Lopez v. United States

2006 DNH 026

• Court: District Court, D. New Hampshire
• Decided: February 28, 2006
• Docket: 06-CV-004-SM
• Status: Published

Opinion

Lopez v . United States 06-CV-004-SM 02/28/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Carols Lopez Petitioner v. Civil N o . 06-cv-004-SM Opinion N o . 2006 DNH 026 United States of America, Government

O R D E R

Petitioner, Carlos Lopez, seeks relief under 28 U.S.C.

§ 2255. Although represented by counsel, petitioner filed a pro

se supplemental memorandum, which the court allowed and has

considered.

Petitioner was convicted by a jury on eight counts,

including conspiracy to distribute crack cocaine, distribution of

crack cocaine, possession of a firearm during and in connection

with a drug crime, possession of a firearm with an obliterated

serial number, and being a felon in possession of a firearm. He

was sentenced to terms of 240 months, 120 months, and 60 months

of imprisonment, to be served concurrently, and a term of 60

months to be served consecutively, for a total of 300 months. Petitioner raises three basic claims, none of which are

meritorious. First, he challenges this court’s ruling denying

his pretrial suppression motion.1 The court determined, after

hearing, that the police search of his vehicle, which resulted in

discovery of drugs and a firearm, was based upon probable cause

and was lawful. Petitioner appealed that decision, and the court

of appeals affirmed, after reconsidering the probable cause issue

de novo. Petitioner cannot now challenge the legality of the

vehicle search under 28 U.S.C. § 2255, because that issue was

resolved on direct appeal. Dirring v . United States, 370 F.2d

862, 864 (1st Cir. 1967) (“Issues resolved by a prior appeal will

not be reviewed again by way of a § 2255 motion.”) See also

Murchu v . United States, 926 F.2d 5 0 , 55 (1st Cir. 1991).

Next petitioner argues that his trial counsel provided

ineffective assistance with respect to the suppression issue.

See Strickland v . Washington, 466 U.S. 668 (1984). It is

difficult to identify, from counsel’s brief or petitioner’s pro

1 Although the issue has yet to be resolved in this circuit, it may well be that petitioner cannot challenge his conviction, under § 2255, based solely on an alleged Fourth Amendment violation. See Stone v . Powell, 428 U.S. 465 (1976); Arroyo v . United States, 195 F.3d 5 4 , 54-55 (1st Cir. 1999). But here the outcome is the same even assuming he can raise the Fourth Amendment suppression issue.

2 se brief, just what claim is being advanced. It seems to be that

trial counsel should have better developed an argument and

supporting record demonstrating that petitioner did not waive his

reasonable expectation of privacy in the vehicle he was driving,

or the secret compartment holding the drugs and firearm that was

discovered during the search. But the vehicle was searched based

upon the existence of probable cause to search, and, because the

place searched was a mobile vehicle, the warrantless search was

lawful. See United States v . Ross, 456 U.S. 7 9 8 , 808 (1982).

Trial counsel was an experienced, capable criminal defense

attorney, who provided as effective representation as possible

given the evidence presented by the government justifying the

search on probable cause grounds. Little would be accomplished

by once again rehearsing the facts and probable cause analysis

underlying the court of appeals’ decision upholding the search.

Suffice it to say that counsel’s representation did not fall

below an objective standard of reasonableness; did not deprive

petitioner of a fair trial; and petitioner was not prejudiced -

nothing in this record or advanced by petitioner even remotely

suggests that a different result might have obtained had trial

counsel approached the suppression hearing differently.

3 Finally, petitioner suggests that his sentence should be

revisited under United States v . Booker, 543 U.S. 220 (2005),

since he was sentenced under the then-mandatory guidelines

sentencing scheme, which has since been held unconstitutional.

He also asserts that a jury should have determined sentence-

enhancing facts (like the type and quantity of the drugs he

distributed and conspired to distribute). These claims are also

without merit. First, Booker has not been held to have

retroactive effect and, absent such a decision by the Supreme

Court, § 2255 is unavailable to advance Booker claims. Cirilo-

Munez v . United States, 404 F.3d 527 (1st Cir.2005).

But, even if Booker did apply to petitioner, he would not

obtain sentence relief for at least two reasons. One, the jury

did determine the sentence-enhancing fact beyond a reasonable

doubt; it returned a special verdict finding, beyond a reasonable

doubt, that petitioner distributed in excess of 50 grams of crack

cocaine, which finding triggered the sentence enhancement. Two,

petitioner’s convictions subjected him to imposition of a

statutory mandatory minimum sentence of 240 months on the drug

counts and 60 consecutive months on the firearms charge. That is

what he received - the minimum sentence allowed by law. Neither

4 Booker nor any other guidelines-related precedent or argument

would or could result in a lesser sentence than the one imposed.

Conclusion

The petition for relief under § 2255 is denied. While

petitioner’s sentence is long, and some might say

disproportionately severe under the circumstances (given his

youth, lack of judgment, abysmal decision-making in rejecting the

government’s plea offer, thereby exposing himself to harsh

mandatory minimum sentences, particularly given the government’s

overwhelming evidence of guilt, which was fully disclosed to him

prior to trial), that is a matter within the control of the

Congress. Congress, for reasons satisfactory to it, has mandated

the minimum sentence in this case, and it is now too late for

petitioner to try to make better choices with respect to the

disposition of the charges brought against him.

SO ORDERED.

Steven J __McAuliffe Chief Judge February 28, 2006

cc: Jeffrey S. Levin, Esq. Robert O. Berger, Esq. Lincoln T. Soldati, Esq. Mark E. Howard, Esq. U.S. Probation U.S. Marshal