PUGO-SANCHEZ v. UNITED STATES OF AMERICA

Filing 16

MEMORANDUM ORDER re 14 Report and Recommendation and 7 Petition for Writ of Habeas Corpus filed by RODOLFO PUGA-SANCHEZ: The April 10, 2013 Report and Recommendation of Magistrate Judge Baxter is adopted as the Opinon of this Court. The Petit ion for Writ of Habeas Corpus is DISMISSED for lack of jurisdiction. A certificate of appealability shall not be issued. The Clerk is to mark the case CLOSED and shall file a NOTICE OF APPEAL on behalf of Petitioner. Signed by Judge Maurice B. Cohill on 5/10/13. (bfm )

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RODOLFO PUGA-SANCHEZ,
Petitioner,

vs.
UNITED STATES GOVERNMENT,
Respondent.

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) Civil Action No. 12-161 Erie
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MEMORANDUM ORDER

On July 19,2012, the Clerk of Courts for the United States District Court for the Western
District of Pennsylvania received from Rodolfo Puga- Sanchez a Petition for Writ of Habeas
Corpus brought pursuant to 28 U.S.C. §2241 ("the Petition"). Petitioner was sentenced by the
United States District Court for the Eastern District of North Carolina to 97 months'
imprisonment on April 14, 2009. On August 27,2012, Petitioner filed his filing fee and his
Petition was filed. The Petition listed two (2) reasons for why his Petition should be granted.
First Petitioner argued:
I agreed in a plea agreement with the United States of America to plea guilty to a
specific drug (cocaine powder) amount of at least 50 but less than 100 grams of
cocaine. That amount being the relevant conduct amount included (as I was not
informed by United States in its plea agreement, the court, or defense counsel that
additional drug quantity would be included. The PSR, without objection from
defense counsel, un substantially factored $14,000 in to drug (cocaine that
increased the case offense level agreed. Though, the record show that I had
worked and earned money throughout the years, the PSR never factored that into
its calculation. Thus, attributing all the money discovered by the Government to
illegal drug proceeds.

Petition, p. 6-7. Second, Petitioner explained:
I also, under the Sentencing Guidelines received two level enhancement for the
same possession of firearm. See (PSR at pg. 11, parag. 58). When a defendant is

convicted under 18 §924(c), the tenn of imprisonment is the minimum required
by statute is 60 month (§ 2K2.4), and the sentence cannot be enhanced under the
guideline for possessing the same fireann. That is "double counting." See USSG
2K2.4(d)(1). The PSR added 2 level to the sentence even though a consecutive
§924(c) sentence was imposed. PSR at pa. 11).
Id. at. p. 7.
On November 14, 2012, the Respondent, the United States, filed its Response to the
Petition. In the Response, Respondent contended that the Petition should be dismissed because
this Court lacks subject matter jurisdiction over the Petition. Response to Petition for Writ of
Habeas Corpus ("Response"), pp. 1-2. Respondent argued that the Petition "does not challenge
the fact or duration of Petitioner's confinement or the execution of his sentence; rather it
challenges the validity of his conviction and sentence. As such, Petitioner's claims are not
properly addressed in a § 2241 Petition. Nor can Petitioner establish that 28 U.S.C. §2255
provides an inadequate or ineffective remedy which would enable him to pursue his claims
pursuant to

§ 2241. Id.

On December 11, 2012, Petitioner filed a Reply to the Government's Response. In his
Reply, Petitioner argued that this Court does have jurisdiction over his § 2241 Petition because
he waived his right to file a § 2255 Petition under the tenns of his plea agreement such that a
§2255 petition would be "inadequate or unavailable" and therefore, a § 2241 petition is his only
option. Petitioner's Opposition Response to Respondent's Opposition to Relief Pursuant to the
Writ of Habeas Corpus, p. 4.
On April 10, 2013, the magistrate judge issued a Report and Recommendation wherein
she recommended that this Court "dismiss the [Petition for Writ of Habeas Corpus] for want of
subject matter jurisdiction because Plaintiff is challenging the sentence imposed by the District
Court for the Eastern District of North Carolina and he cannot do so in this Court pursuant to a §

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2241 petition." Report and Recommendation, p. 10. She also recommended that a certificate of
appealability be denied. Id.
Objections to the Report and Recommendation were due from the Petitioner no later than
April 29, 2013. On April 23, 2013 Petitioner filed a "Notice of Appeal" asking this Court "for an
Order filing and docketing a Notice of Appeal from this Court's adverse ruling April 10,2013,
denying relief on all fronts." Petitioner did not file anything else with respect to this case as of
the date of the filing of this Memorandum Order.
Rule 72(b)(3) of the Federal Rules of Civil Procedure provides: "The district judge must
determine de novo any part of the magistrate judge's disposition that has been properly objected
to. The district judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions." Id. Absent a final
decision from this Court with respect to the Magistrate Judge's April 10, 2013 Report and
Recommendation there is no final decision of this Court for Petitioner to appeal. Therefore, out
of an abundance of caution we have interpreted Petitioner's "Notice of Appeal" to be both: (l) an
objection to Magistrate Judge Baxter's April 23,2013 Report and Recommendation and (2) a
notice of appeal if we decide that the analysis contained in the Report and Recommendation was
correct and issue an Order dismissing Petitioner's Petition for Writ of Habeas Corpus for lack of
subject matter jurisdiction.
Accordingly, after de novo review of the pleadings and documents in the case, together
with the Report and Recommendation from Magistrate Judge, the following Order is entered:
AND NOW, this 10th day of May, 2013, it is HEREBY ORDERED, ADJUDGED AND
DECREED that the Report and Recommendations of Magistrate Judge Baxter [ECF #14], dated
April 10,2013, is adopted as the Opinion of the Court.

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It is further hereby ORDERED, ADJUDGED, AND DECREED that Petitioner Rodolfo
Puga-Sanchez's Petition for Writ of Habeas Corpus [ECF #7] is DISMISSED for lack of
jurisdiction and that a certificate of appealability shall not be issued.
The Clerk of Court shall mark this case CLOSED and shall file a NOTICE OF APPEAL
on behalf of Petitioner Puga-Sanchez.

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Maurice B. Cohill, Jr.
Senior District Court Judge

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