13-902
Santiago v. United States


                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th
day of April, two thousand fourteen.

PRESENT:
            JOSÉ A. CABRANES,
            GERARD E. LYNCH,
            RAYMOND J. LOHIER, JR.,
                         Circuit Judges.
_____________________________________

JOSE ENRIQUE SANTIAGO,

                     Petitioner-Appellant,

                             V.                                     No. 13-902

UNITED STATES OF AMERICA,

            Respondent-Appellee.
_____________________________________

FOR PETITIONER-APPELLANT:                            RANDOLPH Z. VOLKELL, Merrick, NY.

FOR RESPONDENT-APPELLEE:                             MICAH W. J. SMITH (Diane Gujarati, on the
                                                     brief), Assistant United States Attorneys, for
                                                     Preet Bharara, United States Attorney for the
                                                     Southern District of New York, New York,
                                                     NY.
       Appeal from a September 10, 2012 order of the United States District Court for the
Southern District of New York (Victor Marrero, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court be AFFIRMED.

         On March 8, 2002, a jury found petitioner-appellant Jose Enrique Santiago (“Santiago”)
guilty of participating in a racketeering organization, racketeering conspiracy, and narcotics
conspiracy. The District Court sentenced Santiago principally to 70 years’ imprisonment. On June
7, 2012, Santiago moved in the District Court to vacate, set aside, or correct his sentence, pursuant
to 28 U.S.C. § 2255,1 which the District Court denied. Santiago now appeals. We assume the
parties’ familiarity with the underlying facts and the procedural history of the case, to which we refer
only as necessary to explain our decision to affirm.

                                                    DISCUSSION

         To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate both
that his counsel’s performance was objectively deficient under prevailing professional standards, and
that he was actually prejudiced as a result of counsel’s errors. Strickland v. Washington, 466 U.S. 668,
690, 693 (1984). “The [ineffective assistance] claim must be rejected if the defendant fails to meet
either the performance prong or the prejudice prong.” Bennett v. United States, 663 F.3d 71, 85 (2d
Cir. 2011). In order to satisfy the prejudice prong with respect to a claim focusing on sentencing,
“the defendant must show a reasonable probability that, but for counsel’s substandard performance,
he would have received a less severe sentence.” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir.
2013). On appeal from a denial of a habeas petition, we review factual findings for clear error and
conclusions of law de novo. Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012).

                                              A. Abandonment Claim

         We first consider whether Santiago’s counsel was constitutionally ineffective in failing to file
a motion for resentencing once the case had been remanded pursuant to United States v. Crosby, 397
F.3d 103 (2d Cir. 2005). After careful review of the record, we do not see, nor does Santiago
proffer, any actual prejudice. In response to Santiago’s April 7, 2011 letter inquiring about the status
of the Crosby remand, Judge Marrero stated unequivocally: “Upon examination of the record of
Santiago’s conviction and sentence in the light of the relevant considerations stated in Booker and
Crosby, the Court finds no grounds supporting a resentencing of Santiago.” App. 19. Accordingly,
        1   In relevant part, 28 U.S.C. § 2255 provides:
        (a) 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 or laws
        of the United States, or that the court was without jurisdiction to impose such sentence, or that the
        sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack,
        may move the court which imposed the sentence to vacate, set aside or correct the sentence.
                                                           2
Judge Marrero was in an especially good position to conclude, in later ruling on Santiago’s habeas
petition, that there was not a reasonable probability of a different outcome had Santiago’s counsel
sought resentencing. See United States v. Garcia, 413 F.3d 201, 227 (2d Cir. 2005) (noting that “the
original sentencing judge’s familiarity with a case would allow him or her to make this comparative
assessment [required by Crosby] most easily and reliably”).

         We similarly reject the contention that this case fits within that narrow set deemed
“presumptively” prejudicial due to counsel’s “‘total[ ] absen[ce] . . . during a critical stage of the
proceeding.’” Wright v. Van Patten, 552 U.S. 120, 125 (2008) (quoting United States v. Cronic, 466 U.S.
648, 659 n.25). Under our case law, “we have been disinclined to expand further the conduct
denominated per se ineffective,” United States v. Kaid, 502 F.3d 43, 46 (2d Cir. 2007), and have focused
instead on whether, due to counsel’s absence, “‘the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our system counts on to produce just
results.’” Id. at 46–47 (quoting Strickland, 466 U.S. at 496). Accordingly, even where “[t]he alleged
absence . . . was certainly unprofessional and likely objectively unreasonable,” in order “to
demonstrate a violation of his Sixth Amendment rights, [a petitioner] must still demonstrate some
prejudice from his attorney’s absence, whether specific, or . . . general.” Id. at 47.

        In the circumstances presented here, counsel’s failure to file a motion for resentencing did
not cause a breakdown in the adversarial process so as to warrant a finding of prejudice. The scope
of the Crosby remand is limited; it is not a remand for resentencing, but a remand “for determination
of whether to resentence.” Crosby, 397 F.3d at 117. The primary inquiry on a Crosby remand—
whether a sentence imposed under the post-Booker regime “would have been essentially the same as
originally imposed,” id. at 118—was one best addressed by the District Court, not counsel, in this
case. Moreover, Santiago has not proffered any arguments on appeal in favor of resentencing to
rebut the District Court’s unequivocal statement that resentencing was unwarranted.

         Accordingly, Santiago has not demonstrated sufficient prejudice to warrant habeas relief on
this claim.

                                              B. Frye/Lafler Claim

         Relying on Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012), and Lafler v. Cooper, 132 S. Ct. 1376
(2012), Santiago next argues that trial counsel was constitutionally ineffective in failing to
communicate an offer by the government to withdraw the prior felony information filed against him
in exchange for a guilty plea. After careful review of the record, we conclude that this argument
lacks merit. The District Court did not clearly err in finding that no such offer had been made, and,
in any event, there was no prejudice because Santiago’s sentencing exposure was more favorable
after trial than it would have been had he accepted the Government’s purported offer.2


         2
           We also reject Santiago’s request that the case be remanded for an evidentiary hearing since Santiago has not
proffered anything that credibly suggests an undisclosed offer was made. See Machibroda v. United States, 368 U.S. 487,
                                                            3
                                     C. Proceeding Pro Se and Case File

       Santiago’s final contentions on appeal are that the District Court erred in proceeding as if
Santiago had decided to represent himself in seeking resentencing, and then failed to ensure that
Santiago received the complete case file that he needed to represent himself pro se. Having
conducted an independent and de novo review of the record, we conclude that these arguments do
not provide a basis for habeas relief.

                                                  CONCLUSION

       We have considered all of Santiago’s arguments on appeal and find them to be without
merit. Accordingly, we AFFIRM the September 10, 2012 order of the District Court.


                                                                  FOR THE COURT:
                                                                  Catherine O’Hagan Wolfe, Clerk




495 (1962) (stating that to warrant a hearing, the habeas petition must set forth specific facts supported by competent
evidence).
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