United States v. Liceaga

Page 134

For USA, Plaintiff: Linda M. Ricci, LEAD ATTORNEY, United States Attorney's Office MA, Boston, MA; James E. Arnold, United States Attorney's Office MA, Boston, MA.

Page 135

MEMORANDUM AND ORDER

Nathaniel M. Gorton, United States District Judge.

On July 17, 2012, defendant Joel Liceaga (" Liceaga" ) was sentenced to 135 months in prison and 60 months of supervised release for Conspiracy to Possess with Intent to Distribute and to Distribute 100 Grams or More of Heroin, in violation of 21 U.S.C. § § 846 and 841(a)(1). He contends that he received ineffective assistance of counsel during trial and moves to vacate his guilty plea and sentence, pursuant to 28 U.S.C. § 2255. For the reasons that follow, Liceaga's motion will be denied without an evidentiary hearing.

I. Background

In December, 2010, Liceaga was charged with a single count of participating in a heroin trafficking conspiracy. He was arrested in March, 2011 and he retained Carl N. Donaldson (" Donaldson" ) as one of his attorneys.

In January, 2012, the Government filed a motion to disqualify counsel on the grounds that Donaldson had potential conflicts of interest for having 1) represented two of Liceaga's co-conspirators in state court and 2) withdrawn representation of Liceaga for a period of six months when, Donaldson was suspended from the practice of law by the Board of Bar Overseers for the Commonwealth of Massachusetts.

In February, 2012, this Court held a hearing to determine whether attorney Donaldson should be disqualified, during which Liceaga confirmed his decision to proceed with Donaldson as counsel. The following month, this Court conducted a Rule 11 hearing after the parties had entered into a binding Fed. R. Crim. P. 11(c)(1)(C) plea agreement and conditionally accepted Liceaga's guilty plea. Liceaga was subsequently sentenced to 135 months in prison and 60 months of supervised release.

In July, 2013, Liceaga moved to vacate his guilty plea and sentence pursuant to 28 U.S.C. § 2255. He claims that he received ineffective assistance of counsel because his trial counsel 1) had a conflict of interest and should have been disqualified, 2) failed to advise him of his possible deportation, and 3) failed to discuss various sentencing factors with him. Liceaga doubts whether his agreed-upon disposition range in his plea agreement represented his true sentencing exposure.

II. Analysis

A. Legal Standard

Section 2255 enables a prisoner in custody to move the court that imposed his sentence to vacate, set aside or correct the sentence if it was 1) imposed in violation of the Constitution or laws of the United States or by a court that lacked jurisdiction, 2) in excess of the maximum authorized by law or 3) otherwise subject to collateral attack. 28 U.S.C. § 2255(a); David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). The petitioner bears the burden of establishing the need for relief in each of those circumstances. David, 134 F.3d at 474. To be entitled to relief under § 2255, the petitioner must present " exceptional circumstances" that make the need for redress " evident." Id. (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

A § 2255 petition is procedurally defaulted and unreviewable on collateral attack when the petitioner has not presented a claim on direct appeal, lacks cause for failing to do so and suffered no " actual prejudice resulting from the error." Damon v. United States, 732 F.3d 1, 4 (1st Cir. 2013) (citing Bousley v. ...