Diaz-Castro v. Roman-Roman et al

Filing 31

OPINION AND ORDER. GRANTED 26 MOTION to dismiss; DENIED AS MOOT 30 MOTION for Reconsideration and for an Additional Time to File Certified Translations. Upon reviewing the document provided in support of Defendant's motion to dismiss, this C ourt notes that it may take judicial notice of the date the Commonwealth Court's decisions were issued in regards to Petitioner. As such, the Orders at Dockets ## 28 & 29 are SET ASIDE. Signed by Judge Salvador E Casellas on 2/10/2010.(LB)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

M A R IA JUDITH DIAZ-CASTRO Plaintiff v. R O M A N -R O M A N , ET AL Defendants CIVIL NO. 09-1033 (SEC)

O P I N IO N and ORDER P e n d in g before the Court is Petitioner's motion for a writ of habeas corpus under 28 U .S .C . § 2254, requesting that her Commonwealth court conviction be set aside. Docket # 2. P u e rto Rico's Secretary of Justice moves for dismissal alleging Petitioner's claims are timeb a rre d , and that she failed to exhaust administrative remedies. Docket # 26. After considering P e t itio n e r's request, the Government's unopposed motion to dismiss, and the applicable law, th e Government's motion to dismiss is GRANTED. Accordingly, Petitioner's motion under S e c tio n 2254 is DENIED. F a c tu a l and Procedural Background O n January 13, 2009, Plaintiff filed a petition for writ of habeas corpus pursuant to 28 U .S .C . § 2254, and motion for leave to proceed in forma pauperis. Dockets ## 1 & 2. Shortly th e re a f te r, the Clerk of the Court issued a notice of defective filing, since Plaintiff failed to in c lu d e her inmate account statement. Docket # 3. In compliance with this Court's order, on J a n u a ry 30, 2009, Plaintiff filed her inmate account statement. Docket # 4. Plaintiff was also o rd e re d to file certified English translations of her complaint, and motion to proceed in forma p a u p e r is . Docket # 5. This Court's order warned Plaintiff that failure to provide the same could

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e n ta il the case's dismissal. However, she failed to submit the above-mentioned translations. As 3 a result, the case was dismissed without prejudice. Docket # 6. 4 On June 19, 2009, Plaintiff moved for reconsideration. Docket # 7. Her request was 5 g ra n te d , and she was ordered to file the translations by August 10, 2009. Docket 8. In the 6 in te r im , her request for appointment of counsel was denied. Docket # 12. On January 5, 2010, 7 A n to n io Sagardia-De Jesus, Puerto Rico's former Secretary of Justice, filed a motion to dismiss, 8 a rg u in g that Plaintiff's petition is time-barred. Docket # 26. He further argues that Plaintiff 9 f a ile d to exhaust state post-conviction remedies, specifically, she did not file a P.R. R. CRIM. P. 10 1 9 2 .1 motion. To date, Petitioner has failed to oppose the Government's motion to dismiss, and 11 th e time allotted for doing so has elapsed. 12 Standard of Review 13 A petition for writ of habeas corpus may be brought by a person in custody pursuant to 14 th e judgment of a state court, if such custody is in violation of the Constitution or laws or 15 tre a tie s of the United States. 28 U.S.C. § 2254(a). However, Section 2254(b)(1)(A) provides 16 th a t an application for a writ of habeas corpus under said section shall not be granted unless it 17 a p p e a rs that the applicant has exhausted the remedies available in the courts of the State. See 18 O 'S u lliv a n v. Boerckel, 526 U.S. 838, 839 (1999) (finding that "[f]ederal habeas relief is 19 a v a ila b le to state prisoners only after they have exhausted their claims in state court"). A 20 p e titio n e r shall not be deemed to have exhausted the remedies available in the state courts 21 w ith in the meaning of Section 2254, "if he has the right under the law of the State to raise, by 22 a n y available procedure, the question presented." 28 U.S.C. § 2254(c). 23 In Baldwin v. Reese, 541 U.S. 27, 32 (2004), the Court ruled that a claim cannot be 24 e x h a u s te d if it is not presented directly to the state's highest court. See also Delgado, 72 F. 25 S u p p . 2d at 4. Moreover, a petitioner for federal habeas review must present claims to the state 26

