Ramos-Ramos v. USA

Filing 57

OPINION AND ORDER DENYING 56 SECOND MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-453-JAF) filed by Pedro J. Ramos-Ramos, for lack of jurisdiction. Signed by Judge Jose A Fuste on 4/12/2013.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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PEDRO RAMOS-RAMOS,

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Petitioner.

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v.

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Civil No. 09-2270 (JAF)

UNITED STATES OF AMERICA,
Respondent.

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OPINION AND ORDER

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Pedro Ramos-Ramos moves a second time to vacate his sentence under 28 U.S.C.

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§ 2255. (Docket No. 56.) He claims that he received ineffective assistance of counsel. (Id.)

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But, because Ramos-Ramos raised these claims before on direct appeal and did not receive a

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certificate of appealability, he is procedurally barred from raising them now. As a result, his

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motion is dismissed.
I.

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On September 10, 2008, Petitioner pled guilty to one count of conspiracy to possess

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with intent to distribute at least one kilogram of heroin, fifty grams or more of cocaine base

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(“crack”); five kilograms or more of cocaine; and an unspecified quantity of marijuana,

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Oxycodone, and Alprazolam, all in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C),

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(b)(2), and 860. (Crim. No. 07-453, Docket No. 1254 at 1–2.) He also pled guilty to aiding

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and abetting the use and carrying of firearms during and in relation to a drug trafficking

Background

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Civil No. 09-2270 (JAF)
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offense, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(i). (Id.) In exchange, the

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government agreed to recommend dismissal of the remaining counts Petitioner was charged

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with in the superseding indictment. (Id.) On December 23, 2008, based on the plea

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agreement’s recommendation, we sentenced Petitioner to 180 months’ imprisonment, a

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consecutive term of 60 months for the firearms offense, and two supervised release terms of

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six and five years to be served concurrently. (Id., Docket No. 1622.) Petitioner filed the

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present petition seeking relief under § 2255 on December 22, 2009. (Docket No. 1.)

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Finding that Petitioner had alleged a sufficient claim for ineffective assistance of counsel,

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this court held an evidentiary hearing to adjudicate his petition on July 16, 2010, but we

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declined to appoint counsel for Petitioner. (Docket No. 14 at 1.) Our subsequent opinion

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dismissing the petitioner’s motion under § 2255 was vacated by the First Circuit and

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remanded with instructions to conduct another evidentiary hearing in which Petitioner

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would be represented by appointed counsel. (Docket No. 26.) Petitioner, his newly-

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appointed counsel, and his trial counsel all appeared at the evidentiary hearing held by this

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court on June 7, 2011. (Docket No. 45.) We denied Petitioner’s motion. (Docket No. 46).

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On January 17, 2012, the First Circuit denied Petitioner’s request for a certificate of

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appealability. (Docket No. 54.)
II.

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Section 2255 disfavors "second or successive” habeas petitions seeking to vacate, set

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aside, or correct a sentence. See 28 U.S.C. § 2255; Burton v. Stewart, 549 U.S. 147, 153

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(2007). A later petition that raises the same grounds as a previous petition is considered a

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second or successive petition. Sustache-Rivera v. United States, 221 F.3d 8, 12-3 (1st Cir.

Discussion

Civil No. 09-2270 (JAF)

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2000). On June 27, 2011, we denied Petitioner’s first Section 2255 motion on the

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merits. (Docket No. 46.) Therefore, Petitioner’s present motion is a “second or successive”

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application for relief.

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Before filing a second or successive motion under Section 2255, a defendant “shall

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move the appropriate court of appeals for an order authorizing the district court to consider

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the application.” 28 U.S.C. § 2244(b)(3)(A); see also, 28 U.S.C. § 2255 (“A second or

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successive motion must be certified as provided in section 2244 by a panel of the

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appropriate court of appeals....”). The court of appeals may authorize a second or successive

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Section 2255 motion only if it presents a claim not previously raised, and contains either

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“newly discovered evidence” that establishes the defendant’s innocence or “a new rule of

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constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28

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U.S.C. § 2255; Burton, 549 U.S. 152; Tyler v. Cain, 533 U.S. 656, 661-62

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(2001). A district court lacks jurisdiction over a second or successive petition unless the

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defendant obtains certification from the appropriate court of appeals. Trenkler v. United

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States, 536 F.3d 85, 98 (1st Cir. 2008) (petition was rejected as an unauthorized second or

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successive habeas petition and was foreclosed on that basis).

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Here, Petitioner neither sought nor received authorization from the First Circuit Court

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of Appeals before filing his second motion to vacate, set aside, or correct his sentence

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pursuant to 28 U.S.C. § 2255. Furthermore, Petitioner provides no grounds for this court to

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conclude that the First Circuit Court of Appeals would certify his second petition: Petitioner

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fails to identify any newly-discovered evidence, or a new, previously unavailable rule of

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constitutional law made retroactive to cases on collateral review by the Supreme Court.

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Civil No. 09-2270 (JAF)
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Therefore, this court has no authority to consider Petitioner's present 2255 motion, and it

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must be dismissed.
III.

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Conclusion
For the foregoing reasons, we hereby DENY Petitioner’s second motion to vacate,
set aside, or correct his sentence pursuant 28 U.S.C. § 2255 for lack of jurisdiction.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 12th day of April, 2013.

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s/José Antonio Fusté
JOSE ANTONIO FUSTE
Chief U.S. District Judge