Ramos-Martinez v. USA, No. 3:2013cv01547 - Document 5 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 01-638.) filed by Rafael Ramos-Martinez, Motions terminated: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Numb er 01-638) filed by Rafael Ramos-Martinez. 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 RAFAEL RAMOS-MARTà NEZ, Petitioner, Civil No. 13-1547 (JAF) v. (Crim. No. 01-638) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner Rafael Ramos-Martínez ( Ramos-Martínez ) comes before the court 8 with a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we 9 imposed in Crim. No. 01-638. (Docket No. 1.) Because Ramos-Martínez failed to obtain 10 certification from the First Circuit to file a successive petition, we deny the motion. 11 I. 12 Background 13 On August 30, 2001, Ramos-Martínez was indicted for conspiracy to distribute 14 large quantities of heroin, cocaine, and cocaine base in violation of 21 U.S.C. §841(a)(1) 15 and 846. (Crim. No. 01-638, Docket No. 2.) The indictment also included a forfeiture, 16 should Ramos-Martínez be convicted. Id. On April 16, 2002, Ramos-Martínez pleaded 17 guilty to violating 21 U.S.C. § 846. 18 November 21, 2002, Judge Laffitte sentenced Ramos-Martínez to four hundred months 19 imprisonment, to be served consecutively with the sentence imposed in Crim. No. 01-57- 20 7(PG), followed by six years of supervised release and a fine of one hundred dollars. 21 (Crim. No. 01-638, Docket No. 134.) On November 22, 2002, Ramos-Martínez filed a (Crim. No. 01-638, Docket No. 134.) On Civil No. 13-1547 (JAF) -2- 1 notice of appeal. (Crim. No. 01-638, Docket No. 137.) On October 12, 2005, the First 2 Circuit entered judgment affirming his plea agreement and sentence. 3 On November 27, 2006, Ramos-Martínez filed a motion to vacate under 28 U.S.C. 4 § 2255. (Crim. No. 01-638, Docket No. 194.) Because Judge Laffitte retired, the case 5 was reassigned to our docket. (Crim. No. 01-638, Docket No. 198.) Ramos-Martínez 6 also filed a motion for retroactive application of the sentencing guidelines to his crack 7 cocaine offense. (Crim. No. 01-638, Docket No. 206.) On June 10, 2008, we denied 8 Ramos-Martínez s petition under Section 2255 because it had already begun as Civil 9 No. 06-2183 before Judge Delgado-Colón. (Crim. No. 01-638, Docket No. 210.) On 10 September 15, 2008, we denied Ramos-Martínez s motion to reduce his sentence 11 regarding the crack cocaine offense. 12 September 24, 2008, Ramos-Martínez gave notice that he was appealing our decision not 13 to reduce his sentence. (Crim. No. 01-638, Docket No. 218.) On May 29, 2009, Ramos- 14 Martínez s related section 2255 petition before Judge Delgado-Colón was dismissed with 15 prejudice. (Crim. No. 01-638, Docket No. 226.) On July 23, 2009, Ramos-Martínez s 16 appeal before the First Circuit was dismissed for lack of diligent prosecution. (Crim. 17 No. 01-638, Docket No. 228.) (Crim. No. 01-638, Docket No. 217.) On 18 On July 15, 2013, Ramos-Martínez filed the instant motion under 28 U.S.C. 19 § 2255 to vacate, set aside, or correct his sentence. (Docket No. 1.) On August 9, 2013, 20 the United States filed a response in opposition to his motion. (Docket No. 3.) 21 II. 22 Legal Standard 23 Before filing a second or successive motion under Section 2255, a defendant 24 shall move the appropriate court of appeals for an order authorizing the district court to Civil No. 13-1547 (JAF) -3- 1 consider the application. 28 U.S.C. § 2244(b)(3)(A); see also, 28 U.S.C. § 2255 ( A 2 second or successive motion must be certified as provided in section 2244 by a panel of 3 the appropriate court of appeals ¦. ). A district court lacks jurisdiction over a second or 4 successive petition unless the defendant obtains certification from the appropriate court 5 of appeals. Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008). Ramos-Martínez 6 submitted his first petition under Section 2255 on November 27, 2006, and the petition 7 was dismissed on May 29, 2009. (Civ. No. 06-2183-ADC-MEL, Docket Nos. 1, 21). 8 Ramos-Martínez has not obtained certification from the First Circuit to file a successive 9 petition and, therefore, we lack jurisdiction to rule on this motion. 10 III. 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 Ramos-Martínez 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. Ramos- 22 Martínez may request a COA directly from the First Circuit, pursuant to Rule of 23 Appellate Procedure 22. Civil No. 13-1547 (JAF) -4- 1 V. 2 Conclusion 3 For the foregoing reasons, we hereby DENY Ramos-Martínez 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 Ramos- 6 Martínez 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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