Garcia-Parra v. Administracion de Correccion et al

Filing 53

MEMORANDUM AND ORDER re 37 Motion to Dismiss for Failure to State a Claim; re 46 Report and Recommendation; and re 47 Report and Recommendation. the Court ADOPTS both of the magistrate judge's reports and recommendations. (Docket Nos. 46 -47.) The Court GRANTS PR-DOJ's motion to dismiss, (Docket No. 37), for failure to state a claim and DISMISSES the claims against PR-AOC, Del Valle and Rodriguez for lack of diligent prosecution. Garcia's section 2254 habeas corpus petition, (Docket No. 2), is therefore DISMISSED. This case is DISMISSED, with prejudice. Judgment shall be entered accordingly. The Court declines to issue a COA. Additionally, the Court DENIES Garcia's request for leave to amend his habeas corpus petition and GRANTS Garcia's attorney's motion to withdraw. Signed by Judge Francisco A. Besosa on 03/16/2015. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HERIBERTO GARCIA-PARRA,
Plaintiff,
v.

Civil No. 13-1144 (FAB)

ADMINISTRACION DE CORRECCION, et
al.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court are: (1) the magistrate judge’s Report and
Recommendation recommending that the claims against the Puerto Rico
Administracion
Alexander

de

Correccion,

Rodriguez-Madera

be

Roberto
dismissed

Del

Valle-Navarro

for

lack

of

and

diligent

prosecution, (Docket No. 46); and (2) the magistrate judge’s Report
and Recommendation recommending that the Puerto Rico Departamento
de Justicia’s motion to dismiss, (Docket No. 37), be granted for
failure to state a claim, (Docket No. 47).

For the reasons set

forth below, the Court ADOPTS both of the magistrate judge’s
reports and recommendations and dismisses this case.
Also before the Court are Heriberto Garcia-Parra’s requests
that the Court: (1) grant him leave to amend his habeas corpus
petition; and (2) permit his attorney to withdraw as counsel.
(Docket No. 52 at p. 5, ¶¶ 1-2.)

For the reasons set forth below,

Civil No. 13-1144 (FAB)

2

the Court DENIES the petitioner’s request for leave to amend and
GRANTS his attorney’s motion to withdraw.
BACKGROUND
On February 19, 2013, Heriberto Garcia-Parra (“Garcia”) filed
a pro se petition for writ of habeas corpus pursuant to 28 U.S.C.
§

2254,

naming

the

Puerto

Rico

Administracion

de

Correccion

(“PR-AOC”), the Puerto Rico Departamento de Justicia (“PR-DOJ”),
Roberto

Del

Valle-Navarro

(“Del

Valle”)

and

Alexander

Rodriguez-Madera (“Rodriguez”) as respondents. (Docket No. 2.) On
February 21, 2013, the Court granted Garcia’s motion for leave to
proceed in forma pauperis.

(Docket Nos. 1, 3-4.)

Summons were

returned executed upon the PR-AOC and PR-DOJ on February 28, 2013,
and upon Del Valle and Rodriguez on March 1, 2013.
7.)

(Docket Nos. 6-

The PR-DOJ made an appearance on March 14, 2013, (Docket

No. 8), and answered the complaint on April 23, 2013, (Docket
No. 13).
On March 15, 2013, Garcia requested that the Court provide him
with a lawyer to assist with his case.

(Docket No. 10.)

The Court

granted Garcia’s request, (Docket No. 11), and on March 25, 2013,
the Clerk of the Court appointed him counsel, (Docket No. 12).
On

April

23,

2013,

the

Court referred Garcia’s

Magistrate Judge Marcos E. Lopez.

case

to

See Docket Nos. 9, 14-15.

Because the respondents PR-AOC, Del Valle and Rodriguez had not

Civil No. 13-1144 (FAB)

3

entered an appearance as of May 19, 2014, the magistrate judge
ordered Garcia to show cause “as to why all claims against [them]
should not

be

prosecution.”

dismissed

with

(Docket No. 32.)

prejudice

for lack

of

diligent

On May 30, 2014, PR-DOJ moved to

dismiss Garcia’s petition for, inter alia, failure to state a
claim.

