Cruz-Delgado v. USA

Filing 12

AMENDED OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-246 (1) (JAF)) filed by Luis A. Cruz-Delgado. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. While Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could find our assessment of his constitutional claims debatable or wrong. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A. Fuste on 02/19/2014.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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LUIS A. CRUZ-DELGADO,
Petitioner,

Civil No. 13-1269 (JAF)

v.

(Crim. No. 07-246 (JAF))

UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER

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Petitioner, Luis Cruz-Delgado, brings this petition under 28 U.S.C. § 2255 for

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relief from sentencing by a federal court, alleging that the sentence imposed violated his

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

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imposed in Cr. No. 07-246. (Docket No. 1.)

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I.

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Background

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Petitioner was charged with two drug-related offenses: One count of aiding and

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abetting the possession of narcotics and one count for possessing a firearm in relation to a

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drug trafficking crime. On January 13, 2011, Petitioner agreed to plead guilty on both

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counts.

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Judgment was entered on September 18, 2008. (Crim. Docket No. 108.) On June 3,

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2009, Petitioner’s conviction was affirmed on appeal. United States v. Cruz-Delgado,

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Appeal No. 08-2349 (1st Cir. 2009). Petitioner failed to request a petition for a writ of

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certiorari—making his conviction final on September 1, 2009. On April 4, 2013—over

(Crim. Docket No. 106.)

We sentenced Petitioner to 166 months.

(Id.)

Civil No. 13-1269 (JAF)

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three and a half years after the limitations period expired—Petitioner filed a motion for

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relief under 28 U.S.C. § 2255. (Docket No. 1.) Respondent opposes. (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 her sentence on the ground that, inter alia, it “was

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imposed in violation of the Constitution or laws of the United States.” Id. A petitioner

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

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she can demonstrate both cause and actual prejudice for his procedural default. See

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

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

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

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Claims of ineffective assistance of counsel, however, are exceptions to this rule. See

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Massaro v. United States, 538 U.S. 500, 123 (2003) (holding that failure to raise

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ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255

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review).

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III.

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Discussion

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Because Petitioner appears pro se, we construe his pleadings more favorably than

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we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Nevertheless, Petitioner’s pro-se status does not excuse him from complying with

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procedural and substantive law. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).

Civil No. 13-1269 (JAF)

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The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2255, has a one-

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year limitations period. See § 2255(f). The period begins to run from “the date on which

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the conviction becomes final.” § 2255(f)(1). When a federal criminal defendant has

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exhausted his appeals, the conviction becomes final when the time for filing a petition for

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certiorari with the Supreme Court expires. See Clay v. United States, 537 U.S. 522, 525

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(2003) (“For the purpose of starting the clock on § 2255's one-year limitation period, we

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hold a judgment of conviction becomes final when the time expires for filing a petition

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for certiorari contesting the appellate court's affirmation of the conviction.”).

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Here, Petitioner did not request a writ of certiorari and judgment was entered on

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September 1, 2009. The one-year limitations period specified in § 2255(f) expired one

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year later, on September 1, 2010.

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Petitioner waited until March 16, 2013, to file this § 2255 motion. (Docket No. 1.)

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This was more than two years after the one-year limitations period expired. Thus,

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Petitioner's claim is untimely and subject to dismissal.

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Petitioner asserts, however, that he is entitled to equitable tolling because the

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Supreme Court's decision in Lafler v. Cooper, 566 U.S. ___ (2012), provides a new

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constitutional rule that should be applied retroactively. See Ramos–Martinez v. United

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States, 638 F.3d 315, 319 (1st Cir.2011) (the one-year limitations period may be subject

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to equitable tolling under certain circumstances).

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Petitioner’s Lafler argument is misplaced. In Lafler v. Cooper, the Supreme Court

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held that where counsel’s ineffective advice causes a defendant to refuse a plea offer, a

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defendant can obtain habeas relief only by showing that absent the ineffective advice, the

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offer would have been presented to the court, the court would have accepted it, and the

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resulting sentence would have been less severe than the one the defendant actually

Civil No. 13-1269 (JAF)

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received. Several appeals courts have held that Lafler, contrary to Petitioner’s assertion,

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is not retroactively applicable to a conviction that became final prior to the March 21,

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2012, decision. See Williams v. United States, 705 F.3d 293 (8th Cir. 2013) (Supreme

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Court’s rulings in Lafler did not announce a new rule of constitutional law); Buenrostro

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v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012) (holding that Lafler did not decide

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a new rule of constitutional law); In re King, 697 F.3d 1189 (5th Cir.2012) (denying

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authorization to file successive 2254 petition noting that Lafler did not announce new

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rules of constitutional law because they merely applied the Sixth Amendment right to

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counsel to a specific factual context); Hare v. United States, 688 F.3d 878, 879 (7th Cir.

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2012) (noting that Lafler decision was merely an application of the Strickland v.

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Washington and Hill v. Lockhart tests as the Supreme Court repeatedly and clearly spoke

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of applying an established ruled to the specific facts in Lafler); In re Perez, 682 F.3d 930,

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933 (11th Cir. 2012) (Lafler did not promulgate new rules because it was dictated by

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Strickland ).

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Even if its principle was retroactively applicable, we see no reason why Lafler

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would be of any help to the Petitioner.

Unlike in Lafler, Petitioner accepted the

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government’s offer and entered a knowing and voluntary guilty plea. (Crim. Docket

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Nos. 114 & 115.) In other words, Lafler offers no help to Petitioner.

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Petitioner has made no argument that would justify equitable tolling. Summary

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dismissal is in order. See Lattimore v. Dubois, 311 F.3d 46, 54 (1st Cir.2002) (holding

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that a prisoner's habeas petition filed one day late was time-barred by § 2255(f)).

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Therefore, this court has no authority to consider Petitioner’s present 2255 motion, and it

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must be dismissed.

Civil No. 13-1269 (JAF)

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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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Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could

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find our assessment of his constitutional claims debatable or wrong. Petitioner may

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request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure

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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 19th day of February, 2014.

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