Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hernandez v. United States

United States District Court, S.D. New York

May 19, 2017

JOEL A. HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          P. Kevin Castel United States District Judge.

         Petitioner Joel A. Hernandez, who is proceeding on his own behalf pro se, moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In August 2013, a jury found Hernandez guilty of one count of conspiring to distribute and possess with intent to distribute heroin. This Court sentenced Hernandez to 78 months' imprisonment and five years of supervised release.

         Hernandez now asserts that he did not receive the effective assistance of counsel guaranteed by the Sixth Amendment to the U.S. Constitution. For reasons to be explained, his motion is denied.

         BACKGROUND.

         On April 8, 2013, the government filed a single-count superseding indictment against Hernandez. (12 Cr. 809, Docket # 20.) It charged Hernandez with conspiracy to distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). (Id.) The controlled substance involved in the offense was one kilogram and more of mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 812 and 841(b)(1)(A). (Id.)

         Hernandez's trial commenced on July 29, 2013. The government presented evidence that Hernandez conspired to distribute heroin in 2012. Co-conspirators Edy Pena and Jorge Alvarez supplied Hernandez with heroin for resale. Hernandez and Alvarez were arrested as they attempted to buy one kilogram of heroin from an undercover federal agent. Pena was arrested separately. Pena testified against Hernandez as a cooperating witness, stating that he was a heroin wholesaler whose customers included Hernandez and Alvarez.

         After a dispute between Pena and Hernandez, Alvarez began looking for another wholesaler. Alvarez came into contact with an undercover agent who was known to him as Ceasar Dupree, and the two began to negotiate a heroin purchase. On July 30, 2012, the undercover agent met Alvarez and Hernandez at a fast food restaurant, to purportedly consummate a heroin transaction. Hernandez remained in the restaurant with the money to be used for the purchase, while Alvarez went outside with the undercover agent purportedly to transfer possession of the heroin. At this point in time police arrested both Hernandez and Alvarez.

         Hernandez briefly recalled one of the government's witnesses in an attempt to impeach her and did not present any other evidence.

         On August 6, 2013, a jury returned a verdict of guilty as to the single count of the indictment. On May 27, 2014, this Court sentenced Hernandez to 78 months' imprisonment.

         Hernandez appealed his conviction to the United States Court of Appeals for the Second Circuit. He argued, among other things, that the court should vacate the judgment because the district court at trial permitted the government to introduce allegedly improper opinion testimony from law enforcement witnesses and allegedly inadmissible hearsay. See United States v. Hernandez, 604 F. App'x 53 (2d Cir. 2015). The Second Circuit affirmed Hernandez's conviction. Id. at 55.

         DISCUSSION.

         I. Petitioner's Claim is Time-Barred

         Petitioner's claim is time-barred under 28 U.S.C. § 2255(f). Section 2255(f) creates a one-year statute of limitations for motions made under section 2255. The limitation period begins to run on the latest of the following:

(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 in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.