Vega-Colon v. U.S.

• Decision Date: 30 October 2006
• Docket Number: Civil No. 05-1581 (DRD).,Civil No. 97-076 (19)(DRD).
• Citation: 463 F.Supp.2d 146
• Court: U.S. District Court — District of Puerto Rico
• Parties: Miguel VEGA-COLÓN, Petitioner, v. UNITED STATES of America, Respondent.

463 F.Supp.2d 146 Miguel VEGA-COLÓN, Petitioner,
v.
UNITED STATES of America, Respondent. Civil No. 05-1581 (DRD). Civil No. 97-076 (19)(DRD). United States District Court, D. Puerto Rico. October 30, 2006.

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Miguel Vega-Colon, Coleman, FL, pro se.

Nelson J. Perez-Sosa, United States Attorney's Office, Torre Chardon San Juan, PR, for Respondent.

OPINION AND ORDER

DOMÍNGUEZ, District Judge.

Miguel Vega-Colón a/k/a "Mickey" (hereinafter, "Petitioner"), proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Following a jury trial, Petitioner Vega-Colón was convicted of conspiracy to distribute narcotics and possession with intent to distribute narcotics in violation of 21 U.S.C. § 841 and § 846. The Court of Appeals affirmed the conviction on all counts. In his present pro se motion to vacate under 28 U.S.C. § 2255, Petitioner alleges that he was denied effective assistance of counsel at his trial and on direct appeal. For the following reasons, the Court DENIES his motion.

I. BACKGROUND

On April 10, 1997, a Federal Grand Jury returned a two count indictment against Vega-Colón, his father Miguel Vega-Cosme and nineteen (19) other co-defendants (D.E.1). On December 14, 1998, a superseding indictment was returned adding another defendant to the case — the Government alleged the same charges against the same defendants listed in the original indictment. (D.E.397). Count Two charged that from or about January 1, 1990, until about March 7, 1994, all twenty-one defendants conspired to distribute more than five kilograms of heroin, more than five kilograms of cocaine, more than five kilograms of cocaine base, and more than 100 kilograms of marijuana, as prohibited by 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.

From December 28, 1998 to June 25, 1999, eleven of the 22 defendants were tried before a jury. On June 25, 1999, the jury convicted all, eleven defendants, including Colón-Vega, on all counts with which they were charged. (D.E.859).

On February 40, 2000, Petitioner Vega-Colón was sentenced to 292 months of imprisonment and five years of supervised release. (D.E.1158).

On direct appeal, Petitioner raised the following claims: (1) whether the evidence was sufficient to tie him to the charged conspiracy. See, United States v. Soto-Beníquez, 356 F.3d 1, 44 (1st Cir.2003); (2) Apprendi and related issues, Soto-Beníquez, 356 F.3d at 45; (3) whether the sentence imposed violated the rule of Apprendi, because the drug quantity was not proven beyond a reasonable doubt and it raised the statutory maximum. Soto-Beníquez, 356 F.3d at 45-48. Petitioner and his father's joint appellate brief contained other arguments presented on behalf his father that were decided against one or more co-defendants. Petitioner's conviction and sentence were affirmed in their entirety on direct appeal by the First Circuit. See, Soto-Beniquez, supra.

A. The Offense Conduct

The facts in this case are fully set forth in the Opinion of the Court of Appeals. United States v. Soto-Beniquez, supra. In sum, this case is about one overarching conspiracy to distribute drugs at Bitumul (Israel Ward) in Hato Rey, San Juan, Puerto Rico and to protect that distribution through multiple murders. The Government prosecuted a violent street gang dedicated to the distribution of narcotics at six different drug points within the Bitumul Ward. The Government case relied substantially on the testimony of several

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cooperating co-conspirators, to wit, Ramón. Cesário-Soto, Victor Negrón-Maldonado (a/k/a Pitosito), and Luis Torrens-Alicea (a/k/a Pito Salsa). From on or about January 1, 1990, until on or about March 7, 1994, the defendants would purchase multi-kilogram quantities of heroin, cocaine and marihuana at wholesale prices, They would then cut, divide and package the narcotics in small vials or plastic baggies for subsequent sale to customers at drug points. Additionally, the defendants would also cook some of the cocaine purchased and create cocaine base ("crack cocaine"), which would also be packaged in vials for sale at drug points. The defendants would use residences and other locations to store narcotics, cook cocaine into crack cocaine, and package the heroin, cocaine, crack cocaine and marihuana to be distributed at the drug points. In order to protect the sale of narcotics at the different drug points, the defendants possessed, carried and used firearms. These firearms were used to stand guard at the different drug points in order to protect the sales of narcotics, or to seek out and murder rival gang members who posed a threat to the drug distribution conspiracy.

