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RODRIGUEZ v. U.S.

August 19, 2005.

CHARLES RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION

Petitioner Charles Rodriguez ("Petitioner") has filed the instant pro se motion to vacate his sentence, pursuant to 28 U.S.C § 2255 ("§ 2255"). Petitioner contends that his sentence should be vacated for four reasons. First, Petitioner claims that this Court erred by sentencing him under a statute that was not charged in the indictment. Second, Petitioner claims that Respondent (or "the Government") violated his due process rights by conducting a sting operation targeted at Petitioner. Third, Petitioner claims that his counsel's ineffective assistance violated his Sixth Amendment right to counsel. Finally, Petitioner claims that Blakely v. Washington, 542 U.S. 296 (2004), should apply to the instant case, and that based upon Blakely, his sentence should be vacated. For the reasons set forth below, Petitioner's motion is denied. FACTS*fn1

On July 19, 1997, a bank robbery took place at the Corestates Bank in Woodlynne, New Jersey. This robbery was videotaped on the bank's surveillance cameras. The tape shows Petitioner, his brother (Joseph Rodriguez), and one or two other males entering the bank with guns resembling assault rifles. After stealing over $64,000, they escaped in a stolen car.

  On May 23, 1998, Petitioner, his brother, and another male entered the Commerce Bank in Moorestown, New Jersey. This robbery also was recorded by the bank's surveillance cameras.

  In August of 1998, the Federal Bureau of Investigation ("FBI") sought to apprehend Petitioner, and solicited the assistance of Petitioner's cousin, Fernando Flores. Flores previously had been a police officer but had resigned from the force.*fn2 He agreed to work with law enforcement authorities and worked closely with them to capture Petitioner. Apparently upon Flores' initial contact with Joseph Rodriguez, the FBI learned that the Rodriguez brothers were interested in "doing a six figure job." At the instruction of the FBI, Flores told Joseph about a fictional friend who worked as a guard of an armored car. Flores told Joseph that the armored car was scheduled to service an ATM machine at the Walt Whitman rest stop of the New Jersey Turnpike in Cherry Hill, and that the guard had agreed to allow them to stage a robbery of the armored car in exchange for a portion of the proceeds.

  The robbery was scheduled to take place on September 1, 1998. Roughly one week before the robbery was scheduled to take place, Flores, at the FBI's direction, instructed Joseph, and another participant, Jose Soto, to bring their weapons to Flores' apartment to plan the robbery. On August 29, 1998, Joseph and Soto showed up at Flores' apartment with bags containing weapons, clothing, and other gear.

  On the day of the robbery, the group (Petitioner, Joseph, Soto, and Flores) drove two cars — one was a stolen Buick and the other was the getaway car — to a neighborhood near the rest stop, where they parked the getaway car. The four then drove in the stolen Buick to the rest stop. Everyone except Flores was armed.

  At about 9:00 a.m, the group arrived in the stolen Buick at the rest stop. Law enforcement authorities were present in various locations at the rest stop. As the Buick drove around the parking lot, law enforcement apparently observed Soto grabbing a weapon and pointing it in the direction of the FBI SWAT team, which then opened fire. The driver (not identified in Petitioner's motion papers) continued to drive, despite the gunfire, until a tow truck operated by the FBI struck the car. Petitioner was inside the Buick when he was arrested.

  PROCEDURAL HISTORY

  On March 16, 1999, the grand jury in the District of New Jersey returned an eleven-count indictment charging Petitioner with: (1) conspiracy to commit bank robberies and the robbery of an armored car, in violation of 18 U.S.C. § 371 (Count 1); (2) robbery of the Corestates Bank on July 19, 1997, in violation of 18 U.S.C. § 2113(a) (Count 2); (3) use of a firearm during the commission of the Corestates Bank robbery, in violation of U.S.C. § 924(c)(i) (Count 3); (4) robbery of the Commerce Bank on May 23, 1998, in violation of 18 U.S.C. § 2113(a) (Count 4); (5) use of a firearm during the commission of the Commerce Bank robbery, in violation of 18 U.S.C. § 924(c)(i) (Count 5); (6) carjacking, in violation of 18 U.S.C. § 2119 (Count 6); (7) obstruction of commerce by the attempted robbery of the Loomis armored car, in violation of 18 U.S.C § 1951(a) (Count 7); (8) use of an automatic weapon during the attempted robbery of the Loomis armored car, in violation of 18 U.S.C. 924(c)(i) (Count 8); and (9) possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1) (Count 9). (Ex. A to Resp. Br.) On March 23, 1999, Petitioner pled not guilty to all counts, and proceeded to trial. (Docket No. 33 [Cr. No. 98-547].) On July 9, 1999, the jury returned a verdict convicting Petitioner on all counts. (Docket No. 85 [Cr. No. 98-547].)

  On April 6, 2000, this Court sentenced Petitioner to a term of life imprisonment. (Docket No. 123 [Cr. No. 98-547].) On April 7, 2000, Petitioner filed a pro se Notice of Appeal with the United States District Court in the District of New Jersey. (Docket No. 128 [Cr. No. 98-547].) On January 21, 2003, the Third Circuit Court of Appeals affirmed Petitioner's sentence. (Docket No. 142 [Cr. No. 98-547].) On March 24, 2003, the Supreme Court of the United States denied Petitioner's petition for a writ of certiorari. (Cr. No. 02-9058.)

  On January 14, 2004, Petitioner filed a petition ("Petition") to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, and on August 26, 2004, Respondent filed its answer. On September 28, 2004, Petitioner filed his reply.

  LEGAL STANDARDS

  I. 28 U.S.C. § 2255

  Section 2255 allows a prisoner in custody to file a petition for a writ of habeas corpus with the sentencing court on the grounds that: (1) the imposed sentence violated the United States Constitution or laws; (2) the court did not have jurisdiction; (3) the sentence exceeded the maximum allowed by law; or (4) the sentence is subject to collateral attack on other grounds. See 28 U.S.C. § 2255. "[A] motion to vacate [a] sentence under 28 U.S.C. § 2255 is addressed to the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980).

  II. Collateral Review

  Habeas corpus does not encompass all sentencing errors because it is not a substitute for direct appeal. See Reed v. Farley, 512 U.S. 339, 354 (1994); United States v. Addonizio, 442 U.S. 178, 184 (1979). Errors that justify reversal on direct appeal may not necessarily be sufficient to support collateral relief. See Addonizio, 442 U.S. at 184.

  Where a prisoner fails to "raise his claim on direct review, the writ [of habeas corpus] is available only if the [prisoner] establishes `cause' for the waiver and shows `actual prejudice resulting from the alleged violation.'" Reed, 512 U.S. at 354. "To show cause, a petitioner must establish that `some external impediment' prevented him from raising the claim," such as interference by officials, the unavailability of evidence at the time, or the ineffective assistance of counsel. See Wise v. Fulcomer, 958 F.2d 30, 34 (3d Cir. 1992) (quoting McCleskey v. Zant, 499 U.S. 467, 497 (1991)). "Prejudice exists where `errors at trial . . . worked to [petitioner's] actual and ...


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