# Delgado-Pachay v. United States

> District Court, M.D. Florida · April 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10104943

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104943

## How later opinions describe it (automated extraction)

- holding that defendant’s initial “arrest” by the Coast Guard did not trigger the Speedy Trial Act, because the defendants “were not held to answer in federal court until they were indicted”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSE TEODORO DELGADO-PACHAY,

Petitioner,
v. Case No. 8:20-cv-154-T-02JSS

UNITED STATES OF AMERICA,

Respondent.
__________________________________/

ORDER DISMISSING PETITON
This matter comes before the Court upon Jose Teodoro Delgado-Pachay’s
(“Delgado”) Motion to Vacate pursuant to 28 U.S.C. § 2255. Civ. Dkt. 1.1 The
Government filed a response. Civ. Dkt. 6. The Government concedes the Petition
is timely.
Delgado pleaded guilty with a plea agreement to one count of conspiracy to
possess with intent to distribute five kilograms or more of cocaine while aboard a
vessel subject to the United States’ jurisdiction, in violation of 46 U.S.C. §§
70503(a) and 70506(a) and (b), and 21 U.S.C. § 960(b)(1)(B)(ii). Cr. Dkts. 1 & 34.
The plea agreement outlined that Delgado faced a mandatory-minimum term of 10
years’ imprisonment and up to a maximum term of life in prison. Cr. Dkt. 34 at 1.

1 In this civil case, citations to the civil docket will be denoted “Civ. Dkt. ___.” Citations to the
prior criminal case, 8:18-cr-331-T-02JSS, will be denoted “Cr. Dkt. ___.”
Through an interpreter, Delgado verified that he reviewed the charges and
plea agreement in its entirety with his counsel. Cr. Dkt. 123 at 9–10. Delgado

affirmed that he examined the facts and evidence with counsel and that he was
satisfied with counsel’s advice and representation. Id. at 20–21. The court
explained, and Delgado confirmed, that he could not withdraw his guilty plea if

this court did not accept any recommendations concerning his potential sentence.
Id. at 26–27. Delgado knowingly waived his appellate rights, absent limited
circumstances. Id. at 33–35. The court explained to Delgado that he faced a
mandatory-minimum term of ten years in prison and up to a maximum term of life

imprisonment. Id. at 36–37. Notably, Delgado understood that by pleading guilty,
he waived his right to take his case to trial and to any defenses he had against the
charges. Id. at 38–40.
The factual basis detailed that no one on the vessel made a nationality claim

and the Coast Guard treated it as a vessel without jurisdiction. Id. at 42–43.
Delgado admitted that these facts were true. Id. at 43–44. No one forced or
threatened Delgado to plead guilty, nor did anyone promise him anything other

than the terms in his plea agreement. Id. at 45–46. The court found Delgado’s
guilty plea to be both knowing and voluntary. Id. at 50–51. This Court accepted
Delgado’s guilty plea and adjudicated him guilty. Cr. Dkt. 56.

The Probation Office held Delgado accountable for 1,199 kilograms of
cocaine. Presentence Investigation Report dated December 17, 2018 (“PSR”) Cr.
Dkt. 67 ¶ 19. Delgado met the criteria set forth in USSG §5C1.2 and received a

two-level safety valve reduction. Id. ¶ 20. Delgado’s total offense level (33) and
criminal history category (I) produced an advisory guidelines range of 135 to 168
months’ imprisonment. Id. ¶¶ 28, 31, 57.

