Santos v. U.S.

• Citation: 940 F.Supp. 275
• Decision Date: 16 August 1996
• Docket Number: Civil No. 96-00107 ACK.,Crim. No. 90-01143-01 ACK.
• Court: Hawaii Supreme Court
• Parties: Romeo SANTOS, Petitioner, v. UNITED STATES of America, Respondent.

940 F.Supp. 275

Romeo SANTOS, Petitioner, v. UNITED STATES of America, Respondent.

Civil No. 96-00107 ACK.

Crim. No. 90-01143-01 ACK.

United States District Court, D. Hawai`i.

August 16, 1996.

Romeo Santos, Big Spring, TX, pro se.

ORDER DENYING PETITIONER'S SECTION 2255 MOTION

KAY, Chief Judge.

BACKGROUND

On February 1, 1996, petitioner Romeo Santos filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and a request for an evidentiary hearing. On March 27, 1996, the government filed an opposition. On April 29, 1996, Petitioner filed a Reply and Supplemental Memorandum.

Petitioner is currently serving a 126 month sentence, having pled guilty to (1) one count of the distribution of crystal methamphetamine (21 U.S.C. § 841(a)(1)) and (2) one count of the distribution of crystal methamphetamine in excess of 10 grams (21 U.S.C. § 841(a)(1)); and having been found guilty after jury trial of (3) one count of conspiracy to distribute and possess with intent to distribute in excess of 10 grams of crystal methamphetamine (21 U.S.C. §§ 846 and 841(a)(1)) and (4) one count of use of a firearm during a drug trafficking offense (18 U.S.C. § 924(c)(1)). Petitioner was sentenced by this Court on May 13, 1991.

Petitioner claims (1) that because the government laboratory report did not specify if the subject methamphetamine was D-methamphetamine or the less serious L-methamphetamine, the Court erroneously sentenced him as though the subject methamphetamine was D-methamphetamine; (2) his attorney was ineffective for failing to challenge at sentencing or on appeal the calculation of his sentence based on D-methamphetamine; and (3) his sentence violates the equal protection clause because his status as a deportable alien precludes his participation in prerelease programs.

FACTS

On July 26, 1990, a federal grand jury for the District of Hawaii returned a five-count Indictment against Petitioner, Romeo Santos, and his co-defendants Raymundo Santos, Robert Andres, Dawn Morgan, Jerry Malinab, and Georgia Miller.

On November 6, 1990, Petitioner pled guilty to counts 1 and 2 and began trial for counts 3 and 4. On November 13, 1990, the jury found Petitioner guilty of counts 3 and 4.

The Presentence Report (PSR) calculated Petitioner's base offense level to be 26. On February 12, 1991, Petitioner filed a supplemental sentencing statement objecting to the PSR level 26 calculation in paragraph 47. Petitioner claimed that the stipulation entered into by the parties did not establish the purity of the methamphetamine. The United States filed a memorandum regarding the laboratory analysis on March 26, 1991 and Petitioner withdrew his objection on May 3, 1991.

On May 13, 1991, Petitioner appeared for sentencing. Petitioner's counsel confirmed the withdrawal of Petitioner's objection to PSR paragraph 47 which calculated the base offense level at a level 26. The Court made a two-point upward adjustment for Petitioner's role as a leader in the offense and granted Petitioner's request for a two-point downward adjustment for acceptance of responsibility. Petitioner's adjusted total offense level thus was a level 26. Based on the total offense level 26 and a criminal category one, the Court sentenced Petitioner to 66 months imprisonment on Counts 1, 2, and 3 and 60 months imprisonment on Count 4. The sentence for Count 4 was ordered to run consecutive to that adjudged in Counts 1-3. Petitioner filed a timely notice of appeal on May 23, 1991.

On appeal, Petitioner argued that there was insufficient evidence to sustain his conspiracy conviction. Petitioner did not challenge the sentence that was imposed. By memorandum opinion filed May 7, 1992, the Ninth Circuit found that there was sufficient evidence of Petitioner's participation in the conspiracy and affirmed his conviction.

DISCUSSION

I. EVIDENTIARY HEARING

Title 28 U.S.C. § 2255 provides that a court shall hold an evidentiary hearing on a motion under this section "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." "A court may entertain and determine such [a] motion without requiring the production of the prisoner at the hearing." Id.

The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted. A hearing must be granted unless the movant's allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.

United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (citations omitted); Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.1989); see also United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986) ("Where a prisoner's motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required.").

