Sterling-Suarez v. USA

Filing 7

ORDER denying 6 Supplemental Motion; denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 7/22/2015. (VCC)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
QUESTER STERLING-SUAREZ
Petitioner,
Civil No. 13-1013 (PG)
Related Crim No. 02-117(PG)

v.
UNITED STATES OF AMERICA
Respondent.

OPINION AND ORDER
Before the Court are Petitioner’s 28 U.S.C. Sec. 2255 Habeas
Corpus Petition (Docket No. 1) and Supplemental Motion (Docket No. 6).
For the reasons discussed below, the Court finds the Petition shall be
DENIED.
I. BACKGROUND
On

March

14,

2003,

Petitioner

Quester

Sterling-Suarez

(hereinafter “Sterling-Suarez” or Petitioner”) was charged in a ten
(10) count Second Superseding Indictment. See C.D.E.1 85.
Sterling-Suarez was charged in counts one (1), two (2), three
(3), four (4), seven (7), eight (8) and nine (9) (C.D.E. 85).
one

charged

violations

to

Title

18,

United

States

Count

Code,

Section

1951(a). Count two charged violations to Title 18, United States Code,
Section 924(c)(1)(A)(iii) and 2.

Count three charged violations to

Title 18, United States Code, Sections 1951(a) and 2.
charged

violations

to

924(c)(1)(A)(ii) and 2.
United

States

Code,

Title

18,

United

States

Count four

Code,

Section

Count seven charged violations to Title 18,

Sections

1951(a)

and

2.

Count

eight

charged

violations to Title 18, United States Code, Sections 924(j) and 2.
Count

nine

charged

violations

to

Title

18,

United

States

Code,

Sections 924(c)(1)(A)(iii) and 2. See C.D.E. 85.
The charges against Petitioner and his four (4) co-defendants
stem from an armed robbery perpetrated against armed guards/drivers of
Ranger

America

while

they

were

carrying

out

a

money

delivery

in

Gurabo, Puerto Rico. During the course of the robbery, Ranger America
1

C.D.E. is an abbreviation of criminal docket entry.

Civil No. 13-1013(PG)

guard

Gilberto

Page 2

Rodriguez-Cabrera

was

shot

and

killed

and

Ranger

America Guard Eluber Torres-Alejandro was shot and wounded, U.S. v.
Catalan-Roman, 585 F.3d 453 (1st Cir.2009).
On September 9, 2005, after eight (8) days of a jury trial,
Sterling-Suarez
charged.

See

was

found

guilty

563.

On

C.D.E.

of

all

December

counts
12,

in

2005,

which

he

was

Petitioner

was

sentenced to a term of imprisonment of twenty (20) years as to counts
one (1), three (3) and seven (7), said term to be served concurrently
with each other, as well as a term of imprisonment of thirty (30)
years as to counts two (2) and nine (9), said term to be served
concurrently with each other and to the sentence imposed as to count
four

(4),

but

consecutively

to

all

other

counts.

The

Court

also

imposed a term of imprisonment of twenty one (21) years as to count
four (4), said term to be served concurrently to the sentences imposed
as to counts two (2) and nine (9) and consecutively to the sentences
imposed as to all other counts and a term of imprisonment of life as
to count eight (8). See C.D.E. 589. Judgment was entered on December
16, 2009. See C.D.E. 590.
On March 20, 2006, Sterling-Suarez’s counsel filed a Motion for
Re-Sentencing requesting that Petitioner be allowed to exercise his
right of allocution prior to sentencing.2 See C.D.E. 619. The request
was granted and Petitioner was re-sentenced on November 17, 2006. The
terms

of

imprisonment

Sterling-Suarez,
allocution,

chose

did

this
not

time
to

not

vary

properly

address

the

from

his

informed
court.

original

sentence.

of

right

of

650.

On

See

his

C.D.E.

November 17, 2006, Petitioner filed a Notice of Appeal. See C.D.E.
649. The Court entered an Amended Judgment on November 27, 2006. See
C.D.E. 651.

On November 27, 2006, Petitioner filed a second Notice of

Appeal. See C.D.E. 653.

On November 28, 2006, Petitioner filed a

third Notice of Appeal. See C.D.E. 652.
On October 17, 2008, the First Circuit Court of Appeals issued
its

Judgment

affirming

Sterling-Suarez’s

sentence.

Judgment was entered on October 20, 2008. Id.
2

See

C.D.E.

692.

Petitioner did not file

Counsel informed the court that he had not properly advised Sterling-Suarez
of his right to allocution. See C.D.E. 619.

Civil No. 13-1013(PG)

Page 3

Certiorari before the Supreme Court.
became final on January 18, 2009.

Therefore, Petitioner’s sentence
As of that date, Sterling-Suarez

had one (1) year to file a timely 2255 Petition.
Sterling-Suarez signed and dated his 2255 Petition on December
20, 2012. See Docket No. 1. As such, the same is untimely. Petitioner
even admits to this fact in his filing. See Docket No. 1-1, pages 1517.

Yet

he

argues

that

this

Court

should

nonetheless

review

his

petition for two reasons. First, Sterling-Suarez points to Missouri v.
Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376
(2012), to argue that those cases create a newly recognized right.
Second, Petitioner puts forth an equitable tolling argument.
II. DISCUSSION
A. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
went into effect on April 24, 1996.

AEDPA established a limitations

period of one (1) year from the date on which a prisoner’s conviction
becomes “final” within which to seek federal habeas relief.

Congress

intended that AEDPA be applied to all section 2255 petitions filed
after its effective date. Pratt v. United States, 129 F.3d 54, 58 (1st
Cir. 1997).
If a defendant does not file a petition for writ of certiorari
with the United States Supreme Court after direct appeal, the judgment
of conviction is final when the time for filing a certiorari petition
expires.

Derman

v.

United

States,

298

F.3d

34

(1st

Cir.

2002).

Pursuant to the Rules of the Supreme Court, Rule 13.1, a petition for
writ of certiorari is timely when it is filed within ninety (90) days
following entry of judgment.
In the case at hand, Petitioner had until January 18, 2010, to
timely file his 2255 Petition yet waited until December 20, 2012 to do
so. Hence, the 2255 request is time barred.
B. Newly-Recognized Right
Petitioner, however, alleges that pursuant to the holding of the
Supreme

Court

in

Frye

and

Lafler,

his

2255

Petition

should

be

entertained because those cases created a newly-recognized right. In
Frye and Lafler the Supreme Court issued back-to-back decisions that

Civil No. 13-1013(PG)

Page 4

established as a general rule that defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on the
terms and conditions that may be favorable to the accused. If the
offer

is

not

communicated

and

subsequently

expires,

then

“defense

counsel did not render the effective assistance that the Constitution
requires.” Lafler, 132 S.Ct. at 1390-1391.
Contrary to what Petitioner avers, the First Circuit has ruled
that these cases do not establish a “new rule of constitutional law,
made retroactive to cases on collateral review.” Pagan-San Miguel v.
United States, 736 F.3d 44, 45 (1st Cir. 2013). Having established
that Petitioner’s argument of newly discovered right is contrary to
First Circuit case law, the Court deems his Section 2255 untimely.
C. Equitable Tolling
Sterling-Suarez’ next argument can only be construed as a halfhearted

attempt

tolling

at

suspends

equitable

the

tolling.

running

of

a

The

doctrine

statute

of

of

equitable

limitations

if

a

plaintiff, in the exercise of reasonable diligence, could not have
discovered information essential to his claim. Ramirez-Carlo v. United
States, 496 F3d. 41 (1st Cir. 2007).
The Supreme Court has held that the limitations period under
AEDPA which applies to federal habeas petitions filed by prisoners in
state

custody,

instances.

is

Holland

subject
v.

to

Florida,

equitable
130

S.Ct.

tolling
2549

in

appropriate

(2010).

