Dorta-Hernandez v. United States

Background

Saul Dorta-Hernandez pleaded guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine. The court sentenced him principally to 152 months’ imprisonment, below the stipulated Guidelines range of 168 to 210 months. He did not file a direct appeal.

Dorta-Hernandez, proceeding pro se, filed a motion under 28 U.S.C. § 2255, which allows a person in federal custody to challenge a federal criminal judgment in limited circumstances. He claimed that his lawyers provided ineffective assistance in violation of the Sixth Amendment. His claims were that counsel failed to file a notice of appeal, failed to investigate the case independently, and failed to move to suppress evidence. He asked the court to vacate his sentence, appoint effective counsel, or hold an evidentiary hearing.

Failure to Appeal

The court explained that a defendant claiming that counsel failed to file a requested appeal ordinarily may be entitled to a hearing about whether the defendant actually requested an appeal. Here, however, the court reviewed sworn affidavits from Dorta-Hernandez, Jacqueline Cistaro, and Thomas F.X. Dunn and concluded that the existing record conclusively showed that he was not entitled to relief.

The court found that Dorta-Hernandez did not actually assert that he asked either attorney to file an appeal. It also found no evidence that he contacted counsel to address the absence of a notice of appeal. The court therefore concluded that counsel was not ineffective for failing to file a notice of appeal.

The court separately considered whether counsel failed to consult with Dorta-Hernandez about an appeal. It noted that the plea agreement waived his right to appeal a sentence within or below the 168-to-210-month range, and that he received a 152-month sentence. The court found no indication that Dorta-Hernandez showed counsel that he wanted to appeal or that a rational defendant in these circumstances would have wanted to appeal. The court also relied on counsel’s affidavits stating that they discussed the plea agreement and appeal rights with him and that he never said he wanted to appeal.

Investigation and Suppression Claims

The court rejected Dorta-Hernandez’s claim that counsel failed to investigate. Counsel’s submissions stated that the court appointed an independent investigator, who met with Dorta-Hernandez and contacted his wife, and that counsel reviewed extensive discovery and discussed possible defenses, pretrial motions, and plea negotiations. The court found Dorta-Hernandez’s allegations conclusory because he did not identify specific investigative steps counsel failed to take, evidence that was not investigated, or how further investigation would have affected the outcome.

The court found that Dorta-Hernandez had abandoned his separate assertion that counsel should have moved to suppress evidence because he did not develop that argument in his memorandum or affidavit. The court added that, even if the argument had not been abandoned, it would deny the claim because he did not identify the evidence that should have been suppressed or explain how counsel’s failure prejudiced him.

Disposition

The court denied Dorta-Hernandez’s motion for relief under 28 U.S.C. § 2255. It directed the clerk to terminate the motion and close the related civil case, Dorta-Hernandez v. United States, No. 24-cv-2773. The court also ruled that a certificate of appealability would not issue because Dorta-Hernandez had not made a substantial showing that a constitutional right was denied. It certified that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The order was issued by P. Castel.