Ruiz v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-61155-BLOOM

(Case No. 88-cr-06033-BLOOM-6)

JOSE LUIS RUIZ,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

/

ORDER ON MOTION TO VACATE UNDER 28 U.S.C. § 2255

THIS CAUSE is before the Court upon Movant Jose Luis Ruiz’s pro se Motion to Vacate

Under 28 U.S.C. § 2255, ECF No. [1], which collaterally attacks the conviction and sentence in

his underlying criminal case, Case No. 88-cr-06033-BLOOM.1 Respondent United States of

America filed a Response in Opposition, ECF No. [6], to which Movant filed a Reply, ECF No.

[9]. The Court has carefully considered the Motion, the supporting and opposing submissions, the

record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth

below, the Motion is denied.

I. BACKGROUND

Movant was charged by Superseding Indictment with two counts of conspiracy to import

at least five kilograms of cocaine into the United States and two counts of conspiracy to possess

with intent to distribute at least five kilograms of cocaine. See CR ECF No. [588] at 2. The

Government alleged Movant was a member of the “Harold Treco family,” a drug trafficking

1 References to docket entries in Movant’s criminal case are denoted with “CR ECF No.”

organization based on Andros Island in the Bahamas, which is responsible for importing hundreds

of kilograms of cocaine from Colombia into the United States via the Bahamas. See id. at 5.

Movant, along with several other members of the organization, was arrested by Bahamian

authorities for “attempting to take delivery of approximately 527 kilograms of cocaine which were

to be subsequently transported into the United States.” Id. at 11. On June 9, 1989, after being

imprisoned for approximately a year-and-a-half at the “Fox Hill Prison” in Nassau, Movant was

extradited to the United States to face the charges in the Superseding Indictment. See generally

United States v. Baptista-Rodriguez, 17 F.3d 1354, 1358-59 (11th Cir. 1994) (recounting factual

background).

Movant was granted pretrial release on a $250,000.00 personal surety bond, and a trial

commenced on April 22, 1991. See id. at 12. On May 3, 1991, Movant “failed to appear at a hearing

on continuation of his jury trial” and absconded from the District. Id. The jury convicted Movant

of all four counts of the Superseding Indictment days later. Movant remained a fugitive until

December 5, 2021, when Movant was arrested for a traffic violation in Union City, New Jersey.

See id. After being returned to the District, the Court set Movant’s sentencing hearing for July 13,

2022. After considering the arguments of the parties and the 18 U.S.C. § 3553(a) factors, the Court

sentenced Movant to a total prison sentence of 158 months followed by five years of supervised

release—a sentence toward the bottom of the applicable sentencing guideline range. See CR ECF

No. [599]. Movant did not appeal his sentence. Instead, he timely filed the instant § 2255 Motion

to Vacate on June 7, 2023, within one year of his judgment of conviction becoming final. See ECF

No. [1] at 12; see also 28 U.S.C. § 2255(f)(1).

II. LEGAL STANDARD

A. Section 2255 Motions

Under section 2255, “[a] prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that the sentence was imposed in

violation of the Constitution . . . may move the court which imposed the sentence to vacate, set

aside, or correct the sentence.” 28 U.S.C. § 2255(a) (alterations added). Because collateral review

is not a substitute for direct appeal, the grounds for collateral attack on final judgments under

section 2255 are extremely limited. See United States v. Frady, 456 U.S. 152, 165 (1982). A

prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the

Constitution or laws of the United States; (2) exceeded its jurisdiction; (3) exceeded the maximum

authorized by law; or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay

v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “[R]elief under 28 U.S.C. [section]

2255 is reserved for transgressions of constitutional rights and for that narrow compass of other

injury that could not have been raised in direct appeal and would, if condoned, result in a complete

miscarriage of justice.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (cleaned up).

B. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees criminal defendants

the right to assistance of counsel during criminal proceedings. See Strickland v. Washington, 466

U.S. 668, 684-85 (1984). When assessing counsel’s performance under Strickland, the Court

employs a strong presumption that counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth

Amendment does not guarantee the right to perfect counsel; it promises only the right to effective

assistance[.]” Burt v. Titlow, 571 U.S. 12, 20 (2013). “Where the highly deferential standards

mandated by Strickland and AEDPA both apply, they combine to produce a doubly deferential

form of review that asks only ‘whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013)

(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

both (1) that counsel’s performance was deficient; and (2) a reasonable probability that the

deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687-88; see also

Harrington, 562 U.S. at 104.

To establish deficient performance, the petitioner must show that, considering all

circumstances, “counsel’s conduct fell ‘outside the wide range of professionally competent

assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting

Strickland, 466 U.S. at 690). Strategic choices made after thorough investigation of the law and

facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690-

91. The court’s review of counsel’s performance should focus on “not what is possible or ‘what is

prudent or appropriate, but only [on] what is constitutionally compelled.’” Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (footnote omitted; quoting Burger v. Kemp, 483 U.S.

776, 794 (1987)). Counsel is not ineffective for failing to raise non-meritorious issues. See

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001). Nor is counsel required to present every

non-frivolous argument. See Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013).

Regarding the prejudice component, “[t]he defendant must show that there is 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. A court need not address both prongs of Strickland

if the defendant makes an insufficient showing on one of the prongs. See id. at 697; Brown v.

United States, 720 F.3d 1316, 1326 (11th Cir. 2013).

III. DISCUSSION

A. Grounds One and Three

Movant contends in Grounds One and Three of the Motion that the Court made two errors

during his sentencing hearing. First, in Ground One, Movant argues the Court failed “to consider

all mitigating circumstances/evidence,” namely, that Movant had “no prior arrest and/or

convictions” and that he was “fully employed and lived a law-abiding life up to the date of his

arrest” on December 5, 2021. See ECF No. [1] at 13. Next, in Ground Three, Movant insists the

Court “lacked [a] factual basis under which to sentence the Movant.” Id. at 14. Movant explains

that his sentence could not have been lawfully imposed because the Court relied “upon a partial

transcript of the Government’s witness.” Id. Respondent counters that Grounds One and Three are

procedurally defaulted since Movant “did not raise these issues on direct appeal.” ECF No. [6] at

8. Alternatively, Respondent contends that “Movant’s claims fail substantively.” Id. at 9. Since

Grounds One and Three are plainly “due to be denied,” the Court need not reach the procedural

default issue and instead disposes of those claims on the merits. Loggins v. Thomas, 654 F.3d 1204,

1215 (11th Cir. 2011).

As for Ground One, Movant’s argument is plainly refuted by the record. Movant says that

the Court failed to consider his lack of a criminal record, but the Court expressly recognized that

Movant “[had] not been involved in the criminal justice system[.]” ECF No. [11-1] at 28.

Nevertheless, the Court was unmoved by this argument because Movant had absconded during his

trial and remained a fugitive from justice for thirty years. See id. at 27-28. In fact, the Court found

Movant’s status as a fugitive was the reason he was motivated “not to place yourself in any type

of situation.” Id. at 28. Movant also suggests that the Court should have considered “Movant’s

Bahamas trial transcripts,” but does not explain why those transcripts would be relevant for

sentencing purposes. ECF No. [1] at 13. In any event, the Court did consider “the time that

[Movant] had spent in custody” in the Bahamas and adjusted his sentence accordingly. ECF No.

[11-1] at 28. Finally, Movant complains that he was at a “disadvantage since the sentencing judge

was not the trial judge.” ECF No. [1] at 13. However, the sentencing judge does not need to be the

same judge who presided over the trial, and the only reason the presiding judges were different

was because Movant voluntarily fled the District and was in hiding for thirty years. See United

States v. Reynolds, 690 F. App’x 651, 652 (11th Cir. 2017) (citing Fed. R. Crim. P. 25(b)(1)).2

Ground Three is also meritless. Movant contends that the Court lacked a “factual basis” to

sentence him because it relied on a “partial transcript” that the Court and the Government admitted

was “insufficient to sustain an aggravating role enhancement” and could not be authenticated. ECF

No. [1] at 14-15. The Court did not rely on this partial transcript when it sentenced Movant. Indeed,

as Movant concedes, the transcript was only relevant to prove that Movant was eligible for an

enhancement as a “leader/organizer.” See ECF No. [11-1] at 9-11. Since the Court did not apply

the enhancement, it did not consider this “partial” transcript when it imposed Movant’s sentence.

In addition, Movant cannot use § 2255 to attack the legality of his sentence unless he

identifies a “fundamental defect.” Spencer v. United States, 773 F.3d 1132, 1139 (11th Cir. 2014)

(en banc). A collateral attack on a sentence will fail unless the defendant was sentenced above the

statutory maximum, he is “actually innocent of his crime,” or “a prior conviction used to enhance

his sentence has been vacated[.]” Id.; see also Cameron v. United States, No. 22-CV-20940, 2023

WL 2475437, at *7 (S.D. Fla. Mar. 13, 2023) (same). Movant was sentenced far below the

statutory maximum, his sentence was not enhanced by an invalid prior conviction, and Movant

2 Even if the Court did not discuss the mitigating evidence as much as Movant would like, that does not

mean the Court erred. See United States v. Butler, 39 F.4th 1349, 1356 (11th Cir. 2022) (“A district court’s

failure to discuss mitigating evidence does not indicate that the court erroneously ‘ignored’ or failed to

consider the evidence. Rather, a district court’s acknowledgement that it has considered the § 3553(a)

factors and the parties’ arguments is sufficient.” (alteration in original; internal quotation marks and citation

omitted)).

does not claim that he is “actually innocent” of the charged offenses. § 2255 therefore cannot be

used to challenge the legality of Movant’s sentence. The Court accordingly denies Grounds One

and Three.

B. Ground Two

Movant alleges in Ground Two of the Motion that defense counsel was ineffective during

his sentencing hearing. Movant identifies three alleged errors made during sentencing: (1) counsel

should have “request[ed] an evidentiary hearing” since “all the Court had available to become

familiar with Movant’s case was the [Presentence Investigation Report] and the Government

witness’ partial transcript”; (2) counsel should have objected when the Government referred to

Movant as a “sophisticated criminal”; and (3) counsel should have objected to the Government’s

reliance on United States v. Jordan, 216 F.3d 1248 (11th Cir. 2000). ECF No. [1] at 14. Respondent

asks the Court to deny Ground Two since these are all “frivolous objection[s]” ECF No. [6] at 13.