Prior to sentencing, the United States filed a motion for a downward
departure based on Delgado’s substantial assistance and recommended a two-level
reduction in his offense level. Cr. Dkt. 62. This Court granted the United States’
motion and sentenced Delgado to serve 97 months’ imprisonment. Cr. Dkts. 79 &

87. After sentencing, Delgado filed his declaration of intent not to appeal his
sentence. Cr. Dkt. 112.
Now, Delgado seeks to challenge his conviction by claiming that counsel

was ineffective for failing to file a motion to suppress, object to venue, and dismiss
the indictment. See generally Civ. Dkt. 1. Delgado also claims that this Court
lacked subject-matter jurisdiction. Id.
On collateral review the petitioner bears the burden of proof and persuasion

on each and every aspect of his claim, see In re Moore, 830 F.3d 1268, 1272 (11th
Cir. 2016), which is “a significantly higher hurdle than would exist on direct
appeal” under plain error review, see United States v. Frady, 456 U.S. 152, 164–66

(1982). Accordingly, if this Court “cannot tell one way or the other” whether the
claim is valid, then the defendant has failed to carry his burden. Moore, 830 F.3d
at 1273; cf. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (in

plain error review, “the burden truly is on the defendant to show that the error
actually did make a difference . . . . Where errors could have cut either way and
uncertainty exists, the burden is the decisive factor in the third prong of the plain

error test, and the burden is on the defendant.”). For the reasons explained in
further detail below, Delgado cannot meet this burden.
To succeed on an ineffective assistance of counsel claim, a petitioner must
show that (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). When evaluating performance, this Court must apply a “strong
presumption” that counsel has “rendered adequate assistance and [has] made all
significant decisions in the exercise of reasonable professional judgment.” Id. at

690.
The test has nothing to do with what the best lawyers would have
done. Nor is the test even what most good lawyers would have
done. We ask only whether some reasonable lawyer at the trial
could have acted, in the circumstances, as defense counsel acted at
trial. . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial process
at trial, in fact, worked adequately.

Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (quoting White v.
Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992)).
To establish deficient performance, a petitioner must show that “no
competent counsel would have taken the action that his counsel did take.” See

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). A
petitioner demonstrates prejudice only when he establishes “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. If the
petitioner fails to establish either of the Strickland prongs, his claim fails. See
Maharaj v. Sec’y, Dep’t of Corr., 432 F.3d 1292, 1319 (11th Cir. 2005).

1. Failure to Object to Venue and Subject-Matter Jurisdiction

Delgado claims in Ground One that counsel was ineffective for failing to
object to venue. Civ. Dkt. 1 at 4. In Ground Two, Delgado challenges this Court’s
jurisdiction. Id. at 5. Both claims lack merit.
a. Venue

The Maritime Drug Law Enforcement Act (“MDLEA”) states that a
defendant can be tried in any district “if the offense was begun or committed upon
the high seas, or elsewhere outside the jurisdiction of any particular State or
district.” 46 U.S.C. § 70504(b)(2). By virtue of his guilty plea, Delgado admitted
that the offense was committed “on the high seas.” Cr. Dkt. 123.

Delgado confirmed that the Coast Guard stopped his vessel approximately
350 nautical miles south of the Guatemala/Mexico border, far beyond the territorial
seas of any country and thus in international waters (i.e. “the high seas”). Cr. Dkt.

123 at 42–44. See United States v. McPhee, 336 F.3d 1269, 1273 (11th Cir. 2003);
United Nations Convention on the Law of the Sea, 21 I.L.M. 1245, Article 3
(under international law, the territorial seas of any nation do not extend beyond

twelve nautical miles). Thus, by virtue of his guilty plea and the stipulated facts in
his plea agreement, venue for Delgado’s case was proper in any district, including
the Middle District of Florida. Delgado has no basis to contest venue or any
alleged “forum or judge shopping.”

b. Jurisdiction

“A jurisdictional defect is one that strips the court of its power to act and
makes its judgment void.” McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir.
2001) (internal citation omitted). Because 18 U.S.C. § 3231 gives district courts
subject-matter jurisdiction over “all offenses against the laws of the United States,”
an indictment that charges a federal crime establishes the district court’s
jurisdiction. Alikhani v. United States, 200 F.3d 732, 734–35 (11th Cir. 2000); see

also United States v. Peter, 310 F.3d 709, 713–15 (11th Cir. 2002) (because
indictment failed to charge an offense, court lacked jurisdiction).
The MDLEA was enacted to prohibit any person from “knowingly or

intentionally . . . possess[ing] with intent to manufacture or distribute, a controlled
substance” on board a vessel subject to the jurisdiction of the United States. 46
U.S.C. § 70503(a)(1). In 1996, Congress amended the MDLEA to provide that

