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United States v. Robelo-Galo

United States District Court, N.D. Florida, Panama City Division

February 22, 2018

UNITED STATES OF AMERICA,
v.
RUFINO ROBELO-GALO

          REPORT AND RECOMMENDATION

          GARY R. JONES United States Magistrate Judge.

         This matter is before the court upon Petitioner's “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody.” (ECF No. 597.) The Government filed a response in which it conceded the timeliness of the motion (ECF No. 606) and subsequently filed a response to the merits. (ECF No. 652.) Petitioner did not file a reply. The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules 8(a) and (b) Governing Section 2255 Cases.

         BACKGROUND

         Petitioner Rufino Robelo-Galo was one of fifteen co-defendants charged in a sixteen-count indictment with drug trafficking, weapons, and immigration offenses. (ECF No. 113.) Robelo-Galo was charged in Count One with conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and 50 or more grams of actual methamphetamine, in Count Eight with possession of a firearm in furtherance of a drug trafficking crime, and in Count Nine with possession with intent to distribute methamphetamine on a date certain. He pleaded guilty to Counts One and Eight the day before trial without a written plea agreement, following which the Government moved to dismiss Count Nine. (ECF Nos. 277; 415.)

         Robelo-Galo's final Presentence Investigation Report (“PSR”) held him accountable for 15 kilograms or more of methamphetamine, for a base offense level of 38. (ECF No. 401, PSR ¶ 159.) He received both a four-level adjustment for his leadership role in the offense conduct and a three level downward adjustment for acceptance of responsibility, yielding a total offense level of 39. (ECF No. 401, PSR ¶¶ 162-168.) Robelo-Galo had no prior criminal history, and the applicable advisory guidelines range was 262 to 327 months on Count One, with a minimum consecutive term of 60 months on Count Eight. (ECF No. 401, PSR ¶¶ 171, 172, 191-193.)

         Before sentencing, Robelo-Galo filed two motions in which he variously alleged that his attorney Jonathan Dingus had a conflict of interest, had refused to have the indictment read to Robelo-Galo in Spanish, and had coerced him into pleading guilty. (ECF Nos. 370, 373.) The district court combined a Nelson hearing with Robelo-Galo's sentencing. (ECF Nos. 437, 439, 474.)

         At the combined hearing, the district judge reminded Robelo-Galo multiple times about the assurances that he had made to the Court, under oath, at the time of the guilty plea that he understood the proceedings and had no questions. (ECF No. 474.) Robelo-Galo admitted that another inmate had drafted the pleadings for him. The Court advised him that it could continue sentencing and appoint another lawyer, but that if it did so, Robelo-Galo would almost certainly lose the benefit of the acceptance of responsibility adjustment, and his credibility with the court. After taking time to review the transcript of the change of plea hearing through an interpreter, Robelo-Galo elected to proceed to sentencing. (ECF No. 474 at 12.)

         Robelo-Galo assured the Court that he had had sufficient time to review the PSR with his attorney and interpreter. (ECF No. 474 at 13.) Counsel's lone objection was to the four-point adjustment, and he contended that Robelo-Galo was a leader or organizer, but of fewer than five persons. The Court overruled the objection after hearing testimony and argument. (ECF No. 474 at 15-45.) After hearing brief remarks from counsel, [1] it sentenced Robelo-Galo to the mid-point of the applicable guidelines range to a term of 294 months on Count One, followed by the mandatory consecutive term of 60 months on Count Eight. (ECF No. 474 at 46-48.)

         Robelo-Galo appealed the application of the four-level leadership adjustment. The Eleventh Circuit found no clear error and affirmed his sentence on March 25, 2013. (ECF No. 553.)

         Robelo-Galo filed the instant motion on April 1, 2015, under the mailbox rule. (ECF No. 597 at 13.) Included with the motion was an affidavit in which Robelo-Galo avers, among other things, that he did not learn that his appeal had been denied until after November 18, 2014. (ECF No. 597-2 at 2.) The Government, after conferring with appellate counsel Bernard Daley, conceded that the § 2255 motion should be treated as timely filed. (ECF No. 606 at 2.) The government thereafter filed a response in opposition to Robelo-Galo's four claims of ineffective assistance of counsel. (ECF No. 652.)

         ANALYSIS

         General Legal Standards

         Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to ' 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent . . . .”

         The law is well established that a district court need not reconsider issues raised in a section 2255 motion which have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) (“identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects”).

         Because a motion to vacate under section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234B35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “'available' on direct appeal when its merits can be reviewed without further factual development.” Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is “actually innocent.” Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that “some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct.” Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

         Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a ' 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). Strickland's two-part test also applies to guilty pleas. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). A defendant will be required to show that but for counsel's errors, he would not have pleaded guilty and would have instead insisted on proceeding to trial. Id. at 163 (quoting Hill, 474 U.S. at 59). In applying Strickland, the court may dispose of an ineffective assistance claim if a defendant fails to ...


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