Rodriguez-Velez v. USA
Filing
15
OMNIBUS OPINION AND ORDER adopting Report and Recommendation 10 denying 1 Motion to Vacate; denying 13 Motion for Hearing and Motion to Appoint Counsel; and denying 14 Motion for Hearing and Motion to Appoint Counsel. Signed by Judge Daniel R. Dominguez on 3/12/2015. (MM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDUARDO RODRIGUEZ-VELEZ,
Petitioner,
v.
Civil No. 11-2038 (DRD)
UNITED STATES OF AMERICA,
Respondent.
OMNIBUS OPINION AND ORDER
Pending before the Court are: Petitioner Eduardo RodriguezVelez’s
(“Petitioner”
or
“Rodriguez”)
Motion
to
Vacate,
Set
Aside, or Correct Sentence (Docket No. 1) pursuant to 28 U.S.C.
§ 2255; United States’ Response to Petitioner’s Motion Under 28
U.S.C. § 2255 (Docket No. 6); Petitioner’s reply to the United
States’ opposition (Docket No. 7); Magistrate Judge’s Report and
Recommendation (Docket No. 10); and Petitioner’s Objections to
Magistrate Report (Docket No. 11).
For the reasons elucidated
below, the Court hereby ADOPTS IN TOTO the Magistrate Judge’s
Report
and
Recommendation
(Docket
No.
10)
and
DENIES
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
(Docket No. 1).
I. REFERRAL TO THE MAGISTRATE JUDGE
The Court may refer dispositive motions to a United States
Magistrate Judge for a Report and Recommendation pursuant to 28
1
U.S.C. §636(b)(1)(B).
See FED. R. CIV. P. 72(b); see also Local
Rule
v.
72(a);
(1976).
Matthews
An
Weber,
adversely
423
U.S.
party
affected
261,
96
may
S.Ct.
contest
549
the
Magistrate’s Report and Recommendation by filing its objections.
FED. R. CIV. P.
72(b).
Moreover,
28
U.S.C.
§636(b)(1),
in
pertinent part, provides that
any party may serve and file written
objections to such proposed findings and
recommendations as provided by rules of
court. A judge of the court shall make a de
novo determination of those portions of the
report or specified proposed findings or
recommendations to which objection is made.
A judge of the court may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate.
“Absent objection, . . . [a] district court ha[s] a right
to assume that [the affected party] agree[s] to the magistrate’s
recommendation.”
247
(1st
Cir.
Templeman v. Chris Craft Corp., 770 F.2d 245,
1985),
cert
denied,
474
U.S.
1021
(1985).
Additionally, “failure to raise objections to the Report and
Recommendation
waives
that
party’s
right
to
review
in
the
district court and those claims not preserved by such objections
are precluded upon appeal.”
Davet v. Maccarone, 973 F.2d 22,
30-31 (1st Cir. 1992); see Henley Drilling Co. v. McGee, 36 F.3d
143,
150-51
required
when
(1st
Cir.
1994)
challenging
(holding
findings
that
actually
objections
set
out
are
in
a
magistrate’s recommendation, as well as the magistrate’s failure
2
to
make
additional
Standish,
984
“[o]bjection
F.2d
to
a
findings);
25,
27
see
(1st
magistrate’s
also
Cir.
report
Lewry
v.
Town
1993)(stating
preserves
only
of
that
those
objections that are specified”); Borden v. Sec. of H.H.S., 836
F.2d 4, 6 (1st Cir. 1987)(holding that appellant was entitled to
a de novo review, “however he was not entitled to a de novo
review of an argument never raised”).
The Court, in order to accept unopposed portions of the
Magistrate Judge’s Report and Recommendation, need only satisfy
itself that there is no “plain error” on the face of the record.
See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419
(5th Cir. 1996)(en banc)(extending the deferential “plain error”
standard of review to the un-objected to legal conclusions of a
magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404,
410
(5th
Cir.
acceptance
reviewed
1982)(en
of
un-objected
for
“plain
banc)(appeal
to
error”);
from
findings
see
also
of
district
court’s
magistrate
judge
Nogueras-Cartagena
v.
United States, 172 F.Supp. 2d 296, 305 (D.P.R. 2001)(finding
that
the
“Court
reviews
Recommendation
to
recommendation
was
[unopposed]
ascertain
clearly
whether
Magistrate’s
or
not
the
erroneous”)(adopting
Report
and
Magistrate’s
the
Advisory
Committee note regarding FED.R.CIV.P. 72(b)); see also Garcia v.
