Quiles-Arce v. USA

Filing 10

OPINION AND ORDER denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 7/11/2014. (PMA)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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RAFAEL QUILES-ARCE,
Petitioner
CIVIL 12-1968 (PG)
(CRIMINAL 05-0021(PG))

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v.
UNITED STATES OF AMERICA,
Respondent

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OPINION AND ORDER
On March 27, 2006, petitioner entered a plea of guilty to an indictment
charging him and two others with a car jacking resulting in the murder of the

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victim. (Crim. No. 05–0021, Docket Nos. 29, 144). Petitioner was sentenced to

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a term of imprisonment of 168 months on September 27, 2006. (Crim. No.

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05–0021, Docket No. 179). Petitioner appealed and the court of appeals affirmed

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the conviction in a judgment entered on February 7, 2008. United States v.

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Quiles-Arce, Appeal No. 06-2542 (1st Cir., February 7,

2008).

The court of

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appeals noted that this court held extensive and careful hearings before deciding

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to make a downward departure from the advisory sentencing range on the ground

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of petitioner’s diminished capacity, and that a well-reasoned and full explanation

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for the sentence was also provided. The court of appeals could not characterize
the sentence as unreasonable in the context of this case.

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CIVIL 12-1968 (PG)
(CRIMINAL 05-0021 (PG))

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This matter is before the court on motion brought under 28 U.S.C. § 2255
to vacate, set aside or correct sentence file by petitioner Rafael Quiles-Arce on

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November 28, 2012. (Docket No. 1). Petitioner’s argument relies on a newly

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recognized right as arguably provided by Lafler v. Cooper, 566 U.S. ___, 132 S.

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Ct. 1376 (2012). He does not challenge the guilt for his crime, but rather argues

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error in the sentence based on a conflict of interest of his attorney and ineffective

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assistance of counsel.

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On January 10, 2013, the government responded to the motion September

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29, 2011, noting that the judgment on appeal was issued on February 7, 2008

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and the time to petition for a writ of certiorari ended ninety days later on May 7,

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2008. See Clay v. United States, 537 U.S. 522, 531, 123 S. Ct. 1072 (2003).

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Therefore, the limitations period having ended on May 7, 2009, the petition is time

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barred. The government also quotes extensively from the judgment of the court

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of appeals in arguing the lack of merit of the motion.

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Petitioner filed a reply to the response on January 28, 2013. (Docket No. 6).

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He also filed a supplemental motion to vacate on March 8, 2013. (Docket No. 8).

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He argues that his attorney gave him erroneous advise, and that counsel knew of

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a sentencing error and failed to raised it on appeal, instead filing an Anders brief.

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See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).

Counsel had told

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petitioner that there were no legal issues worthy of appeal. In the supplemental

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CIVIL 12-1968 (PG)
(CRIMINAL 05-0021 (PG))

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brief, petitioner relies on United States v. Powell, 691 F.3d 554 (4th Cir. 2012) and
United States v. Thomas, 627 F.3d 534 (4th Cir. 2010) in pressing before the court

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that it has jurisdiction to retroactively apply Lafler, 566 U.S. ___, 132 S. Ct. 1376

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under 28 § U.S.C. 2255(f)(3).

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situations in which new substantive law and legal rules ought to be applied

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However, those cases discuss exceptional

retroactively. United States v. Powell, 691 F.3d at 557-58; United States v.

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Thomas, 627 F. 3d at 537-38.

Neither of those exceptions apply here, and

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neither case, the latter one for obvious reasons, discusses Lafler, 566 U.S. ___,

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132 S. Ct. 1376.

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A review of recent circuit case law, including our circuit, reveals that the
circuit courts have uniformly found that Lafler, 566 U.S. ___, 132 S. Ct. 1376 did

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not announce a “newly recognized right”. Pagan-San Miguel v. United States, 736

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U.S. 44, 46 (1st Cir. 2013); Gallagher v. United States, 711 F.3d 315, 316 (2d

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Cir. 2013); Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013); In re

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King, 697 F.3d 1189 (5th Cir. 2012); Buenrostro v. United States, 697 F.3d 1137-

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40 (9th Cir. 2012); Hare v. United States, 688 F.3d 878-80 (7th Cir. 2012); In Re

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Graham, 714 F.3d 1181, 1182-83 (10th Cir. 2013). Therefore, the holding of

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Lafler, 566 U.S. ___, 132 S. Ct. 1376 is inapplicable.

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

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instituted a limitations period of one year from the date on which a prisoner’s

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CIVIL 12-1968 (PG)
(CRIMINAL 05-0021 (PG))

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conviction became final within which to seek federal habeas relief. See Pratt v.
United States, 129 F.3d 54, 58 (1st Cir. 1997).

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In its pertinent part, section 2255 reads:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run 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
government 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).
Petitioner’s memorandum of law reveals no circumstances which would
equitably toll the limitations period of the statute. See e.g. Ramos-Martinez v.

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United States, 638 F.3d 315, 321-24 (1st Cir. 2011).

The present petition was

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filed over three years from the date petitioner’s sentence became final and

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unappealable. Therefore, petitioner’s claim is time-barred.

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United States, 268 F.3d 16, 23-26 (1st Cir. 2001).

See Trenkler v.

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CIVIL 12-1968 (PG)
(CRIMINAL 05-0021 (PG))

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In view of the above, the Motion to Vacate, Set Aside or Correct Sentence
is denied, and this action is dismissed with prejudice.

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Based upon my reasoning above, no certificate of appealability should be

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issued in the event that petitioner files a notice of appeal, because there is no

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substantial showing of the denial of a constitutional right within the meaning of

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Title 28 U.S.C. § 2253(c)(2). Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S. Ct.

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1029 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595
(2000); also see Medellin v. Dretke, 544 U.S. 660, 676, 125 S. Ct. 2088 (2005).

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IT IS SO ORDERED.

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In San Juan, Puerto Rico, this July 11th, 2014.

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S/JUAN M. PEREZ GIMENEZ
Senior United States District Judge