Acosta-Andujar v. United States

74 F. Supp. 3d 496, 2015 U.S. Dist. LEXIS 24395, 2015 WL 792090
CourtDistrict Court, D. Puerto Rico
DecidedFebruary 25, 2015
DocketCivil No. 13-01045(ADC); Crim. No. 10-00323(ADC)
StatusPublished
Cited by3 cases

This text of 74 F. Supp. 3d 496 (Acosta-Andujar v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acosta-Andujar v. United States, 74 F. Supp. 3d 496, 2015 U.S. Dist. LEXIS 24395, 2015 WL 792090 (prd 2015).

Opinion

OPINION AND ORDER

AIDA M. DELGADO-COLÓN, Chief Judge.

Before the Court is petitioner Brenda Acosta-Andujar’s (“petitioner”) pro se motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 [498]*498(“§ 2255 motion”) (ECF No. 1), U.S. Magistrate Judge Justo Arenas’ Report and Recommendation (“R & R”) that the § 2255 motion be denied (ECF No. 11), and petitioner’s objections to the R & R (ECF No. 12).

In the § 2255 motion, petitioner appeared to raise the following claims: (1) she should have been charged with “simple possession,” instead of possession with intent to distribute cocaine; (2) her guilty plea was involuntary because her attorney “advised her which was untruthfully to ensure a smooth Rule 11 hearing,” she was not informed of the true nature of her offense, she answered questions untruthfully, and her attorney induced her to plead guilty; (3) the district court erred in determining the amount of drugs attributable to her; (4) the pre-sentence investigation report (“PSI”) contained many inaccuracies; (5) her counsel rendered ineffective assistance in failing to (a) object to the amount of drugs attributable to her, (b) object to “other inaccuracies” in the PSI, (c) ensure that she was sentenced under the Fair Sentencing Act of 2010 (“the FSA”), (d) argue an issue involving her intent to distribute, and (e) request an evidentiary hearing to compel the government to establish that she was a cocaine distributor; and (f) the cumulative effect of her counsel’s representation resulted in a fundamentally unfair criminal proceeding. Id. at 3-9. Petitioner also requested the appointment of counsel and an evidentiary hearing. Id. at 10-12.

Respondent, the United States of America, filed a response in opposition to the § 2255 motion, requesting that the same be denied because petitioner’s arguments were procedurally defaulted, or, alternatively, meritless. ECF No. 7. Petitioner filed a reply to the government’s response (ECF No. 8), in which petitioner repeated the background and procedural history from the government’s response, and then reiterated her arguments from the § 2255 motion. This Court referred the § 2255 motion to Magistrate Judge Arenas for a Report and Recommendation. ECF No. 9.

On February 18, 2014, Magistrate Judge Arenas issued the R & R, recommending denial of the § 2255 motion without an evidentiary hearing and denial of a certificate of appealability (“COA”). ECF No. 11. First, Magistrate Judge Arenas found petitioner’s statements during the plea colloquy refuted any argument that her guilty plea was involuntary, and petitioner has failed to explain how her attorney coerced her into pleading guilty. Id. at 13-19. Second, the Magistrate Judge found that petitioner was correctly charged with attempt to possess with intent to distribute. Id. at 19-20. Alternatively, Magistrate Judge Arenas found that petitioner’s claims had been procedurally defaulted because she failed to challenge her guilty plea on direct appeal or show cause and prejudice to excuse the default. Id. at 20-22. Magistrate Judge Arenas then informed petitioner of her right to file objections to the R & R within 14 days of her receipt of it, and warned that her objections must specifically identify those portions of the R & R to which objection was made and that failure to comply would preclude further review. Id. at 25.

On March 18, 2014, petitioner submitted objections to the R & R through her prison’s mailing facility. ECF Nos. 12, 12-1.1 Petitioner’s objections are seven pages in [499]*499length. All but one paragraph of these pages is a rote copying of the R & R from the first line of the R & R up to the beginning of the “Analysis” section therein. Compare ECF No. 12 at 1-7, with ECF No. 11 at 1-9. In the final paragraph of petitioner’s objections, she requests that this Court “review the original Motion set forth,” appoint habeas counsel to “convey her objections in person,” and grant the § 2255 motion. ECF No. 12 at 7.

I. Review of a Magistrate Judge’s Report and Recommendation

A district court may refer pending motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); D.P.R.Civ.R. 72(a). The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations by the magistrate judge. 28 U.S.C. § 636(b)(1). A party is entitled to a de novo review of “those portions of the report ... to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R.2005). Absent a proper objection, though, the court need only satisfy itself that there is no plain error in the magistrate judge’s findings in order to adopt the same. López Mulero v. Vélez Colón, 490 F.Supp.2d 214, 217-218 (D.P.R.2007); see also Fed. R.Civ.P. 72, Adv. Comm. Notes, subdivision (b) (1983). Thus, “a party’s failure to assert a specific objection to a report and recommendation irretrievably waives any right to review by the district court and the court of appeals.” Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998).

II. Legal Standard

A federal prisoner may move to vacate, set aside, or correct his sentence “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.” 28 U.S.C. § 2255(a). A petitioner requesting post-conviction relief must show that his sentence “reveal[s] fundamental defects which, if uncorrected, will result in a complete miscarriage of justice.” David v. United States, 134 F.3d 470, 474 (1st Cir.1998) (quotations, citation, and alterations omitted). The burden to establish such a defect falls on petitioner. Id.

Federal courts may grant a hearing to entertain the claims raised in a collateral attack. 28 U.S.C. § 2255(b). However, a hearing is unnecessary when the motion (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. United States v. McGill, 11 F.3d 223, 225-26 (1st Cir.1993) (quotation and citation omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
74 F. Supp. 3d 496, 2015 U.S. Dist. LEXIS 24395, 2015 WL 792090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acosta-andujar-v-united-states-prd-2015.