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Ortiz-Islas v. United States

United States District Court, D. Maine

July 27, 2018



          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Apolinar Ortiz-Islas moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence.[1] (Amended Motion, ECF No. 334.) Following a jury trial, Petitioner was convicted of conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine; the Court sentenced Petitioner to 170 months in prison. (Superseding Indictment, ECF No. 80 at 1; Jury Verdict Form, ECF No. 218; Judgment, ECF No. 284 at 1-2.) The First Circuit affirmed the conviction and the sentence. United States v. Ortiz-Islas, 829 F.3d 19, 23 (1st Cir. 2016).

         Petitioner claims ineffective assistance of counsel based on counsel's failure to negotiate a plea agreement, failure to call certain witnesses at trial and sentencing, and failure to contest a firearms enhancement. (Amended Motion at 4-5, 13.)

         Following a review of Petitioner's amended motion, the Government's request for dismissal, and the record, I recommend the Court grant the Government's request, and dismiss Petitioner's amended motion.

         I. Factual Background and Procedural History

         The jury found Petitioner guilty of conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine; the conspiracy period commenced no later than January 1, 2011, and ended no earlier than June 28, 2012. (Superseding Indictment at 1; Jury Verdict Form.)

         The First Circuit summarized the sentencing findings:

At sentencing, the district court found Ortiz-Islas accountable for almost 34 kilograms of cocaine, which (at the time) gave him a base offense level of 34 under U.S. Sentencing Guidelines Manual § 2D1.1(c)(3) (U.S. Sentencing Comm'n 2013). The court applied a two-level increase in light of evidence that Ortiz-Islas possessed a gun at some of the drug deals, id. § 2D1.1(b)(1), but varied back downward by two levels at the parties' urging in recognition of impending Guidelines amendments providing two-level reductions in drug-quantity offense levels. An offense level of 34 and a criminal history category of I yielded a Guidelines sentencing range of 151 to 188 months. Id. (sentencing table). The Government recommended a sentence at the top of this range. But taking account of the other conspirators' sentences ([Chad] Hallett received 48 months, [Mathieu] LeBlanc got 104, and [Victor] Charles and [Robert] Rossignol 120 each), the court sentenced Ortiz-Islas within the Guidelines range to 170 months' imprisonment.

829 F.3d at 24. The judgment also provides that following the prison term, Petitioner must serve a term of three years of supervised release. (Judgment at 3.)

         On appeal, the First Circuit addressed two trial issues and two sentencing issues. Regarding the trial, the Court concluded that there was no impermissible variance between the indictment and the proof at trial regarding the existence of “a single conspiracy to distribute and to possess with intent to distribute cocaine in Maine and elsewhere, ” 829 F.3d at 26; and that evidence of a September 2012 “sting ‘transaction'” that occurred after the August 2012 indictment was admissible, id. at 27. As to the sentence, the First Circuit concluded it was “improbable” that this Court impermissibly used a statutory maximum sentence of life based on 21 U.S.C. § 841(b)(1)(A), and a statutory minimum of zero based on section 841(b)(1)(C), but in any event Petitioner was not harmed, because the sentence imposed was below the statutory maximum set forth in either section. 829 F.3d at 27-28. The Court also concluded the sentence was neither procedurally nor substantively unreasonable. Id. at 28-29.

         Petitioner asserts that he signed and placed his section 2255 motion in the prison mailing system on September 26, 2017. (Motion, ECF No. 324 at 12.) In December 2017, Petitioner requested leave to file an amended motion. (Motion, ECF No. 331 at 1.) In response to the motion to amend, the Government argued the Court should only consider arguments that relate back to the initial section 2255 motion, pursuant to Fed.R.Civ.P. 15(c), i.e., that the Court not consider new claims. (Response, ECF No. 332 at 2.) The Court granted the motion to amend, and in January 2018, Petitioner filed an amended motion. (Order, ECF No. 333; Amended Motion, ECF No. 334.) The Government filed a response to the merits of Petitioner's amended motion. (Response, ECF No. 338.)

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         The burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28.

         An allegation of ineffective assistance of counsel can excuse a procedural default if the petitioner demonstrates that counsel's representation “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). The petitioner must also demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

         A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the test because a failure to meet either prong will undermine the claim. Id. at 697.

         If a petitioner's “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail.” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).

         “Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing ‘is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'” Moreno-Morales v. ...

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