Rodriguez-Velez v. USA, No. 3:2011cv02038 - Document 15 (D.P.R. 2015)
Court Description: OMNIBUS OPINION AND ORDER adopting Report and Recommendation 10 denying 1 Motion to Vacate; denying 13 Motion for Hearing and Motion to Appoint Counsel; and denying 14 Motion for Hearing and Motion to Appoint Counsel. Signed by Judge Daniel R. Dominguez on 3/12/2015. (MM)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO EDUARDO RODRIGUEZ-VELEZ, Petitioner, v. Civil No. 11-2038 (DRD) UNITED STATES OF AMERICA, Respondent. OMNIBUS OPINION AND ORDER Pending before the Court are: Petitioner Eduardo RodriguezVelez’s (“Petitioner” or “Rodriguez”) Motion to Vacate, Set Aside, or Correct Sentence (Docket No. 1) pursuant to 28 U.S.C. § 2255; United States’ Response to Petitioner’s Motion Under 28 U.S.C. § 2255 (Docket No. 6); Petitioner’s reply to the United States’ opposition (Docket No. 7); Magistrate Judge’s Report and Recommendation (Docket No. 10); and Petitioner’s Objections to Magistrate Report (Docket No. 11). For the reasons elucidated below, the Court hereby ADOPTS IN TOTO the Magistrate Judge’s Report and Recommendation (Docket No. 10) and DENIES Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Docket No. 1). I. REFERRAL TO THE MAGISTRATE JUDGE The Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 1 U.S.C. §636(b)(1)(B). See FED. R. CIV. P. 72(b); see also Local Rule v. 72(a); (1976). Matthews An Weber, adversely 423 U.S. party affected 261, 96 may S.Ct. contest 549 the Magistrate’s Report and Recommendation by filing its objections. FED. R. CIV. P. 72(b). Moreover, 28 U.S.C. §636(b)(1), in pertinent part, provides that any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. “Absent objection, . . . [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” 247 (1st Cir. Templeman v. Chris Craft Corp., 770 F.2d 245, 1985), cert denied, 474 U.S. 1021 (1985). Additionally, “failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992); see Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 required when (1st Cir. 1994) challenging (holding findings that actually objections set out are in a magistrate’s recommendation, as well as the magistrate’s failure 2 to make additional Standish, 984 “[o]bjection F.2d to a findings); 25, 27 see (1st magistrate’s also Cir. report Lewry v. Town 1993)(stating preserves only of that those objections that are specified”); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir. 1987)(holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). The Court, in order to accept unopposed portions of the Magistrate Judge’s Report and Recommendation, need only satisfy itself that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419 (5th Cir. 1996)(en banc)(extending the deferential “plain error” standard of review to the un-objected to legal conclusions of a magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. acceptance reviewed 1982)(en of un-objected for “plain banc)(appeal to error”); from findings see also of district court’s magistrate judge Nogueras-Cartagena v. United States, 172 F.Supp. 2d 296, 305 (D.P.R. 2001)(finding that the “Court reviews Recommendation to recommendation was [unopposed] ascertain clearly whether Magistrate’s or not the erroneous”)(adopting Report and Magistrate’s the Advisory Committee note regarding FED.R.CIV.P. 72(b)); see also Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa. 1990)(finding that “when 3 no objections are filed, the district court need only review the record for plain error”). In the instant case, Petitioner objected to one portion of the Magistrate Judge’s Report and Recommendation. No. 11, at 2-3. See Docket Thus, the Court will conduct a de novo review of the objected-to portions of the Magistrate Judge’s Report and Recommendation, but will review unobjected-to portions for plain error. After a careful analysis, the Court finds no “plain error” in the unobjected-to Factual and Procedural Background section of the rather Magistrate than Judge’s repeating the Report and set facts of Recommendation. that pertain Thus, to the instant case in their entirety, the Court hereby ACCEPTS, ADOPTS AND INCORPORATES by reference the Magistrate Judge’s findings of fact in toto, noting particularly that they remain unchallenged. II. ANALYSIS Limitations Period The United States argues that Rodriguez’s §2255 petition was not filed within the applicable one-year statute of limitations and that Petitioner failed to demonstrate that rare and exceptional circumstances warranted equitable tolling of the limitations period. Conversely, See Docket No. 6, at 3-5. the Petitioner claims that exceptional circumstances warrant the tolling of the one-year statute of 4 limitations. See Docket No. 7, at 2-3. He claims that he did not have access to his legal materials or a law library for a considerable amount of time, as he was housed in Administrative Segregation for several months while at U.S. Penitentiary Pollock. Thus, Petitioner argues that equitable tolling applies in force full to circumstances of this nature, where a Petitioner has been pursuing his rights diligently but is unable to timely file a motion through no fault of his own. The Antiterrorism and Effective Death Penalty Act mandates that all federal habeas corpus petitions must be filed within one year from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). In the instant matter, as Magistrate Judge Arenas correctly noted, Petitioner’s habeas corpus petition was filed after the one-year limitations period had elapsed. Nevertheless, the Court must determine whether the limitations period was equitably tolled, as Petitioner avers. 