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s u p re m e court irrespective of whether said court's review is discretionary. O'Sullivan, 526 U.S. 3 a t 839. Based on the foregoing, a "habeas petitioner has to avail himself, not only of whatever 4 a p p e a ls he was entitled to as a matter of right, but also as to any discretionary remedies 5 a v a ila b le ." Marin-Robles v. Del Valle, No. 03-2247, 2005 U.S. Dist. LEXIS 1800, *8-9 (D.P.R. 6 J a n u a ry 31, 2005). 7 The purpose of the exhaustion doctrine is to give the State "the opportunity to correct 8 a lle g e d violations of its prisoners' federal rights," Duncan v. Henry, 513 U.S. 364, 367 (1995), 9 a n d "a full and fair opportunity to address and resolve the [federal] claim on the merits," Keeney 10 v . Tamayo-Reyes, 504 U.S. 1, 22 (1992); see also Coleman v. Thompson, 501 U.S. 722 (1991); 11 V á s q u e z v. Hillery, 474 U.S. 254 (1982). The Supreme Court has held that "[t]he exhaustion 12 d o c trin e is a judicially crafted instrument which reflects a careful balance between important 13 in te re s ts of federalism and the need to preserve the writ of habeas corpus as a `swift and 14 im p e ra tiv e remedy in all cases of illegal restraint or confinement.'" Braden v. 30th Judicial 15 C irc u it Court, 410 U.S. 484, 490 (1973) (citations omitted). 16 The current structure of the Puerto Rico habeas corpus relief statutes is quite similar to 17 th e federal framework provided by 28 U.S.C. §§ 2254 and 2255. A prerequisite to state habeas 18 c o r p u s relief is the filing and disposition of a motion pursuant to Puerto Rico Criminal 19 P ro c e d u re Rule 192.1. P.R. Laws ann. tit. 34, § 1741(c); Rodriguez v. Warden, 791 F.Supp. 41, 20 4 2 (D.P.R. 1992). As such, the prisoner must first seek post-conviction collateral relief under 21 R u le 192.1, which provides that "any person who is imprisoned by virtue of a judgment 22 re n d e re d by any Division of the Court of First Instance and who alleges the right to be released 23 b e c a u s e . . . the sentence was imposed in violation of the Constitution or the laws of the 24 C o m m o n w e a lth of Puerto Rico or of the Constitution and laws of the United States, . . . may file 25 a motion, in the part of the court which imposed the sentence, to vacate, set aside, or correct the 26

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ju d g m e n t." Thereafter, the order entered by the Court of First Instance is appealable to the 3 a p p e a ls court, and subsequently to the Supreme Court of Puerto Rico. After said remedy has 4 b e e n exhausted, the prisoner must then seek habeas relief in the state courts, prior to filing a 5 p e titio n for federal habeas relief. 6 P u e rto Rico Law No. 18 of April 11, 1968 ("Law 18"), provides the right to request the 7 is s u a n c e of the common-law writ of habeas corpus. 34 P.R. Laws Ann. § 1741. However, Law 8 1 8 explicitly states that "[n]o judge shall consider a writ of habeas corpus prosecuted by an 9 in m a te imprisoned by virtue of a final judgment which has not exhausted the remedy provided 10 b y Rule 192.1 of the Rules of Criminal Procedure, App. II of this title." Id. at § 1741(c). Even 11 f u rth e r, "[i]f denied after having been prosecuted, the court shall not consider a writ of habeas 12 c o rp u s unless it may appear from the remedy provided by Rule 192.1 that it was inadequate or 13 in e f f e c tiv e to challenge the validity of the detention." Id. 14 in a d e q u a c y in the Rule 192.1 procedure, the writ of habeas corpus under Law 18 would be 15 u n a v a ila b le to Petitioner in the above-captioned case. Such inadequacy is found present only 16 in extreme cases where, for example, the sentencing court has ceased to exist or has lost its 17 ju ris d ic tio n to address a Rule 192.1 motion. 18 E XTRAORDINARIOS 175-76 (2nd Ed. 1996). 19 T h e re f o re , in order to be afforded federal habeas corpus relief, a Petitioner challenging 20 a Puerto Rico court conviction must exhaust either of these mechanisms. Rodriguez v. Warden, 21 7 9 1 F. Supp. 41, 42 (D.P.R. 1992) (finding that a federal habeas petitioner fails to exhaust all 22 s ta te court remedies when he fails to avail himself of state post-conviction court proceedings). 23 F e d e ra l courts "will not entertain an application for habeas relief unless the petitioner first has 24 f u lly exhausted his state remedy with respect to each and every claim contained in the 25 26 See DAVID RIVÉ RIVERA, RECURSOS In other words, absent such

