Reyes-Echevarria v. USA

Filing 7

OPINION AND ORDER dismissing 1 Motion to Vacate Signed by Judge Juan M. Perez-Gimenez on 11/05/2014. (TW)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
RUBÉN REYES-ECHEVARRÍA,
Petitioner,

Civil No. 14-1021 (PG)

v.

(Crim. 99-069 [1])

UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Petitioner, Rubén Reyes-Echevarría, brings this second petition
under 28 U.S.C. § 2255 for relief from sentencing by a federal court,
alleging that the sentence imposed violated his rights under federal
law.

He requests an order to vacate, set aside, or correct the

sentence imposed in Cr. No. 99-069[1].
I.

(Docket No. 1.)

BACKGROUND

During the middle part of the 1990s, Petitioner was the leader of
a

violent

drug

Puerto Rico.

trafficking

organization

that

Petitioner to life in prison.
was affirmed on appeal.
Cir.

in

southern

After a jury trial, Petitioner was convicted of a drug

conspiracy offense. (Crim. Docket No. 163.)

(1st

operated

2003).

And

This court sentenced

(Crim. Docket No. 203.)

The conviction

United States v. Reyes-Echevarría, 345 F.3d 1
thus

began

Petitioner’s

circuitous

–

and

exhaustive – journey to overturn his sentence.
On August 2, 2004, Petitioner filed his first motion pursuant to
28 U.S.C. § 2255, claiming ineffective assistance of counsel. (Cv. 041784, Docket No. 1.)

On March 24, 2009, the court dismissed the

petition with prejudice finding that Petitioner failed to meet the
burden to show ineffective assistance of counsel.

(Docket No. 19.)

On June 1, 2009, Petitioner requested a certificate of appealability.

Civil No. 14-1021 (PG)

(Docket No. 23.)

Page 2

His request was denied.

(Docket No. 26.)

On June

29, 2009, Petitioner filed a pro-se application for a certificate of
appealability in the Court of Appeals for the First Circuit. (APP. 091679).

The First Circuit denied the application.

(Id.) On March 10,

2009, Petitioner filed a writ of certiorari in the Supreme Court,
which was denied. See Reyes-Echevarría v. United States, 559 U.S. 1083
(2010).
On October 5, 2011, pursuant to Rule 60(d) of the Federal Rules
of

Civil

Procedure,

Petitioner

filed

a

pro-se

motion

to

amend

or

correct the sentence in the original § 2255 proceeding before this
court.
motion

(Cv. 04-1784, Docket No. 32.)
because

the

matters

The court denied Petitioner’s

submitted

were

“previously

adjudged”.

(Docket No. 37.)

On December 23, 2011, Petitioner filed a motion for

reconsideration.

(Docket No. 39.)

The motion was denied.

(Docket

No. 43.)
On May 1, 2012, Petitioner moved again to vacate and remand his
sentence in the original proceeding, this time in light of the Supreme
Court’s decision in Missouri v. Frye, 132 S.Ct. 1399 (2012).
No. 45.)

(Docket

On May 15, 2012, the court denied his petition because,

since Petitioner failed to request the Court of Appeals’ permission to
file a second or successive § 2255 motion, it lacked jurisdiction to
entertain the motion.
On

December

19,

(Docket No. 47.)
2012,

Petitioner

filed

an

application

for

permission to file a second or successive motion in the First Circuit.
(APP. 12-2522).

The First Circuit denied his application because he

did not met the prerequisites for such authorization, stating that the
denial “is not appealable and may not be subject of a petition for
rehearing or a writ of certiorari”.

(Id.)

Civil No. 14-1021 (PG)

In

yet

Page 3

another

creative,

but

futile,

effort

to

evade

his

sentence, Petitioner filed a pro-se motion for leave to amend the
first § 2255 petition to include his claims raised under Frye. (Cv.
04-1784, Docket No. 48.). The court denied the motion.
49.)

(Docket No.

On April 9, 2013, Petitioner sought an extension to file an

appeal from the denial of his motion to amend.

(Docket No. 50.)

The

motion was denied. (Docket No. 51.)
On January 13, 2014, Petitioner filed this successive petition
for postconviction relief under 28 U.S.C. §2255, claiming that he is
entitled to a second or successive motion in light of the Supreme
Court’s decision in Alleyne v. United States, 570 U.S. ----, 133 S.Ct.
2151 (2013).
opposes.

(Cv. 14-1021, Docket No. 1 at 6.)

The government

(Docket No. 6.)
II.

LEGAL STANDARD

A federal district court has jurisdiction to entertain a § 2255
petition when the petitioner is in custody under the sentence of a
federal

court.

See

28

U.S.C.

§

2255.

A

federal

prisoner

may

challenge his sentence on the ground that, inter alia, it “was imposed
in violation of the Constitution or laws of the United States.”

Id.

A petitioner cannot be granted relief on a claim that has not been
raised at trial or direct appeal, unless he can demonstrate both cause
and actual prejudice for his procedural default.
Frady, 456 U.S. 152, 167 (1982).

See United States v.

Indeed, “[p]ostconviction relief on

collateral review is an extraordinary remedy, available only on a
sufficient showing of fundamental unfairness.”
States, 26 F.3d 233, 236 (1st Cir. 1994).

Singleton v. United
Claims of ineffective

assistance of counsel, however, are exceptions to this rule.
Massaro

v.

United

States,

538

U.S.

500,

123

(2003)

(holding

See
that

Civil No. 14-1021 (PG)

Page 4

failure to raise ineffective assistance of counsel claim on direct
appeal does not bar subsequent § 2255 review).

III. DISCUSSION
Because Petitioner appears pro se, we construe his pleadings more
favorably than we would those drafted by an attorney.
Pardus, 551 U.S. 89, 94 (2007).
status

does

not

substantive law.

excuse

him

See Erickson v.

Nevertheless, Petitioner’s pro-se

from

complying

with

procedural

and

Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.

1997).
The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §
2255

disfavors

“second

or

successive”

habeas

vacate, set aside or correct a sentence.

petitions

that

raises

the

same

grounds

to

See 28 U.S.C. § 2255; see

also, Burton v. Stewart, 549 U.S. 147, 153 (2007).
petition

seeking

as

a

A subsequent

previous

petition

is

considered a second or successive petition.

Sustache–Rivera v. United

States, 221 F.3d 8, 12–3 (1st Cir.2000).

A petitioner may file a

second

2255,

or

petitioner

successive
moves

“the

motion

under

appropriate

Section
court

of

but

appeals

only
for

after
an

a

order

authorizing the district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A); see also, 28 U.S.C. § 2255 (“A second or successive
motion must be certified as provided in section 2244 by a panel of the
appropriate court of appeals....”).

Without certification from the

appropriate court of appeals, a district court lacks jurisdiction over
a second or successive petition.

Trenkler v. United States, 536 F.3d

85, 96 (1st Cir.2008).
Here, Petitioner neither sought nor received authorization from
the First Circuit Court of Appeals before filing his second motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.

Civil No. 14-1021 (PG)

Page 5

He claims, instead, that he is entitled to relief because the Supreme
Court’s decision in Alleyne v. United States, 570 U.S. ––––, 133 S.Ct.
2151,

(2013)

articulated

a

new

rule

of

constitutional

law.

But

deciding that issue would require this court to reach the merits of
his petition, which we can only do if the First Circuit certifies a
second or successive habeas petition.

For this reason alone, we deny

the motion.
And yet it is worth mentioning here, particularly in light of his
many attempts to overturn his sentence, that Petitioner’s reliance on
Alleyne is misplaced.
In Alleyne, the Supreme Court extended the reach of a principle,
first articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000),
requiring that any fact that increases a defendant’s mandatory minimum
sentence must be submitted to a jury to be proved beyond a reasonable
doubt.

The Supreme Court has given no indication as that Alleyne

applies retroactively to cases on collateral review.

However, the

Supreme Court previously held, in United States v. Booker, 543 U.S.
220 (2005), that Apprendi was not retroactively applicable.
Simpson

v.

United

2013)(suggesting,

States, 721

without

deciding,

F.3d
that

875,
because

876

See also

(7th

“Alleyne

Cir.
is

an

extension of Apprendi ... [t]his implies that the [Supreme] Court will
not declare Alleyne to be retroactive.”)

Moreover, no court has yet

treated Alleyne as retroactive to cases on collateral review. See,
e.g., United States v. Redd, 735 F.3d 88, 91–92 (2d Cir.2013)(holding
that Alleyne does not apply to cases on collateral review); United
States v. Reyes, 755 F.3d 210, 212-13 (3rd Cir. 2014)(same); In re
Kemper,

735

F.3d

211,

212

(5th

Cir.2013)(same);

Rogers

v.

United

States, 561 Fed.Appx. 440, 442 (6th Cir. 2014)(same); United States v.
Hoon, 762 F.3d 1172, 1173 (10th Cir. 2014)(same); United States v.

Civil No. 14-1021 (PG)

Page 6

Harris, 741 F.3d 1245 (11th Cir. 2014)(same); Castro-Davis v. United
States, 2014 WL 1056528 (D.P.R. March 18, 2014); Lassalle-Velazquez v.
United States, 2013 WL4459044 (D.P.R. Aug. 16, 2013); United States v.
Stanley, 2013 WL 3752126, at *7 (N.D. Okla. July 16, 2013); United
States v. Eziolisa, 2013 WL 3812087, at *2 (S.D. Ohio July 22, 2013);
Affolter v. United States, 2013 WL 3884176, at *2 (E.D. Mo. July 26,
2013).

Since neither the Supreme Court nor the First Circuit has held

Alleyne to be retroactively applicable, we decline to do so here.
IV.
In

accordance

Proceedings,

CERTIFICATE OF APPEALABILITY

with

whenever

Rule

issuing

11
a

of

the

denial

Rules

of

§

Governing

2255

relief

§

2255

we

must

concurrently determine whether to issue a certificate of appealability
(“COA”).

We grant a COA only upon “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
this

showing,

jurists

would

“[t]he

petitioner

find

the

must

district

demonstrate
court's

constitutional claims debatable or wrong.”

that

To make
reasonable

assessment

of

the

Miller-El v. Cockrell, 537

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

which

While Petitioner has not yet requested a COA, we see no way
a

reasonable

jurist

could

find

constitutional claims debatable or wrong.

our

assessment

of

his

Petitioner may request a

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

Civil No. 14-1021 (PG)

Page 7

V.

CONCLUSION

For the foregoing reasons, we hereby DISMISS Petitioner’s § 2255
motion.

(Docket No. 1.)

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.
IT IS SO ORDERED.
San Juan, Puerto Rico, this 4th day of November, 2014.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE