Ortiz-Aponte v. USA

Filing 29

OPINION AND ORDER denying 27 Motion requesting Order. Signed by Judge Silvia L. Carreno-Coll on 4/27/2021. (MCV) Modified on 4/27/2021 to correct document type (ecc).

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IN THE UNITED STATES COURT FOR THE DISTRICT OF PUERTO RICO ANTONIO ORTIZ-APONTE Petitioner, CIV. NO.: 14-1109 (SCC) v. CRIM. NO.: 10-251 (SCC) UNITED STATES OF AMERICA Respondent. OPINION AND ORDER Pending before the Court is Petitioner Antonio OrtizAponte’s (“Petitioner Ortiz-Aponte”) pro se motion for this Court to reevaluate his petition pursuant to 28 U.S.C. § 2255 at Docket No. 1. See Docket No. 27. In the alternative, Petitioner Ortiz-Aponte asks that he be allowed to file a successive § 2255 petition, for it would be in the interest of justice for this Court to allow such a filing. Id. To date, the Government has not addressed Petitioner Ortiz-Aponte’s ORTIZ-APONTE v. U.S.A. Page 2 motion. Nevertheless, the Court finds that it can proceed to render its determination regarding the same. For the reasons set forth below, the Court DENIES Petitioner Ortiz-Aponte’s motion at Docket No. 27. I. Analysis Petitioner Ortiz-Aponte avers that the Court erred in dismissing his § 2255 petition at Docket No. 1 as untimely. See Docket No. 27-1. In doing so, Petitioner Ortiz-Aponte argues that the Court abused its discretion and incurred in a constitutional violation 1 given that his § 2255 petition had Petitioner Ortiz-Aponte cites to the Suspension Clause of the United States Constitution which states that, “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. The Court notes that the mere mention of an alleged constitutional violation does not automatically entail that pending before the Court is a successive § 2255 petition. The reason being that, “relief from a judgment previously entered in a section 2255 case ‘should be treated as a second or successive habeas petition if—and only if—the factual predicate set forth in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction.’” See Muñoz v. U.S., 331 F.3d 151, 153 (1st Cir. 2003) (quoting Rodwell v. Pepe, 324 F.3d 66, 67 (1st Cir. 2003)). Here, Petitioner Ortiz-Aponte’s motion at Docket No. 27 does not challenge the constitutionality of his underlying conviction, as such, the Court will not construe the same as a successive § 2255 petition. 1 ORTIZ-APONTE v. U.S.A. Page 3 been timely filed. Id. He now asks that his § 2255 petition at Docket No. 1 “be heard by an impartial and undetached judge.” Id. at 2. However, Petitioner Ortiz-Aponte fails to specify under what legal basis he has anchored his request for this Court to “reevaluate” his petition at Docket No. 1. Notwithstanding this omission, a review of the record reveals that Petitioner Ortiz-Aponte’s request is meritless. 2 This Court could have construed Petitioner Ortiz-Aponte’s petition as a Federal Rule of Civil Procedure Rule 60(b) (“Rule 60(b)”) motion. The reason being that, a Rule 60(b) motion may be used as a way to “reopen or seek reconsideration of an earlier denial of [a] § 2255 motion under only limited circumstances.” See Lugo-Vélez v. U.S., Civil Number 05-01974, 2017 WL 1318446 at *1 (D.P.R. April 10, 2017). One of the “limited circumstances” that would allow for the filing of a Rule 60(b) motion in the habeas context would be “if the factual predicate of the motion challenges only the procurement of the federal habeas judgment[.]” See Rodwell v. Pepe, 324 F.3d 66, 71 (1st Cir. 2003). A claim addressing whether a § 2255 petition was—or was not—timely filed could fall under such a scenario. Assuming arguendo that Petitioner Ortiz-Aponte’s motion at Docket No. 27 were to have been construed as a Rule 60(b) motion, this Court would have still denied the same. As explained, the Court’s Opinion did not hold that Petitioner Ortiz-Aponte’s § 2255 petition had been untimely filed. See Docket No. 5. Petitioner Ortiz-Aponte’s argument regarding the Court’s Opinion at Docket No. 5 and Judgment at Docket No. 6 is incorrect, for it does not track the procedural and substantive travel of this case. 2 ORTIZ-APONTE v. U.S.A. Page 4 Petitioner Ortiz-Aponte filed his § 2255 petition on February 5, 2014. See Docket No. 1. The Government opposed the same on March 6, 2016. See Docket No. 3. And a Reply was filed by Petitioner Ortiz-Aponte on June 2, 2014. See Docket No. 4. Shortly thereafter, on June 11, 2014, the Court entered an Opinion and Order (“Opinion”) denying Petitioner OrtizAponte’s § 2255 petition. See Docket No. 5. In the Opinion, the Court pointed out that two out of the three claims that Petitioner Ortiz-Aponte advanced in his § 2255 petition were previously heard and rejected on direct appeal by the First Circuit. Id. at 3, 5. And as to the third claim, which turned on the applicability of the rule announced in the Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013) to his case, the Court noted that the same did not apply retroactively. Id. at 4-5. Most strikingly, at no point in its Opinion, and subsequent entry of Judgment on June 13, 2014, see Docket No. 6, did the Court determine that Petitioner Ortiz-Aponte’s § 2255 petition at Docket No. 1 had been untimely filed. Id. As such, Petitioner Ortiz-Aponte’s ORTIZ-APONTE v. U.S.A. Page 5 contention that the Court erred in dismissing his § 2255 petition at Docket No. 1 as untimely misses the mark, for the Court never issued such a ruling in the first place. Lastly, Petitioner Ortiz-Aponte’s request for the Court to allow him to file another § 2255 petition is misdirected. A petitioner looking to file a successive § 2255 petition must first seek “pre-clearance, in the form of a certificate,” from the First Circuit authorizing this Court to consider such a petition in accordance with the prior approval provision found in 28 U.S.C. § 2255(h). See Trenkler v. U.S., 536 F.3d 85, 96 (1st Cir. 2008). Meaning that, if Petitioner Ortiz-Aponte intends to file a successive § 2255 petition, he must first seek authorization from the First Circuit to do so, not from this Court. 3 First Circuit Rule 22.1(e) states that if an un-authorized § 2255 petition is filed before a district court, the district court will either transfer the petition to the First Circuit “pursuant to 28 U.S.C. § 1631 or dismiss the petition.” However, here, Petitioner Ortiz-Aponte merely asked this Court for permission to file a successive § 2255 petition, he did not go as far as to file an un-authorized § 2255 petition. 3 ORTIZ-APONTE v. U.S.A. Page 6 Accordingly, Petitioner Ortiz-Aponte’s motion at Docket No. 27 is DENIED. IT IS SO ORDERED. In San Juan, Puerto Rico, this 27th day of April, 2021. S/ SILVIA CARREÑO-COLL UNITED STATES DISTRICT COURT JUDGE

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