The Ninth Circuit has recognized that even where credibility is at issue, where that can be "`conclusively decided on the basis of documentary testimony and evidence in the record,'" no evidentiary hearing is required. Shah, 878 F.2d at 1159 (quoting United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989)). Judges also may use discovery, documentary evidence, and their own notes and recollections of the plea hearing and sentencing process to supplement the record. Shah, 878 F.2d at 1159. "Judges may also use common sense." Id. The choice of method for handling a section 2255 motion is left to the discretion of the district court. Id. (citing Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988)).

Here, Petitioner requests an evidentiary hearing on the grounds that nowhere in the government's laboratory reports is there any indication that the subject methamphetamine was D-methamphetamine. The Court however denies Petitioner's request because it finds that his motion may be ruled upon without the necessity of such a hearing.

II. SENTENCE

Petitioner claims that this Court improperly sentenced him as if the subject methamphetamine was D-methamphetamine rather than L-methamphetamine by failing to require proof that the methamphetamine was in fact D-methamphetamine and by failing to resolve this factual dispute at sentencing.

A. MERITS

Putting aside any procedural bar, Petitioner arguably has a claim his sentence was improperly imposed. In United States v. Dudden, 65 F.3d 1461 (9th Cir.1995), the Ninth Circuit held on direct appeal (as opposed to on collateral attack) that while a district court's factual findings at sentencing are reviewed only for clear error, "[i]t was clear error to find that the drug ... was D-methamphetamine" where there was insufficient evidence to satisfy the government's burden to prove what type of methamphetamine was involved. Id. at 1472.

Here, the Court sentenced Petitioner as if the subject methamphetamine were D-methamphetamine. Although the government had the methamphetamine analyzed by the DEA Western Regional Laboratory in San Francisco, this analysis did not determine whether the methamphetamine involved was D-methamphetamine or L-methamphetamine. "[W]hen ... no direct evidence of the drug's chemical composition or the method of its manufacture is available, circumstantial evidence may be sufficient to determine which isomer [D- or L-] is involved." Dudden, 65 F.3d at 1471. The government however offers no such circumstantial evidence here. Accordingly, it would seem it has not borne its burden. See United States v. Dudden, 65 F.3d 1461 (9th Cir.1995) ("It is the government's burden to present evidence sufficient for the district court to find, by a preponderance of the evidence, that the drug involved was D-methamphetamine [as opposed to L-methamphetamine].").¹

B. PROCEDURAL BAR

The government responds, however, and the Court agrees, that Petitioner's claim is procedurally barred. The Ninth Circuit has held that while constitutional sentencing errors may be raised for the first time in a § 2255 motion where the defendant can demonstrate cause (for having failed to raise the issue earlier) and actual prejudice, "nonconstitutional sentencing errors that have not been raised on direct appeal have been waived and generally may not be reviewed [even for cause and actual prejudice] by way of 28 U.S.C. § 2255."² United States v Schlesinger, 49 F.3d 483, 485 (9th Cir.1995) (barring review by § 2255 petition of sentencing court's alleged failure to resolve factual disputes at sentencing as required by Rule 32(c)(3)(D)); see also United States v. Seyfert, 67 F.3d 544, 546 (5th Cir.1995) (barring review by § 2255 petition of nonconstitutional claim that government failed to prove quantity of D-methamphetamine, as opposed to L-methamphetamine, in methamphetamine used to calculate defendant's sentence); cf. United States v. Deninno, 29 F.3d 572, 580 (10th Cir.1994) (defendant waived claim on appeal that he should have been sentenced for L-methamphetamine rather than D-methamphetamine by failing to raise issue at sentencing), cert. denied, ___ U.S. ___, 115 S.Ct. 1117, 130 L.Ed.2d 1081 (1995); compare United States v. Bogusz, 43 F.3d 82, 89-90 (3d Cir.1994) ("[C]onsidering the gross disparity in sentencing, we disagree with the Deninno court's holding that the determination of methamphetamine type is entirely a factual question that cannot rise to the level of plain error.") (cited in United States v. Dudden, 65 F.3d 1461, 1471 (9th Cir.1995), for other proposition that circumstantial evidence may support determination of particular isomer involved), cert. denied, ___ U.S. ___, 115 S.Ct. 1812, 131 L.Ed.2d 736 (1995); United States v. Ramsdale, 61 F.3d 825, 832 (11th Cir.1995) (agreeing with Third Circuit that "it is plain error to impose a sentence based upon D-methamphetamine in the absence of any evidence as to the type of methamphetamine involved in the criminal activity") (emphasis added);...