United States District Court, S.D. New York
Jaime Enrique Romero-Padilla, pro se, Safford Correctional Institution, Safford, AZ, for the Petitioner.
Marc P. Berger, Assistant United States Attorney, One St. Andrew's Plaza, New York, NY, for the Respondent.
OPINION AND ORDER
DENISE COTE, District Judge.
On May 24, 2013, Jaime Enrique Romero-Padilla ("Romero-Padilla"), proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2255 for a writ of habeas corpus. In 2008, a jury convicted Romero-Padilla on two counts of violating the country's narcotics laws; he was sentenced principally to 180 months in prison. After exhausting his appeals before the Court of Appeals and the Supreme Court, Romero-Padilla now asserts in his § 2255 petition that his defense counsel provided ineffective assistance of counsel to him by failing to object to alleged trial errors and by failing to advise him that he would receive a longer sentence if he did not accept the Government's plea offer. For the following reasons, his petition is denied.
On March 21, 2006, a grand jury indicted Romero-Padilla and six other individuals (1) for conspiring to manufacture or distribute five kilograms or more of cocaine with the intent that the cocaine be unlawfully imported into the United States, in violation of 21 U.S.C. § 963; and (2) with the substantive offense of manufacturing or distributing five kilograms or more of cocaine with the knowledge or intent that the cocaine would be unlawfully imported to the United States, in violation of 21 U.S.C. § 959. The indictment alleged that Romero-Padilla, who was an anti-narcotics officer in the Colombian National Police, participated in a scheme to transport cocaine from Colombia to Mexico, with the knowledge that the cocaine would later be imported into the United States.
All of Romero-Padilla's co-conspirators decided to plead guilty. Only Romero-Padilla went to trial. His trial commenced on February 5, 2008.
At the trial, three of Romero-Padilla's co-conspirators testified against him, as did two police officers who had dealt with him as undercover agents. The jury also heard wiretap recordings of Romero-Padilla and his alleged co-conspirators and saw surveillance videos that showed him with the alleged co-conspirators. After deliberating for three hours, the jury returned a verdict finding Romero-Padilla guilty on both counts. On June 13, 2008, Romero-Padilla was sentenced principally to 180 months' imprisonment.
On June 18, 2008, Romero-Padilla appealed his conviction, which was affirmed on October 7, 2009. United States v. Romero-Padilla , 583 F.3d 126 (2d Cir. 2009). Romero-Padilla then filed a petition for a writ of certiorari with the Supreme Court. On January 25, 2010, the petition was denied. Romero-Padilla v. United States, No. 09-8085 , 559 U.S. 930 (2010).
On January 25, 2013, a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 was docketed. This petition, however, did not assert any substantive grounds for relief. Rather, the petition's only contention was that Romero-Padilla was entitled to an extension of the deadline for filing a § 2255 petition because his defense counsel failed for thirty months to inform him that his conviction had become final on direct review.
In an Order of February 11, Romero-Padilla's petition was dismissed. Citing Green v. United States , 260 F.3d 78, 82 (2d Cir. 2001), the Order explained that a district court lacks jurisdiction to consider a petition that does not contain allegations supporting a claim for relief under § 2255. The timeliness of any § 2255 petition Romero-Padilla chooses to file containing allegations that support a claim for relief would be considered in due course.
On May 24, Romero-Padilla's instant petition was docketed. It asserts four grounds for relief, all of which are based on claims on ineffective assistance of counsel. The first two grounds allege that Romero-Padilla's defense counsel was ineffective for failing to inform him that his judgment became final in January 2010. Romero-Padilla attaches a declaration by his defense counsel in which she states that, in November 2009, she wrote to Romero-Padilla to advise him that she would be filing a petition for a writ of certiorari and further advising that if the petition were denied, he would have one year to file his habeas petition under 28 U.S.C. § 2255. She further informed him that, if this were necessary, she would send him information on how he should proceed with the § 2255 petition. She declares that, subsequent to the Supreme Court's denial of his petition in January 2010, she does not believe that she informed Romero-Padilla either of the Supreme Court's decision or the subsequent steps he should take in light of that decision. In June 2012, she received a telephone call from a representative of the Colombian consulate asking, on behalf of Romero-Padilla, for an update on his petition. Only then did she advise Romero-Padilla that his petition had been denied.
The remaining two grounds in the § 2255 petition allege that defense counsel was ineffective by (1) failing to object to three alleged trial errors and (2) failing to advise him that he would receive a longer sentence if he did not accept the Government's plea offer. Romero-Padilla states that, if he had known the maximum sentence to which he was exposed following a conviction at trial, he would have accepted the Government's plea offer. Romero-Padilla does not include a sworn affidavit in support of these claims, nor does he describe the terms of the Government's plea offer.
By Order of July 15, having determined that Romero-Padilla's petition should not be summarily dismissed as being without merit, the Government was ordered to respond to the petition. ...