Rivera-Valentin v. El Pueblo de Puerto Rico

Filing 14

ORDER DENYING 1 Complaint filed by Hector M Rivera-Valentin. Pursuant to Rule 4 of the Rules Governing § 2254 Proceedings, judgment shall enter summary dismissing the complaint, because it plainly appears from the record that Petitioner is not entitled to § 2254 relief in this court. Signed by Chief Judge Jose A Fuste on 10/4/2010.(mrj)

Rivera-Valentin v. El Pueblo de Puerto Rico

Doc. 14

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO H E C T O R M. RIVERA-VALENTÍN, P e titio n e r , v. E L PUEBLO DE PUERTO RICO, R e s p o n d e n t.

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ORDER P e titio n e r, Héctor M. Rivera-Valentín, brings this pro-se petition under 28 U.S.C. § 2254 f o r relief from sentencing by a Commonwealth court, alleging that the sentence was imposed in violation of his constitutional rights to effective assistance of counsel and due process. (D o c k e t Nos. 1; 10.) Respondent opposes, alleging that Petitioner has not exhausted remedies a v a ila b le in the Commonwealth courts. (Docket No. 9.) Petitioner responds. (Docket No. 11.) A prisoner under sentence of a Commonwealth court must exhaust remedies available u n d e r Commonwealth law before petitioning the federal court for a writ of habeas corpus. See 2 8 U.S.C. § 2254(b)(1)(A). A petitioner has not exhausted available remedies "unless and until th e substance of those claims has been fairly presented to the [Commonwealth's] highest court." B a rre si v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002). Section 2254 provides two exceptions to th is rule in cases where "there is an absence of available [Commonwealth] corrective process; o r circumstances exist that render such processes ineffective to protect the rights of the a p p lic a n t." § 2254(b)(1)(B)(i)­(ii). The petitioner bears the burden of showing that "he

Dockets.Justia.com

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te n d e re d his federal claim [to the Commonwealth's highest court] in such a way as to make it p ro b a b le that a reasonable jurist would have been alerted to the existence of the federal q u e s tio n ." See Barresi, 296 F.3d at 51(quoting Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2 0 0 0 )) (internal quotation marks omitted). This duty to exhaust state court remedies

e n c o m p a s s e s collateral review. See § 2254(c) (stating that a claim has not been exhausted w h e re petitioner "has the right under the law of the [Commonwealth] to raise, by any available p ro c e d u re , the question presented.") P u e rto Rico's Department of Justice asserts that Petitioner has neither directly appealed h is sentence nor exhausted collateral relief. (Docket No. 9 at 6­8.) Petitioner does not refute th is argument, stating only that his trial attorney refused to take his appeal and that another a tto rn e y he recently consulted stated "that there is nothing that can be done." (Docket No. 13.) U n d e r Puerto Rico law, a prisoner seeking a writ of habeas corpus must first file a motion in the tria l court under Rule of Criminal Procedure 192.1, 34 L.P.R.A. App. II, R. 192.1 (2004). See 3 4 L.P.R.A. § 1741. Petitioner states, "I have sent five 5 five [sic] motions asking the h o n o ra b le court for a reconsideration of my sentence." (Docket No. 10 at 4.) This does not s a tis f y Petitioner's burden of proving that he brought his claim before the Puerto Rico Supreme C o u rt. The denial of these five motions, presumably Rule 192.1 motions, could be appealed, o r Petitioner could apply directly for a writ of habeas corpus. As it stands, Petitioner has not ye t exhausted available remedies. F in a lly, we note that Petitioner has not argued the existence of the circumstances e n u m e ra te d in § 2255(b)(1)(B), that could excuse his failure to exhaust.

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In accordance with Rule 11 of the Rules Governing § 2254 Proceedings, whenever we is s u e a final order adverse to the applicant we must concurrently determine whether to issue a c e rtif ic a te of appealability ("COA"). We grant a COA only upon "a substantial showing of the d e n ia l of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this showing, "[t]he p e titio n e r must demonstrate that reasonable jurists would find the district court's assessment of th e constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (q u o tin g Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We see no way in which a reasonable ju ris t could find our assessment of Petitioner's constitutional claims debatable or wrong. P e titio n e r may request a COA directly from the First Circuit, pursuant to Rule of Appellate P ro c e d u re 22. F o r the foregoing reasons, we hereby DENY Petitioner's § 2254 motion (Docket Nos. 1; 3 .) Pursuant to Rule 4 of the Rules Governing § 2254 Proceedings, summary dismissal is in o rd e r, because it plainly appears from the record that Petitioner is not entitled to § 2254 relief in this court. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 4 th day of October, 2010. s/J o s é Antonio Fusté JO S E ANTONIO FUSTE Chief U.S. District Judge