v. Rivera-Figueroa, 149 F.3d at 7. The conviction was affirmed on May 5, 1998 as to both counts. A petitioner for a writ of certiorari was filed and was denied on October 5, 1998. Rodriguez-Rodriguez v. United States, 525 U.S. 910, 119 S.Ct. 251 (1998).
Petitioner filed his first motion under 28 U.S.C. §2255 on October 5, 1999 attacking the validity of the sentence. (Civil No. 99-2115 (HL), Docket No. 1). Among the grounds raised by petitioner was the denial of his Sixth Amendment right to effective assistance of counsel. Petitioner noted counsel's failure to object to the exclusion of an arguably exculpatory dying declaration, as well as to the late filing of a motion for severance. Failure to object to the presentence report's sentencing recommendation and failure to seek a downward departure were also raised. By opinion and order dated December 11, 2000, the court denied the motion and dismissed the action with prejudice. (Civil No. 99-2115 (HL), Docket No. 7). Nevertheless, the court concluded that trial counsel was ineffective. Proceeding to the prejudice prong of the two step process announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064 (1984), and after analyzing petitioner's arguments, the court concluded that, notwithstanding ineffective performance of counsel, the result of the proceedings would not have been any different. Rodriguez-Rodriguez v. United States, 130 F. Supp.2d 313, 318-320 (D.P.R. 2000).
Petitioner then sought a certificate of appealability but the court found that petitioner had not met the standard for issuing the certificate, which would require that petitioner make a "substantial showing of the denial of aconstitutional right. " 28 U.S.C. § 2255(c)(2). (Civil No. 99-2115 (HL), Docket No. 13). Appellate review was terminated on May 28, 2002. (Civil No. 99-2115 (HL), Docket No. 15)). A petitioner for a writ of certiorari was filed and was denied on February 24, 2003. Rodriguez-Rodriguez v. United States, 537 U.S. 1195, 123 S.Ct. 1250 (2003).
This matter is before the court on attested motion to vacate, set aside or correct sentence filed by petitioner on March 22, 2013. (Docket No. 1). Petitioner argues that early in the proceedings, the prosecution first offered a plea agreement of 35 years imprisonment and then lowered it to 30 years but he proceeded to trial upon advice of defense counsel expecting to get a better offer right before the start of voir dire, and in the belief that the evidence was not that strong against petitioner. Then counsel told petitioner that a better deal might be gotten after jury selection. Upon the advice of counsel, petitioner proceeded to trial hoping for a better offer. Things did not work out as well as planned as the evidence was overwhelming, evidence which included the testimony of three cooperating co-defendants. Conviction followed.
Petitioner argues that his attorney's conduct fell below the standard of effective assistance related to plea bargaining under two recent Supreme Court decisions, Lafler v. Cooper, __________U.S.__________, 132 S.Ct. 1376, 182 L. Ed. 398(2012) and Missouri v. Frye, __________ U.S. __________, 132 S. Ct. 1399, 182 L. Ed. 379 (2012). In Missouri v. Frye, 132 S.Ct. at 1408, the Supreme Court held that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. If such a formal offer was not communicated to a defendant, and the offer thus lapsed, then "...defense counsel did not render the effective assistance that the Constitution requires." Id.; see Lafler v. Cooper, 132 S.Ct. at 1390-91. "To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Missouri v. Frye, 132 S.Ct. at 1409. The defendants must also demonstrate " . . a reasonable probability that the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it . . ." Id.
Petitioner notes that had counsel followed petitioner's intentions before trial to accept the thirty years offered, this would certainly have avoided the life sentence that he ultimately received. Petitioner imparts transcendental meaning to the holdings of Lafler and Frye, and further stresses that either a statutory or constitutional right that has been newly recognized can trigger arenewed limitations period under 28 U.S.C. § 2255(f)(3), which I discuss below.
Parties were deemed to have consented to disposition before a United States magistrate judge and the court ordered the reference under the authority of 28 U.S.C. § 636(c)(1) on May 17, 2013. (Docket No. 4).
The United States filed a response in opposition to the motion to vacate on June 12, 2013. (Docket No. 8). The argument is terse. It states that since this is a second or successive § 2255 motion, petitioner was required to obtain a certificate of appealability from the court of appeals before proceeding in the district court. See 28 U.S.C. § 2244(b)(3)(A). Because that has not happened, this court cannot exercise jurisdiction to entertain the motion to vacate. The United States goes further and notes that even if permission to proceed had been granted by the court of appeals, the petition would fail on the merits since Lafler and Frye do not establish a new rule of constitutional law concerning the right to effective assistance of counsel during the plea bargaining process. Indeed, it argues, citing post-Lafler and Frye case law, that both cases merely applied well-established principles announced in Strickland v. Washington, supra. Nor is either case applied retroactively, particularly since neither contains express language to that effect, and furthermore because the relief sought was always available after Strickland andtherefore it was also available at the time the first section 2255 motion was filed almost fourteen years ago. A fortiori, the focal lens of the United States' argument falls upon the defense of limitations. Indeed, the government limits its entire argument to the lack of portent of the Lafler and Frye decisions and to the defense of limitations.
Under 28 U.S.C. § 2255, a federal prisoner may move for post conviction relief if:
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .
28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-27 n.3 (1962); David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). The burden is on the petitioner to show his entitlement to relief under section 2255, David v. United States, 134 F.3d at 474, including his entitlement to an evidentiary hearing. Cody v. United States, 249 F.3d 47, 54 (1st Cir. 2001) (quoting United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993)); Cintron-Boglio v. United States,__________F.Supp.2d__________, 2013 WL 1876789 (May 6, 2013) at *3. Petitioner has asked for an evidentiary hearing. Nevertheless, it has been heldthat an evidentiary hearing is not necessary if the 2255 motion is inadequate on its face or if, even though facially adequate, "is conclusively refuted as to the alleged facts by the files and records of the case." United States v. McGill, 11 F.3d at 226 (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974)). "In other words,...
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