United States Court of Appeals For the First Circuit

No. 15-1964

WILFREDO FELICIANO-RODRÍGUEZ,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Howard, Chief Judge, Kayatta, Circuit Judge, and Casper, District Judge.

Carlos M. Sánchez La Costa for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

January 19, 2021

 Of the District of Massachusetts, sitting by designation. CASPER, District Judge. Petitioner-Appellant Wilfredo

Feliciano-Rodríguez ("Feliciano") appeals from the denial of his

petition under

to vacate his sentence on the

ground that he received ineffective assistance of counsel as to

his rejection of a plea offer. We need not resolve whether he has

waived this claim, as the government contends, because we conclude

that he has failed to show prejudice from any deficient performance

by counsel and, accordingly, affirm the district court's denial of

his petition.

I.

On March 11, 2004, Feliciano, along with eleven co-

defendants, was named in a multiple-count, superseding indictment

charging him with conspiracy to possess with intent to distribute

controlled substances between in or about 1998 and March 11, 2004

in violation of

, 846 and 860 (Count I); conspiracy

to use, carry or possess a firearm in furtherance of a drug

trafficking crime, namely the conspiracy charged in Count I,

between in or about 1998 and March 11, 2004 in violation of

(c) and 924(o) (Count II); and with two substantive

counts of using, carrying or possessing a firearm in furtherance

of the drug trafficking conspiracy charged in Count I on separate

dates (April 10, 2003 and April 19, 2003, respectively), in

violation of

(c)(1)(A)(ii) (Counts IV and VI).

The charges arose out of a drug enterprise operating in a public

- 2 - housing project in Trujillo Alto in which Feliciano was alleged to

be the co-leader and organizer of the enterprise.

Shortly after Feliciano's arrest on June 1, 2004, the

Court appointed attorney Bruce McGiverin ("McGiverin") as his

counsel. McGiverin served as Feliciano's counsel for

approximately seven months. McGiverin moved to withdraw on

January 27, 2005, three days after attorney Lorenzo J. Palomares-

Starbuck ("Palomares"), counsel retained by Feliciano, had filed

a notice of appearance. McGiverin's motion to withdraw was

allowed on February 9, 2005, and Palomares represented Feliciano

through trial and his initial sentencing.

Feliciano's trial date was continued several times.

With the appearance of Palomares as new counsel, the court

rescheduled trial for April 18, 2005. Shortly thereafter,

Palomares moved to continue the trial. The court allowed the

motion and eventually rescheduled the trial for Feliciano and one

co-defendant for August 9, 2005. On July 28, 2005, Palomares

filed a notice of readiness for trial. The trial scheduled to

begin on August 9, 2005 did not proceed because of the

unavailability of counsel for Feliciano's co-defendant.

Accordingly, the Court rescheduled the trial for the two co-

defendants for October 5, 2005.

On the eve of that trial date, counsel for both

defendants indicated that their clients intended to plead guilty.

- 3 - On October 3, 2005, Feliciano's co-defendant moved to vacate the

trial date and set a plea hearing. That defendant's plea hearing

was held the next day and the defendant pled guilty pursuant to a

plea agreement under Fed. R. Crim. P. 11(c)(1)(A), (C), with a

joint sentencing recommendation of 132 months. Also, on October

4, 2005, Palomares moved for a change of plea hearing for

Feliciano. This motion was referred to a magistrate judge and the

hearing was eventually scheduled for November 29, 2005. Although

the court session was held that day, with Feliciano present, the

plea hearing did not go forward. At that time, in Feliciano's

presence, Palomares informed the magistrate judge that Feliciano

wanted to proceed to trial "against counsel's advice." The case

was sent back to the district judge and a new trial date of January

17, 2006 was set.

Feliciano's trial went forward on January 17, 2006, and

after eleven days of trial, the jury found him guilty on all

charges. At his November 6, 2006 sentencing, the court sentenced

him to life imprisonment on Counts I and II, to be served

concurrently, seven years on Count IV, and twenty-five years on

Count VI, the latter two sentences to be served consecutively to

each other and to the sentence on Counts I and II.

On direct appeal, this Court affirmed Feliciano's

convictions on Counts I, II, and VI, but vacated the conviction on

Count IV; affirmed his sentence on Count I, but vacated his

- 4 - sentences on Counts II and VI and remanded for resentencing with

instructions that the district court sentence Feliciano to not

more than twenty years on Count II and sentence him to the

statutory minimum mandatory term of five years on Count VI. United

States v. Feliciano-Rodríguez,

, 92, 112 (1st Cir.

