Ortiz-Miranda v. USA, No. 3:2012cv01461 - Document 6 (D.P.R. 2012)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 95-029) filed by Raul Ortiz-Miranda. Judgment will be entered summarily dismissing the petition because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 11/20/2012.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 RAUL ORTIZ-MIRANDA, 4 Plaintiff, 5 v. 6 7 Civil No. 12-1461 (JAF) (Crim. No. 95-029) UNITED STATES OF AMERICA, Defendant. 8 9 OPINION AND ORDER 10 Petitioner, Raúl Ortiz-Miranda, brings this pro-se petition under 28 U.S.C. § 2255 for 11 relief from sentencing by a federal court, alleging that the sentence was imposed in violation 12 of his constitutional rights. (Docket No. 1.) The Government opposes, (Docket No. 3), and 13 Petitioner replies (Docket No. 5). 14 I. 15 Factual and Procedural Summary 16 A comprehensive and detailed factual background of this case appears in the docket 17 of Petitioner s criminal case. (Cr. No. 95-029, Docket No. 3454.) On December 13, 1995, 18 Petitioner was convicted of conspiracy to possess with intent to distribute fifty grams ( g ) 19 or more of crack, five kilograms ( kg ) or more of cocaine, one kg or more of heroin, and 20 an undetermined quantity of marijuana. (Crim. No. 95-029, Docket No. 917.) This court 21 sentenced Petitioner to a prison term of 540 months. (Docket No. 1220.) Petitioner then 22 appealed the sentence and conviction, raising a variety of challenges. (Docket No. 1221.) -2- Civil No. 12-1461 (JAF) 1 The First Circuit Court of Appeals affirmed the sentence and conviction. United States v. 2 Candelaria-Silva, 166 F.3d 19, 40 (1st Cir. 1999). 3 In 2001, Petitioner then filed his first § 2255 motion, which this court dismissed. 4 (Civ. No. 01-1386, Docket Nos. 1; 6; 7.) Petitioner appealed, (Docket No. 11), and on 5 July 8, 2003, the First Circuit Court of Appeals denied Petitioner s request for a certificate 6 of appealability. (Docket Nos. 16; 17.) 7 Now Petitioner brings a second successive habeas petition, arguing that his sentence 8 should be corrected pursuant to the recent Supreme Court decision in DePierre v. United 9 States, 131 S.Ct. 2255 (2011). (Docket No. 1 at 2, 4.) The government responds with two 10 arguments. First, under existing First Circuit case law, Petitioner is barred from bringing a 11 second successive § 2255 motion in this court. (Docket No. 3 at 2.) Second, even if 12 Petitioner were able to bring his claim, the government argues that DePierre does nothing to 13 help Petitioner. (Docket No. 3 at 3-4.) We agree with the government on both counts. 14 II. 15 Standard for Relief Under 28 U.S.C. § 2255 16 A federal district court has jurisdiction to entertain a § 2255 petition when the 17 petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A 18 federal prisoner may challenge his or her sentence on the ground that, inter alia, it was 19 imposed in violation of the Constitution or laws of the United States. Id. 20 In general, a petitioner cannot be granted relief on a claim that was not raised at trial 21 or on direct appeal, unless he can demonstrate both cause and actual prejudice for his -3- Civil No. 12-1461 (JAF) 1 procedural default. See United States v. Frady, 456 U.S. 152, 167 (1982). Claims of 2 ineffective assistance of counsel, however, are exceptions to this rule. See Massaro v. 3 United States, 538 U.S. 500 (2003) (holding that failure to raise ineffective assistance of 4 counsel claim on direct appeal does not bar subsequent § 2255 review). 5 III. 6 Analysis 7 Because Petitioner appears pro se, we construe his pleadings more favorably than we 8 would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 9 Nevertheless, Petitioner s pro-se status does not excuse him from complying with 10 procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 11 The government is correct that Petitioner may not bring a successive § 2255 motion 12 absent permission from the Court of Appeals. Libby v. Magnuson, 177 F.3d 43, 45 (1st Cir. 13 1999). Petitioner has not received such permission; therefore, his claim is barred. See id. 14 ( [A] second or successive habeas petition is not a matter of right-and the gatekeeping 15 function belongs to the court of appeals, not to the district court. ) The government is also 16 correct that DePierre, which held that cocaine base as used in 841(b)(1) means not just 17 crack cocaine, but cocaine in its chemically basic form, does nothing to help Petitioner. 18 131 S.Ct. at 2237. Therefore, Petitioner s claim will be dismissed. -4- Civil No. 12-1461 (JAF) 1 IV. 2 Certificate of Appealability 3 In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 4 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 5 certificate of appealability ( COA ). We grant a COA only upon a substantial showing of 6 the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, [t]he 7 petitioner must demonstrate that reasonable jurists would find the district court's assessment 8 of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338 9 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Petitioner has not yet 10 requested a COA, we see no way in which a reasonable jurist could find our assessment of 11 Petitioner s constitutional claims debatable or wrong. 12 directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. 13 V. 14 Petitioner may request a COA Conclusion 15 For the foregoing reasons, we hereby DENY Petitioner s § 2255 motion (Docket 16 No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary 17 dismissal is in order because it plainly appears from the record that Petitioner is not entitled 18 to § 2255 relief from this court. 19 IT IS SO ORDERED. 20 San Juan, Puerto Rico, this 20th day of November, 2012. 21 22 23 s/José Antonio Fusté JOSE ANTONIO FUSTE United States District Judge

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