RAFAEL FERNÁNDEZ-HERNÁNDEZ, (Crim. No. 07-453-13 (JAF))

Fernandez-Hernandez v. USA

Doc. 15

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF PUERTO RICO

3

4

RAFAEL FERN?NDEZ-HERN?NDEZ,

Petitioner,

Civil No. 12-1761 (JAF)

v.

(Crim. No. 07-453-13 (JAF))

UNITED STATES OF AMERICA,

Respondent.

5

6

OPINION AND ORDER

7

Petitioner Rafael Fern?ndez-Hern?ndez ("Fern?ndez") comes before the court with

8 a motion under 28. U.S.C. ? 2255 to vacate, set aside, or correct the sentence we imposed

9 in Crim. No. 07-453-13. For the reasons set forth below, we deny this motion.

10

I.

11

Background

12

In an indictment and a superseding indictment from October 25, 2007 and

13 August 22, 2008, Fern?ndez and sixty-two other individuals were charged with

14 participation in a conspiracy to distribute drugs from 1998 to 2007 in the Cata?o and

15 Guaynabo areas of Puerto Rico. The indictments alleged that the organization, "Los

16 Dementes," sold drugs at street level and based its operations in the Juana Matos Public

17 Housing Project, where apartments were used to store, package, and process narcotics,

18 including heroin, cocaine, cocaine base ("crack-cocaine"), and marijuana for later sale. 19 United States v. Fern?ndez-Hern?ndez, 652 F.3d 56, 61-62 (1st Cir. 2011) (quoting Crim.

20 No. 07-453, Docket No. 3). Fern?ndez was also indicted on firearms charges arising out

Dockets.

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1 of an attempt to assassinate a rival gang leader on April 25, 2004, and out of the

2 associated murder of three innocent people. Fern?ndez-Hern?ndez, 652 F.3d at 60.

3

Fern?ndez was tried before a jury and, on October 17, 2008, he was convicted on

4 five counts. (Crim. No. 07-453, Docket No. 1439.) He was found guilty of possession

5 with intent to distribute at least one-hundred and fifty (150) grams of crack cocaine and at

6 least five (5) kilograms of cocaine in violation of 21 U.S.C. ?841(a)(1), 846, and 860.

7 Fern?ndez was also found guilty of conspiracy to possess with intent to distribute cocaine

8 in a protected location in violation of 21 U.S.C. ?? 846, 841(a)(1), (b)(1)(C), (b)(2), and

9 860. Finally, he was convicted of using and carrying a firearm in relation to a drug-

10 trafficking offense, as well as conspiracy to do so, in violation of 18 U.S.C.

11 ? 924(c)(1)(A), (c)(2) and (o). On February 2, 2009, we sentenced Fern?ndez to four-

12 hundred-eighty (480) months on count one, life imprisonment on counts three and four,

13 and two-hundred-forty (240) months for count seven, to be served concurrently; and to

14 life imprisonment for count six, to be served consecutively. The sentence also included

15 supervised release, a $500 assessment, and $4,500 in restitution. (Crim. No. 07-453,

16 Docket No. 1696.) Fern?ndez appealed his conviction, and it was upheld by the First

17 Circuit. Fern?ndez-Hern?ndez, 652 F.3d at 56.

18

On September 14, 2012, Fern?ndez filed the instant motion under 28 U.S.C.

19 ? 2255 to vacate, set aside, or correct his sentence. (Docket No. 1.) The United States

20 filed a response in opposition on November 14, 2012. (Docket No. 4.) On December 5,

21 2012, the government filed a motion to supplement the record with a missing attachment.

22 (Docket No. 6.) On January 28, 2013, Fern?ndez filed a motion to clarify his earlier

23 petition. (Docket No. 9.) On the same day, Fern?ndez filed a motion to stay

24 proceedings. (Docket No. 10.) On February 22, 2013, Fern?ndez filed a reply to the

Civil No. 12-1761 (JAF)

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1 government's response. (Docket No. 11.) On March 15, 2013, Fern?ndez filed a motion

2 to consolidate his cases with a codefendant's two pending habeas petitions. (Docket

3 No. 12.) We denied this request to consolidate. (Docket No. 14.) On March 15, 2013,

4 Fern?ndez also filed a motion to appoint counsel combined with a motion for an

5 evidentiary hearing. (Docket No. 13.)

6

We have jurisdiction to hear this case pursuant to 28 U.S.C. ? 2255, because

7 Fern?ndez is currently in federal custody having been sentenced by this District Court.

8 To file a timely motion, Fern?ndez had one year from the date his judgment became final.

9 28 U.S.C. ? 2255(f). His judgment became final on the last day that he could have filed a

10 petition for a writ of certiorari, which was ninety days after the entry of the Court of

11 Appeals' judgment. SUP. CT. R. 13(1); Clay v. United States, 537 U.S. 522 (2003).

12 Because Fern?ndez filed his appeal on September 14, 2012, just shy of one year and

13 ninety days from June 30, 2011, his petition is timely.

