United States District Court, D. Massachusetts
OSCAR ALPHONSO ROSARIO, aka “Oscar Rosario-Bautista, ” Petitioner,
UNITED STATES, Respondent
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.
habeas corpus proceeding under 28 U.S.C. § 2255 arises
out of the 2008 conviction upon a guilty plea of the
Petitioner, Oscar Alphonso Rosario,  for a cocaine distribution
conspiracy. It appears to be prompted by the impending
sentencing of Mr. Rosario, who has pled guilty in the United
States District Court for the Southern District of New York
to charges of illegal reentry and separate charges of
possession with intent to distribute a controlled substance
December 17, 2008, I sentenced Mr. Rosario to 60 months
incarceration, the mandatory minimum sentence, followed by
four years of supervised release. Mr. Rosario was released
from Bureau of Prisons (“BOP”) custody on
September 22, 2011 to a detainer issued by Immigration and
Customs Enforcement (“ICE”). He was thereafter
having at some point illegally made his way back into the
United States, Mr. Rosario seeks to vacate his guilty plea
before me in light of evidence that Annie Dookhan, a chemist
working at a Massachusetts state testing laboratory,
falsified the results of several drug tests. Mr. Rosario
argues that the Government's failure to disclose
information concerning Ms. Dookhan's fraudulent actions
violated its obligations under Brady v. Maryland,
373 U.S. 83 (1963), and rendered his guilty plea unknowing
reasons stated below, I will deny the petition for a writ of
habeas corpus and anticipatorily indicate my disinclination
to grant a writ of error coram nobis if it was to be
presented to me on this record.
Factual Background Regarding Mr. Rosario's 2006
1, 2007, Oscar Alphonso Rosario was charged along with
fifteen other defendants in a sealed complaint assigned to me
in this court with conspiracy to possess with intent to
distribute and to distribute cocaine. The Complaint detailed
an extensive investigation conducted by the Drug Enforcement
Agency (“DEA”) and Massachusetts State Police
(“MSP”) into a cocaine distribution network
operating in Massachusetts. During the course of the
investigation, law enforcement officers executed multiple
wire taps and recorded several phone calls between members of
the distribution network.
pertinent to Mr. Rosario's involvement in the conspiracy,
law enforcement officers intercepted a series of telephone
calls between Mr. Rosario and two other members of the
conspiracy, Plinio Vizcaino and Yefrey
Rodriguez, discussing the purchase and sale of a
multi-kilogram quantity of cocaine. During the first call, on
December 10, 2006, Mr. Vizcaino asked Mr. Rosario whether he
had “a couple of whole cards, ” referring to
kilogram quantities of cocaine. Mr. Rosario responded that he
did not, and Mr. Vizcaino told him he needed “at least
three.” Mr. Rosario said that he would “call
‘him' and let Vizcaino know” about the price.
the second phone call on December 14, 2006, Mr. Rosario
requested a kilogram of cocaine from Mr. Vizcaino and asked
if “‘the cards' [referring to the cocaine]
were ‘white' (high quality) and not
‘beige.'” Mr. Rosario then asked Mr. Vizcaino
if he would bring “the cards” to Mr. Rosario.
Later that day, Mr. Rosario again spoke to Mr. Vizcaino and
indicated that a “Marlon” was going to buy
“four cards” from Mr. Rosario. Mr. Rosario said
he would get three from a friend and that he “was
counting on ‘the one' from” Mr. Vizcaino.
Intercepted phone calls suggest that Mr. Vizcaino did, in
fact, sell one kilogram of cocaine to Mr. Rosario. On
December 16, 2006, Mr. Vizcaino delivered another 400 grams
of cocaine to Mr. Rosario.
intercepted calls reveal that Mr. Rosario and Mr. Vizcaino
continued to purchase and sell cocaine from one another at
least through the end of December 2006, the Government
focused its case against Mr. Rosario on the two transactions
on December 14 and 16, 2006. Mr. Rosario's only
involvement beyond December 2006 were two phone calls from
February 21, 2007, during which he asked Mr. Vizcaino if he
had met with “Fiera.” In these calls, Mr.
Vizcaino told Mr. Rosario that he was “working”
and that he would “be ‘a few seconds',
” but there is no indication that Mr. Rosario was
looking to buy or sell drugs or was personally involved in
any other drug transactions.
the course of the investigation, law enforcement agents also
made four seizures of cocaine between February and April
2007. In total, agents seized seventeen kilograms of cocaine.
Two kilograms seized on February 22, 2007 were transmitted to
the Massachusetts Department of Public Health for testing.
The drugs were positively identified as cocaine by Chemists
Della Saunders and Annie Dookhan on March 19,
2007.Nothing in the record connected these two
kilograms of cocaine to Mr. Rosario: the two kilograms were
seized as part of the execution of a search warrant for an
apartment where co-Defendants Luis Castillo, Luis Rosario,
and Carlos Bravo were arrested. There is no evidence that Mr.
Rosario was present at that apartment or had any contact with
Mr. Castillo, Luis Rosario, or Mr. Bravo.
