Santos-Martinez v. United States

Decision Date29 May 2015
Docket NumberCivil No. 13–1586CCC.
Parties Edwin SANTOS–MARTINEZ, Plaintiff v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Puerto Rico

Edwin Santos–Martinez, Fort Dix, NJ, pro se.

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

JUDGMENT

CARMEN CONSUELO CEREZO, District Judge.

Having considered the Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 filed by petitioner Edwin Santos–Martínez (D.E. 1), the United States' Response in Opposition (D.E. 4), and the Report and Recommendation issued by U.S. Magistrate–Judge Justo Arenas (D.E. 8 ), to which no objections have been filed, said Report and Recommendation is APPROVED and ADOPTED and petitioner's Motion Under 28 U.S.C. § 2255 is DENIED. Accordingly, it is ORDERED and ADJUDGED that judgment be and is hereby entered DISMISSING this action.

No certificate of appealability shall be issued, as petitioner has not made a substantial showing of the denial of a constitutional right within the meaning of Title 28 U.S.C. § 2253(c)(2). Miller–El v. Cockrell, 537 U.S. 322, 336–38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

SO ORDERED AND ADJUDGED.

MAGISTRATE JUDGE REPORT AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

This matter comes before the court on petitioner Edwin Santos–Martinez's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, filed on July 21, 2013. (Docket No. 1). A response in opposition to the motion was filed by the government on December 11, 2013. (Docket No. 4). A reply to the response was then filed on January 15, 2014. (Docket No. 6).

I. PROCEDURAL HISTORY AND BACKGROUND

Petitioner was originally charged together with 70 other defendants with serious narcotics and weapons offenses in a seven-count indictment. (Criminal No. 08–0281(CCC), Docket No. 3). He entered a guilty plea subject to a nonbinding plea agreement and was sentenced on November 16, 2010 to a term of imprisonment of 108 months as to Count One. (Criminal No. 08–0281(CCC), Docket Nos. 1784, 2030). The other counts in which he was charged were then dismissed. An untimely notice of appeal shortly followed, and the appeal from the judgment of conviction had been decided when the motion under section 2255 was filed. (Criminal No. 08–0281(CCC), Docket No. 2073). Indeed, that appeal was dismissed on January 14, 2013 and mandate issued on February 6, 2013. (Criminal No. 08–0281(CCC), Docket Nos. 3031, 3040).

The court of appeals entered a judgment as to petitioner's appeal, noting the following:

Defendant Edwin Santos–Martinez appeals his conviction and sentence on a drug conspiracy charge. His appeal was filed late and the district court refused to extend his time to file it because she determined that he had not demonstrated excusable neglect or good cause. Defendant did not file a notice of appeal from this determination, but contends that, because he was effectively abandoned by his counsel after sentencing, his appeal should not be subject to dismissal on timeliness grounds.
The government seeks dismissal of the appeal as untimely, conceding that the criminal appeal period, Fed. R.App. P. 4(b), is not jurisdictional, but asserting that it is a mandatory claims-processing rule, a matter on which we have not yet opined in a published opinion since the Supreme Court decisions in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) and Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam). However, after a thorough review of the record, we bypass the question of whether we may excuse the untimeliness of the appeal because the appeal waiver defendant agreed to as part of his plea agreement was clear, was explained to him, and works no miscarriage of justice.

United States v. Santos–Martinez, No. 13–1768 (1 Cir. January 14, 2013). (Criminal No. 08–0281(CCC), Docket Nos. 3031, 3040).1

Petitioner argues that defense counsel, notwithstanding having been instructed to file a notice of appeal, failed to file an appeal and thus incurred in ineffective assistance. See Bonneau v. United States, 961 F.2d 17, 21 (1 Cir.1992) ; cf. United States v. Torres–Otero, 232 F.3d 24, 31–32 (1 Cir.2000). This dereliction of duty ultimately led to the dismissal of his appeal. (Docket No. 1). He includes an affidavit where he attests that he requested from his attorney Mr. Rafael Castro Lang to file a notice of appeal after sentence was imposed. (Docket No. 1–2). Counsel told him that he would file the notice of appeal on his behalf, and that once filed, he would mail petitioner a copy of the same. He also asked for additional money for representation on appeal, although petitioner had none. The notice of appeal was not filed. A pro-se notice of appeal was dismissed as untimely.

The United States quotes from the sentencing colloquy as well as from the judgment of the court of appeals in arguing that there is no cause and prejudice reflected in petitioner's argument. It stresses that petitioner was not deprived of an appeal, and that the appellate court rejected his claims and upheld the waiver of appeal in the plea agreement. (Docket No. 4 at 6).

Petitioner replies that he was prejudiced, relying on United States v. Tajeddini, 945 F.2d 458, 466 (1 Cir.1991), and stressing that he had asked to file a notice of appeal and counsel failed to do so. Thus the Sixth Amendment violation. Petitioner stresses that since he is a pro se litigant, counsel must be appointed, an evidentiary hearing must be held, and he must be resentenced in order that his right to appeal be reinstated.2

II. DISCUSSION

Under section 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, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ; David v. United States, 134 F.3d 470, 474 (1 Cir.1998).

It is well settled that the Sixth Amendment right to counsel guarantees effective counsel. See Strickland v. Washington, 466 U.S. 668, 686–87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; United States v. Ortiz, 146 F.3d 25, 27 (1 Cir.1998). Nevertheless, petitioner bears a "very heavy burden" in his attempt to have his sentence vacated premised on an ineffective assistance of counsel claim. See Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996) ; Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). This is particularly true in this circuit where a lawyer's performance is deficient under Strickland "... only where, given the facts known at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it." United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir.2012), quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010), which in turn quotes Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006).

The United States Supreme Court has developed a two-pronged test to determine whether a criminal defendant was denied his constitutionally guaranteed effective assistance of counsel. See Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052. Pursuant to the test established in Strickland, petitioner Santos– Martinez must first establish that his counsel in the criminal proceedings was deficient in that the quality of legal representation fell below an objective standard of reasonableness. See id. at 688, 104 S.Ct. 2052 ; Rosenthal v. O'Brien, 713 F.3d 676, 685 (1 Cir.2013) ; Encarnacion–Montero v. United States, 34 F.Supp.3d 202, 205 (D.P.R.2014). In order to satisfy the first-prong of the aforementioned test, petitioner "must show that ‘in light of all the circumstances, the identified acts or omissions [allegedly made by his trial attorney] were outside the wide range of professionally competent assistance.’ " Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir.1998) (citing Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052 ). Petitioner must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Smullen v. United States, 94 F.3d 20, 23 (1 Cir.1996) (citing Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052 ). Finally, a court must review counsel's actions deferentially, and should make every effort "to eliminate the distorting effects of hindsight." Argencourt v. United States, 78 F.3d at 16 (citing, Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052 ); see also Burger v. Kemp, 483 U.S. 776, 789, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).

The second prong of the test, "[t]he ‘prejudice’ element of an ineffective assistance [of counsel] claim[,] also presents a high hurdle. ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ " Argencourt v. United States, 78 F.3d at 16 (citing Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. 2052 ); Campuzano v. United States, 976 F.Supp.2d 89, 99 (D.P.R.2013). Thus, petitioner must affirmatively "prove that there is a reasonable probability that, but for [his] counsel's errors, the result of the proceeding would have been different." Knight v. United States, 37 F.3d 769, 774 (1 Cir.1994) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052 ); Encarnacion–Montero v. United States, 34 F.Supp.3d at 205–06. That is, if petitioner succeeds in showing deficiencies in his legal representation, then he must conclusively establish that said deficiencies operated a real prejudice against him in the criminal proceedings. See Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052.

There is no doubt that the...

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