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Rosario v. United States

United States District Court, D. Massachusetts

July 8, 2019

OSCAR ALPHONSO ROSARIO, aka “Oscar Rosario-Bautista, ” Petitioner,
v.
UNITED STATES, Respondent

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.

         This 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, [1] 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 illegally.

         On 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 deported.

         Now 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 and involuntary.

         For the 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.

         I. BACKGROUND

         A. Factual Background Regarding Mr. Rosario's 2006 Transactions

         On May 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.

         As 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[2], 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.

         During 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.

         Though 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.[3] 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.

         During 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.[4]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.

         The 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 law enforcement.

         B. Procedural Background and the Present Petition

         1. The Original Prosecution

         On June 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.

         During 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 cocaine.[5]

         Mr. 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.

         On 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 sentence.

         Mr. 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 expiration date.

         2. The Present Petition

         On June 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.[6] 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).

         On 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).

         On 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.[7] 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.[8] Id. at Dkt. No. 46 (S.D.N.Y. May 23, 2019).

         On 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.

         II. PROCEDURAL BARRIERS TO HABEAS RELIEF

         As a 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).[9] Mr. Rosario has failed to satisfy both the custody and the timeliness requirements and therefore may not proceed under section 2255.

         A. Custody

         Under 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[10] under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2255.[11] 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 ...


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