(Docket No. 37.)

Thereafter, the magistrate judge granted

Garcia several extensions of time to respond to PR-DOJ’s motion to
dismiss and well as the order to show cause.
39-40, 43-45.

See Docket Nos. 36,

Garcia responded to neither.

On February 5, 2015, the magistrate judge issued two reports
and recommendations.

(Docket Nos. 46-47.)

The magistrate judge

recommended that the Court: (1) dismiss with prejudice all claims
against PR-AOC, Del Valle and Rodriguez for lack of diligent
prosecution, (Docket No. 46); and (2) grant PR-DOJ’s motion to
dismiss, (Docket No. 37), for failure to state a claim, (Docket No.
47). Regarding the claims against PR-AOC, Del Valle and Rodriguez,
the magistrate judge reasoned that dismissal was warranted because
in the year since serving the respondents with summons, Garcia had
taken no action to advance the litigation as to his claims against
them.

(Docket No. 46 at p. 2.)

dismiss,

Regarding PR-DOJ’s motion to

the magistrate judge “acknowledg[ed] that the [section]

2254 petition was filed pro se and that pro se pleadings are
subject

to

a

less

demanding

standard

than

those

drafted

by

Civil No. 13-1144 (FAB)

4

lawyers,” but nonetheless recommended dismissal because Garcia had
failed to “articulate a claim for relief in a non-conclusory
manner.”

(Docket No. 47 at pp. 7-8.)

The magistrate judge noted

that Garcia had been granted “ample time to seek leave with the aid
of counsel to file an amended pleading elaborating on the grounds
for relief raised in his original petition.”

Id. at p. 8.

On March 5, 2015, Garcia, through his attorney, filed a
response to the magistrate judge’s recommendations.
52.)

(Docket No.

Garcia raises no objections to the recommendations.

¶¶ 4, 15.

Id. at

Instead, the response depicts an apparent disagreement

between Garcia and his attorney as to whether grounds for habeas
relief exist.

See, e.g., id. at ¶¶ 6, 8 (describing counsel’s

inability to determine any potential avenues for relief after a
thorough review of the record and noting that the petitioner
“disagrees with counsel’s assessment”).
Court: (1)

Garcia requests that the

“[p]rovide [him] with an adequate opportunity to file

a pro se brief raising any assignments of error he might believe
this Court should address”; and (2) relieve his attorney “from
further representing [him].”

Id. at p. 5, ¶¶ 1-2.

DISCUSSION
Reports and Recommendations
A

district

court

may

refer

a

dispositive

motion

magistrate judge for a report and recommendation.

to

a

28 U.S.C.

Civil No. 13-1144 (FAB)

5

§ 636(b)(1)(B); see also Fed. R. Civ. P. 72(b); Loc. R. 72(b).

A

district court may also designate a magistrate judge to submit
“proposed findings of fact and recommendations for the disposition
. . . of applications for [post-trial] relief made by individuals
convicted of criminal offenses.”

28 U.S.C. § 636(b)(1)(B).

An

adversely affected party may contest the report and recommendation
by filing objections within fourteen days of being served a copy of
the recommended disposition. See Fed. R. Civ. P. 72(b)(2); Loc. R.
72(d).

A party that timely objects is entitled to a de novo

determination of those portions of the report or recommendation to
which specific objection is made.

28 U.S.C. § 636(b)(1).

The

district court is free to “accept, reject, or modify, in whole or
in part,” the magistrate judge’s findings or recommendations.

Id.

A failure to object to a report and recommendation, however,
waives that party’s right to district court review. Toro-Mendez v.
United States, 976 F. Supp. 2d 79, 81 (D.P.R. 2013) (citing Davet
v. Maccarone, 973 F.2d 22, 30–31 (1st Cir. 1992)).

In the event

the adversely affected party does not raise an objection, the
district court has “‘a right to assume that [the affected party]
agree[s] to the magistrate’s recommendation.’”

Id.

(quoting

Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985),
cert.

denied,

474

U.S.

1021

(1985)).

Where

the

report

and

Civil No. 13-1144 (FAB)

6

recommendation is unopposed, the district court applies plain-error
review.