14

II.

15

Discussion

16

Fern?ndez claims that he had ineffective assistance of counsel; that he was a minor

17 at the time of the offense; that his convictions and sentences violated double jeopardy;

18 that he was denied due process and suffered other constitutional violations; that we

19 lacked jurisdiction to decide his case; and that he had ineffective assistance of appellate

20 counsel. (Docket No. 1.) He also asks to join his habeas proceeding with the

21 proceedings of his codefendant and he asks for an evidentiary hearing. Id. Further,

22 Fern?ndez argues that the government breached a prior plea agreement. (Docket No. 9-

23 10.) He asks us to make a full in-camera review of the government's materials. (Docket

Civil No. 12-1761 (JAF)

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1 No. 10.) He also asks for leave to expand the record. (Docket No. 13.) For the reasons

2 set forth below, we deny each of these claims and requests.

3 A. Claim Preclusion and Waiver

4

The United States first argues that Fern?ndez's claims pertaining to 1) age

5 minority and cruel and unusual punishment; 2) double jeopardy; 3) denial of due process,

6 and 4) lack of jurisdiction, are matters that were not raised prior to trial, during trial, at

7 sentencing or on appeal, and that Fern?ndez is, therefore, precluded from raising them in

8 this collateral appeal. (Docket No. 4.)

9

Generally, a party is precluded from raising an issue on appeal if they do not make

10 a specific, timely objection at or before trial or sentencing. Puckett v. U.S., 556 U.S. 129,

11 133 (2009). However, a party does not need to have raised a contemporaneous objection

12 if the error was "plain" or if it relates to a lack of jurisdiction. FED. R. CRIM. P. 52(b);

13 U.S. v. Cotton, 535 U.S. 625, 630 (2002). To grant relief for plain error, the error must

14 be "clear" or "obvious" and must affect defendant's "substantial rights," such that it

15 "seriously affects the fairness, integrity, or public reputation of judicial proceedings."

16 U.S. v. Olano, 507 U.S. 725, 732-33 (1993) (internal citations omitted). This analysis of

17 plain error must be informed by the entire record of the case. U.S. v. Antonakopoulous,

18 399 F.3d 68, 78 (1st Cir. 2005). In habeas cases, it is even more difficult to overcome

19 procedural default. Usually, we will not entertain a motion if the movant did not raise the

20 claim before trial, at trial, or on direct appeal unless the movant can show cause for the

21 failure to assert the claim in earlier proceedings and actual prejudice from the alleged

22 error. U.S. v. Frady, 456 U.S. 152, 162-71 (1982). Therefore, all of Fern?ndez's claims

23 other than lack of jurisdiction are procedurally barred. He has shown no cause for failing

24 to raise these issues earlier and he has not shown that they would have been likely to

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1 change the outcome of the proceeding. Nonetheless, we will discuss why they also fail

2 on their merits.

3

The United States further argues that most of Fern?ndez's claims should be

4 deemed waived as they are conclusory without any attempt at developed argumentation.

5 See Cody v. United States, 249 F.3d 47, 53 n.6 (1st Cir. 2001). This is true for many

6 claims, which we will discuss in turn.

7 B. Ineffective Assistance of Counsel

8

Fern?ndez alleges that he had ineffective assistance of counsel because his lawyer

9 failed to negotiate a timely plea. (Docket No. 1 at 3.) He says that he asked his lawyer to

10 negotiate a plea agreement during pretrial proceedings, but that when he asked later, his

11 lawyer said he had not had time to negotiate a plea. (Docket No. 1 at 4-5.)

12

The record belies Fern?ndez's assertions. The transcript of a disposition hearing

13 reads as follows:

14

AUSA Massuco: [A]nd then there are the two defendants,

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there is Angel Gonzalez Mendez and Rafael Fernandez

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Hernandez. Those two defendants have declined the

17

Government's offers to plead guilty.

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19 (Crim. No. 07-453, Docket No. 1843 at 4.) The government extended another plea

20 agreement on September 9, 2008. (Docket No. 6-2.) Fern?ndez had the option to accept

21 this plea agreement and, therefore, his allegations have no factual basis.

22 C. Minor Status

23

Fern?ndez claims that he was a juvenile when he committed the murder and that,

24 therefore, the life sentence we imposed constitutes cruel and unusual punishment in

25 violation of the Eighth Amendment. (Docket No. 1 at 6); See Miller v. Alabama, 132

26 S.Ct. 2455, 2469 (2012).

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