APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, Hon. Daniel R. Domínguez, U.S. District Judge.
Rafael F. Castro Lang for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.
Before Lynch, Selya, and Lipez, Circuit Judges.
LYNCH, Circuit Judge.
These 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.
One set 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 that 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.
The 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. We leave the defendant to whatever post-conviction remedies he may have, without further discussion.
Martínez-Hernández 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.
Martínez-Hernández 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 Puerto Rico.
On June 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.
In December 2011, Martínez-Hernández was arrested by Venezuelan authorities, and in January 2012, he was sent to Puerto Rico.
Martínez-Hernández 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.
Martínez-Hernández 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.
It is evident that Martínez-Hernández hired Torres precisely because her prior affiliation with the USAO might benefit him in plea negotiations. That expectation ...