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a p p lic a tio n ." Delgado v. Martinez, 72 F. Supp. 2d 2, 5 (D.P.R. 1999) (citing Rose v. Lundy, 3 4 5 5 U.S. 509, 518-19 (1982). 4 Defendant claims that Petitioner has taken no action to collaterally attack her conviction, 5 s p e c if ic a lly, that she has not filed a Rule 192.1 motion before the trial court. They further note 6 th a t she has not filed a state habeas corpus. After reviewing the record, this Court notes that 7 d e s p ite having requested reconsideration before the trial court, and having appealed her 8 c o n v ic tio n to the court of appeals, and the Puerto Rico Supreme Court, Petitioner has not shown 9 th a t she filed a Rule 192.1 motion nor a state habeas corpus petition. Therefore, she has not 10 e x h a u s te d all state remedies, depriving this Court of jurisdiction over the present case. 11 M o re o v e r, Petitioner has not opposed Defendants' motion to dismiss nor shown any reason for 12 e x e m p tin g her from the exhaustion requirement.1 As such, this Court must dismiss her habeas 13 c o r p u s petition for failure to exhaust state court remedies. 14 Although dismissal of Petitioner's habeas corpus petition is without prejudice because 15 th e exhaustion of state remedies requirement "does not usually foreclose, but only postpones 16 f e d e ra l relief," Camacho v. Commonwealth of P.R., 343 F. Supp. 2d at 65, this Court also finds 17 th a t the present petition is time-barred. The Antiterrorism and Effective Death Penalty Act of 18 1 9 9 6 ("AEDPA") provides that "[a] 1-year period of limitation shall apply to an application for 19 w rit of habeas corpus by a person in custody pursuant to the judgment of a State Court." Section 20 2 2 4 4 (d )(1 )(A ), 28 U.S.C. § 2244. For present purposes, said limitation period starts running 21 f ro m "the date on which the judgment became final by the conclusion of direct review or the 22 23 24 25 26 The petitioner can show that the exhaustion requirement is satisfied because "there is no longer a state remedy available due to petitioner's procedural default," or when he shows "it would be futile to conduct further collateral proceedings to review his conviction in state court." Mercado Negron v. Torres-Suarez, 1999 U.S. Dist. LEXIS 7194, *9-10 (D.P.R. 1999)(citing Byrnes v. Vose, 969 F.2d 1306 (1st Cir. 1992)). However, herein Petitioner has not shown that either of the above mentioned circumstances is present.
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e x p ira tio n of the time for seeking such review."2 Id.; see also Wood v. Spencer, 487 F.3d 1, 4 3 (1st Cir. Mass. 2007). Under Section 2244(d)(2), "the limitations period is tolled for the time 4 d u rin g which `a properly filed application for State post-conviction or other collateral review 5 w ith respect to the pertinent judgment or claim is pending.'" Trapp v. Spencer, 479 F.3d 53, 586 5 9 (1st Cir. Mass. 2007). However, "Section 2244(d)(2) does not reset the clock on the 7 lim ita tio n s period, but merely stops it temporarily, until the relevant applications for review are 8 ru le d upon." Id.; see also Wood v. Spencer, 487 F.3d at 4. 9 Since the one-year limitations period in § 2244(d)(1) is not jurisdictional, it is subject to 10 e q u ita b le tolling in appropriate cases. Trapp, 479 F.3d at 59. However, this circuit has allowed 11 f o r equitable tolling of § 2244(d)(1)'s limitations period in rare and extraordinary cases. Id. 12 C o n s id e rin g that "[o]ne of AEDPA's main purposes was to compel habeas petitions to be filed 13 p ro m p tly after conviction and direct review," Trapp, 479 F.3d at 59 (citing David v. Hall, 318 14 F .3 d 343, 346 (1st Cir. 2003)), equitable tolling "is the exception rather than the rule." Id. 15 (c itin g Donovan v. Maine, 276 F.3d 87, 93 (1st Cir. 2002)). 16 17 18 19 20 21 22 23 24 25 26 Section 2244(d)(1) provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 USCS § 2244.