I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa. 1990)(finding that “when
3
no objections are filed, the district court need only review the
record for plain error”).
In the instant case, Petitioner objected to one portion of
the Magistrate Judge’s Report and Recommendation.
No. 11, at 2-3.
See Docket
Thus, the Court will conduct a de novo review
of the objected-to portions of the Magistrate Judge’s Report and
Recommendation, but will review unobjected-to portions for plain
error.
After a careful analysis, the Court finds no “plain error”
in the unobjected-to Factual and Procedural Background section
of
the
rather
Magistrate
than
Judge’s
repeating
the
Report
and
set
facts
of
Recommendation.
that
pertain
Thus,
to
the
instant case in their entirety, the Court hereby ACCEPTS, ADOPTS
AND INCORPORATES by reference the Magistrate Judge’s findings of
fact in toto, noting particularly that they remain unchallenged.
II.
ANALYSIS
Limitations Period
The United States argues that Rodriguez’s §2255 petition
was
not
filed
within
the
applicable
one-year
statute
of
limitations and that Petitioner failed to demonstrate that rare
and exceptional circumstances warranted equitable tolling of the
limitations period.
Conversely,
See Docket No. 6, at 3-5.
the
Petitioner
claims
that
exceptional
circumstances warrant the tolling of the one-year statute of
4
limitations.
See Docket No. 7, at 2-3.
He claims that he did
not have access to his legal materials or a law library for a
considerable amount of time, as he was housed in Administrative
Segregation
for
several
months
while
at
U.S.
Penitentiary
Pollock.
Thus, Petitioner argues that equitable tolling applies
in
force
full
to
circumstances
of
this
nature,
where
a
Petitioner has been pursuing his rights diligently but is unable
to timely file a motion through no fault of his own.
The Antiterrorism and Effective Death Penalty Act mandates
that all federal habeas corpus petitions must be filed within
one year from the latest of:
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral
review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2255(f).
In the instant matter, as Magistrate Judge
Arenas correctly noted, Petitioner’s habeas corpus petition was
filed
after
the
one-year
limitations
period
had
elapsed.
Nevertheless, the Court must determine whether the limitations
period was equitably tolled, as Petitioner avers.
5
A petitioner arguing in favor of equitable tolling must
demonstrate that (1) he was diligently pursing his rights and
(2) that he was precluded from timely filing his habeas petition
due to some extraordinary circumstance.
United
States,
638
F.3d
315,
323
citations and quotations omitted).
See Ramos-Martinez v.
(1st
Cir.
2011)(internal
In the instant case, the
extraordinary circumstance advanced by the Petitioner is that he
did not have access to legal materials while being housed in
administrative segregation, i.e., solitary confinement, at U.S.
Penitentiary Pollock and that his legal papers were lost during
his
transfer
Further,
the
from
Pollock
Petitioner
to
claims
U.S.
Penitentiary
that
he
filed
a
Hazelton.
Motion
for
Extension of Time (Criminal Case No. 05-140, Docket No. 481) to
file his habeas petition.
claim
on
October
19,
Petitioner eventually filed his §2255
2011,
fifteen
(15)
days
after
the
limitations period had elapsed.
At the outset, the Court notes that Petitioner did not have
access to “law books, computers, or legal aid” as a result of
his
own
behavior.
Petitioner’s
lack
See
of
Docket
access
No.
to
his
11,
at
legal
2.
Therefore,
materials
or
law
library cannot qualify as an extraordinary circumstance, as he
was placed in solitary confinement at U.S. Penitentiary Pollock
due to his own behavior.
See Hizbullahankhamon v. Walker, 255
F.3d 65, 75 (2d Cir. 2001).
Lastly, as the Magistrate Judge
6
noted,
Petitioner
has
failed
to
show
that
he
exercised
reasonable or due diligence in seeking relief.
Accordingly, the Court hereby concludes that Petitioner’s
claims are time-barred.
Nevertheless, the Court, out of an
abundance of caution, discusses the merits of Petitioner’s case.
Ineffective Assistance of Counsel
After conducting an exhaustive review of the record, the
Court agrees with Magistrate Judge Arenas’ determination that
Petitioner’s
attorney’s
representation
objective standard of reasonableness.1
satisfy
the
Strickland
first
v.
prong
Washington,
of
the
466
did
not
fall
below
an
Thus, Petitioner fails to
applicable
U.S.
