Irizarry-Sanabria v. United States of America, No. 3:2012cv01855 - Document 17 (D.P.R. 2014)

Court Description: OPINION AND ORDER denying 1 Application for Writ of Coram Nobis, re-characterized as a § 2255 petition, filed by Amador Irizarry-Sanabria. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Judgment to enter accordingly. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A. Fuste on 02/28/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 AMADOR IRIZARRY-SANABRIA, Petitioner, Civil No. 12-1855 (JAF) v. (Crim. No. 92-54-JAF-1, 93-102-CC-7) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner, Amador Irizarry-Sanabria ( Irizarry-Sanabria ), appearing pro se, brings 8 this petition to nullify his conviction, styled as a writ for coram nobis. (Docket No. 1.) 9 However, if a petition for coram nobis falls within the substantive scope of § 2255, then 10 we must re-characterize it as a § 2255 petition. Trenkler v. United States, 536 F.3d 85, 11 97 (2008). In light of this re-characterization, we must dismiss Irizarry-Sanabria s 12 petition as both time-barred and as a successive motion under Section 2255. 13 I. 14 Background 15 16 This petition involves two distinct cases: One before the undersigned and one before Judge Cerezo, both in the District of Puerto Rico. 17 The case before me began in 1992. Irizarry-Sanabria was convicted by a jury for 18 conspiracy to import approximately 3000 pounds of marijuana and for the possession of a 19 firearm in relation to the commission of said narcotics offense, in violation of 21 U.S.C. 20 §§ 952(a) and 963, and 18 U.S.C. § 924(c)(1), respectively. United States v. Andujar, 49 21 F.3d 16, 18 (1st Cir. 1996). I sentenced Irizarry-Sanabria to 120 months imprisonment for 22 Count One and 60 months imprisonment for Count Two. (Crim. No. 92-054.) On March 6, Civil No. 12-1855 (JAF) -2- 1 1995, the First Circuit affirmed the convictions. U.S. v. Andujar, 49 F.3d 16 (1st Cir. 1995). 2 On May 9, 1995, Irizarry-Sanabria filed a petition to vacate this sentence under 28 U.S.C. 3 2255 in Crim. No. 92-54, alleging that his sentence was mistakenly enhanced because he was 4 incorrectly deemed to have used or carried a firearm in relation to the drug trafficking crime. 5 (Civ. No. 95-1579.) 6 resentenced him to 121 months of imprisonment followed by a five-year term of supervised 7 release. (Civ. No. 95-1579; see also Crim. No. 93-102, Docket No. 474.) Irizarry-Sanabria 8 requested a certificate of appealability from the First Circuit. Irizarry-Sanabria v. U.S., 101 9 F.3d 106 (1st Cir. 1996.) On November 18, 1996, the First Circuit granted his request but 10 affirmed the judgment, stating that any error in failing to hold a sentencing hearing was 11 harmless, and affirming the rejection of the two other grounds for habeas relief. Id. On February 15, 1996, I granted Irizarry-Sanabria s motion and 12 In a separate prosecution before Judge Cerezo in 1993, Irizarry-Sanabria was charged 13 with violating 21 U.S.C. §§ 952 and 963. (Crim. No. 93-102.) He moved for dismissal, 14 claiming that he had already been tried and sentenced on the same charges before the 15 undersigned in Crim. No. 92-54-JAF, in violation of the Fifth Amendment right against 16 double jeopardy. (Crim. No. 93-102, Docket No. 137.) Judge Cerezo denied this motion. 17 (Crim. No. 93-102, Docket No. 199.) On October 21, 1993, Irizarry-Sanabria pled guilty to 18 Count One of the indictment. (Crim. No. 93-102, Docket No. 229.) Before sentencing, he 19 unsuccessfully moved for reconsideration, again including double jeopardy violations among 20 his claims. (Crim. No. 93-102, Docket No. 327.) Irizarry-Sanabria filed a notice of appeal to 21 the First Circuit on December 8, 1994. (Crim. No. 93-102, Docket No. 359.) On August 22, 22 1996, the First Circuit affirmed his conviction after reviewing numerous claims, including 23 those of double jeopardy violations. U.S. v. Irizarry-Sanabria, 94 F.3d 640 (1st Cir. 1996.) Civil No. 12-1855 (JAF) -3- 1 On November 18, 1996, Irizarry-Sanabria s petition for writ of certiorari was denied. 2 Irizarry-Sanabria v. U.S., 519 U.S. 1000 (1996). Judge Cerezo sentenced Irizarry-Sanabria 3 to 120 months in prison and five years of supervised release, to be served concurrently with 4 the sentence I imposed. (Crim. No. 93-102, Docket No. 474.) Irizarry-Sanabria filed a 5 petition under 28 U.S.C. § 2255 on January 15, 1997. (Crim. No. 93-102, Docket No. 419.) 6 On August 12, 1999, Judge Cerezo denied Irizarry-Sanabria s petition for habeas relief. 7 (Crim. No. 93-102, Docket No. 425.) 8 Irizarry-Sanabria completed his prison sentence and began supervised release on 9 November 8, 2002. (Crim. 93-102, Docket No. 474.) On March 20, 2003, Irizarry-Sanabria 10 pled guilty to violating a condition of his supervised release, namely the condition that he not 11 commit another crime. 