2008). Upon remand, Feliciano was sentenced to life imprisonment

on Count I, 240 months on Count II, to be served concurrently with

the sentence on Count I, and sixty months on Count VI to be served

consecutively to the sentences on Counts I and II. On March 8,

2010, this Court affirmed this sentence. Upon Feliciano's later

motion pursuant to

(c)(2), the district court

reduced Feliciano's sentence on Count I to 360 months (with the

sentences on Counts II and VI remaining the same) for a total

sentence of 420 months.

Feliciano, acting pro se, filed a timely petition under

for post-conviction relief. Among other things,

he claimed ineffective assistance of counsel at trial and on

appeal, including a ground based on a fifteen-year plea offer that

Feliciano rejected, which is the subject of this appeal. The

court referred the matter to a magistrate judge and appointed

counsel for Feliciano. Thereafter, the magistrate judge held an

evidentiary hearing on February 13, 2015 on this ground of the

petition. Feliciano was the sole witness at the hearing. He

testified that Palomares met with him several times during his

- 5 - representation, but their discussions were related to trial

preparation. Regarding the November 29, 2005 aborted plea

hearing, Feliciano explained that he was surprised when he was

transported to the courthouse since he was unaware that he had a

court hearing that day. He was also surprised when Palomares

informed him that he had a plea offer for him to sign. They had

not previously discussed a plea offer and Feliciano had not

authorized him to file a motion for a change of plea hearing.

Feliciano did not have the opportunity to read the agreement, but

Palomares explained that the offer was for fifteen years.

Feliciano told Palomares that he had not had time to think about

the plea offer. Palomares told him that if he did not want to

sign it, he did not have to do so and could proceed to trial.

Feliciano indicated that Palomares had told him that, in total, he

could be facing forty to forty-five years in prison, if convicted

at trial, but that he did not mention the possibility of life

imprisonment. His conversation with Palomares about the plea

offer was brief, and when they finished, they went to the

courtroom.

Feliciano acknowledged that he had discussed the same

plea offer of fifteen years with his prior counsel, McGiverin, who

had similarly explained that he could be facing forty to forty-

five years. Although he said that he had moved to dismiss

McGiverin because "of the Spanish that he spoke," he understood

- 6 - when McGiverin had explained the penalties that he would face. As

he had with McGiverin, he complained to Palomares that one of his

co-defendants, facing the same charges, had gotten a plea offer of

twelve-and-a-half years. He acknowledged that he had not accepted

the fifteen-year offer with McGiverin because he "thought that it

was too much" and rejected it when Palomares presented it because

he still wanted the twelve-and-a-half-year offer a co-defendant

had received. Feliciano did not dispute that the only plea offer

he ever received from the government was for fifteen years.

Feliciano testified that Palomares told him that he had a "good

case to go to trial" because they could challenge whether he was

the individual in possession of a firearm shown on video that the

government was going to offer at trial. Feliciano said that he

would have proceeded differently if he had known what he was facing

in going to trial and that he was exposed to the possibility of a

life sentence.

The magistrate judge issued a Report and Recommendation

("R&R") denying the petition on all grounds. As to the claim

regarding the plea offer, the magistrate judge concluded, applying

the familiar Strickland v. Washington,

(1984)

standard, that Palomares' performance was deficient in advising

him as to the plea offer, but that Feliciano had failed to show he

was prejudiced by such performance. As to the prejudice prong,

the magistrate judge found that the fifteen-year plea offer had

- 7 - been long-standing, Feliciano had received adequate assistance

from his prior counsel, McGiverin, as to this offer, he had

sufficient time to consider it, was aware of sentencing exposure

much greater than fifteen years, and had consistently rejected the

fifteen-year plea offer in the hope of receiving a twelve-year

plea offer that another co-defendant had received. Moreover,

Feliciano's rejection of the plea offer was measured against

proceeding to trial on a misidentification defense, which was not

a new one proffered by Palomares, but had been the theme of

Feliciano's defense from his detention hearing through motion

practice by McGiverin to exclude video evidence through Palomares'

strategy at trial. The R&R recommended that the district court

deny the petition and not issue a certificate of appealability as

to any of the grounds that Feliciano raised. Pursuant to Fed. R.

Civ. P. 72(d) and the Local Rules of the District of Puerto Rico,

the R&R gave both parties fourteen days to file any objections to

it and indicated that "[f]ailure to comply with this rule precludes

further appellate review." Neither Feliciano nor the government

filed any objections and the district court approved and adopted

the R&R, denying the petition and declining to issue a certificate

of appealability. On Feliciano's appeal, we allowed Feliciano's

request for a certificate of appealability as to whether Palomares'

performance in advising him whether to accept or reject the plea

offer fell below the standard of care and whether any such failure

- 8 - prejudiced him.

Even concluding, as we do, that Palomares' performance

was deficient in this respect, we agree that Feliciano was not

prejudiced as a result and, therefore, affirm denial of the

petition.

II.

