Rivera-Vazquez v. USA

Filing 4

OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 09-339) filed by Miguel Rivera-Vazquez. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order beca use it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Judgment to be entered accordingly. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 6/11/2013.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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MIGUEL RIVERA-VÁZQUEZ,
Petitioner,

Civil No. 13-1249 (JAF)

v.

(Criminal No. 09-339)

UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER

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Petitioner, Miguel Rivera-Vázquez, brings this pro-se petition under 28 U.S.C.

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§ 2255 for relief from sentencing by a federal court, alleging that the sentence imposed

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violated his rights under federal law. He requests an order to vacate, set aside, or correct

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the sentence imposed in Cr. No. 09-339. (Docket No. 1.)

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I.

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Background

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On October 8, 2009, a grand jury rendered a four-count indictment against Miguel

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Rivera-Vázquez and two co-defendants, including conspiracy to import and possess with

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the intent to distribute cocaine, see 21 U.S.C. §§ 952, 960, 963, and §§ 841 and 846.

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(Crim. Docket No. 14.) Count Four stated that upon conviction of one or more of the

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offenses alleged in Counts One, Two, or Three, Defendants would forfeit specified

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property.

Civil No. 13-1249 (JAF)

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On December 2, 2009, Rivera-Vázquez pled guilty pursuant to a plea agreement to

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Count One of the Indictment, conspiracy to import cocaine. (Crim. Docket No. 52.) As

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part of the agreement, Rivera-Vázquez assented to specific provisions of the forfeiture

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count of the indictment. (Crim. Docket No. 50.) Rivera-Vázquez agreed to forfeit one

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urban lot including its buildings, appurtenances, improvements, fixtures, attachments, and

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easements located at Guayama, Puerto Rico, and three cashier’s checks totaling $75,000.

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(Crim. Docket No. 50.) On June 17, 2010, we sentenced Rivera-Vázquez to 46 months.

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(Crim. Docket No. 130.)

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Rivera-Vázquez appealed and, on March 23, 2012, the First Circuit Court of

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Appeals affirmed his conviction. United States v. Rivera-Vázquez, Appeal No. 10-1845

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(1st Cir. March 23, 2012). On March 25, 2013, he filed this petition, alleging that the 46-

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month sentence was “unreasonably high because [of] various mitigating circumstances –

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including, primarily, the Government seizure of all his assets in excess of two million

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dollars.” (Docket No. 1.) The government opposed. (Docket No. 3.)

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II.

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Legal Standard

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A federal district court has jurisdiction to entertain a § 2255 petition when the

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petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A

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federal prisoner may challenge his sentence on the ground that, inter alia, it “was imposed

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in violation of the Constitution or laws of the United States.” Id. A petitioner cannot be

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granted relief on a claim that has not been raised at trial or direct appeal, unless he can

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demonstrate both cause and actual prejudice for his procedural default. See United States

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v. Frady, 456 U.S. 152, 167 (1982). Indeed, “[p]ostconviction relief on collateral review

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is an extraordinary remedy, available only on a sufficient showing of fundamental

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unfairness.” Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). The First

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Circuit has explained that “a § 2255 proceeding is a collateral remedy available to a

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petitioner only when some basic fundamental right is denied, and not as routine review at

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the behest of a defendant who is dissatisfied with his sentence.” Dirring v. United States,

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370 F.2d 862, 865 (1st Cir. 1967). As mentioned in a recent holding, we are concerned

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with the rights of litigants, but we must protect the integrity of the federal court system

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against meritless allegations. Lassalle-Velázquez v. United States, No. 12-1795, 2013

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U.S. Dist. WL ____, at *__ (D.P.R. June 10, 2013) (using meritless arguments to

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collaterally challenge federal convictions through § 2255 petitions is overburdening

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federal district courts and leading to some criminal cases being entirely re-litigated).

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III.

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Discussion

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Because Rivera-Vázquez appears pro se, we construe his pleadings more

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favorably than we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S.

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89, 94 (2007). Nevertheless, Rivera-Vázquez’s pro-se status does not excuse him from

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complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890

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(1st Cir. 1997).

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Rivera-Vázquez has alleged that his sentence was unreasonable. This issue was

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raised and considered on appeal. United States v. Rivera-Vázquez, Appeal No. 10-1845

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(1st Cir. March 23, 2012). On appeal, the First Circuit held that the sentence of 46

Civil No. 13-1249 (JAF)

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months was reasonable. Id. When an issue has been disposed of on direct appeal, it will

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not be reviewed again through a § 2255 motion. Singleton v. United States, 26 F.3d 233,

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240 (1st Cir. 1994) (citing Dirring v. United States, 370 F.2d 862, 863 (1st Cir. 1967)).

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The Supreme Court has held that if a claim “was raised and rejected on direct review, the

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habeas court will not readjudicate it absent countervailing equitable considerations.”

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Withrow v. Williams, 507 U.S. 680, 721 (1993). Given the First Circuit’s decision and

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the fact that Rivera-Vázquez presents no new equitable considerations, the issue does not

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warrant further consideration. Rivera-Vázquez’s dissatisfaction with his sentence does

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not amount to the denial of a fundamental right.

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IV.

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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

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certificate of appealability (“COA”). We grant a COA only upon “a substantial showing

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

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“[t]he petitioner must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537

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U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While

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Rivera-Vázquez has not yet requested a COA, we see no way in which a reasonable jurist

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could find our assessment of his constitutional claims debatable or wrong.

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Vázquez may request a COA directly from the First Circuit, pursuant to Rule of

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Appellate Procedure 22.

Rivera-

Civil No. 13-1249 (JAF)

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V.

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Conclusion

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For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket

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No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary

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dismissal is in order because it plainly appears from the record that Petitioner is not

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entitled to § 2255 relief from this court.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 11th day of June, 2013.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE