Costillo v. U.S.

2004 DNH 068

• Court: District Court, D. New Hampshire
• Decided: April 21, 2004
• Docket: CV-03-485-M
• Status: Published

Opinion

Costillo v. U.S. CV-03-485-M 04/21/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Juan Costillo, Plaintiff

v. Civil No. 03-485-M Opinion No. 2004 DNH 068 United States of America, Defendant

O R D E R

After reviewing the government's initial filings in this

matter, the court directed it to file a proffer in affidavit form

and a second, thorough legal memorandum in response to

petitioner's claimed entitlement to relief under 28 U.S.C.

§ 2255. See Order, February 9, 2004 (document no. 5). It has

done so. Petitioner has filed a response to the government's

supplemental memorandum, but it does not address the critical

circumstances upon which the government based its decision not to

file motions for sentence relief under U.S.S.G. § 5K1.1 or

Fed. R. Cr. P. 35.

Essentially, petitioner seeks to challenge the government's

refusal to file a motion for a downward departure under U.S.S.G. § 5K1.1 during his sentencing hearing, or to file a post­

conviction motion for sentence reduction under Fed. R. Cr. P. 35.

He does so by asserting an ineffective assistance of counsel

claim against his appointed defense counsel - for failing to

pursue sentence reduction under § 5K1.1 or Rule 35,

notwithstanding the government's refusal to file the pertinent

motions, on grounds that petitioner fully cooperated in the

prosecution of his co-conspirator, Stephanie Ramos-Douglas.

In exchange for petitioner's guilty plea, the government

agreed to consider filing a downward departure motion, based upon

petitioner's anticipated substantial assistance. That bargain

was included in petitioner's written plea agreement.

Accordingly, the government was obligated to consider filing

motions for sentence reduction in good faith, even though the

plea bargain reserved absolute discretion to the government to

determine whether to file or not file such motions.

When challenged for declining to file a motion under § 5K1.1

or Rule 35, the government bears a burden of production, not

persuasion. It must offer "facially adeguate reasons" for its

2 refusal. U.S. v. Nelson-Rodriquez, 319 F.3d 12, 53 (1st Cir.

2003). The government has now more than met its burden in this

case. Among other things, the government has submitted

affidavits from the prosecutor. Assistant United States Attorney

Terry L. Ollila, and the lead case agent. New Hampshire State

Police Trooper Cheryl Nedeau. Those detailed affidavits explain

precisely why and how the government reached the conclusion that

petitioner, although partially cooperative, was neither

completely truthful during his debriefing nor reliable as a

witness and, therefore, did not earn or warrant a departure or

sentence reduction motion. The record also supports the

government's decision.

In short, although petitioner did cooperate to a degree, he

did not provide substantial assistance. Nelson-Rodriguez, 319

F.3d at 53 (substantial assistance is a higher standard than mere

cooperation). In the government's opinion, which was reasonable

and justified under the circumstances, petitioner did not

truthfully and completely divulge the facts related to Defendant

Peter Ramos' involvement in the charged conspiracy. Petitioner

also minimized his own role in that conspiracy, and undermined

3 his own usefulness as a witness by demonstrably, and in a self-

contradicting manner, misstating his involvement in the charged

conspiracy during his own sentencing hearing. Accordingly, the

government, immediately after that sentencing hearing, informed

petitioner's counsel that because he had again misstated

pertinent facts, he likely would not be called as a witness at

co-conspirator Ramos-Douglas's sentencing hearing. In fact,

petitioner was not called.1

The government's refusal to file a motion for sentence

relief in petitioner's case was reasonable, justified, not

related to an unconstitutional motive, and was related to a

legitimate governmental purpose - declining to reward less than

complete and truthful cooperation, that is, cooperation not

amounting to "substantial assistance" in the investigation or

prosecution of, in this case, co-conspirators. See, e.g.. United

States v. Davis, 247 F.3d 322 (1st Cir. 2001); United States v.

1 As the government correctly notes, the court's recollection that petitioner testified at Douglas-Ramos's sentencing, as expressed in the order reguiring further briefing, was mistaken - Andrew Frost and Jeffrey Howard, but not petitioner, testified at Douglas-Ramos's sentencing. It probably bears noting that a researched, responsive, and well-prepared initial memorandum would have set the factual stage properly at the outset.

4 Aleqria, 192 F.3d 179 (1st Cir. 1999); United States v. Garcia,

698 F .2d 31 (1st Cir. 1983) .

Since there was no rational basis under the circumstances

upon which defense counsel could have plausibly sought court

review of the government's discretionary refusal to pursue

sentence relief under § 5K1.1 or Rule 35, he can hardly be

faulted for having failed to do so. Nothing in the record, or

pleadings filed by petitioner, supports an ineffective assistance

of counsel claim related to sentence relief. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Counsel's decision not to

pursue a meritless claim does not, of course, constitute

ineffective assistance, and in this case defense counsel's

pursuit of a § 5K1.1 downward departure or relief under Rule 35,

notwithstanding the government's refusal to file the appropriate

motions, would have been meritless and would have failed.

Petitioner was, therefore, also not prejudiced by counsel's

failure to seek § 5K1.1 or Rule 35 relief.

5 Conclusion

Petitioner is not entitled to relief under 28 U.S.C. § 2255.

The petition is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

April 21, 2004

cc: Juan Costillo Donald A. Feith, Esq.