As an initial matter, the government contends that

appellate review is precluded by Feliciano's failure to object to

the R&R. It is well settled that a failure to object to an R&R

waives the right to seek appellate review of the ruling adopting

its proposed findings of fact and conclusions of law. See Thomas

v. Arn,

(1985). This rule is rooted in "sound

considerations of judicial economy," such that the issues on

appellate review are those objections that the district court had

the opportunity to consider before adopting or rejecting the R&R

in whole or in part.

; see, e.g., Sands v. Ridefilm

Corp.,

(1st Cir. 2000) (concluding that

plaintiff's failure to object to magistrate judge's recommendation

that defendants were entitled to summary judgment on fraud claim

waived any appellate review of the issue). In the wake of Thomas,

we urged district courts "to give clear notice to litigants not

only of the requirements that objections must be specific and be

filed within [the specified time period] . . . , but that failure

to file within the time allowed waives the right to appeal the

- 9 - district court's order . . . [and that] these matters

should . . . [be] incorporated into the text or a footnote of the

magistrate's [R&R]." United States v. Valencia-Copete,

(1st Cir. 1986). The magistrate judge gave such clear notice

here, citing Thomas and its progeny, warning both parties that

failure to object within fourteen days of the party's receipt of

the R&R precludes further appellate review.

Notwithstanding such clear notice, Feliciano contends

that we may excuse such default and should do so here where we

granted a certificate of appealability ("COA "). Since the waiver

rule is non-jurisdictional, a court "may excuse the default in the

interests of justice." Thomas,

; see United States

v. Rivera-Lebron,

(1st Cir. 2001) (suggesting

that "plain error" could excuse the waiver) (citing Thomas,

)); see also Valencia v. United States,

(1st Cir. 1991) (considering the voluntariness of petitioner's

guilty plea even though he had failed to object to the magistrate

judge's failure to address the issue in his R&R). Whether a

party's waiver should be excused in the interests of justice,

however, is a separate and distinct determination from whether

this Court grants a COA. For the latter showing, a petitioner

must make "a substantial showing of the denial of a constitutional

right."

(c)(2); see Miller-El v. Cockrell,

(2003). A "substantial showing" means "that the

- 10 - issues are debatable among jurists of reason; that a court could

resolve the issues in a different manner; or that the questions

are adequate to deserve encouragement to proceed further."

Barefoot v. Estelle,

, 893 n.4 (1983) (internal

quotation marks, alterations, and citations omitted). Here, we

found this standard had been met as to whether Palomares' counsel

to Feliciano about whether to accept or reject a plea offer was

deficient and whether such deficiency prejudiced him. Even having

done so after careful review, this is a threshold determination

that "is not coextensive with a merits analysis" and is done

"without 'full consideration of the factual or legal bases'" in

support of the claim. Buck v. Davis, __ U.S. __,

(2017) (quoting Miller-El,

). The same could

be said of the defenses to such claim, including the waiver of

appellate review of this claim as now pressed by the government.

Cf. McLaughlin v. Corsini,

, 19 n.3 (1st Cir. 2009)

(declining to find matter waived where although petitioner did not

object to R&R, the defendant did not raise waiver issue on appeal).

Accordingly, it does not necessarily follow that the issuance of

a COA excuses a party's failure to object to the R&R.

We need not reach whether the gravity of the issue that

Feliciano raises here (or the failure of his counsel at the time,

not Palomares, to object to the R&R) warrants excusing his waiver

since even assuming that Feliciano's waiver is excused, his claim

- 11 - of ineffective assistance of counsel fails on the merits. See

United States v. Lugo Guerrero,

(1st Cir. 2008)

(concluding that petitioner had waived right to challenge

admission of Fed. R. Evid. 404(b) evidence on appeal having failed

to object to R&R but addressing issue on the merits).

III.

Upon review of the denial of a § 2255 petition, we review

the district court's findings of fact for clear error and

conclusions of law de novo. Moreno-Espada v. United States,

(1st Cir. 2012).

Feliciano claims that Palomares provided ineffective

assistance of counsel when he failed to give him sufficient time

to consider a plea offer and failed to advise him of the exposure

to a life sentence and that, but for these errors, he would have

accepted the plea offer of fifteen years. To prevail on a Sixth

Amendment claim of ineffective assistance of counsel, Feliciano

must show that his "counsel's representation fell below an

objective standard of reasonableness" and that such deficiency

prejudiced him. Strickland,

.

As to the performance prong of Strickland, the district

court found that attorney Palomares' representation as to the

rejected plea offer fell below an objective standard of

reasonableness. We find no reason to disturb this finding. In

our consideration of this matter, we are mindful that there is a

- 12 - "strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance."

; Smullen

v. United States,

(1st Cir. 1996). Accordingly,

we will find an attorney's performance deficient "only where, given

the facts known at the time, counsel's choice was so patently

unreasonable that no competent attorney would have made it."

Knight v. Spencer,

(1st Cir. 2006) (internal

quotation marks omitted). Here, the district court found that

Palomares provided ineffective assistance of counsel to Feliciano

insofar as there was "never any meaningful discussion" between the

two about the fifteen-year plea offer that his prior counsel,

McGiverin, had previously presented and discussed with him and

which Feliciano rejected. There is no clear error as to this

finding and neither party offers a reason for this Court to find

otherwise. 1 See Missouri v. Frye,

(2012).

Accordingly, the Court proceeds to whether such deficient

performance prejudiced Feliciano.

Even where an attorney's performance is deficient, a

petitioner may only prevail on his claim if he also shows that he

was prejudiced by same. That is, he must "show that there is a

1 Like Feliciano, the government failed to object to the R&R, including the finding that Palomares' performance was deficient. Although the government contends that it did not concede the issue below, it does not offer any grounds to excuse the waiver of this issue on appeal and does not contest the district court's finding as to the first prong of Strickland in its brief.

- 13 - reasonable probability that, but for counsel's unprofessional

errors, the result of the proceedings would have been different."

Strickland,

. This is a "'highly demanding' and

'heavy burden,'" meaning that "'[a] reasonable probability is a

probability sufficient to undermine confidence in the outcome.'"

Williams v. Taylor,

(2000) (quoting Strickland,

). Given that the allegedly deficient conduct

concerned Feliciano's rejection of a plea offer, he:

must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under that the judgment and sentence that in fact were imposed.

Lafler v. Cooper,

(2012); see Frye,

. We find no clear error with the district court's finding

that Feliciano failed to make this showing here.

Undoubtedly, the fifteen-year plea offer was less severe

than the life sentence that Feliciano originally received or the

reduced, but still substantial, sentence of 420 months that

Feliciano is now serving. But such showing is not enough to

satisfy the prejudice prong under Strickland. Significantly,

Feliciano has not shown that he would have accepted the plea offer

but for Palomares' deficient counsel. In fact, he rejected the

same offer when presented by prior counsel, McGiverin, because he

- 14 - thought that the government should have offered him a lower

sentence of twelve-and-a-half years as it had for a co-defendant.

Although Feliciano testified that he would have taken the plea

offer if he had understood his sentencing exposure could be life

imprisonment, the district court not crediting this testimony was

not clearly erroneous. Awon v. United States,

(1st Cir. 2002) (citing the clear error standard and noting that

"[o]ur deference is even greater where, as here, the factual

findings are based on credibility determinations"). The

government's plea offer remained constant from the time that

McGiverin communicated it to him to when Palomares did so on the

day of the November 29, 2005 plea hearing that did not go forward.

Moreover, fifteen years was the one and only plea offer from the

government. Despite the passage of time between the communication

of the offer by McGiverin and then by Palomares, Feliciano's

response did not change; he wanted a lower plea offer from the

government and he did not get one, which is perhaps not surprising

given the leadership role the government alleged that he played in

the drug trafficking enterprise. The district court not crediting

Feliciano's contention that he did not have sufficient time to

consider this offer and discuss it with his family was not clearly

erroneous given this sequence of events. Similarly, its finding

that it "strains credulity" that Feliciano was not aware of his

sentencing exposure, given the general practice of the magistrate

- 15 - judges in the District of Puerto Rico of informing a defendant of

the maximum penalties for his charges at his initial appearance,

was reasonable particularly when coupled with the finding that "it

is unreasonable and unbelievable to think that counsel McGiverin

would discuss the minutiae of exposure per count, as [Feliciano]

concedes, without reaching the minimums and maximums." Even if

the prediction that he would get a forty to forty-five-year

sentence if convicted at trial turned out to be inaccurate as to

his initial sentence, such prediction does not amount to prejudice

here. See Moreno-Espada,

. That is particularly

true where, aware of that prediction (even when he professes

ignorance of exposure to a life sentence then), Feliciano rejected

the fifteen-year plea offer first after several discussions about

it with McGiverin (whom the district court found did not render

ineffective assistance of counsel) and again after his briefer

discussion with Palomares about the same offer. That is, the

record reflects Feliciano's rejection of the plea offer even before

Palomares' deficient performance. To the extent that Feliciano

contends that but for Palomares' counsel that he had a good defense

he would not have proceeded to trial, this assertion also strains

credulity where Palomares advised the court at the November 29,

2005 hearing that Feliciano wanted to do so against his advice.

For all of these reasons, we find no error in the district court's

finding or its conclusion that Feliciano failed to satisfy the

- 16 - prejudice prong of Strickland.

We affirm the decision of the district court and

Feliciano's petition for habeas corpus is denied.

- 17 -