Diaz-Diaz v. USA
Filing
12
OPINION AND ORDER denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 99-044-JAG) . Signed by Judge Jay A Garcia-Gregory on 4/26/2012. (RJC) Modified on 4/27/2012 to edit title (ab).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARLOS OSCAR DIAZ-DIAZ,
Petitioner
CIVIL NO. 10-1301 (JAG)
v.
CRIM. NO. 99-044
(JAG)
UNITED STATES OF AMERICA,
Defendants
OPINION & ORDER
Garcia-Gregory, D.J.
Before
the
Court
stands
Petitioner’s
Motion
for
habeas
corpus relief pursuant to 28 U.S.C. § 2255. (D.E.1).1 Although
the Government was granted an extension of time, it never filed
a response (D.E. 4 & 5).2
For the reasons discussed below, the
Court DENIES petitioner’s motion with prejudice.
BACKGROUND
On
September
(hereinafter
term
of
2,
2003,
“Petitioner”
imprisonment
of
Petitioner
or
two
Carlos
“Diaz-Diaz”)
hundred
and
was
Oscar
Diaz-Diaz
sentenced
twenty
eight
to
a
(228)
months. Petitioner had previously pled guilty to violations of
1
D.E. is an abbreviation of docket entry number.
The Court is still awaiting an explanation as to why the
appearing AUSA in this matter chose to ignore this Court’s
directive.
2
CIVIL NO. 10-1301 (JAG)
2
18 U.S.C. § 924(j) and 2 - aiding and abetting in using and
carrying firearms during and in relation to a crime of violence,
specifically extortion, which resulted in the death of a person
(Crim. D.E. 750).3
On
750).
September
Petitioner
therefore
5,
2003,
never
Diaz-Diaz’s
Judgment
filed
an
conviction
was
entered
appeal
became
of
final
his
(Crim.
D.E.
conviction;
after
ten
(10)
days, pursuant to Rule 4(b)(1)(A)(I) of the Federal Rules of
Appellate Procedure.
On June 23, 2005, Petitioner, through his counsel, filed a
Motion to Set Aside Sentence or to Vacate Sentence Pursuant to §
2255 (Crim. D.E. 813).4
On August 4, 2005, the Court denied said
motion (Crim. D.E. 814).5
On March 15, 2010, Petitioner gave to a prison official a
Motion in Request for Relief from Void Judgment Pursuant to Rule
60(b)(4). The same was received and filed on March 19, 2010
(Crim. D.E. 835).
On April 6, 2010, the Court ordered the
3
Crim. D.E. is an abbreviation for criminal docket entry.
The motion had one (1) paragraph that simply stated:
“Defendant-Petitioner Carlos O. Diaz-Diaz respectfully moves
this Honorable Court, sentencing U.S. District Judge, to vacate,
set aside or correct his criminal sentence pursuant to Blakely
v. Washington 542 U.S. ___ (06/24/2004) and Dodd v. U.S. 545
U.S. ___ (06/20/2005).” (Crim. D.E. 813).
5
The Court gave three reasons for its denial : (1) the motion
was devoid of any facts or argument; (2) petitioner did not
appear to have a viable claim; and (3) the motion was timebarred. (Crim. D.E. 814).
4
CIVIL NO. 10-1301 (JAG)
3
Government to respond to said motion (Crim. D.E. 837).
On April
8,
time
2010,
the
Government
requested
an
extension
of
to
respond (Crim. D.E. 844).
On
April
9,
2010,
the
Court,
upon
review
of
the
Rule
60(b)(4) motion, issued an order directing the Clerk of the
Court to file said motion as a Motion to Set Aside Judgment
pursuant to Title 28, United States Code, Section 2255 (Crim. D.
E. 845).
On April 23, 2010, Petitioner filed a Motion for
Reconsideration of the Court’s Order re-classifying and properly
filing his motion as a § 2255 Petition (Crim. D.E. 848).6
On
April 26, 2010, the Court ordered stricken from the record the
motion requesting extension of time to respond, previously filed
by the Government and instructed the Government to file the same
in
the
now-civil
2255
(Crim. D.E. 853).
petition
case,
Civil
No.
10-1301(JAG)
On April 26, 2010, the Government followed
the Court’s instructions and filed the extension of time in
Civil No. 10-1301 (D.E. 4).
On
May
4,
2010,
the
To date no response has been filed.
Court
Reconsideration (Crim. D. E.
issued
its
Order
denying
the
854).
On May 17, 2010, Petitioner filed a Notice of Appeal as to
the Court’s denial of the Reconsideration (Crim. D. E. 855).
On
August 13, 2010, the First Circuit Court of Appeals issued its
6
In his motion, petitioner acknowledges the fact that as a
Section 2255 Petition his motion would be time barred.
CIVIL NO. 10-1301 (JAG)
Judgment
August
dismissing
13,
4
Petitioner’s
2010).
As
such,
appeal
(Appeal
pending
before
No.
the
10-1770,
Court
is
Petitioner’s Section 2255 Petition (D.E.1).
DISCUSSION
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) went into effect on April 24, 1996.
limitations
prisoner’s
period
of
conviction
one
year
becomes
federal habeas relief.
from
“final”
AEDPA established a
the
date
within
on
which
which
to
a
seek
Congress intended that AEDPA be applied
to all § 2255 petitions filed after its effective date. Pratt v.
United States, 129 F.3d 54, 58 (1st Cir. 1997).
In the case at hand, taking the dates of entry of Judgment
and
reviewing
the
tolling
of
the
applicable
statute
of
limitations in the light most favorable to Petitioner, it is
clear that his judgment of conviction became final ten days
following entry of judgment. This would have been the allotted
time limit for Petitioner to file his Notice of Appeal. Kapral
v. United States, 166 F.3d 565 (3d Cir. 1999).
Petitioner’s Judgment was entered September 5, 2003 -
this
means that on September 15, 2003, his conviction became final
and
the
one
year
statute
of
limitation
began
to
accrue.
CIVIL NO. 10-1301 (JAG)
Therefore,
5
Petitioner
had
until
timely file his section 2255 petition.
September
15,
2004,
to
However, Diaz-Diaz did
not provide his petition to prison guards until March 15, 2010,
over
five
(5)
years
limitations had expired.
after
the
one
(1)
year
statute
of
Hence, the same is time barred.
Petitioner would like this Court to entertain his argument
of his Motion for Reconsideration (Crim. D.E. 848); namely, that
this Court could not sua sponte re-classify his original Rule 60
motion as a § 2255 Petition. Petitioner alleges that prior to
entering that order, the Court would have to provide him with
notice of the adverse effect the order would have.
Diaz-Diaz is
well aware that as a § 2255 Petition, his request for relief
would
be
time
Reconsideration.
barred
as
he
so
states
in
his
Motion
for
The Court is not persuaded by Petitioner’s
argument.
The re-classification of motions in order for them to be
properly filed as § 2255 Petitions is a matter already settled
by the First Circuit Court of Appeals.
The Circuit Court has
made it clear that it is essential for courts to plot, and then
patrol, the boundaries between § 2255 and the universe of writs.
Otherwise, artful pleaders will tiptoe around those boundaries
and frustrate Congress’s discernible intent. Trenkler v. United
States, 536 F.3d 85, 97 (1st Cir. 2008). In carrying out this
CIVIL NO. 10-1301 (JAG)
6
duty, courts must be guided by the principal that substance
trumps form.
imposed
the
“Thus, any motion filed in the district court that
sentence,
and
substantively
within
the
scope
of
Section 2255, is a motion under Section 2255, no matter what
title the prisoner plasters on the cover.” Id. at 97 (citing
Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004)).
Following this approach, courts regularly re-characterize
imaginatively captioned petitions to reflect that they derive
their essence from § 2255 and, thus, must satisfy the section’s
gatekeeping provisions. See United States v. Winestock, 340 F.3d
200, 206-208 (4th Cir. 2003) (re-characterizing a self-styled
Rule 60 (b) motion).
An analysis of the substance of Diaz-Diaz’s Petition leaves
no
doubt
that
regardless
of
its
label,
clearly within the bounds of § 2255.
the
Petition
falls
Petitioner’s motion is
brought by a federal prisoner still in custody, challenging his
sentence as well as the performance of his counsel, and alleging
his sentence was beyond the scope of the statute of conviction.
There is no doubt that Diaz-Diaz’s motion is in fact a §
2255 Petition for relief, and as such, the same is untimely.
CIVIL NO. 10-1301 (JAG)
7
Successive filings
Petitioner’s § 2255 motion confronts an additional problem.
The First Circuit Court has clearly stated that a motion made
under Rule 60(b) of the Federal Rules of Civil Procedure for
relief from judgment previously entered in a § 2255 proceeding
“should be treated as a second or successive habeas petition ifand only if-the factual predicate set forth in support of the
motion constitutes a direct challenge to the constitutionality
of the underlying conviction.” Muñoz v. United States, 331 F.3d
151, 152 (1st Cir. 2003) citing Rodwell v. Pepe, 324 F.3d 66
(1st Cir. 2003).
A review of the motion in question leaves no doubt that
Diaz-Diaz is precisely challenging the constitutionality of the
underlying conviction.
This, along with his previous § 2255
motions (Crim. D.E. 813 & 814), make Petitioner’s current motion
before the Court a successive habeas petition. This provides an
additional basis for the Court to deny the present petition.
The AEDPA requires a federal prisoner, before proceeding
with a second or successive habeas petition in the district
court, to obtain from “the appropriate court of appeals … an
order
authorizing
the
district
court
to
consider
the
application.” See Rainer v. United States, 233 F.3d 96, 99 (1st
Cir. 2000).
Petitioner did not seek nor obtain the required
CIVIL NO. 10-1301 (JAG)
authorization
from
8
the
First
Circuit
Court
of
Appeals;
therefore, this Court lacks jurisdiction over his Rule 60(b)
motion and the same cannot be entertained. See Muñoz v. United
States, 331 F.3d 151 (1st Cir. 2003).
CONCLUSION
For the reasons stated, the Court concludes that Petitioner
Diaz-Diaz is not entitled to request federal habeas relief on
the claim presented.
Accordingly, the Court DENIES petitioner’s
request for habeas relief under 28 U.S.C. § 2255, and his Motion
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255
is DISMISSED WITH PREJUDICE.
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 a 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 26th day of April, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
§
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