Sustache-Rivera v. USA, No. 3:2014cv01018 - Document 4 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 92-348) filed by David Sustache-Rivera. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order b ecause 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 02/20/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 DAVID SUSTACHE-RIVERA, Petitioner, Civil No. 14-1018 (JAF) v. (Crim. No. 92-348 (JAF)) UNITED STATES OF AMERICA, Respondent. 5 6 7 OPINION AND ORDER 8 Petitioner, David Sustache-Rivera, brings this petition under 28 U.S.C. § 2255 for 9 relief from sentencing by a federal court, alleging that the sentence imposed violated his 10 rights under federal law. He requests an order to vacate, set aside, or correct the sentence 11 imposed in Cr. No. 92-348. (Docket No. 1.) 12 I. 13 Background 14 After a jury trial, Petitioner was found guilty for three separate charges of armed 15 carjacking. (Crim. Docket No. 80.) Petitioner was sentenced to thirty-seven years. (Id.) 16 Judgment was entered on September 18, 2008. (Crim. Docket No. 108.) Petitioner s 17 convictions were affirmed on appeal. United States v. Rivera, 39 F.3d 1166 (1st Cir. 18 1994). On May 6, 1997, Petitioner filed his first petition under Section 2255, claiming 19 ineffective assistance of counsel. 20 summarily dismissed. (Civ. 97-1709, Docket No. 7.) On April 13, 1999, Petitioner filed 21 a motion for reconsideration. This motion was denied. (Civ. 97-1709, Docket No. 8.) (Civ. 97-1709, Docket No. 2.) His motion was Civil No. 14-1018 (JAF) -2- 1 Petitioner then requested from the First Circuit authorization to file a second Section 2 2255 petition. The First Circuit declined to grant his request. Sustache-Rivera v. United 3 States, 221 F.3d 8 (1st Cir. 2000). On March 19, 2001, Petitioner s writ of certiorari was 4 denied by the Supreme Court. Sustache-Rivera v. United States, 532 U.S. 924 (2001). 5 Petitioner now files a second motion for relief under 28 U.S.C. § 2255. (Docket No. 1.) 6 Respondent opposes. (Docket No. 3.) 7 II. 8 Legal Standard 9 A federal district court has jurisdiction to entertain a § 2255 petition when the 10 petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A 11 federal prisoner may challenge her sentence on the ground that, inter alia, it was 12 imposed in violation of the Constitution or laws of the United States. Id. A petitioner 13 cannot be granted relief on a claim that has not been raised at trial or direct appeal, unless 14 she can demonstrate both cause and actual prejudice for his procedural default. See 15 United States v. Frady, 456 U.S. 152, 167 (1982). Indeed, [p]ostconviction relief on 16 collateral review is an extraordinary remedy, available only on a sufficient showing of 17 fundamental unfairness. Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). 18 Claims of ineffective assistance of counsel, however, are exceptions to this rule. See 19 Massaro v. United States, 538 U.S. 500, 123 (2003) (holding that failure to raise 20 ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255 21 review). Civil No. 14-1018 (JAF) -3- 1 III. 2 Discussion 3 Because Petitioner appears pro se, we construe his pleadings more favorably than 4 we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 5 Nevertheless, Petitioner s pro-se status does not excuse him from complying with 6 procedural and substantive law. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008). 7 Section 2255 disfavors second or successive habeas petitions seeking to vacate, 8 set aside, or correct a sentence. See 28 U.S.C. § 2255; Burton v. Stewart, 549 U.S. 147, 9 153 (2007). A later petition that raises the same grounds as a previous petition is 10 considered a second or successive petition. Sustache-Rivera, 221 F.3d at 12-13. We 11 denied Petitioner s first Section 2255 motion on the merits. (Civ. 97-1709, Docket 12 No. 6.) Therefore, Petitioner s present motion is a second or successive application for 13 relief. 14 Before filing a second or successive motion under Section 2255, a defendant 15 shall move the appropriate court of appeals for an order authorizing the district court to 16 consider the application. 28 U.S.C. § 2244(b)(3)(A); see also, 28 U.S.C. § 2255 ( A 17 second or successive motion must be certified as provided in section 2244 by a panel of 18 the appropriate court of appeals .... ). The court of appeals may authorize a second or 19 successive Section 2255 petition only if it presents a claim not previously raised, and 20 contains either newly discovered evidence that establishes the defendant s innocence or 21 a new rule of constitutional law, made retroactive to cases on collateral review by the 22 Supreme Court. 28 U.S.C. § 2255; Burton, 549 U.S. 152; Tyler v. Cain, 533 U.S. 656, 23 661-62 (2001). A district court lacks jurisdiction over a second or successive petition Civil No. 14-1018 (JAF) -4- 1 unless the defendant obtains certification from the appropriate court of appeals. Trenkler 2 v. United States, 536 F.3d 85, X (1st Cir. 2008). 3 Here, Petitioner neither sought nor received authorization from the First Circuit 4 Court of Appeals before filing his second motion to vacate, set aside, or correct his 5 sentence pursuant to 28 U.S.C. § 2255. Furthermore, Petitioner provides no grounds for 6 this court to conclude that the First Circuit Court of Appeals would certify his second 7 petition. Petitioner s reliance on Alleyne is misplaced: neither the Supreme Court nor the 8 First Circuit has held Alleyne to be retroactively applicable. See Lassalle-Velazquez v. 9 United States, 2013 WL 4459044 (D.P.R. Aug. 16, 2013); Simpson v. United States, 721 10 F.3d 875, 2013 WL 3455876, at * 1 (7th Cir. July 10, 2013). Therefore, this court has no 11 authority to consider Petitioner s present 2255 motion, and it must be dismissed. 12 IV. 13 14 15 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 16 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 17 certificate of appealability ( COA ). We grant a COA only upon a substantial showing 18 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 19 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 20 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 21 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 22 Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could 23 find our assessment of his constitutional claims debatable or wrong. Petitioner may 24 request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 25 22. Civil No. 14-1018 (JAF) -5- 1 V. 2 Conclusion 3 For the foregoing reasons, we hereby DENY Petitioner s § 2255 motion (Docket 4 No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary 5 dismissal is in order because it plainly appears from the record that Petitioner is not 6 entitled to § 2255 relief from this court. 7 IT IS SO ORDERED. 8 San Juan, Puerto Rico, this 20th day of February, 2014. 9 10 11 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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