Gomez-Ortiz v. USA
Filing
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OPINION AND ORDER DENYING 1 , 5 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 09-61), filed by Armando Gomez-Ortiz. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Gomez is not entitled to § 2255 relief from this court. Judgment to be entered accordingly. Signed by Judge Jose A. Fuste on 01/08/2014.(mrj)
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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
ARMANDO GÓMEZ-ORTIZ,
Petitioner,
Civil No. 13-1032 (JAF)
v.
(Crim. No. 09-061-01)
UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER
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Petitioner Armando Gómez-Ortiz (“Gómez”) comes before the court with a petition
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under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed. (Docket No. 1.)
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The United States opposes his motion. (Docket No. 3.) Because this petition is time-barred, we
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lack jurisdiction and must dismiss the petition.
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I.
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Background
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On February 11, 2009, Gómez was indicted for conspiracy to possess with intent to
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distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; and for aiding
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and abetting in the possession of a machine gun in furtherance of a drug trafficking crime in
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violation of 18 U.S.C. §§ 924(c)(1)(A) and (c)(1)(B)(ii) and Section 2. (Crim. No. 09-061.) On
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May 4 and 5, 2009, Gómez was tried before a jury and convicted on both counts. (Crim. No. 09-
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061, Docket Nos. 44, 48, 49.) On August 11, 2009, we sentenced him to sixty-three (63) months
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as to count one and to three-hundred sixty (360) months as to count two, to be served
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consecutively, for a total imprisonment term of four-hundred twenty-three (423) months. We
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also sentenced Gómez to supervised release of four years as to count one and five years as to
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count two, to be served concurrently, and to a monetary assessment. Finally, we sentenced him
Civil No. 13-1032 (JAF)
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to forfeiture of any firearms and ammunitions involved or used in the commission of the offense.
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(Crim. No. 09-061, Docket Nos. 63, 65.)
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On August 18, 2009, Gómez notified the court that he was pursuing an appeal. (Crim.
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No. 09-061, Docket No. 69.) On appeal, he argued that the evidence was insufficient to convict
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him on either count; that the government committed a Brady violation; and that we erred in
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instructing the jury as to the firearm count. U.S. v. Alverio-Melendez, 640 F.3d 412, 416 (1st
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Cir. 2011). On April 1, 2011, the First Circuit affirmed his conviction. Id. On January 15,
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2013, Gómez filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C.
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§ 2255. (Docket No. 1.) On February 28, 2013, the government filed a response in opposition.
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(Docket No. 3.) On March 19, 2013, Gómez filed a supplemental motion and a supplemental
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memorandum of law. (Docket Nos. 5, 6.)
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II.
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Jurisdiction
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We do not have jurisdiction to hear this case pursuant to 28 U.S.C. § 2255. Gómez is
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currently in federal custody having been sentenced by this District Court. However, to file a
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timely motion, Gómez had one year from the date his judgment became final. 28 U.S.C. §
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2255(f). His judgment became final on the last day that he could have filed a petition for a writ
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of certoriari, which was ninety days after the entry of the court of appeals’ judgment. SUP. CT.
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R. 13(1); Clay v. United States, 537 U.S. 522 (2003). The First Circuit issued a mandate on April
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27, 2011; therefore, his judgment became final on July 26, 2011. (Crim. No. 09-061, Docket No.
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90). Gómez had only until July 26, 2012, to file a petition under 28 U.S.C. § 2255. Because he
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did not file this motion until January 15, 2013, the petition is time-barred and we lack
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jurisdiction. Therefore, the petition is denied.
Civil No. 13-1032 (JAF)
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III.
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Certificate of Appealability
In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever
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issuing a denial of § 2255 relief we must concurrently determine whether to issue a certificate of
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appealability (“COA”). We grant a COA only upon “a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must
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demonstrate that reasonable jurists would find the district court's assessment of the constitutional
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claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v.
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McDaniel, 529 U.S. 473, 484 (2000)). While Gómez has not yet requested a COA, we see no
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way in which a reasonable jurist could find our assessment of his constitutional claims debatable
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or wrong. Gómez may request a COA directly from the First Circuit, pursuant to Rule of
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Appellate Procedure 22.
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IV.
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Conclusion
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For the foregoing reasons, we hereby DENY Gómez’s § 2255 petition (Docket No. 1).
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Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order
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because it plainly appears from the record that Gómez is not entitled to § 2255 relief from this
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court.
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IT IS SO ORDERED.
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San Juan, Puerto Rico, this 8th day of January, 2014.
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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE
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