12 accompanying conspiracy: A violation of 21 U.S.C. 841(a)(1) and 846 in the Middle District 13 of Florida. For this violation, I revoked Irizarry-Sanabria s supervised release and sentenced 14 him to twenty-four months imprisonment. (Crim. No. 92-54, Docket No. 177.) 15 Cerezo also revoked Irizarry-Sanabria s supervised release and sentenced him to twenty- 16 seven months imprisonment, to run concurrently with both my sentence and the sentence 17 imposed by the Middle District of Florida. (Crim. No. 93-102, Docket No. 477.) His most recent crime was again related to drugs and the Judge 18 On October 10, 2012, Irizarry-Sanabria filed a motion before me to nullify his second 19 conviction the conviction before Judge Cerezo -- under a writ of coram nobis. (Civ. 12- 20 1855, Docket No. 1.) Irizarry-Sanabria argues that his second conviction, Crim. No. 93-102, 21 is null and void because it was obtained in violation of the Speedy Trial Act, 18 U.S.C. 22 § 3161, and once again argues that it violates double jeopardy because it was part of the same 23 conspiracy tried before me a year earlier, in Crim. No. 92-54-JAF. (Docket No. 1.) On Civil No. 12-1855 (JAF) -4- 1 October 1, 2013, we ordered the government to file a response to Irizarry-Sanabria s motion, 2 addressing the claims that his conviction violated the Speedy Trial Act and the Double 3 Jeopardy clause. (Docket No. 8.) On October 21, 2013, the government filed a response 4 which argued only that Irizarry-Sanabria had waived his right of dismissal under the Speedy 5 Trial Act and that he did not satisfy the requirements to file a writ of coram nobis. (Docket 6 No. 10.) 7 III. 8 Jurisdiction 9 If a petition for coram nobis falls within the substantive scope of § 2255, then we 10 must re-characterize it as a § 2255 petition. Trenkler v. United States, 536 F.3d 85, 97 11 (2008). Therefore, we deem Irizarry-Sanabria s motion to be a petition for a writ of 12 habeas corpus under 28 U.S.C. § 2255. Irizarry-Sanabria is currently in federal custody 13 having been sentenced by this district court, as required by 28 U.S.C. § 2255. We note 14 that Irizarry-Sanabria is challenging Judge Cerezo s sentence, not ours. To file a timely 15 motion, Irizarry-Sanabria had one year from the date that Judge Cerezo s judgment 16 became final. 28 U.S.C. § 2255(f). He is challenging his conviction in Judge Cerezo s 17 court, and that judgment became final when certiorari was denied on November 18, 1996. 18 Irizarry-Sanabria, 519 U.S. 1000 (1996). He filed the instant petition on October 10, 19 2012, far more than a year after his judgment became final. Therefore, the petition is 20 time-barred and we do not have jurisdiction to hear the case. 21 Furthermore, before filing a second or successive motion under Section 2255, a 22 defendant shall move the appropriate court of appeals for an order authorizing the 23 district court to consider the application. 28 U.S.C. § 2244(b)(3)(A); see also 28 U.S.C. Civil No. 12-1855 (JAF) -5- 1 § 2255 ( A second or successive motion must be certified as provided in section 2244 by 2 a panel of the appropriate court of appeals ¦. ). A district court lacks jurisdiction over a 3 second or successive petition unless the defendant obtains certification from the 4 appropriate court of appeals regarding that case. Trenkler v. United States, 536 F.3d 85, 5 96 (1st Cir. 2008). Irizarry-Sanabria submitted his first motion for habeas relief from this 6 conviction and sentence on January 15, 1997, and Judge Cerezo dismissed that motion on 7 August 12, 1999. (Crim. No. 93-102, Docket Nos. 419, 425.) Irizarry-Sanabria has not 8 obtained certification from the First Circuit to file a successive petition and, therefore, the 9 district court lacks jurisdiction. 10 IV. 11 12 13 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 14 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 15 certificate of appealability ( COA ). We grant a COA only upon a substantial showing 16 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 17 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 18 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 19 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 20 Irizarry-Sanabria has not yet requested a COA, we see no way in which a reasonable 21 jurist could find our assessment of his constitutional claims debatable or wrong. Irizarry- 22 Sanabria may request a COA directly from the First Circuit, pursuant to Rule of 23 Appellate Procedure 22. Civil No. 12-1855 (JAF) -6- 1 V. 2 Conclusion 3 For the foregoing reasons, we hereby DENY Irizarry-Sanabria s § 2255 motion 4 (Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, 5 summary dismissal is in order because it plainly appears from the record that Irizarry- 6 Sanabria is not entitled to § 2255 relief from this court. 7 IT IS SO ORDERED. 8 San Juan, Puerto Rico, this 28th day of February, 2014. 9 10 11 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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