5 A petitioner arguing in favor of equitable tolling must demonstrate that (1) he was diligently pursing his rights and (2) that he was precluded from timely filing his habeas petition due to some extraordinary circumstance. United States, 638 F.3d 315, 323 citations and quotations omitted). See Ramos-Martinez v. (1st Cir. 2011)(internal In the instant case, the extraordinary circumstance advanced by the Petitioner is that he did not have access to legal materials while being housed in administrative segregation, i.e., solitary confinement, at U.S. Penitentiary Pollock and that his legal papers were lost during his transfer Further, the from Pollock Petitioner to claims U.S. Penitentiary that he filed a Hazelton. Motion for Extension of Time (Criminal Case No. 05-140, Docket No. 481) to file his habeas petition. claim on October 19, Petitioner eventually filed his §2255 2011, fifteen (15) days after the limitations period had elapsed. At the outset, the Court notes that Petitioner did not have access to “law books, computers, or legal aid” as a result of his own behavior. Petitioner’s lack See of Docket access No. to his 11, at legal 2. Therefore, materials or law library cannot qualify as an extraordinary circumstance, as he was placed in solitary confinement at U.S. Penitentiary Pollock due to his own behavior. See Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001). Lastly, as the Magistrate Judge 6 noted, Petitioner has failed to show that he exercised reasonable or due diligence in seeking relief. Accordingly, the Court hereby concludes that Petitioner’s claims are time-barred. Nevertheless, the Court, out of an abundance of caution, discusses the merits of Petitioner’s case. Ineffective Assistance of Counsel After conducting an exhaustive review of the record, the Court agrees with Magistrate Judge Arenas’ determination that Petitioner’s attorney’s representation objective standard of reasonableness.1 satisfy the Strickland first v. prong Washington, of the 466 did not fall below an Thus, Petitioner fails to applicable U.S. 668 Strickland (1984). The test. Court briefly elaborates. Under the Strickland test, Petitioner has the burden of showing that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688)); see Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996); Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994); López-Nieves v. United States, 917 F.2d 645, 648 1 (1st Cir. 1990) (citing The Court reviewed this portion of the Magistrate Judge’s Report and Recommendation for plain error, as Petitioner failed to coherently object to the Magistrate Judge’s finding at Docket No. 11. In fact, Petitioner merely sets forth new grounds for relief, which the Court will not entertain. 7 Strickland, 466 U.S. at 687). There is no doubt that Strickland also applies to representation outside of the trial setting, which would include plea bargains, sentence and appeal. See Missouri v. Frye, 132 S. Ct. 1399, 1408-10, 182 L. Ed. 2d 379 (2012); Lafler v. Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); Hill v. Lockhart, 474 U.S. 52, 57 (1985); Bonneau v. United States, 961 F.2d 17, 20-22 (1st Cir. 1992); United States v. Tajeddini, 945 F.2d 458, 468-69 (1st Cir. 1991)(abrogated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000)); cf. Panzardi-Álvarez v. United States, 879 F.2d 975, 982 (1st Cir. 1989); López-Torres v. United States, 876 F.2d 4, 5 (1st Cir. 1989) (abrogated on other grounds by Bonneau v. United States, 961 F.2d 17 (1st Cir. 1992)). As Magistrate Petitioner’s Judge arguments Arenas are described incoherent and in great detail, underdeveloped. In sum, Petitioner seems to argue that his attorney should have filed a motion to dismiss the indictment due to several violations of Fed. R. Crim. P. 6, mainly that the indictment was not returned in open court. As the Magistrate Judge emphasized, Petitioner’s argument “rubber stamp is pure gossamer, since before any indictment is entered in the docket, the grand jury foreperson or deputy foreperson must be present in open court to present the charging document for filing.” (citing Fed. R. Crim. P. 6(f)). 8 Docket 10, at 14 No credible evidence has been provided to support refuses to heed Petitioner’s Petitioner’s contention, invitation and to the Court conduct an evidentiary hearing when the habeas petition is inadequate on its face. Cir. See United States v. McGill, 11 F.3d 223, 226 (1st 1993)(“In other words, a § 2255 motion may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because facts, contradict the they state record, conclusions or are instead of inherently incredible.”)(internal quotations and citations omitted).2 Accordingly, the Court concurs with Magistrate Judge Arenas that defense counsel exerted extreme diligence in terms of the arguments and motions filed before and after trial. Hence, Petitioner’s Motion to Vacate (Docket No. 1) is hereby DENIED. III. CONCLUSION For the reasons elucidated in the instant Opinion and Order, the Court hereby ADOPTS the Magistrate Judge’s Report and Recommendation (Docket No. 10) IN TOTO and INCORPORATES IT HEREIN BY REFERENCE. Accordingly, Petitioner’s Motion to Vacate (Docket No. 1) is hereby DENIED. It is further ordered that no certificate of appealability should be issued in the event that Petitioner files a notice of appeal because there is no substantial showing of the denial of 2 Accordingly, Petitioner’s motions for an evidentiary hearing and to appoint counsel (Docket Nos. 13 and 14) are hereby DENIED. 9 a constitutional or statutory right within the meaning of 28 U.S.C. § 2253(c)(3).3 IT IS SO ORDERED. In San Juan, Puerto Rico, this 12th day of March, 2015. s/ Daniel R. Dominguez DANIEL R. DOMINGUEZ U.S. DISTRICT JUDGE 3 As stated in the instant opinion, notwithstanding that the Petitioner’s request is time-barred, the Magistrate Judge and the District Judge, out of an abundance of caution, examined the habeas request on the merits and denied said request. 10
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