Government has consistently conceded before me that the 4.4
kilograms of cocaine discussed in the intercepted phone calls
between Mr. Rosario and Mr. Vizcaino were never recovered by
Procedural Background and the Present Petition
The Original Prosecution
14, 2007, a grand jury in this district charged Mr. Rosario,
along with fifteen co-defendants, with conspiracy to possess
with intent to distribute and to distribute cocaine, in
violation of 21 U.S.C. § 846. At the time, Mr. Rosario
was already in custody, having self-surrendered on May 10,
2007. On August 14, 2008, Mr. Rosario, along with his
co-defendant Devir Leal, pled guilty without a formal plea
agreement with the Government. During the plea colloquy, the
Government stated that, had the case proceeded to trial, it
would have relied on the conversations between Mr. Rosario
and Mr. Vizcaino to establish that Mr. Rosario intended to
purchase and sell cocaine and that he was accountable for 4.4
kilograms of cocaine.
the sentencing phase, Mr. Rosario objected to the quantity of
drugs attributed to him but did not contest the fact that he
purchased drugs from Mr. Vizcaino or that the drugs were, in
fact, cocaine. In particular, Mr. Rosario argued that his
statement to Mr. Vizaino that he would get three kilograms of
cocaine from someone else was puffery and that he should be
held responsible for only 1.4 kilograms of
Rosario filed his initial sentencing memorandum on November
12, 2008, in which he raised this objection to the quantity
of drugs, along with objections to the calculation of his
criminal history category and to the Government's denial
of a safety valve proffer. On November 20, 2008, I held the
initial sentencing hearing and heard arguments from both
parties with respect to the quantity of drugs and to Mr.
Rosario's eligibility for a safety valve proffer. In
response to representations from counsel that they would
discuss further the possibility of a safety valve proffer, I
continued the hearing.
December 11, 2008, Mr. Rosario filed a supplemental
sentencing memorandum, raising similar arguments concerning
the calculation of his criminal history category. On December
17, 2008, he filed a letter stating that he did not go
forward with the safety valve proffer. That same day,
following further hearing, I sentenced Mr. Rosario to 60
months incarceration followed by a four-year term of
supervised release with credit for time served. As I reported
in the Judgment papers, I adopted the factual findings
detailed in the Pre-Sentence Report, specifically the drug
weight of 4.4 kilograms. However, I varied from the Guideline
Range and sentenced Mr. Rosario only to the mandatory minimum
Rosario was released from Bureau of Prisons custody to an ICE
detainer on September 22, 2011 and was deported on November
17, 2011. Since the Probation Office received no information
that he reentered the country, his period of supervised
release was terminated on September 21, 2015, its original
The Present Petition
30, 2017, a criminal complaint issued in the Southern
District of New York against Mr. Rosario for illegally
reentering the United States, in violation of 8 U.S.C. §
1326. See United States v.
Rosario-Bautista. Criminal Action No. 18-00009-ER,
Dkt. No. 1 (S.D.N.Y. June 30, 2017). On January 5, 2018, the
Government filed a multi-count information, charging Mr.
Rosario both with illegal reentry into the United States and
with possession with intent to distribute a controlled
substance illegally, in violation of 21 U.S.C. § 841.
Id. at Dkt. No. 12 (S.D.N.Y. Jan. 5, 2018). That
same day, Mr. Rosario waived his right to an indictment.
Id. at Dkt. No. 13 (S.D.N.Y Jan. 5, 2018).
September 11, 2018, Mr. Rosario filed a motion to dismiss the
information with respect to the illegal reentry count. That
motion was denied by Judge Edgardo Ramos of the Southern
District of New York on November 5, 2018. Id. at
Dkt. No. 34 (S.D.N.Y. Nov. 7, 2018).
February 11, 2019, Mr. Rosario filed the present petition for
a writ of habeas corpus in this court to vacate his
conviction on the basis that his plea was not knowing and
voluntary because Annie Dookhan was involved in testing at
least some of the cocaine seized during the investigation of
the cocaine conspiracy. The Government responded to the
petition in due course. Mr. Rosario subsequently pled guilty
in the Southern District of New York on February 26, 2019 and
is scheduled to be sentenced on July 24, 2019. Id. at
Dkt. No. 46 (S.D.N.Y. May 23, 2019).
March 4, 2019, I ordered the parties to file further
submissions responding to the question whether Mr. Rosario
was “in custody” and consequently, may pursue a
§ 2255 motion. I also ordered the transcripts of certain
prior proceedings in this court be produced on an expedited
basis. The transcripts of the Plea Colloquy and the November
2008 Sentencing hearing were produced and the parties have
completed filing their submissions.
PROCEDURAL BARRIERS TO HABEAS RELIEF
preliminary matter, Mr. Rosario may proceed on his petition
for habeas relief only if he satisfies the procedural
requirements set forth in 28 U.S.C. § 2255. To be
entitled to relief, Mr. Rosario must: (A) be “in
custody under sentence of a court”; and, (B) must file
his petition within one year from the latest of - (1)
“the date on which the judgment of conviction becomes
final;” (2) “the date on which the impediment to
making a motion created by governmental action . . . is
removed;” (3) “the date on which the right
asserted was initially recognized by the Supreme Court . . .
and made retroactively applicable to cases on collateral
review;” or (4) “the date on which the facts
supporting the claim . . . presented could have been
discovered through the exercise of due diligence.” 28
U.S.C. §§ 2255(a), 2255(f). Mr. Rosario has failed to
satisfy both the custody and the timeliness requirements and
therefore may not proceed under section 2255.
federal law, any individual seeking post-conviction relief
through a writ of habeas corpus must be “in
custody” in order to maintain a statutory cause of
action under the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”). See 28
U.S.C. § 2255. Specifically, the language of section
2255 makes clear that “the habeas petitioner be
‘in custody' under the conviction or sentence
under attack at the time his petition is filed.”
Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per
curiam) (emphasis added). “The custody requirement of
the habeas corpus statute is designed to preserve the writ of
habeas corpus as a remedy for severe restraints on individual
liberty, ” Hensley v. Municipal Court, San Jose
Milpitas Judicial District, 411 U.S. 345, 351-52 (1973),
and the Supreme Court has generally interpreted ...