The evidence at trial revealed that codefendants Soto-Ramírez and Soto-Beníquez were the primary suppliers of the six drug points. These six drug points shared a common defense against rival gang members. Petitioner Vega-Colón, son of defendant Miguel Vega-Cosme, accompanied his father in his criminal enterprise. (Trial Tr., 02-05-99, p. 47; 01-21-00, p. 137; 01-28-99, p. 110). Vega-Colón worked for his father's drug point on Laguna Street. Specifically, he packaged all the narcotics for his father's drug point (Trial Tr. 03-19-99, pp. 75, 80), and would stand guard while armed at the drug point in Alley No. 9. (Trial Tr. 34-20-99, p. 79). Other facts of the conspiracy are set forth in the Court of Appeal's Opinion.

II. LEGAL FRAMEWORK A. Legal Standard under 28 U.S.C. § 2255 and Procedural Default

Under 28 U.S.C. § 2255, a district court may grant relief to a prisoner in custody under a sentence imposed by a federal district court "upon the ground that 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..." See, 28 U.S.C. § 2255.

A motion under § 2255 is not a substitute for direct appeal and presents a higher standards that a petitioner must clear to bring a claim. United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Once a defendant's chance to appeal has been exhausted, there is a presumption that the conviction is fair and final. Id. As the Supreme Court explained in Frady, "[o]nce the defendant's chance to appeal has been waived or exhausted ... we are entitled to presume he stands fairly and finally convicted, especially when, as here, he had already has a fair opportunity to present his federal claims to a federal forum." Frady, 456 U.S. at 164, 102 S.Ct. 1584. Moreover, a § 2255 motion may not be used to relitigate an issue that was raised and considered on direct appeal without some highly extraordinary circumstance, such as an intervening change in the law. Davis v. United States, 417 U.S. 333, 345, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised

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in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent.'" Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations omitted); Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) ("Claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."). Further, a petitioner may not re-litigate questions that were raised and considered on direct appeal in this circuit. Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1994) ("issues disposed of in a prior appeal will not be reviewed again by way of 28 U.S.C. 2255 motions,") citing Dirring v. United States, 370 F.2d 862, 864 (1st Cir.1967) cited in Barrett v. United States, 965 F.2d 1184, 1190 n. 11 (1st Cir.1992).

The Supreme Court has made clear that "cause" is measured by a stringent standard of diligence. See, e.g., Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("cause" is "something external to the petitioner" that "cannot be fairly attributed to him"; "[a]ttorney ignorance or inadvertence is not `cause'") (emphasis in original); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)("[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim."). In this respect, the existence of cause to excuse a procedural default is dependent upon the petitioner's ability to show that some objective factor external to the defense impeded compliance with the procedural rules. Murray, 477 U.S. at 488, 106 S.Ct. 2678. A showing that the factual or legal basis for a claim was not reasonably available to counsel or that interference by some officials made compliance with the procedural rules impracticable, would constitute cause under this standard. Strickler v. Greene, 527 U.S. 263, 283, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

A showing of prejudice must be made along with the adequate showing of cause. Reed v. Farley, 512 U.S. 339, 358, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). In order to show prejudice, the petitioner must show a reasonable probability that the result of the trial would have been different had the claimed errors, which were procedurally defaulted, not occurred. Strickler, 527 U.S. at 289-90, 119 S.Ct. 1936. Furthermore, "the resulting prejudice must create an actual and substantial disadvantage, infecting [the petitioner's] entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170, 102 S.Ct. 1584. If a defendant fails to establish "cause" and "prejudice" to excuse a...