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Santiago v. United States

July 30, 2009


The opinion of the court was delivered by: Rodriguez, J.


This matter comes to the Court on a Petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 [1] filed by pro se Petitioner Hector Santiago ("Petitioner" or "Santiago") on March 23, 2009. Respondent United States ("Respondent" or "Government") filed a Motion to Dismiss [4] on May 14, 2009. In its motion, Respondent requests that all of Petitioner's claims be dismissed with the exception of the first claim that Petitioner's attorney refused his request for an appeal. To determine the validity of that first claim, Respondent requests a limited evidentiary hearing. In his response brief [5], filed on June 8, 2009, Petitioner agrees an evidentiary hearing is necessary, but requests this Court hear all claims made in his Section 2255 Petition. For the following reasons, a limited evidentiary hearing on the claim that Petitioner's attorney provided ineffective assistance by failing to file a notice of appeal is ordered. The remaining claims do not require an evidentiary hearing and are dismissed.

I. Factual and Procedural Background

A. Prior to Sentencing Hearing

Petitioner Hector Santiago was identified by federal investigators as a participant in a conspiracy to distribute heroin in Camden, New Jersey. (Resp't Br. p. 1.) Members of the Camden High Intensity Drug Trafficking Area Task Force and Drug Enforcement Administration investigated the activities of Balentin Gonzalez from September 2006 to December 2006. (Id.) The investigators learned that Gonzalez supplied several individuals in Camden with heroin, including Santiago. (Id.) A federal criminal complaint was issued on September 14, 2007, and Santiago was arrested and appeared in federal court for an initial appearance on September 19, 2007. (Resp't Br. p. 2; Pet'r Br. p. 2.) Santiago's attorney, John O. Poindexter, Esq., filed a bail motion on September 25, 2007, and on September 26, 2007 Santiago was granted bail. (Resp't Br. p. 2.)

Santiago and the Government reached a plea agreement on April 8, 2007. (Pet'r Br. p. 2.) In the plea agreement, Santiago acquiesced to plead guilty to a one count Information, which charged him with violating 21 U.S.C. § 846. (Resp't Ex. 2 p. 1.) Specifically, the Information charged that Santiago was engaged in a conspiracy from August 2006 to January 2007 to distribute and possess with the intent to distribute heroin, contrary to 21 U.S.C. §§ 841(a) and 841(b)(1)(C). (Resp't Ex. 1.) It was explained in the plea agreement that "the sentence to be imposed upon Hector Santiago is within the sole discretion of the sentencing judge . . ." who "may impose any reasonable sentence up to and including the statutory maximum term of imprisonment . . . ." (Resp't Ex. 2 pp. 1-2.) The plea agreement also informed Santiago he was exposed to a "statutory maximum prison sentence of 20 years . . . ." (Id. at p. 1.)

Santiago pled guilty to the single count Information before this Court on July 9, 2008. (Pet'r Br. p. 2.) During the hearing, the Court engaged Santiago in the following colloquy:

Q: Mr. Santiago, do you understand the outline that we just heard from the Government with respect to your plea agreement?

A: Yes.

Q: And you were able to review the plea agreement and you understand what's in it?

A: Yes.

Q: Now, is this agreement the complete agreement that you have with the Government?

A: Yes.

Q: All right. The reason I ask that is that if I accept this agreement, you can't come back later and tell me that there's a promise or representation that's not being kept. Because if I don't read it within the pages of your plea agreement dated April 8, 2008, for my purposes those agreements don't exist. Do you understand?

A: Yes. (Resp't Ex. 3 pp. 11:14-25, 12:1-4.)

Q: Have any promises been made by the United States Attorney, your attorney or anyone else as to the sentence you would receive if the Court were to accept your plea of guilty?

A: No.

Q: And do you understand that if I accept your plea of guilty, I can impose on you any sentence that I deem appropriate, subject only to the way I'm limited to the laws of the United States?

A: Yes.

(Resp't Ex. 3 p. 12:13-21.) Despite this testimony in open court, as well as the language contained in the application to enter a plea of guilty and the plea agreement, Santiago claims, for the first time in his Section 2255 petition, that his attorney promised his sentence would be within 70 to 87 months if he pled guilty. (Pet'r Br. p. 18; Pet'r Ex. A ¶ 2-3.) Santiago claims this promise of a sentence of no greater than 87 months induced him to accepting that specific plea agreement. (See Pet'r Br. p. 21; Pet'r Ex. A ¶ 4, 6, 9.)

After the plea hearing, the Probation Department developed a presentence report ("PSR"). (Resp't Br. p. 10.) Around September 15, 2008 the PSR was completed and a copy was mailed by the Probation Department to the Government, John Poindexter, and to Santiago's address. (Id.) The final version of the report was disclosed to the Court and the parties on October 3, 2008. (Id.)

Santiago claims for the first time in his Section 2255 petition that Poindexter neither fully reviewed the PSR with him, nor did Poindexter allow Santiago to have a copy of the PSR to review for himself. (Pet'r Ex. A ¶ 7.) Santiago claims that Poindexter reviewed page 21 of the PSR with him on October 14, 2008, and told Santiago that he would not receive the career offender enhancement. (Pet'r Ex. A ¶ 8.) Specifically, Santiago contends Poindexter told him he would not receive a "career offender" sentencing enhancement because he had a "limited criminal record" and because the crimes he did commit were "not serious and were remote in time." (Pet'r Ex. A ¶ 5.)

B. Sentencing Hearing

This Court held Santiago's sentencing hearing on October 14, 2008. (Resp't Br. p. 4.) At the beginning of the hearing, the following exchange occurred between the Court and Poindexter:

The Court: Mr. Poindexter, you obviously had an opportunity to review the presentence report. Do you have any additional comments which you may wish to make with respect to the calculations as they appear on Page 21 of the presentence report?

Mr. Poindexter: Judge, I do. I have reviewed it. I've reviewed it with my client . . . I believe that . . . his [Santiago's] criminal history is somewhat overstated in that he only received a sentence of incarceration for one of his convictions, the others he received sentences of probation for, so I think it's a little bit overstated. It would appear to be - - while he does - -he should suffer some penalty for having a criminal history, but what's been imposed here is a little bit more than he should receive . . . Based on those factors, Judge, we would ask you to sentence him two points lower than what the presentence - - the sentencing memorandum calls for . . . I believe that he should receive an enhancement for his criminal history, Judge, but again, as I stated, I think it's somewhat overstated. ...

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