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).
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.
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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.
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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
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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.
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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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