The

First

Circuit Court has held that “given the compelling textual similarity
and congruent purpose that section 2244(d) and section 2255(f) share
and

the

common

statutory

heritage

framework,

limitations

period

is

we

of

both

hold

subject

provisions

that
to

as

section

equitable

part

of

2255(f)’s

tolling

in

the
one

same
year

appropriate

instances.” Ramos-Martinez v. United States, 638 F.3d 315, 322 (1st
Cir. 2011).

However, the applicability of equitable tolling is far

from automatic.

A court’s power to invoke equitable tolling must be

exercised on a case by case basis. Irwin v. Dep’t of Vet. Affairs, 498
U.S. 89 (1990).
A habeas petitioner bears the burden of establishing the basis
for equitable tolling. Riva v. Ficco, 615 F.3d 35, 39 (1st Cir. 2010).

Civil No. 13-1013(PG)

Page 5

To carry this burden, the petitioner must show: “(1) that he has been
pursuing

his

rights

diligently,

and

(2)

that

some

extraordinary

circumstance stood in his way and prevented timely filing.” Holland,
130 S.Ct. at 2562 (quoting Pace v. Di Guglielmo, 544 U.S. 408 (2005)).
AEDPA’s statute of limitations will not be equitably tolled merely
because the underlying grounds for habeas relief are extraordinary;
rather

the

“extraordinary

circumstance”

must

be

one

that

actually

caused the untimely filing. Holmes v. Spencer, 685 F.3d 51, 62 (1st
Cir. 2012).
The Petitioner asserts that while his appeal was pending before
the First Circuit Court, he was placed in the Special Management Unit
(SMU) program, and during his time at SMU he was not allowed full and
unobstructed access to the law library. Furthermore, Petitioner states
that

he

had

no

Sterling-Suarez

means
alleges

to

prepare

that

his

once

he

2255
was

petition

released

in

from

English.
SMU,

the

statute of limitation had already expired. See Docket No. 1-1 at 16.
Sterling-Suarez provides no evidence to sustain his allegations.
What’s more, he doesn’t claim that he did not have access to the law
library, only that his access was limited. Petitioner was required to
show that he took at least some action to overcome this indisposition
during

the

limitations

period

in

order

to

demonstrate

that

he

exercised reasonable diligence in trying to preserve his rights.

See

e.g. Dominguez v. Duval, 527 F. App’x 38 (1st Cir. 2013).
Petitioner’s

argument

is

undeveloped

and

unsupported.

For

example, Sterling-Suarez has provided no evidence as to the attempts
he made to gain access to the law library or to seek help with the
translation

of

his

2255

petition.

“The

diligence

requirement

of

equitable tolling imposes on the prisoner a substantial obligation to
make

all

language

reasonable

efforts

deficiency.”

Diaz

to

v.

obtain

Kelly,

assistance

515

F.3d

to

149,

mitigate
154

(2nd

his
Cir.

2008).
The Court further notes that this Petition was filed over two (2)
years after the statute of limitations had expired, clearly SterlingSuarez was not in SMU for this prolonged period of time nor did he act
in

a

diligent

fashion

once

he

was

removed

from

SMU.

In

sum,

Civil No. 13-1013(PG)

Page 6

Petitioner’s last minute attempt to circumvent a one year statute of
limitations fails.
III. CONCLUSION
For

the

reasons

stated,

the

Court

concludes

that

Petitioner

QUESTER STERLING-SUAREZ, is not entitled to federal habeas relief on
the claim presented due to the fact that the same is time barred.
Accordingly, it is ordered that Petitioner QUESTER STERLING-SUAREZ’s
request for habeas relief under 28 U.S.C. Sec. 2255 (Docket No. 1) be
DENIED, and his Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. Sec. 2255 be DISMISSED WITH PREJUDICE.
IV. CERTIFICATE OF APPEALABILTY
For

the

reasons

previously

stated

the

Court

hereby

denies

Petitioner’s request for relief pursuant to 28 U.S.C. Section 2255.
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 a constitutional
right within the meaning of 28 U.S.C. 2253(c)(2).

IT IS SO ORDERED.
In San Juan, Puerto Rico, July 22, 2015.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE