United States District Court, D. New Hampshire
JOSEPH A. DiCLERICO, Jr., District Judge.
Luckenson Dorceant, who is proceeding pro se, moves pursuant to 28 U.S.C. § 2255, to vacate his sentence, alleging ineffective assistance of counsel. The government filed an objection to the motion to vacate. In response, Dorceant filed an affidavit in further support of his motion to vacate.
Standard of Review
To succeed on a motion to vacate sentence under § 2255, the moving party must show that his sentence was imposed in violation of the Constitution or federal law, that the court lacked jurisdiction, that the sentence exceeded the statutory maximum, or that the sentence "is otherwise subject to collateral attack." § 2255(a). In response to a § 2255 motion, the court must determine whether a hearing is required to resolve the issues raised or whether the motion, along with the record and the file in the case, conclusively show that the moving party is not entitled to relief. § 2255(b). The court takes sworn factual allegations as true "unless those allegations are merely conclusory, contradicted by the record, or inherently incredible.'" Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)); see also Miller v. United States, 564 F.2d 103, 105-06 (1st Cir. 1977).
Dorceant asks the court to conduct an evidentiary hearing on his claims. In the context of claims of ineffective assistance of counsel, courts have held that a hearing is not necessary unless a habeas petitioner raises a plausible claim. Morales v. United States, 635 F.3d 39, 45 (2d Cir. 2011); United States v. Morrison, 98 F.3d 619, 625-26 (D.C. Cir. 1996). A plausible claim of ineffective assistance of counsel means a colorable showing on both prongs of the test under Washington v. Strickland, 466 U.S. 668 (1984). Perez v. United States, ___ F.Appx. ___, 2014 WL 7272262, at *1 (2d Cir. Dec. 23, 2014).
As is explained in detail below, Dorceant has not shown a colorable claim of ineffective assistance of counsel. As presiding judge during the entirety of the criminal case, I am familiar with those proceedings and the evidence. The amended motion to vacate the sentence with appendices, the government's objection with appendices, Dorceant's affidavit, and the record from Dorceant's criminal case show, conclusively, that Dorceant is not entitled to the relief he seeks. Therefore, a hearing on Dorceant's claims is not necessary.
A. Factual Background
The testimony and evidence at trial established that the charges against Dorceant arose from events that led to the death of Mally Cruz Rodriguez on November 26, 2008, in Salem, New Hampshire. In mid-November of 2008, Mally Cruz Rodriguez ("Mally") recruited her twin sister, Nelly Cruz Rodriguez ("Nelly"), to smuggle drugs from Puerto Rico to the Dominican Republic to make money. Mally told Nelly that she, Mally, had recently successfully engaged in a similar smuggling operation. Nelly agreed to join the plan.
On November 17, 2008, Mally and Nelly met with Sandy Brito ("Sandy") and Sandy's brother-in-law in a white SW parked in front of the Rodriguezes' house in Puerto Rico. Nelly testified that Sandy offered $5, 000 in payment if she would swallow 100 capsules containing drugs in the Dominican Republic and then travel back to Puerto Rico, transporting the drugs internally. Sandy's brother-in-law said that the internal smuggling process was safe and that he had recently smuggled drugs that way himself. Mally and Nelly agreed to go to the Dominican Republic to participate in the drug smuggling.
Mally then recruited another woman, Yomaira Arias Cordero ("Yomaira"), to smuggle drugs. Yomaira met with Mally and then with Mally, Sandy, and Sandy's brother-in-law, who was introduced to her as "Lucky", in a white SW across the street from Mally's house. Sandy said that Yomaira would swallow 100 "eggs" of drugs and that Lucky owned the drugs. Yomaira said that she was told she would be paid $4, 000 if she swallowed all 100 "eggs". At trial, Yomaira identified Dorceant as "Lucky".
On November 19, 2008, Yomaira, Mally, and Nelly were driven to San Juan by Sandy's father, Justo Rodriguez ("Justo"). At the ferry port, Sandy gave them tickets that had been purchased with a debit card for Dorceant's account. They then traveled by ferry to the Dominican Republic. After a few days, they all met at Sandy's mother's house where the drugs had been packaged for swallowing. Mally swallowed forty-three capsules; Nelly swallowed fifty capsules; and Yomaira swallowed twenty-eight.
On November 25, instead of returning to Puerto Rico, according to the plan, they were told they were going to fly to Boston, Massachusetts, where they would meet someone named "Nino." Dorceant directed his girlfriend, Dionaliz Brito ("Dionaliz"), who is Sandy's sister, to buy plane tickets for Mally, Nelly, and Yomaira to fly from the Dominican Republic to Boston, and Dionaliz used Dorceant's account to buy the tickets. Dorceant's account was also charged for a plane ticket for Sandy to fly to Boston.
