Vazquez-Mendez v. USA
Filing
13
OPINION AND ORDER denying 1 Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. Sec. 2255. Signed by Judge Juan M Perez-Gimenez on 02/15/2012. (JG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HERNAN VAZQUEZ-MENDEZ
Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________*
CIVIL NO. 09-1024(PG)
RELATED CRIM. 00-333(PG)
OPINION & ORDER
Before the Court is Petitioner’s 28 U.S.C. Sec. 2255 Habeas
Corpus Petition (D.E.1)1. Respondent filed a Response to the Petition
(D.E.5). Petitioner filed a Reply to the Government’s Response (D.E.
7) as well as a Motion for Evidentiary Hearing (D.E. 11).
For the
reasons discussed below, the Court finds the Petition shall be
DISMISSED and the request for evidentiary hearing is also DENIED.
I. BACKGROUND
On June 30, 2000, Petitioner, Hernan Vazquez-Mendez (hereinafter
“Petitioner” or “Vazquez-Mendez”) and eighteen (18) additional codefendants were indicted by a Federal Grand Jury (Crim. D.E. 2)2.
Petitioner was specifically charged with conspiracy to possess with
intent
to
distribute
multi-kilogram
quantities
of
controlled
substances, that is to say, in excess of one (1) kilogram of heroin,
a Schedule I Narcotic Drug Controlled Substance, in excess of five
(5) kilograms of cocaine, a Schedule II Narcotic Drug Controlled
1
2
D.E. is an abbreviation of docket entry number.
Crim.D.E. is an abbreviation of criminal docket entry.
Civil No. 09-1024(PG)
Page 2
Substance, in excess of fifty (50) grams of cocaine base, a Schedule
II Narcotic Drug Controlled Substance, in violation of Title 21,
United States Code, Sec. 841(a)(1) (Crim. D.E. 2).
On February 5, 2001, Petitioner’s Change of Plea Hearing was
held (Crim.D.E.190).
Vazquez-Mendez entered a plea of guilty to
count one of the Indictment (Crim.D.E. 190).
On June 22, 2001, at
the Petitioner’s Sentencing Hearing, Vazquez-Mendez informed the
Court that he wished to withdraw his guilty plea.
The Court accepted
the withdrawal and trial date was set (Crim.D.E. 292).
On November
20, 2001, after a sixteen day jury trial Vazquez-Mendez was found
guilty of count one of the Indictment (Crim.D.E. 501).
On December 14, 2001, Petitioner, through counsel, filed his
objections to the Pre-Sentence Report (Crim.D.E. 527).
Vazquez-
Mendez’s specific objection was to the additional enhancement to his
sentence calculation for his participation in the murder as described
in overt act fourteen (14) of the Indictment.
Petitioner alleged
that the issue of his involvement in the murder as described in overt
act fourteen (14) should have been submitted to the jury for their
determination on the matter.
As such Petitioner argued that the
cross-reference to murder could not be applied to his sentencing
guideline calculation.
On December 17, 2001, the Court sentenced Petitioner to a term
of imprisonment of life, a Supervised Release Term of ten (10) years
and a Special Monetary Assessment of one hundred (100) dollars
Civil No. 09-1024(PG)
(Crim.D.E. 536)3.
Page 3
On December 18, 2001, Petitioner filed a Notice of
Appeal (Crim.D.E. 540). On Appeal Vazquez-Mendez once again raised
the allegation of the improper application of the murder crossreference.
Petitioner alleged that it was a matter for the jury to
determine and that the Government had not presented any evidence of
his involvement in the murder.
In a supplemental appeal brief,
Vazquez-Mendez alleged that the imposition of life sentence based on
drug quantity was also an error because the jury did not make
individual determinations as to the amount of drugs each defendant
was responsible for (D.E. 1).
On April 11, 2005, the First Circuit Court of Appeals issued its
opinion on the matter in which it affirmed Petitioner’s conviction.
The Court vacated and remanded the sentence of Vazquez-Mendez in
light of United States v. Booker, 543 U.S. 220 (2005), United States
v. Mercado Irizarry, 404 F3d 497 (1st Cir. 2005).
On November 21,
2005, Vazquez-Mendez was re-sentenced to a term of imprisonment of
life (Crim.D.E. 871). On December 2, 2005, Petitioner filed a Notice
of Appeal (Crim.D.E. 875).
On July 18, 2007, the First Circuit Court of Appeals affirmed
Petitioner’s conviction and stated:
Hernan
Vazquez-Mendez
was
convicted
of
conspiring
distribute heroin, cocaine, and cocaine base.
3
to
We vacated
Counsel for defendant raised once again the argument that the
murder cross reference enhancement should not be applied to
Petitioner’s sentence because it was not a matter which the jury
made a finding on. The Government opposed said argument and the
Court denied the Petitioner’s objection. See, Sentencing Hearing
Transcript of December 17, 2001.
Civil No. 09-1024(PG)
Page 4
his pre- Booker life sentence in United States v. Mercado
Irizarry, 404 F.3d 497 (1st Cir. 2005).
Holding that the
jury verdict authorized a statutory maximum penalty of life
imprisonment, we remanded the matter for re sentencing
under the advisory guidelines.
The
district
applying
the
court
murder
again
See id. at 504.
sentenced
cross-reference
Vazquez
in
to
life,
U.S.S.G.
Sec.
2D1.1(d)(1).
It credited trial evidence that Vazquez had
participated
in
conspiracy.
three
murders
in
furtherance
of
the
Booker itself “preserved [such] use of judge-
made findings by directing that the guidelines hereafter be
treated as advisory rather than mandatory.”
Cirilo-Muñoz
v. United States, 404 F.3d 527, 532-533 (1st Cir. 2005).
See also United States v. Antonakopoulos, 399 F.3d. 68, 75
(1st
Cir.
2005)
(“Booker
reaffirmed
the
principal
of
Apprendi...but did so only insofar as the sentence resulted
from a mandatory system imposing binding requirements on
sentencing judges”). The remedial part of Booker cured the
Sixth Amendment problem in this case.
Vazquez cannot
question the remedy.
We have considered the arguments in Vazquez’s pro se
supplemental brief and find them to be meritless.
sentence is affirmed as reasonable.
The
United States v.
Vazquez-Mendez, Appeal No. 06-1018 (1st Cir. July 18,
2007).
Certiorari was denied on November 26, 2007, Hernan Vazquez v.
United States, 128 S.Ct. 679(2007).
Thus judgment became final on
Civil No. 09-1024(PG)
November 26, 2007.
Page 5
Pursuant to the Antiterrorism Death Penalty Act,
Vazquez-Mendez had until November 26, 2008, to file his section 2255
motion.
Petitioner signed and dated his motion December 10, 2008,
and delivered it to prison authorities for mailing on December 12,
2008; as such, it is untimely (D.E. 1).
Therefore, the same is
DISMISSED WITH PREJUDICE.
II. DISCUSSION
Statue of Limitations
The Antiterrorism and Effective Death Penalty Act (hereinafter
AEDPA) of April 24, 1996, clearly established a limitation period of
one (1) year for the filing of section 2255 petitions.
The period of
one (1) year starts from the date in which prisoner’s conviction
becomes “final”.
A review of the record indicates that Vazquez-Mendez’s judgment
became
final
on
November
26,
2007,
the
date
his
petition
for
certiorari was denied. Vazquez-Mendez had one year as of November 26,
2007, to timely file his 2255 Petition.
Petitioner’s section 2255
motion was filed December 12, 2008; pursuant to the prisoner’s
mailbox rule the same is time barred.
In Lattimore v. Dubois, 311
F.3d 46(1st Cir. 2002) the Court held that a petition mailed from
prison one day after the expiration of grace period of limitations
could not be deemed timely filed.
In the case of Vazquez-Mendez, his
petition was delivered to the prison mailbox sixteen (16) days after
the one year statute of limitations had expired.
Therefore the same
is untimely.
As such the same is time barred and DISMISSED WITH PREJUDICE.
III. CONCLUSION
Civil No. 09-1024(PG)
Page 6
For the reasons stated, the Court concludes that Petitioner
HERNAN VAZQUEZ-MENDEZ, is not entitled to federal habeas relief on
the claims.
Accordingly, it is ordered that petitioner HERNAN
VAZQUEZ-MENDEZ’s request for habeas relief under 28 U.S.C. Sec. 2255
(D.E.1) is DISMISSED, and his Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. Sec. 2255 is DISMISSED WITH PREJUDICE.
Petitioner’s request for evidentiary hearing (D.E. 11) is DENIED.
IV. CERTIFICATE OF APPEALABILTY
For the reasons previously stated the Court hereby denies
Petitioner’s request for relief pursuant to 28 U.S.C. Section 2255.
It is further ordered that no certificate of appealability should be
issued in the event that Petitioner files a notice of appeal because
there is no substantial showing of the denial of a constitutional
right within the meaning of 28 U.S.C. 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 15th of February 2012.
s/ Juan M. Pérez-Giménez
Juan M. Pérez-Giménez
Senior United States District Judge
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