The Court agrees with Respondent.

First, an evidentiary hearing was not required prior to sentencing. As discussed above, it

did not consider the partial transcript of the Government’s witness. Instead, as it is required to do

at every sentencing, the Court properly considered the Presentence Investigation Report, the §

3553(a) factors, and the arguments of counsel. See ECF No. [11-1] at 29; see also Gall v. United

States, 552 U.S. 38, 49-50 (2007) (explaining that, at sentencing, a district court must “calculat[e]

the applicable guideline range,” give the parties “an opportunity to argue for whatever sentence

they deem appropriate,” and the “consider all of the § 3553(a) factors”).

Movant insists the Government’s evidence at sentencing needed to be “put through the

adversarial testing process,” and that the Presentencing Investigation Report was inherently flawed

due to the passage of time. ECF No. [9] at 4. This argument lacks merit. A unanimous jury found

Movant guilty beyond a reasonable doubt of each offense alleged in the Superseding Indictment,

and the Presentence Investigation Report was based on an earlier Report that was prepared after

the trial concluded in 1991. See ECF No. [11-1] at 8-9. The Government did not need to “reprove”

its case at sentencing—a jury’s factual findings at trial are plainly sufficient to support Movant’s

sentence. See Blakely v. Washington, 542 U.S. 296, 306 (2004) (“[T]he judge’s authority to

sentence derives wholly from the jury’s verdict.”); see also United States v. Green, 981 F.3d 945,

953 (11th Cir. 2020) (“The district court may base factual findings on evidence presented at trial,

undisputed statements in the presentence report (PSR), or evidence presented at the sentencing

hearing, and it may make reasonable inferences from the evidence.”). Although the Court did not

have the most robust record when sentencing Movant, Movant’s decision to flee and remain hidden

for thirty years caused the record to erode over time. Movant cannot complain about the quality of

the evidence used at sentencing when he invited this problem by flagrantly disregarding the law

and the proceedings by absconding. See United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.

2009).

Second, Movant asserts that counsel should have objected when the Government referred

to Movant as a “sophisticated criminal.” ECF No. [1] at 14. For starters, the Government never

used that phrase during sentencing. See generally ECF No. [11-1]. Instead, as Respondent points

out, it referred to Movant “a very good mechanic” who played a “key role” in the conspiracy since

he was “in charge of a group that were the lancheros, I guess, Spanish for ‘the boat people’ that

were bringing in the cocaine.” Id. at 19. Furthermore, the Government conceded that Movant was

not a “leader” or “organizer” of the conspiracy. Id. at 10. This was a permissible argument for the

Government to make at sentencing. Moreover, Movant has failed to show he was prejudiced by

this argument as there is no evidence that he would have received a different sentence had the

Government not made this innocuous argument. See Krecht v. United States, 846 F. Supp. 2d 1268,

1283 (S.D. Fla. 2012) (“Krecht cannot establish prejudice on this claim because he cannot show

that he would have received a lower sentence.”).

Third, the Government’s reliance on Jordan was ultimately irrelevant at the sentencing

hearing. The Government had only used Jordan to argue that it was appropriate for the Court to

consider the testimony of Rene De Lamar as evidence of the leadership enhancement over

Movant’s objections because he had “fled before sentencing.” CR ECF No. [592] at 4-5. Moreover,

there was no need for counsel to object to a case related to that enhancement because the

Government ultimately agreed at sentencing that the leadership/organizer enhancement did not

apply. See ECF No. [11-1] at 10-11. Because Movant has not shown that any of his proposed

objections have merit, defense counsel could not have been ineffective for failing to make them.

See Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008). The Court therefore denies

Ground Two.

C. Evidentiary Hearing

The petitioner has the burden to establish the need for an evidentiary hearing in a habeas

corpus proceeding. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011).

“[I]f the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a

district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465,

474 (2007); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016).

Here, the issues presented can be resolved based on the record. Indeed, because the Court can

“adequately assess [Movant’s] claim[s] without further factual development[,]” he is not entitled

to an evidentiary hearing. Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003).

Case No. 23-cv-61155-BLOOM

D. Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his petition for writ of

habeas corpus has no absolute entitlement to appeal and must obtain a certificate of appealability

to do so. See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). Here, Movant

fails to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Accordingly, upon consideration of the record, the Court denies the issuance of a certificate of

appealability.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Movant’s Motion to Vacate Under 28 U.S.C. § 2255, ECF No. [1], is DENIED.

2. Acertificate of appealability is DENIED. Because there are no issues with arguable

merit, an appeal would not be taken in good faith, and Movant is not entitled to

appeal in forma pauperis.

3. The Court Clerk is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, on February 22, 2024.

BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record

Jose Luiz Ruiz

34766-004

Allenwood Medium

Federal Correctional Institution

Inmate Mail/Parcels

Post Office Box 2000

White Dear, PA 17887

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