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M o re o v e r, petitioner bears the burden of establishing a basis for equitable tolling. Id. On 3 th is front, the Supreme Court has "side-stepped the question of whether equitable tolling ever 4 a p p lie s to time limits for the filing of federal habeas petitions by state prisoners, and simply 5 a s su m e d arguendo that equitable tolling is available." Trapp, 479 F.3d at 59 (citing Lawrence 6 v . Florida, 549 U.S. 327 (2007)). There, the Court held that for equitable tolling to apply, a 7 p e titio n e r must show that he has been pursuing his rights diligently, and that some extraordinary 8 c irc u m s ta n c e prevented him from making a timely filing.3 Trapp, 479 F.3d at 59; Lawrence, 549 9 U .S . 327; see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Therefore, if the petitioner 10 d o e s not make out a case of extraordinary circumstances, equitable tolling does not proceed. 11 In the present case, Petitioner was sentenced on June 23, 2003. She then filed an appeal 12 to the Puerto Rico Court of Appeals which was denied on December 12, 2005. Her subsequent 13 m o tio n for reconsideration to the appeals court was denied on March 3, 2006. Petitioner's writ 14 o f certiorari to the Puerto Rico Supreme Court was also denied on June 2, 2006. Finally, 15 P e titio n e r sought reconsideration, and was denied such relief on July 21, 2006, and once again 16 o n August 21, 2006. Therefore, the State court's final judgment was final as on or around 17 A u g u st 21, 2006. Since there is no evidence that Petitioner initiated any other post-conviction 18 o r collateral review of her conviction, the one-year period of limitations began on or around 19 A u g u st 22, 2006. As such, Petitioner should have filed the instant petition on or around August 20 2 2 , 2007. The record shows, however, that her petition was filed on January 13, 2009, that is, 21 22 23 24 25 26 In determining if equitable tolling applies, courts may consider: the petitioner's own diligence in pursuing habeas relief; whether some extraordinary circumstance prevented the petitioner from making a timely filing; petitioner's diligence in the pursuit of other post-conviction remedies and the process already afforded in the state system; any prejudice to the prosecution that would result from tolling and possible retrial; the fact that equitable tolling is not available in cases of dubious merit; and whether the case is a capital case and whether or not the petitioner has been sentenced to death. Trapp, 479 F.3d at 61 (citations omitted).
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w e ll after the one-year period of limitations for petitions under Section 2254. Absent allegations 3 o r proof of extraordinary circumstances which impeded Petitioner's timely filing, this Court 4 f in d s that Petitioner's claims are time-barred. As a result, dismissal with prejudice of her 5 p e titio n is warranted. 6 Conclusion 7 B a s e d on the foregoing, the Government's motion to dismiss is GRANTED, Petitioner's 8 m o tio n under Section 2254 is DENIED, and the instant case is DISMISSED with prejudice. 9 I T IS SO ORDERED. 10 S a n Juan, Puerto Rico, this 10th day of February, 2010. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S / Salvador E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge