United States v. Decruz, 3:11-CR-199

Decision Date29 January 2018
Docket NumberNO. 3:11-CR-199,3:11-CR-199
CourtU.S. District Court — Middle District of Pennsylvania



Presently before me is the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 125) filed by Augustine DeCruz ("DeCruz" or "Petitioner"). DeCruz contends that his counsel was ineffective by failing to investigate the evidence against him and by forcing him to plead guilty. Because DeCruz fails to satisfy the standard for evaluating ineffective assistance of counsel claims set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), his § 2255 motion will be denied.

I. Background

On June 8, 2011, a federal grand jury returned a three count Indictment charging DeCruz with possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i) and 18 U.S.C. § 2 (Count I); using, carrying, or possessing a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2 (Count II); and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(5)(A), (B) (Count III). (See Doc. 1, generally). These charges were based on the following:

A confidential informant (CI) advised a police officer in late January of 2011 that he could purchase cocaine from a man named Gus. After the CI contacted Gus by telephone, the police officer verified the CI was clean, provided him money for a controlled buy, drove to Gus's house, and watched as the CI entered the rear of the house and then emerged four minutes later with a substance that field tested positive for cocaine. In early February, the CI made a second controlled buy from Gus while the same police officer again watched from his vehicle. The purchased substance again field tested positive for cocaine.
Thereafter, the police officer swore out an affidavit and obtained a search warrant for Gus's house. Execution of the search warrant found Augustine DeCruz on the second floor in the hall, together with crack cocaine and two firearms, a Rossi .38 caliber handgun and a Ruger P95 9 mm handgun. DeCruz was arrested and detained. While DeCruz was incarcerated, his cellmate contacted the police to advise that DeCruz had bragged that the search had failed to discover a firearm in the basement and crack cocaine in folded laundry. Execution of a second search warrant produced a Remington rifle and an additional 151.7 grams of crack cocaine.

United States v. DeCruz, 644 F. App'x 189, 190 (3d Cir. 2016).

After DeCruz pled not guilty to the charges in the Indictment, (see Doc. 11, generally), he filed a motion to suppress evidence, to disclose the identity of a confidential informant, and for a Franks hearing, (see Doc. 50, generally), all of which were denied. (See Docs. 56-57, generally).

Thereafter, pursuant to a written plea agreement, DeCruz waived his right to prosecution by indictment and entered a guilty plea to a two-count information charging him with possession with intent to distribute a substance containing an unspecified amount of cocaine base and possession of the two handguns in furtherance of a drug trafficking offense. (See Docs. 63-64, generally). A change of plea hearing was held on May 3, 2013. (See Doc. 75, generally). At that hearing, DeCruz explained that he cannot read and write, but that he could understand and respond to oral questions. (See id. at 3:7-23). After I explained to DeCruz during the plea colloquy that his sentence on the two counts would have to run consecutively, he indicated that he did not understand and he changed his mind about the plea. (See id. at 16:9-21). A break was taken at that time to allow DeCruz to speak with his counsel, who indicated that she had discussed that issue with him "several times", but she was "not pushing either way" and it was DeCruz's "right to plead guilty or go to trial." (Id. at 16:24-7). Following a short break, it was explained to DeCruz by his counsel and me that "one sentence gets tacked on to the other," and he stated that he understoodand that he wished to continue with the guilty plea. (Id. at 17:21-18:20). DeCruz was then informed of the elements of the charged offenses, and DeCruz stated that he was guilty of those offenses. (See id. at 23:22-24:21). The Government also detailed the facts which would meet these elements, and DeCruz confirmed that the facts as outlined by the Government were true. (See id. at 25:3-26:2). I accepted the plea and set a date for sentencing. (See id. at 26:19-27:15).

Prior to sentencing, DeCruz moved to withdraw his guilty plea. (See Doc. 69, generally). Following a hearing, (see Doc. 122, generally), I denied the motion, finding, inter alia, that DeCruz did not adequately assert his innocence and that his "change of heart" did not provide a sufficiently strong reason to grant his request to withdraw his guilty plea. (See Doc. 78, 5-7). I subsequently sentenced DeCruz to forty-six (46) months on the drug trafficking offense and the sixty (60) month mandatory minimum on the firearms offense to be served consecutively. (See Doc. 82, generally).

DeCruz appealed to the United States Court of Appeals for the Third Circuit, (see Doc. 116, generally), arguing that I erred in denying his pretrial motion and his motion to withdraw his guilty plea. See United States v. DeCruz, 644 F. App'x 189, 191-92 (3d Cir. 2016). The Third Circuit affirmed the denial of those motions. See id.

On April 13, 2017, DeCruz filed the instant motion to vacate under § 2255. (See Doc. 125, generally). DeCruz filed a brief in support of that motion on August 16, 2017. (See Doc. 129, generally). Therein, DeCruz contends that his counsel was ineffective for forcing him to plead guilty and for failing to adequately investigate the evidence against him. (See id. at 12-19).

II. Legal Standards
A. 28 U.S.C. § 2255.

"Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly inviolation of the Constitution." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Section 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to "vacate, set aside, or correct the sentence" where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).

Section 2255(b) generally entitles a petitioner to a hearing on his motion, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party."). The threshold the petitioner must meet to obtain an evidentiary hearing is considered to be "reasonably low." United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005). In considering a § 2255 motion, the "district court must 'accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Johnson v. United States, 294 F. App'x 709, 710 (3d Cir. 2008) (quoting Booth, 432 F.3d at 545-46). The district court may, however, dispose of "vague and conclusory allegations" contained in a § 2255 petition without further investigation. Id. at 710 (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).

B. Ineffective Assistance of Counsel.

Among other protections, the Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution "to have the assistance of counsel for his defense." U.S. Const. amend. VI. The applicable federal precedent for ineffective assistance claims is the well-settled two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.2052, 80 L. Ed. 2d 674 (1984).

To establish he was denied the effective assistance of counsel under Strickland, the movant must show that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Id. at 687-88, 691, 104 S. Ct. 2052. "Both Strickland prongs must be satisfied." George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989)).

The first Strickland prong requires a defendant to "establish . . . that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). Proving a deficiency in conduct "'requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed defendant by the Sixth Amendment.'" Id. (quoting Strickland, 466 U.S. at 687, 104 S. Ct. 2052). "In assessing counsel's performance, 'every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Id. (quoting Strickland, 466 U.S. at 689, 104 S. Ct. 2052).

"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is to say, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. 2052. The benchmark...

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