Dorceant bought Dionaliz a ticket to fly to Boston using the same account that was used for the other tickets, and she arrived several hours before the others. Dionaliz was met by Manuel Perez ("Nino") who came in a taxi driven by Escalito Suero ("Suero"). Nino was a friend of Dionaliz's and Sandy's father, Justo. Suero and Nino stopped at a Wal-Mart where Dionaliz bought a telephone and then continued on to a motel in Salem, New Hampshire. Nino and Suero rented a room for Dionaliz. Dionaliz called Dorceant when she arrived.
Mally, Nelly, Yomaira, and Sandy arrived in the early morning hours of November 26 and were also met by Nino and Suero. They were taken to the motel in Salem where Sandy rented a room for himself and a room for Mally, Nelly, and Yomaira. Nino and Suero bought laxatives that Mally, Nelly, and Yomaira took to expel the capsules. Nelly and Yomaira began expelling capsules, but Mally did not and became ill.
Nelly sought help from Sandy, and Sandy and Dionaliz came to Mally's room. Sandy tried to help Mally and told Nelly he would call the police. Instead of calling the police, however, Sandy called Nino to pick him up, along with Dionaliz and Yomaira. Sandy took all of the expelled capsules of cocaine and luggage belonging to Mally and Nelly. Sandy left Nelly with the telephone Dionaliz had purchased at Wal-Mart and a small amount of money.
After the others left, Nelly went to the motel office, and the staff called the police. Officers from the Salem Police and Fire Departments arrived and gave medical aid to Mally, who was unconscious. Mally was transported to a hospital where she was pronounced dead. Additional Salem police officers were called after evidence of drugs was found at the motel and in response to Mally's death.
At first, Nelly did not tell the police about transporting the drugs, but she did tell the full story later in the day. Nelly was taken to the hospital where the capsules were removed, and Nelly was arrested.
When Sandy, Yomaira, and Dionaliz left the motel, Dionaliz called Dorceant who told her to watch the news to see what had happened to Mally and to tell Sandy to call Nino. Dorceant told Dionaliz to stay in Boston to collect the money from the cocaine sales. He also told her he had reported that his credit card had been stolen in order to hide his involvement in buying their plane tickets. Sandy called Justo to get a ticket to fly back to Puerto Rico. Later that day, Sandy flew from Boston to Puerto Rico, leaving Yomaira behind to expel the remaining cocaine. Nino took Dionaliz and Yomaira to his apartment in Lawrence where Yomaira expelled the remaining capsules. Nino sold the drugs and gave Dionaliz $6, 000.
Yomaira stole money from Dionaliz to get back to Puerto Rico. Justo traveled to Boston to help Dionaliz get back to Puerto Rico.
After his arrest in Florida on March 2, 2010, Dorceant denied being involved in drug smuggling. Dorceant agreed to speak to Special Agent Thomas Pugliese, United States Immigration and Customs Enforcement. Dorceant told Special Agent Pugliese that he sold clothing in Puerto Rico and traveled between Miami and Puerto Rico for that purpose and that he shipped the white SUV to Puerto Rico to sell. He also said that he had traveled to Miami and Boston with a girlfriend, Dina Aguilera, to shop and eat. When asked about the plane tickets, Dorceant said that he authorized purchasing tickets for Dionaliz and Sandy but not for Mally, Nelly, and Yomaira.
B. Procedural Background
Dorceant was arrested on charges of conspiracy to possess with the intent to distribute cocaine and charges that the use of the cocaine resulted in the death of Mally. Counsel was appointed to represent Dorceant in the criminal proceeding.
A two count indictment was filed on April 7, 2010. Count I charged Dorceant with conspiring with others to possess with the intent to distribute more than 500 grams of cocaine and charged that the use of the cocaine resulted in the death of Mally. Count II charged Dorceant with conspiring to import more than 500 grams of cocaine into the United States which resulted in the death of Mally. Dorceant was arraigned on April 22, 2010.
On May 25, 2010, Dorceant's appointed counsel moved to withdraw because Dorceant had given him an "ultimatum" as to how counsel was to conduct his defense and counsel would not and could not accede to Dorceant's demands. The trial date was continued, and the motion to withdraw was granted. Attorney James D. Gleason was then appointed to represent Dorceant.
Attorney Gleason filed motions to dismiss on Dorceant's behalf, and the trial date was continued again. The motions were denied. Trial began on December 7, 2010. On December 9, 2010, the jury found Dorceant guilty on both counts in the indictment. In January of 2011, Dorceant filed a pro se motion to dismiss Attorney Gleason from representing him, arguing that others involved in the conspiracy were guilty but he was not and that Attorney Gleason had provided ineffective assistance. Following a hearing, the motion to dismiss Attorney Gleason was denied.
The sentencing hearing was held on March 28, 2011, with Attorney Gleason representing Dorceant. Dorceant was sentenced to two terms 360 months each on Counts I and II to be served ...