668
Strickland
(1984).
The
test.
Court
briefly elaborates.
Under the Strickland test, Petitioner has the burden of
showing that (1) counsel’s performance fell below an objective
standard
of
reasonableness,
and
(2)
there
is
a
reasonable
probability that, but for counsel’s error, the result of the
proceedings would have been different.
Padilla v. Kentucky, 559
U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688)); see
Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996);
Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994); López-Nieves v.
United
States,
917
F.2d
645,
648
1
(1st
Cir.
1990)
(citing
The Court reviewed this portion of the Magistrate Judge’s Report and
Recommendation for plain error, as Petitioner failed to coherently object to
the Magistrate Judge’s finding at Docket No. 11. In fact, Petitioner merely
sets forth new grounds for relief, which the Court will not entertain.
7
Strickland, 466 U.S. at 687).
There is no doubt that Strickland
also applies to representation outside of the trial setting,
which
would
include
plea
bargains,
sentence
and
appeal.
See
Missouri v. Frye, 132 S. Ct. 1399, 1408-10, 182 L. Ed. 2d 379
(2012); Lafler v. Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d 398
(2012); Hill v. Lockhart, 474 U.S. 52, 57 (1985); Bonneau v.
United States, 961 F.2d 17, 20-22 (1st Cir. 1992); United States
v. Tajeddini, 945 F.2d 458, 468-69 (1st Cir. 1991)(abrogated on
other grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000)); cf.
Panzardi-Álvarez v. United States, 879 F.2d 975, 982 (1st Cir.
1989); López-Torres v. United States, 876 F.2d 4, 5 (1st Cir.
1989) (abrogated on other grounds by Bonneau v. United States,
961 F.2d 17 (1st Cir. 1992)).
As
Magistrate
Petitioner’s
Judge
arguments
Arenas
are
described
incoherent
and
in
great
detail,
underdeveloped.
In
sum, Petitioner seems to argue that his attorney should have
filed
a
motion
to
dismiss
the
indictment
due
to
several
violations of Fed. R. Crim. P. 6, mainly that the indictment was
not returned in open court.
As the Magistrate Judge emphasized,
Petitioner’s
argument
“rubber
stamp
is
pure
gossamer,
since
before any indictment is entered in the docket, the grand jury
foreperson or deputy foreperson must be present in open court to
present the charging document for filing.”
(citing Fed. R. Crim. P. 6(f)).
8
Docket 10, at 14
No credible evidence has been
provided
to
support
refuses
to
heed
Petitioner’s
Petitioner’s
contention,
invitation
and
to
the
Court
conduct
an
evidentiary hearing when the habeas petition is inadequate on
its face.
Cir.
See United States v. McGill, 11 F.3d 223, 226 (1st
1993)(“In
other
words,
a
§
2255
motion
may
be
denied
without a hearing as to those allegations which, if accepted as
true, entitle the movant to no relief, or which need not be
accepted
as
true
because
facts,
contradict
the
they
state
record,
conclusions
or
are
instead
of
inherently
incredible.”)(internal quotations and citations omitted).2
Accordingly, the Court concurs with Magistrate Judge Arenas
that defense counsel exerted extreme diligence in terms of the
arguments and motions filed before and after trial.
Hence,
Petitioner’s Motion to Vacate (Docket No. 1) is hereby DENIED.
III. CONCLUSION
For
the
reasons
elucidated
in
the
instant
Opinion
and
Order, the Court hereby ADOPTS the Magistrate Judge’s Report and
Recommendation
(Docket
No.
10)
IN
TOTO
and
INCORPORATES
IT
HEREIN BY REFERENCE. Accordingly, Petitioner’s Motion to Vacate
(Docket No. 1) is hereby DENIED.
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
2
Accordingly, Petitioner’s motions for an evidentiary hearing and to appoint
counsel (Docket Nos. 13 and 14) are hereby DENIED.
9
a constitutional or statutory right within the meaning of 28
U.S.C. § 2253(c)(3).3
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 12th day of March, 2015.
s/ Daniel R. Dominguez
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE
3
As stated in the instant opinion, notwithstanding that the Petitioner’s
request is time-barred, the Magistrate Judge and the District Judge, out of
an abundance of caution, examined the habeas request on the merits and denied
said request.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?