“[j]urisdiction of the United States with respect to a vessel subject to this chapter is
not an element of an offense.” United States v. Tinoco, 304 F.3d 1088, 1102 (11th
Cir. 2002); 46 U.S.C. § 70504(a). Jurisdictional issues are “preliminary questions of

law to be determined solely by the trial judge.” Tinoco, 304 F.3d at 1102.
“The United States generally recognizes the territorial seas of foreign nations
up to twelve nautical miles adjacent to foreign coasts.” McPhee, 336 F.3d at 1273.
A “vessel subject to the jurisdiction of the United States” includes, inter alia, “a

vessel without nationality.” 46 U.S.C. § 70502(c). “[A] vessel aboard which the
master or individual in charge makes a claim of registry and for which the claimed
nation of registry does not affirmatively and unequivocally assert that the vessel is of

its nationality” is a “vessel without nationality.” 46 U.S.C. § 70502(d)(1)(C).
“Because stateless vessels do not fall within the veil of another sovereign’s
territorial protection, all nations can treat them as their own territory and subject
them to their laws.” United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir.

2003).
After the Coast Guard boarded the vessel, none of the crewmembers
identified themselves as the master. Cr. Dkt. 34 at 21. Contrary to Delgado’s

claim, there was no registry claim, registration number, homeport, or name on the
hull, thus the Coast Guard determined the vessel was without nationality. Id.
Delgado stipulated to these facts in his plea agreement and at his change- of-plea

hearing. Id.; see also Cr. Dkt. 123 at 42–44. Accordingly, there was no basis for
counsel to object to jurisdiction when jurisdiction was unequivocally established.
Delgado’s “[c]ounsel cannot be labeled ineffective for failing to raise issues

which have no merit.” Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990); see,
e.g., Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel cannot be
deemed ineffective for failing to raise a non-meritorious objection); United States
v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (failure to raise meritless issues

cannot prejudice a client). Thus, Petitioner has failed to meet his burden on
Grounds One and Two.
2. Failure to Object to Speedy Indictment

At Ground Three, Delgado claims counsel was ineffective for failing to
move to dismiss the indictment for violation of the Speedy Trial Act. Civ. Dkt. 1 at
6. Specifically, he claims that his indictment was not returned within thirty days of
his arrest. This claim is without merit and entitles him to no relief.

The Speedy Trial Act requires the United States to file an indictment or
information against a defendant within thirty days from the date of his arrest. 18
U.S.C. § 3161(b); see also United States v. Mathurin, 690 F.3d 1236, 1239 (11th

Cir. 2012). However, for purposes of the Speedy Trial Act, an “arrest” does not
occur merely because a defendant is seized and taken in temporary custody. United
States v. Sayers, 698 F.2d 1128, 1131 (11th Cir. 1983). Rather, an “arrest” occurs

when a defendant is formally arrested pursuant to a criminal complaint or
indictment. Id. (holding that “the time period for the Speedy Trial Act should begin
to run only after an individual is ‘accused,’ either by an arrest and charge or by an

indictment” (emphasis added)); see also United States v. Kubiak, 704 F.2d 1545,
1548 (11th Cir. 1983) (holding that defendant’s initial “arrest” by the Coast Guard
did not trigger the Speedy Trial Act, because the defendants “were not held to
answer in federal court until they were indicted”).

Here, the United States charged Delgado by an indictment on July 12, 2018.
Cr. Dkt. 1. Law enforcement did not arrest Delgado until July 17, 2018. Cr. Dkt. 8.
Thus, the indictment was issued before Delgado was arrested and there was no

violation of the Speedy Trial Act. Accordingly, Delgado has not demonstrated
deficient performance by counsel because any motion to dismiss the indictment
based on the Speedy Trial Act would have been meritless. Card, 911 F.2d at 1520;

Chandler, 240 F.3d at 917; Winfield, 960 F.2d at 974.
3. Failure to File a Motion to Suppress

In his final ground, Delgado claims counsel was ineffective for failing to file a
motion to suppress. Civ. Dkt. 1 at 8. This claim entitles Delgado to no relief.
Delgado waived his claim to the purported illegal search in his Motion
through the entry of his guilty plea. By pleading guilty, Delgado understood that
“any defense that [he would] have would be lost by a guilty plea.” Cr. Dkt. 123 at

40. Delgado’s admissions serve as waiver to this claim. See, e.g., Wilson v. United
States, 962 F.2d 996, 997 (11th Cir. 1992) (knowing and voluntary guilty plea
waives pre-plea ineffective assistance of counsel claim in a section 2255

proceeding); Franklin v. United States, 589 F.2d 192, 194–95 (5th Cir. 1979)
(guilty plea waives claims regarding Miranda warnings, coerced confessions,
perjury, and illegal searches and seizures in a section 2255 proceeding); United
States v. Byrd, 166 F. App’x. 460, 461–62 (11th Cir. 2006) (“By entering a

voluntary unconditional guilty plea, a defendant ‘waives all nonjurisdictional
defects in the proceedings.’ A district court's refusal to suppress evidence is
nonjurisdictional and is waived by a guilty plea.” (quoting United States v. Patti,

337 F.3d 1317, 1320 (11th Cir. 2003)).
Even if the guilty plea did not bar his claim, Delgado must show that there
would be a reasonable probability that the outcome of his case would have been
different had counsel filed a motion to suppress. See, e.g., Jones v. United States,

224 F.3d 1251, 1258 (11th Cir. 2000). However, the Constitution requires that
counsel make “objectively reasonable choices.” Bobby v. Van Hook, 558 U.S. 4, 9
(2009) (citing Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)). Counsel is not

ineffective for failing to file a motion to suppress that had little chance of success.
Owens v. Wainwright, 698 F.2d 1111, 1114 (11th Cir. 1983).
Delgado’s claims to the purported illegality of the stop and subsequent

boarding of the vessel are without merit and there was a high likelihood that any
motion to suppress on those grounds would be denied. Delgado cannot challenge
the constitutionality of the boarding and search “because the Fourth Amendment

does not apply to searches and seizures (arrests) by the United States of a non-
citizen/non-resident alien arrested in international waters or a foreign country.”
United States v. Cabezas-Montano, 949 F.3d 567, 593 (11th Cir. 2020) (emphasis
in original) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 274–75

(1990) (holding that the Fourth Amendment protects only “the people” of the
United States and has no application to search and seizure challenges involving a
non-citizen/non-resident alien where the area searched is outside the United States)).

The unequivocal holding of Verdugo-Urquidez has been embraced across circuits in
the context of MDLEA cases. See, e.g., United States v. Bravo, 489 F.3d 1, 8–9 (1st
Cir. 2007); United States v. Kurdyukov, 48 F. App’x. 103, 2002 WL 31016494, at
*3 (5th Cir. 2002) (“Kurdyukov is a Ukrainian national and the search of the China

Breeze occurred in international waters. Therefore, Kurdyukov cannot receive the
protections of the Fourth Amendment”); United States v. Zakharov, 468 F.3d 1171,
1179 (9th Cir. 2006).

Delgado fails to provide any successful argument counsel could have raised
in a motion to suppress. Accordingly, the Court denies Delgado’s claim at Ground
Four.

On these four claims there is no need for a hearing. No hearing is required
for meritless or defaulted claims. United States v. Lagrone, 727 F.2d 1037, 1038
(11th Cir. 1984); McCleskey v. Zant, 499 U.S. 467, 494 (1991).

As the Court does not deem these issues to contain any merit, Petitioner is
not entitled to a certificate of appealability and the Court denies any motion for
proceeding further in forma pauperis. 28 U.S.C. § 2253(c).
The Petition is dismissed.

DONE AND ORDERED at Tampa, Florida, on April 10, 2020.

/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:
Counsel of Record
Petitioner, pro se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104943. Public record. Not legal advice.