APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO. Hon. Daniel R. Domí nguez,
U.S. District Judge.
F. Castro Lang, for appellant.
Carlos Reyes-Ramos, Assistant United States Attorney, with
whom Nelson Pé rez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, and Rosa Emilia
Rodrí guez-Vé lez, United States Attorney, were
on brief, for appellee.
Lynch, Selya, and Lipez, Circuit Judges.
consolidated appeals from Oscar Martínez-Hernández's
guilty plea entered on August 7, 2012, divide into several
parts, not all of which are within our jurisdiction.
of issues concerning Martínez-Hernández's former
counsel's purported conflict of interest was presented to
the district court before sentencing. The district
court's denial of Martínez-Hernández's claim was
timely appealed in appeal number 13-1450. The argument is
Martínez-Hernández's earlier retained defense counsel
Sonia I. Torres Pabón (" Torres" ), formerly
employed by the United States Attorney's Office ("
USAO" ) in Puerto Rico, had a disqualifying conflict of
interest based on her involvement with one of the indictments
that was dismissed as part of Martínez-Hernández's plea
bargain. We affirm the district court's rejection of this
claim. The district court properly concluded that there was
no conflict and that the defendant was not prejudiced by his
former counsel's representation.
second appeal, however, concerns arguments first made to the
district court after Martínez-Hernández's sentence was
imposed on March 5, 2013, and judgment was entered on March
11, 2013. Appellate counsel characterizes these new claims as
" supplement[ing] and elaborat[ing] [on] the issues that
had already been raised by [the defendant]'s previous
counsel prior to and after sentencing." He argues that
these new post-judgment arguments involving other facts and
claims were within the jurisdiction of the district court but
denies they were brought under 28 U.S.C. § 2255. We hold
counsel to his word and treat the arguments as not having
been made to the district court under § 2255, as no such
petition was ever filed. At least some of these claims, those
which come as part of appeal number 15-1254, were not
properly before the district court, and so the district court
had no jurisdiction to hear them. Accordingly, we dismiss the
defendant's appeal that stems from the rejection of this
belated second set of claims.
leave the defendant to whatever post-conviction remedies he
may have, without further discussion.
pleaded guilty to conspiracy to possess with intent to
distribute controlled substances within 1,000 feet of
property comprising a school, public housing project, and/or
playground, in violation of 21 U.S.C. § § 841, 846,
and 860, and was sentenced to 300 months of imprisonment.
has a long history of serious criminal activity, including
convictions for unlawful possession of firearms and
possession with intent to distribute controlled substances.
In 1999, Martínez-Hernández was convicted of two counts of
first-degree murder in Puerto Rico, after which he went into
hiding. He was sentenced in absentia by a Puerto Rico court
to two consecutive life terms of imprisonment. Around the
year 2000, Martínez-Hernández fled to South America and
eventually established residence in Venezuela. Between 1999
and 2001, three indictments related to drug-trafficking
conspiracies were issued for Martínez-Hernández in federal
criminal cases 99-351, 99-352, and 01-379, in the District of
27, 2011, Martínez-Hernández was charged, in a federal
indictment in Puerto Rico (criminal case 11-241), with
conspiracy to possess with intent to distribute controlled
substances, possession with intent to distribute heroin,
possession with intent to distribute cocaine, and possession
with intent to distribute marijuana. The indictment included
114 defendants. A superseding indictment was issued on
September 19, 2011.
December 2011, Martínez-Hernández was arrested by Venezuelan
authorities, and in January 2012, he was sent to Puerto Rico.
was initially represented in all four indictments by Ricardo
Izurieta. However, he then retained attorney Esther Castro
Schmidt (" Castro" ), who filed a notice of
appearance in criminal
cases 99-351, 99-352, 01-379, and 11-241 on March 20, 2012.
It is noteworthy that while Castro had previously served as
an Assistant United States Attorney (" AUSA" ),
Martínez-Hernández does not argue that Castro's former
employment with the USAO itself posed a conflict.
also retained Torres, who filed a notice of appearance in
these cases on May 2, 2012. Martínez-Hernández hired Torres
based on Castro's recommendation that he " should
hire Atty. Sonia Torres because she had good relations with
the U.S. Attorney's Office and we could get a better
agreement with her." Torres had been an AUSA from 1995
through 2006 and had served as Chief of the Criminal Division
from about July 2002 through September 2006. Before assuming
representation, Torres said that she took two steps to assure
that she could represent Martínez-Hernández. First, she
reviewed the dockets of Martínez-Hernández's federal
cases. She found that there were two informative motions in
criminal case 01-379 under her name: (1) a February 3, 2005,
motion informing the court that a different AUSA had
withdrawn from the case; and (2) a February 6, 2007, motion
to withdraw herself from the case. Torres said that she told
Martínez-Hernández about these motions prior to accepting his
request for legal representation. Second, Torres asked First
AUSA Maria Dominguez to review Martínez-Hernández's
files; Dominguez confirmed that Torres did not have any
involvement in Martínez-Hernández's prosecutions. Torres
said that she informed Martínez-Hernández of this as well.
evident that Martínez-Hernández hired Torres precisely
because her prior affiliation with the USAO might benefit him
in plea negotiations. That expectation seemed to be correct
in light of the deal reached.
August 7, 2012, Martínez-Hernández pleaded guilty in case
11-241 to conspiracy with intent to distribute controlled
substances within 1,000 feet of property comprising a school,
public housing project, and/or playground. The offense
carried a mandatory minimum of ten years of imprisonment and
a maximum of life imprisonment. Under the plea
agreement, the parties agreed that
Martínez-Hernández could request 264 months of imprisonment,
and the government could request 324 months of imprisonment;
the government agreed to dismiss with prejudice three other
federal criminal cases against Martínez-Hernández (99-351,
99-352, and 01-379);  Martínez-Hernández could request that
the sentence run concurrently with the sentences imposed for
the Puerto Rico first-degree murder convictions; and
Martínez-Hernández could request that his sentence run
concurrently with any time he might be sentenced to in a
federal revocation proceeding. The plea was made pursuant to
Rule 11(c) of the Federal Rules of Criminal Procedure, so if
the court did not accept the sentence recommendation, either
Martínez-Hernández or the government could withdraw the plea.
the plea was entered but before sentencing, on August 16,
2012, attorney Luis Rafael Rivera entered a notice of
appearance on behalf of Martínez-Hernández.
Torres and Castro filed motions to withdraw as
Martínez-Hernández's attorneys the ...