United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §
Dennis Saylor IV United States District Judge
a motion to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255. Petitioner Angel Morales, also know
as “Adonis, ” seeks to vacate his sentence on the
ground that he received ineffective assistance of counsel in
violation of his Sixth Amendment rights. In particular, he
contends that his counsel failed to perform an adequate
review of the evidence that was ultimately used against him
at trial; failed to use documentary evidence to impeach the
government's chief witness; failed to investigate the
fact that the vehicle seized by the Drug Enforcement Agency,
which was found to contain a hidden compartment, did not
belong to him; failed to call a material witness; and failed
to advise him of his right to testify on his own behalf at
around 2008, Rancis Osiris Santana began purchasing large
quantities of cocaine from a supplier in California, which he
then resold. (Gov. Opp. at 2). Santana testified that, in the
summer of 2009, he received a shipment of 44 kilograms of
cocaine. (Id.). He contacted Morales, also known as
“Adonis, ” who agreed to purchase ten “real
nice ones” (that is, ten kilograms) for $33, 000 per
17, 2009, law enforcement intercepted a telephone call
between Morales and an individual identified as
“Bolo.” (Id. at 3). Morales told Bolo,
“Damn, these guys got me some really nice stuff.”
(Id.). He told Bolo he had received ten kilograms
from “that guy, ” and offered to sell it to Bolo
for $34, 000 per kilogram. (Id.). In another
telephone conversation that same day, Juan Nova, also known
as “Pastor”-who shared an apartment with
Morales-told Bolo that “the CD arrived last
night” and that “they set it for me at 33. For me
and Adonis. They gave Adonis ten and they gave me ten at
33.” (Id. at 2-3).
October 2009, Santana purchased 54 kilograms of cocaine from
a supplier in California. (Id. at 3). Law
enforcement intercepted a series of telephone calls between
Santana and Nova discussing the shipment and negotiating a
price for purchase. (Id. at 3-4). In one of those
telephone calls, Santana asked Nova, “Hasn't Adonis
called to see if that stuff came or not?” (Id.
at 4). Nova replied, “He's been calling me for
days. He was asking me . . . last night we were talking about
it, he's desperate.” (Id.). In another
telephone call, Nova, attempting to negotiate a better price,
told Santana that the going price for cocaine in Lawrence was
$31, 500 per kilogram. (Id.). To confirm, he asked
Morales, who was standing nearby, “Adonis, did he say
at thirty-one and a half?” A voice in the background
could be heard saying “Yes.” (Id.).
further negotiations, Santana agreed to sell Nova five
kilograms of cocaine. (Id.). He asked if Morales
wanted anything, and Nova responded that he would call him
back. (Id.). Fifteen minutes later, Nova called
Santana back and said, “Adonis says to . . . to send
him ten, ” noting “The guy always gets ten. He
gives half up front.” (Id.). Santana then told
Nova to “tell Adonis that . . . that it's not to
take long.” (Id.). In another recorded
telephone conversation between Santana and his brother, he
confirmed that Nova was going to purchase five kilograms
while Morales was going to purchase ten kilograms.
(Id. at 4-5).
to the sale, Santana instructed one of his associates to
write down in a notebook the names of everyone who was going
to purchase some portion of the 54 kilogram cocaine shipment.
(Id. at 5). Among the names listed was “Adoni,
” whom Santana identified as Adonis. (Id.).
October 9, 2009, law enforcement officers raided
Santana's apartment and arrested him and Nova.
(Id.). An open box of cocaine was found on the
kitchen table. (Id.). In total, approximately 54
kilograms of cocaine were recovered from the apartment and a
vehicle parked nearby. (Id.).
investigation following Santana and Nova's arrest
revealed that Morales frequently called Nova's telephone.
(Id.). During the course of the investigation, Drug
Enforcement Agency (“DEA”) agents observed
Morales driving a blue Chrysler Pacifica. (Id. at
3). The Pacifica was later seized and found to contain a
hidden compartment. (Id.).
October 21, 2009, a grand jury returned an indictment against
Morales and six others (including Santana and Nova) for
conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. § 846. That same day, Morales
retained attorney Robert Sheketoff, who entered an appearance
on his behalf.
October 29, 2009, Morales consented to the entry of an order
of pre-trial detention. Morales was detained at the Wyatt
Detention Center pending trial.
November 19, 2010, Morales filed a motion to dismiss
appointed counsel and to appoint new counsel, citing
disagreement on strategy, lack of understanding, and a
failure to present his best interests. On November 22, 2010,
attorney Sheketoff filed a motion to withdraw as retained
counsel, citing a breakdown in the attorney-client
relationship. On December 9, 2010, after a hearing, attorney
Sheketoff was terminated and attorney Robert Goldstein-the
subject of this ineffective-assistance claim-was appointed to
February 10, 2011, Morales, through counsel, filed a motion
to continue the trial- originally scheduled for March 14,
2011-stating that recently appointed counsel needed more time
to prepare for trial and file any motions to suppress. The
trial was rescheduled for June 6, 2011. The trial was
subsequently rescheduled again for August 1, 2011, after
several defendants, including lead defendant Santana, entered
changes of plea.
27, 2011, Morales, through counsel, filed a motion in
limine to exclude testimony regarding the alleged
drug-related “code” used by defendants as well as
testimony regarding general drug-trafficking practices in the
Boston area. On July 20, 2011, he filed another motion in
limine to exclude references to his aliases. Those
motions were denied.
25, 2011, Morales, through counsel, filed another motion to
continue the trial. As reason for the continuance, he noted
that the government had recently provided notice that Santana
was a government witness. Attorney Goldstein requested more
time in order to prepare a cross-examination of Santana. In
the motion, Goldstein noted that he needed to review the many
telephone conversations between Morales and Santana “in
order to properly prepare to cross-examine Mr. Santana and to
effectively represent the defendant.” Goldstein cited
to Rompilla v. Beard, 545 U.S. 374 (2005), which
held that counsel was ineffective for failing to review
materials in the government's possession. Goldstein also
stated that Morales himself also needed to review the
telephone calls in order to assist in his defense. He also
stated that he needed additional time to conduct an
independent investigation of Santana, citing Cullen v.
Pinholster, 563 U.S. 170 (2011). That motion was
granted, and the trial was rescheduled once again, this time
for October 24, 2011.
trial went forward on October 24, 2011. After four days of
evidence, the jury returned a verdict of guilty on October
28, 2011. Sentencing was set for February 2, 2012. On
November 11, 2011, Morales, through counsel, filed a motion
for acquittal, challenging the sufficiency of the evidence at
trial. That motion was denied on January 13, 2012.
January and October of 2012, Morales, through counsel, moved
five times to continue the sentencing. As grounds for the
continuances, he cited, among other things, Morales's
inability to access disks ...