Santana v. United States

• Decision Date: 12 April 2013
• Docket Number: Criminal No. 08–278 (DRD).,Civil No. 09–2290 (DRD).
• Citation: 939 F.Supp.2d 109
• Parties: Luis A. BERROA SANTANA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

939 F.Supp.2d 109

Luis A. BERROA SANTANA, Petitioner,

v.UNITED STATES of America, Respondent.

Civil No. 09–2290 (DRD).

Criminal No. 08–278 (DRD).

United States District Court,

D. Puerto Rico.

April 12, 2013.

Luis A. Berroa–Santana, Washington, MS, pro se.

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

AMENDED OPINION AND ORDER NUNC PRO TUNC ADOPTING REPORT AND RECOMMENDATION

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court is petitioner Luis A. Berroa Santana's (“Berroa–Santana”) Motion To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody pursuant to 28 U.S.C. § 2255. See Docket No. 1. Petitioner alleges ineffective assistance of counsel on two grounds: (a) defense counsel failed to explain the Petitioner the consequences of waiving the right to appeal at the stage of the change of plea and sentencing; (b) counsel failed to challenge the imposition of a consecutive sentence, as to a weapon he accepted usage in furtherance to a drug trafficking offense, as opposed to serving concurrent sentences.

This matter was referred to United States Magistrate Judge Justo Arenas (“Magistrate Judge Arenas” or “Magistrate Judge”), who recommended, through a Report and Recommendation entered on February 10, 2012, that the petitioner's motion for post-conviction relief be denied. See Docket No. 9. As of this date, the Report and Recommendation issued by Magistrate Judge Arenas stands unopposed. For the reasons set forth below, the petitioner's motion under 28 U.S.C. § 2255 is denied without evidentiary hearing, as the written record of the case pellucidly demonstrates that he was duly forewarned as to the waiver of appeal, and as to the consecutive weapon sentence.

Standard of Review

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Rule 72(b) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”); Rule 72 of the Local Rules for the District of Puerto Rico (“Local Rules”). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As a general rule, an adversely affected party may contest the Magistrate Judge's report and recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72; Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides that:

Within fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

However, “[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied,474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). Thus, in order to accept the unopposed Report and Recommendation, the Court needs only satisfy itself by ascertaining that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996) ( en banc ) (extending the deferential “plain error” standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) ( en banc ) (appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for “plain error”); Nogueras–Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (“Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous”)( adopting the Advisory Committee note regarding Fed.R.Civ.P 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) (“when no objections are filed, the district court need only review the record for plain error”).

In the instant case, the Magistrate Judge issued a Report and Recommendation on February 10, 2012, Docket No. 9. The Magistrate Judge granted the parties fourteen days to object the Report and Recommendation, from its receipt. The record shows that, as of this date, after more than a one year of patience waiting, the Report and Recommendation stands unopposed. We therefor review the Magistrate's Report and Recommendation only under “clear erroneous” or “plain error” standard.

Factual and Procedural Background

Magistrate Judge Arenas recommended that petitioner's § 2255 be denied on several grounds, to wit: (a) Berroa–Santana's petition is time barred, and (b) counsel's performance was reasonable, as the record reflects that the two grounds for relief were duly explained by both the Magistrate Judge at the plea colloquy, and the district court before the sentencing, thereby mooting any potential error by counsel.

Petitioner Berroa–Santana together with two other defendants “were charged in a two count information with aiding and abetting each other in knowingly and intentionallypossessing with intent to distribute five hundred grams or more of a mixture or substance containing detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance, on board a vessel subject to the jurisdiction of the United States, that is, a vessel in the contiguous zone of the United States, that is a hovering vessel, as defined in Title 46 of the United States Code, Section 70502(c)(1)(F)(iii).” Report and Recommendation, Docket No. 9, page 124.

The record further shows that Berroa–Santana and others were arrested aboard a vessel off the coast of Desecheo Island, which is an island within the territorial waters of Puerto Rico and within the contiguous zone of the United States. Report and Recommendation, Docket No. 9, pages 124–25. The vessel was navigating north toward Puerto Rico without lights. Id. “The vessel was intercepted on April 16, 2008 by U.S. Customs and Border Protection Marine Units” (hereinafter “Customs”). Id. At the time of the arrest of Berroa–Santana and others, Customs found aboard the vessel, “six bales containing a total of 174 brick-shaped packages containing cocaine ... together with an AK–47 assault rifle.” Id. It appears that the vessel departed from the Dominican Republic. Id. “A complaint was filed on April 17, 2008 under Misc. No. 08–252(BJM).” Id. On May 1, 2008, a preliminary hearing was held by the Magistrate Judge McGiverin, and Berroa–Santana was ordered detained until trial. Id., pages 124–25. Petitioner was indicted on July 31, 2008 on four counts consisting of two conspiracy counts and two substantive counts under Criminal No. 08–278(DRD). Id. Berroa–Santana waived the Indictment on July 31, 2008. Id., page 125.

Later that same date, that is, July 31, 2008, Berroa–Santana “entered a guilty plea to the information based upon a plea agreement signed by petitioner on the same day.” Id. The Court record shows that, Petitioner Berroa–Santana pled guilty to two counts, to wit: (a) Count One charging the defendant Berroa–Santana with aiding and abetting others, known and unknown individuals, “did knowingly and intentionally possess with the intent to distribute five hundred (500) grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II, Narcotic Drug Controlled Substance, on board a vessel subject to the jurisdiction of the United States, that is a vessel in the contiguous zone of the United States, that is a hovering vessel, as defined in Title 46, United States Code, Section 70502(c)(1)(F)(iii).” Plea Agreement of July 31, 2008, Docket No. 15, Criminal No. 08–278(DRD). “The District Court of Puerto Rico was the first point where the defendant and his co-defendants, Angel R. Romero Santana and Gregorio Espinal Gutiérrez, entered the United States after the commission of the offense.” “All in violation of Title 46, United States Code, Sections 70503(a)(1), 70504(b)(1) and Title 18, United States Code, § 2.” Id.; and, (b) Count Two which charges Berroa–Santana with aiding and abetting by others both known and unknown with knowingly possessing a firearm “AK–47 assault rifle, during and in relation to a drug trafficking crime for which he may be prosecuted in a Court of the United States, to wit: possession with intent to distribute five hundred (500) grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II, Narcotic Drug Controlled Substance, on board a vessel subject to the jurisdiction of the United States. In violation of Title 18, United States Code, Section 2.” Plea Agreement of July 31, 2008, Docket No. 08–180(DRD).¹

The Plea Agreement of July 31, 2008, provides several covenants that are critical when determining Berroa–Santana's petition. The Plea Agreement has 18 covenants and a Government's Version of the Facts, which the Petitioner specifically agreed with. The Court deems relevant the following:

11. SATISFACTION WITH COUNSEL

The defendant [Berroa–Santana] represents to the Court to be satisfied with counsel, Jorge Gerena, Esq., and indicates that counsel has rendered effective legal assistance.

17. WAIVER OF TRIAL

The defendant hereby agrees that if this Honorable Court accepts this agreement and sentences him according to its terms, conditions and recommendations, defendant waives and surrenders his right to appeal the judgment and sentence in this case.

18. VOLUNTARINESS OF GUILTY PLEA

The defendant...