Id.

The magistrate judge issued two reports and recommendations,
recommending that the Court: (1) dismiss with prejudice all claims
against PR-AOC, Del Valle and Rodriguez for lack of diligent
prosecution, (Docket No. 46); and (2) grant PR-DOJ’s motion to
dismiss, (Docket No. 37), for failure to state a claim, (Docket
No. 47).

Garcia does not object to either.

¶¶ 4, 15.)

(Docket No. 52 at

Accordingly, in order to accept the two unopposed

reports and recommendations, the court need only ascertain that
there is

no

Toro-Mendez,

“plain error”

on

976

2d

F.

Supp.

the face
at

of

81.

the

After

record.
conducting

See
an

independent examination of the entire record in this case, the
Court finds no “plain error” and agrees with the magistrate judge’s
conclusions.
The

Court,

thus,

ADOPTS

findings and recommendations.
No.

47),

is

GRANTED

and

both

of

the

magistrate

judge’s

PR-DOJ’s motion to dismiss, (Docket

Garcia’s

claims

DISMISSED for failure to state a claim.

against

PR-DOJ

are

Further, Garcia’s claims

against PR-AOC, Del Valle and Rodriguez are DISMISSED for lack of
diligent prosecution.

Civil No. 13-1144 (FAB)

7

Motion for Leave to Amend
In his response to the reports and recommendations, Garcia
requests

that

the

Court

“[p]rovide

[him]

with

an

adequate

opportunity to file a pro se brief raising any assignments of error
he might believe this Court should address.”

(Docket No. 52 at

p. 5, ¶ 1.)

The Court construes this request as a motion for leave

to amend.

Rule 12 of the Federal Rules Governing Section 2254

Cases provides that the Federal Rules of Civil Procedure may be
applied to a habeas corpus proceeding to the extent that they are
“not

inconsistent”

provisions.

with

the

habeas

rules

or

any

statutory

Pursuant to Federal Rule of Civil Procedure 15, when

an amendment “as a matter of course” is no longer available, a
party may amend its pleading only with the opposing party’s written
consent or with leave of the Court, which should be “freely give[n]
when justice so requires.”

Fed. R. Civ. P. 15(a)(2).

Rule 15

“reflects a liberal amendment policy, but even so, the district
court enjoys significant latitude in deciding whether to grant
leave to amend.”

ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d

46, 55 (1st Cir. 2008) (internal citations omitted).

Reasons for

denying leave include “undue delay in filing the motion, bad faith
or dilatory motive, repeated failure to cure deficiencies, undue
prejudice to the opposing party, and futility of amendment.”

U.S.

Civil No. 13-1144 (FAB)

8

ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Garcia filed his section 2254 petition on February 19, 2013,
(Docket No. 2), and he has had the assistance of counsel since
March 25, 2013, (Docket No. 12).

Not once in the two years since

commencing this action has Garcia attempted to amend his petition.
The First Circuit Court of Appeals has cautioned that leave to
amend should be provided for any pro se pleading that is not
“patently meritless and beyond all hope of redemption.”

Brown v.

Rhode Island, 511 F. App’x 4, 5 (1st Cir. 2013) (per curiam).

As

the magistrate judge noted, however, Garcia has been afforded
“ample time to seek leave with the aid of counsel to file an
amended pleading elaborating on the grounds for relief raised in
his original petition.” See Docket No. 47 at 7-8 (emphasis added).
Garcia’s eleventh hour request for leave to amend is an especially
tall order considering that Garcia has, for the past nine months,
ignored both a motion to dismiss and an order to show cause
relating to dismissal.

See Docket Nos. 32, 37; see also Docket

Nos. 36, 39-40, 43-45.

The Court need not permit amendment when,

as is the case here, doing so would reward undue delay.

See

Villanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011)
(affirming denial of leave to amend where plaintiff waited four
months after filing complaint to make request, was aware of the

Civil No. 13-1144 (FAB)

9

facts underlying his claim, and provided no justification for
delay).
Accordingly, Garcia’s motion for leave to amend his habeas
corpus petition, (Docket No. 52 at p. 5, ¶ 1), is DENIED.
Request to Withdraw as Counsel
Finally, Garcia’s attorney requests to be relieved “from
further representing [Garcia].”

