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Rosario v. United States

United States District Court, D. New Jersey

September 18, 2018

RENE ROSARIO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Rene Rosario, Pro Se

          Diana V. Carrig, Esq. Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Presently before the Court is the Amended Motion to Vacate, Set Aside, or Correct Sentence of Rene Rosario (“Petitioner”) brought pursuant to 28 U.S.C. § 2255 (the “Petition”). ECF No. 11. In response to this Court's Order to Answer, ECF No. 12, Respondent the United States of America filed its Answer, ECF No. 30, and Petitioner filed a Reply, ECF No. 35. Both the Petitioner and the Respondent also submitted supplemental letter briefs. See ECF Nos. 37 (petitioner), 38 (respondent). For the reasons discussed below, the Court will deny the Petition and decline to issue a certificate of appealability

         1. BACKGROUND

         A. Criminal Proceedings

         In July 2012, a detective with the New Jersey State Police (“NJSP”) notified an agent with the United States Drug Enforcement Administration (“DEA”) that Petitioner Rene Rosario was looking for a source of supply for cocaine. ECF No. 30 at 2. Later that summer, on August 24, 2012, Rosario and co-defendant Winston Womble met with an undercover law enforcement officer (“UC”) and a confidential source (“CS”) at a Starbucks in Cherry Hill, New Jersey, to discuss purchasing ten kilograms of cocaine. Id. at 2-3. At the meeting, Petitioner vouched for Womble, who was meeting the CS and UC for the first time, stating that Womble was his brother-in-law and that they were together. Id. at 3. Rosario and Womble told the UC that Camden was suffering from a cocaine shortage, and they had “[s]o many people waiting that we got lined up” as customers, some of whom “give us money ahead of time.” Id.

         During the meeting, Petitioner discussed the proposed drug transaction and made numerous statements such as suggesting that the UC “[c]heck my name in the streets, ” stating that he did not “rob nobody [or] beat nobody for their money, ” and that “[w]e can move a whole lot 5-10 keys.” Id. Both Womble and Petitioner confirmed that “[w]e can handle 10.” Id.

         Petitioner and Womble agreed to buy new phones to be used for communicating with the UC. Id. at 4. After purchasing the phones, they rejoined the UC at Starbucks. Id. Petitioner told the UC that he and Womble did not want to switch cars to conduct the transaction as suggested by the UC: “[L]et's talk a little bit more real fast. . . . I feel like . . . it's kind of weird giving you . . . 320 [presumably, $320, 000] . . . taking your car and taking another car. You know what I'm saying?” Id. The UC suggested that they start off “smaller, ” to which Petitioner responded, “five [kilograms] is fine too . . . [c]ause the money's not the problem . . . [we] could probably do that ourselves.” Id. The men agreed to the car switch with the UC's brother accompanying Womble with the drugs and Rosario accompanying the UC with the money until each side was able to verify the authenticity of the transaction. Id. At the meeting, the UC asked, “who's responsible if something is not right. Am I dealing with you or am I dealing with you?” Petitioner responded, “You dealing with both of us.” Id.

         On September 25, 2012, Petitioner, Womble, and another associate of Petitioner's met with the CS, who recorded the meeting. Id. When Petitioner and Womble arrived, Petitioner again raised the issue of the logistics of the proposed transaction - the car switch - because Petitioner wanted an opportunity to check the cocaine before advancing payment. Id. at 5. Petitioner discussed proceeding cautiously: Rosario stated, “We're taking more chances than he [the UC] is. We're coming up with the cash. He ain't gonna beat us or anything.” Id. Womble confirmed that they had the money for five kilograms but wanted ten kilograms, and stated “[w]e want as much as we can get.” Id. Petitioner confirmed that, telling the CS, “[j]ust tell him [UC] that we can get five. It's the best way to check the material. We gotta agree to that. Once that's established, then work with us after that.” Id. at 5-6. Petitioner said that he wanted to move forward with the purchase “ASAP” and that he preferred not to

keep going to people I'm going to. They too high, and I don't feel like tripping to go see these people. Not the regular people we been dealing with. So right now, we ready to do some more stuff. So talk to him [the UC] to try to make something happen.

Id. at 6. Petitioner also stated that he hoped that the cocaine would be “really go[o]d product, ” that “[w]e're ready for at least five [kilograms]. We can do five all day long. We need it, ” and that, “I'm not rushing him but we can't stay dry.” Id. On October 1, 2012, Petitioner and Womble met the UC and CS at a restaurant inside the Promenade Shopping Center in Evesham, New Jersey. Id. at 7. The UC had agreed to show Petitioner and Womble the ten kilograms of cocaine. Id. They walked to the UC's car, where the UC and another undercover officer displayed ten kilograms of cocaine to Petitioner and Womble. Id. Womble picked up one kilogram of cocaine, cut into it with a knife to verify its contents, and returned the kilogram to the car. Id. Petitioner, Womble, and the UC then returned to the restaurant, where Petitioner and Womble informed the UC that they would have the cash for five kilograms of cocaine within two days. Id. They each shook the UC's hand and left the restaurant. Id.

         Shortly after leaving the restaurant, the CS informed the UC that Petitioner and Womble wanted to talk to the UC again. Id. at 8. The UC directed the CS to tell them to return to the restaurant. Id. They returned to the restaurant and resumed their conversation with the UC. Petitioner explained that after seeing the cocaine, they were ready to proceed with the deal that day. Id. They explained that they only had enough money to purchase four kilograms of cocaine but that they would return to purchase the remaining six kilograms in the next few days. Id. When the UC asked them when they would purchase the remaining six, Petitioner replied “[a]s soon as I can contact the right [person], I can contact the right [person], the next day.” Id. After discussing logistics and confirming the price of $33, 000 per kilogram, Petitioner told the UC that it would be quicker if they conducted the transaction at Starbucks. Id. Petitioner arranged to meet the UC later that evening at the Starbucks in Cherry Hill, New Jersey. Id.

         Petitioner drove Womble in a Ford Escape to the Starbucks, where they told the UC that they had the money to purchase the four kilograms of cocaine with them in a separate car. Id. at 9. Petitioner and Womble then left to get the other car, a Honda, with Petitioner returning in the Ford and Womble returning in the Honda. Id. Petitioner opened the rear of the Honda to show $130, 000. Id. The UC then handed Womble a key to a car he said contained four kilograms of cocaine with instructions for opening the hidden compartment that contained the cocaine. Id.

         Petitioner saw a suspicious car and instructed Womble to drive away. Id. The UC retrieved the car key and instructions from Womble and, after that, gave the command to have them arrested. Id. Law enforcement officers stopped and arrested Womble and Petitioner in their separate vehicles. Id. When officers searched a concealed compartment in Womble's Honda, they found a loaded .40 caliber handgun and approximately $130, 000. Id.

         After his arrest, Petitioner was charged by criminal complaint with conspiracy to distribute and possession with intent to distribute in excess of five hundred grams of cocaine in violation of 21 U.S.C. § 846.[1] See No. 13-cr-95, ECF No. 1. The Court appointed Richard Sparaco, Esquire, to represent Petitioner. No. 13-cr-95, ECF No. 3. The Government provided discovery including reports, recordings, and transcripts summarizing each of the three meetings. No. 14-cv-5592, ECF No. 30 at 10. Petitioner waived his right to an indictment and agreed to plead guilty by information to the offense charged in the criminal complaint. See No. 13-cr-95, ECF Nos. 9 (information), 10 (waiver of indictment), 12 (plea agreement).

         On February 6, 2013, Rene Rosario entered a guilty plea before the Court to a one count information charging him with conspiring with Winston Womble and others to distribute and possess with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 846. No. 13-cr-95, ECF Nos. 11 (minute entry), 26 (transcript). Petitioner's plea agreement explained the potential penalties from his plea, including the five year mandatory minimum sentence and forty year maximum sentence. No. 13-cr-95, ECF No. 12, Plea Agreement at 1-2. In addition, the plea agreement included a stipulation pertaining to the possibility that the Court, at sentencing, would find that Rosario was a career offender under U.S.S.G. § 4B1.1. Id., Sch. A, ¶ 5.

         During the guilty plea colloquy, the Court questioned Petitioner about his understanding and acceptance of the plea agreement and concluded that Rosario understood and accepted the plea agreement, and that he knowingly, intelligently, and voluntarily waived his right to proceed to trial. See No. 13-cr-95, ECF No. 26. The Government then summarized the plea agreement, including the statutory maximum sentence of up to forty years' imprisonment, the mandatory minimum of five years' imprisonment, and the possible application of the Career Offender Guideline. Id. at 9-11. Petitioner stated that he understood the plea agreement, reviewed it with Mr. Sparaco, and then signed it:

THE COURT: Did you sign it after you reviewed it with Mr. Sparaco?
THE DEFENDANT: Yeah. He reviewed everything with me.
THE COURT: Did you sign it after you read it yourself?
THE DEFENDANT: Yes.
THE COURT: All right. Did you understand it?
THE DEFENDANT: Yes. He explained each paragraph as we went along.
THE COURT: All right. Good. Do you have any questions about it now?
THE DEFENDANT: No.

Id. at 11-12; 13-14. The Court advised Petitioner of the maximum penalties and Petitioner stated that he understood them. Id. at 18-19. The Court also explained the Sentencing Guidelines, including the application of the career offender provision and that Petitioner would not be able to withdraw his plea if he received a sentence that was “different than what you wished for or hoped for or was predicted.” Id. at 19-24. Petitioner stated that he understood. Id. at 24.

         The Court outlined the elements necessary to prove the offense charged and Petitioner stated that he understood each element of the offense. Id. at 28-29. The Government then questioned Petitioner about the factual basis for the offense charged:

MS. CARRIG: Mr. Rosario, from in or about August, 2012, through on or about October 1, 2012, did you agree with others, including but not limited to Winston Womble, to participate in the purchase of approximately four kilograms of cocaine?
THE DEFENDANT: Yes.
MS. CARRIG: Did you know that such an agreement violated federal narcotics laws?
THE DEFENDANT: Yes.
MS. CARRIG: As part of your agreement, did you introduce Winston Womble to an individual you believed could broker the sale of kilograms of cocaine?
THE DEFENDANT: Yes.
MS. CARRIG: And did that person subsequently introduce you and Mr. Womble to a person whom you later learned was an undercover law enforcement officer?
THE DEFENDANT: Yes.
MS. CARRIG: On or about August 24th of 2012, did you and Mr. Womble meet with the undercover officer at a Starbucks in Cherry Hill, New Jersey?
THE DEFENDANT: Yes.
MS. CARRIG: And during that meeting, did you and Mr. Womble discuss purchasing kilogram quantities of cocaine from the undercover officer for between $32, 500 to $33, 000 per kilogram?
THE DEFENDANT: Yes.
MS. CARRIG: On or about October 1st of 2012, did you and Mr. Womble meet with the undercover officer at a restaurant in the Promenade Shopping Center in Evesham, New Jersey?
THE DEFENDANT: Yes.
MS. CARRIG: And during that meeting, did you and Mr. Womble again talk about buying kilogram quantities of cocaine from ...

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