(Docket No. 52 at p. 5, ¶ 2.)

habeas petitioner has no constitutional right to counsel.

A

See

United States v. Tejada, 255 F.3d 1, 4 n.6 (1st Cir. 2001).
Section

3006A

allows

for

the

appointment

of

counsel

for

a

financially eligible person in a section 2254 action “[w]henever
the United States magistrate judge or the court determines that the
interests of justice so require.”

18 U.S.C. § 3006A(a)(2)(B).

This Court bestowed upon Garcia, at his request, the benefit
of attorney assistance for pursuing his section 2254 claims on
March 25, 2013.

See Docket Nos. 10-12.

Garcia continued to make

filings pro se after the appointment of counsel. See, e.g., Docket
Nos. 29, 50. Now, Garcia disagrees with his attorney’s assessment,
made purportedly after a thorough review of the record, that no
grounds for relief exist.

See Docket No. 52 at ¶¶ 6, 8.

attorney, thus, seek to withdraw as counsel.
p. 5, ¶ 2.)

Garcia’s

(Docket No. 52 at

In light of the circumstances, and because no

constitutional right to counsel exists in the present collateral

Civil No. 13-1144 (FAB)

10

proceedings, the Court may permit appointed counsel to withdraw.
Accord Earle v. United States, Civ. No. 08-11637 (MLW), 2009 WL
2634569, at *1 (D. Mass. Aug. 24, 2009) (granting court-appointed
attorney’s motion to withdraw as counsel in habeas case and denying
petitioner’s

request

for

replacement

counsel

where

petitioner

continued to make filings pro se after the appointment of counsel
and where the attorney cited irreconcilable differences:

“Even

though the court believes that [the petitioner] would benefit from
the assistance of counsel in pursuing his [petition], given his
demonstrated inability to work with court appointed counsel, the
court will not continue to appoint counsel for him and delay this
matter further.”).
Garcia’s attorney’s motion to withdraw, (Docket No. 52 at
p. 5, ¶ 2), is GRANTED.
Certificate of Appealability
Having denied Garcia section 2254 relief, the Court must
determine whether to issue a certificate of appealability (“COA”).
Rule 11(a) of the Rules Governing Section 2254 Cases requires that
the Court “issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
only

upon

the

constitutional

“substantial
right.”

28

showing
U.S.C.

§

of

the

A COA may issue
denial

2253(c)(2).

of

Where

a
the

constitutional claims are dismissed on non-procedural grounds,

Civil No. 13-1144 (FAB)

11

“[t]he petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

While Garcia has not yet requested a COA, the Court sees no way in
which

reasonable

jurists

could

find

debatable

or

wrong

the

determination that Garcia’s petition fails to state a valid claim
of denial of a constitutional right.

Garcia may request a COA

directly from the First Circuit Court of Appeals, pursuant to Rule
of Appellate Procedure 22.

See Johnson v. United States, Civ.

No. 13-1272 (JAF), 2014 WL 2042256, at *4 (D.P.R. May 19, 2014).
CONCLUSION
For the foregoing reasons, the Court ADOPTS both of the
magistrate judge’s reports recommendations.

(Docket Nos. 46-47.)

The Court GRANTS PR-DOJ’s motion to dismiss, (Docket No. 37), for
failure to state a claim and DISMISSES the claims against PR-AOC,
Del Valle and Rodriguez for lack of diligent prosecution. Garcia’s
section 2254 habeas corpus petition, (Docket No. 2), is therefore
DISMISSED. This case is DISMISSED, with prejudice. Judgment shall
be entered accordingly.

The Court declines to issue a COA.

Additionally, the Court DENIES Garcia’s request for leave to
amend his habeas corpus petition, (Docket No. 52 at p. 5, ¶ 1), and
GRANTS Garcia’s attorney’s motion to withdraw, id. at p. 5, ¶ 2.

Civil No. 13-1144 (FAB)

12

IT IS SO ORDERED.
San Juan, Puerto Rico, March 16, 2015.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE