Aponte-Ramos v. USA
Filing
26
OPINION AND ORDER re 1 Motion to Vacate and re 9 Supplemental Motion. Petitioner Josue Aponte-Ramos' Motion under 28 U.S.C. § 2255 (Docket No. 1) and Supplemental Brief (Docket No. 9) are DENIED. This case is DISMISSED with prejudice. Judgment shall be entered accordingly. Petitioner's request for an evidentiary hearing is DENIED. Signed by Judge Francisco A. Besosa on 07/19/2019. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSUÉ E. APONTE-RAMOS,
Petitioner,
Civil No. 16-2292 (FAB)
related to
Criminal No. 13-294 (FAB)
v.
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is Josué E. Aponte-Ramos’ (“Petitioner” or
“Aponte-Ramos”) pro-se motion to vacate, set aside, or correct
sentence in Criminal Case No. 13-294 pursuant to 28 U.S.C. § 2255
(“section 2255”), and the Federal Public Defender’s Supplemental
Brief in Support of Petitioner’ Section 2255 Motion. (Civil Docket
Nos. 1 and 9.)
For the reasons set forth below, the Court finds
that Petitioner’s motion to vacate his sentence and the Federal
Public Defender’s Supplemental Brief must be DENIED.
Petitioner’s
request for an evidentiary hearing is also DENIED.
I.
BACKGROUND
On March 18, 2015, Aponte-Ramos was charged in three counts
of a Superseding Indictment.
No. 71.)
(Criminal Case No. 13-294, Docket
Count One (1) charged:
“On or about August 27, 2012, in
the District of Puerto Rico and within the jurisdiction of this
Civil No. 16-2292 (FAB)
2
Court, Josué E. Aponte-Ramos, the defendant herein, aiding and
abetting Miguel A. Sánchez-Rivera, took a motor vehicle that had
been transported, shipped and received in interstate or foreign
commerce, from the person or presence of L.R.Q. by force, violence
and intimidation, with the intent to cause death and seriously
bodily harm.”
All in violation of 18 U.S.C. §§ 2119(1) and 2.
(Criminal Case No. 13-294, Docket No. 71 at p. 1.)
Count Two (2) charged:
“On or about August 27, 2012, in the
District of Puerto Rico and within the Jurisdiction of this Court,
Josué E. Aponte-Ramos, the defendant herein, aiding and abetting
Miguel A. Sánchez-Rivera, did knowingly brandish, carry and use a
firearm, that is, a black revolver of unknown brand and caliber
during and in relation to a crime of violence, as charged in COUNT
ONE of this Indictment, which may be prosecuted in a Court of the
United States”.
and 2.
All in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii)
(Criminal Case No. 13-294, Docket No. 71 at p. 2.)
Count Three (3) charged: “From on or about December 24, 2011,
to on or about August 27, 2012, in the District of Puerto Rico and
within the jurisdiction of this Court, Josué E. Aponte-Ramos, the
defendant
herein,
having
been
convicted
in
court
of
a
crime
punishable by imprisonment for a term exceeding one (1) year, did
unlawfully
possess
in
and
affecting
interstate
or
foreign
commerce, a firearm and ammunition, as those terms are defined in
Civil No. 16-2292 (FAB)
3
Title 18, United States Code, § 921(a)(3) and (17)(A) respectively,
that is, a black revolver of unknown brand and caliber, loaded
with an unknown amount of rounds of ammunition.”
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
All in violation
(Criminal Case No. 13-
294, Docket No. 71 at p. 2.)
On May 26, 2015, Aponte-Ramos pled guilty to Counts One and
Two.
(Criminal Case No. 13-294, Docket No. 90.)
As part of the
plea agreement, Aponte-Ramos and the government agreed to a total
offense level of 19 for Count One.
Docket No. 91 at p. 5.)
(Criminal Case No. 13-294,
Although the parties did not stipulate as
to any Criminal History Category, they agreed to recommend a term
of imprisonment equal to the lower end of the applicable Guideline
range.
Id.
As to Count Two, the parties agreed to recommend a
consecutive term of imprisonment of 84 months.
Id.
On August 20, 2015, the Probation Officer disclosed an Amended
Presentence Report (“PSR”) which provided for a total offense level
of 23 and a criminal history score of 4 points, which corresponded
to a criminal history category of III.
Docket No. 94 at p. 8.)
(Criminal Case No. 13-294,
Based on these quantities, the PSR called
for a guideline imprisonment range of 57-71 months of imprisonment
for Count 1 and the mandatory minimum sentence of 84 months of
imprisonment for Count 2. (Criminal Case No. 13-294, Docket No. 94
at p. 13.)
The PSR indicated that Aponte-Ramos’ four criminal
Civil No. 16-2292 (FAB)
4
history points corresponded to previous sentences stemming from
the same arrest 1 pursuant to U.S.S.G. §§ 4A1.1(a) and (e).
Id.
The previous sentences set forth in the PSR corresponded to three
robbery convictions in Violation of Art. 173 of the Puerto Rico
Penal Code 2 and one conviction of Unlawful Possession of a Firearm
in violation of the Puerto Rico Weapons Law. 3
The PSR indicated
that, according to official court documents:
(1) “on August 9,
2003, in Caguas, Puerto Rico, the defendant Josué E. Aponte Ramos
used violence and intimidation took a 2002 white Toyota Echo, a
women’s purse, a Nokia cellular telephone, property of Linda
González Candelario” and (2) “on August 3, 2003, in Río Piedras,
Puerto Rico the defendant used a revolver to commit a robbery of
a 2000 white Toyota Echo, $128, a cellular telephone and personal
documents, property of Guillermo Parrilla Bonilla.”
Id.
On August 27, 2015, the Court sentenced Aponte-Ramos to 71
months of imprisonment for count one and 84 months of imprisonment
for count two, to be served consecutively to each other, for a
total of 155 months of imprisonment, followed by 3 years of
1
The date of arrest was 09/10/2003.
at p. 8.)
(Criminal Case No. 13-294, Docket No. 94
2 Aponte-Ramos was sentenced to 12 years of imprisonment as to each charge, to
be served concurrently with each other.
3
Aponte-Ramos was sentenced to 12
concurrently to the other charges.
years
of
imprisonment,
to
be
served
Civil No. 16-2292 (FAB)
5
supervised release for count one and 5 years for count two, to be
served concurrently with each other. 4
Docket No. 99.)
(Criminal Case No. 13-294,
Judgment was entered that same day.
Case No. 13-294, Docket No. 100.)
(Criminal
Aponte-Ramos did not file an
appeal.
On June 28, 2016, Aponte-Ramos filed a pro-se Motion Under 28
U.S.C. § 2255 to vacate, set aside or correct his sentence.
(Civil
Docket No. 1.) On February 23, 2017, Aponte-Ramos, now represented
by the Federal Public Defender, filed a Supplemental Motion in
Support of his section 2255 motion.
(Civil Docket No. 9.)
On
October 12, 2018, the United States of America (“Respondent” or
“the
Government”)
Supplemental
Petition.
Brief
filed
in
a
Response
Support
of
(Civil Docket No. 14.)
in
Opposition
Petitioner’s
to
Section
the
2255
On February 8, 2019, the
Government filed a Response in Opposition to Petitioner’s Motion
to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255.
(Civil Docket. No. 25.)
II.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, “[a] prisoner in custody under
sentence of a court established by [an] Act of Congress . . . may
move the court which imposed the sentence to vacate, set aside or
4
The Court also imposed a special monetary assessment of $200.00 and restitution
of $3,260.00.
Civil No. 16-2292 (FAB)
6
correct the sentence.”
28 U.S.C. § 2255(a).
“[T]he statute
provides for post-conviction relief in four instances, namely, if
the petitioner’s sentence (1) was imposed in violation of the
Constitution,
or
(2)
was
imposed
by
a
court
that
lacked
jurisdiction, or (3) exceeded the statutory maximum, or (4) was
otherwise subject to collateral attack.”
David v. United States,
134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States,
368
U.S.
424,
426-27
(1962)).
Claims
that
do
not
allege
constitutional or jurisdictional errors are properly brought under
section 2255 only if the claimed error is a “fundamental defect
which fundamentally results in a complete miscarriage of justice”
or “an omission inconsistent with the rudimentary demands of fair
procedure.”
Id.
A motion under section 2255 is not a substitute for a direct
appeal.
Foster v. Chatman, 136 S. Ct. 1737, 1758 (2016).
As a
result, “as a general rule, federal prisoners may not use a motion
under 28 U.S.C. § 2255 to relitigate a claim that was previously
rejected on direct appeal.”
“[c]ollateral
relief
in
Id. (citations omitted).
a
§
2255
proceeding
is
Moreover,
generally
unavailable if the petitioner has procedurally defaulted his claim
by failing to raise the claim in a timely manner at trial or on
direct appeal.”
Bucci v. United States, 662 F.3d 18, 27 (1st Cir.
2011) (quotation marks and citations omitted).
If a section 2255
Civil No. 16-2292 (FAB)
7
petitioner does not raise a claim on direct appeal, that claim is
barred from judicial review unless the petitioner can demonstrate
both (1) cause for the procedural default and (2) actual prejudice
resulting from the error asserted.
Id.; United States v. Frady,
456 U.S. 152, 167-68 (1982).
III. DISCUSSION
Aponte-Ramos
moves
to
vacate,
sentence on the following grounds:
set
aside
or
correct
his
(1) his 18 U.S.C. § 924(c)
conviction is invalid pursuant to the Supreme Court decision in
Johnson v. United States (Johnson II), 576 U.S. ___, 135 S.Ct.
2551 (2015) (Civil Docket Nos. 1 and 9.); (2) he should be
resentenced using a Criminal History Category of II (Civil Docket
No. 9.); (3) his plea was not voluntary (Civil Docket No. 9.);
(4) his sentence is unconstitutional.
A.
(Civil Docket No. 9.)
Claim as to Johnson v. United States (Johnson II), 576
U.S. ___, 135 S.Ct. 2551 (2015)
The Federal Public Defender (FPD) moves to supplement
petitioner’s section 2255 motion supporting Aponte-Ramos’ argument
that his section 924(c) conviction should be vacated pursuant to
Johnson v. United States (Johnson II), 576 U.S. ___, 135 S.Ct.
2551 (2015). (Civil Docket No. 9 at pp. 1-14.) In the supplemental
motion, Aponte-Ramos avers that Johnson II, which struck down the
residual clause of the Armed Career Criminal Act (“ACCA”) due to
Civil No. 16-2292 (FAB)
8
vagueness, invalidates the similarly worded residual clause of
section 924(c)(3)(B).
(Civil Docket No. 9 at pp. 1-8.)
Aponte-
Ramos argues that the “crime of violence” charge, alongside the
section 924(c) violation -aiding and abetting carjacking- fails to
categorically qualify as a crime of violence under the statute’s
“force clause,” 18 U.S.C. § 924(c)(3)(A).
pp. 8-14.)
(Civil Docket No. 9 at
Aponte-Ramos claims that without 924(c)’s residual
clause, he is not guilty of Count Two and his conviction and
sentence on that count must be vacated.
Id.
In addition, Aponte-
Ramos claims that he is entitled to a new sentencing hearing where
he should be resentenced using a reduced criminal history category
of II.
(Civil Docket No. 9 at p. 14-20.)
In Johnson II, the Supreme Court held that the “residual
clause”
of
the
Armed
Career
Criminal
Act
[“ACCA”]
was
unconstitutionally vague and that “imposing an increased sentence
under the residual clause of the [ACCA] violates the Constitution's
guarantee of due process.”
at
2555-63.
The
ACCA
Johnson II, 576 U.S. at __, 135 S.Ct.
provides
for
enhanced
penalties
for
defendants with three qualifying prior felony convictions for
either serious drug offenses or “violent felonies.”
The ACCA
defines a “violent felony” as a crime punishable by imprisonment
for a term exceeding one year “that - (i) has as an element the
use, attempted use, or threatened use of physical force against
Civil No. 16-2292 (FAB)
9
the person of another; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).
The underlined
portion is known as the ACCA’s “residual clause.”
Court
determined
the
ACCA’s
“residual
The Supreme
clause”
to
be
unconstitutionally vague because its application was too “wideranging” and “indeterminate.”
Id.
On April 18, 2016, the Supreme
Court determined that Johnson II announced a new substantive rule
that applies retroactively to cases on collateral review.
Welch
v. United States, 578 U.S. __, 136 S.Ct. 1257 (2016).
Section 924(c)(1)(A), pursuant to which petitioner was
convicted, prohibits the possession of a firearm in furtherance of
a “crime of violence” or a drug trafficking crime.
Section
924(c)(3) defines “crime of violence” as “an offense that is a
felony and - (A) has as an element the use, attempted use, or
threatened use of physical force against the person of another, or
(B) that by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense.”
18 U.S.C. § 924(c)(3)(B).
The
first of these two clauses is referred to as the “force clause.”
See United States v. Rose, 896 F. 3d 104, 106 (1st Cir. 2018).
second is known as the “residual clause.”
Id.
The
Petitioner was
Civil No. 16-2292 (FAB)
10
convicted and sentenced under the provision of 18 U.S.C. § 924(c)
that pertains to the use of a firearm during and in relation to a
carjacking. 5
In Johnson v. United States (Johnson I), 559 U.S. 133
(2010), the Supreme Court held that to qualify as a “crime of
violence” under the force clause, an offense must have as an
element the use, attempted use, or threatened use of a violent
physical force “that is, force capable of causing physical pain or
injury to another person.”
Johnson, 559 U.S. at 140 (2010).
On
September 14, 2018, the First Circuit Court of Appeals held that
the federal offense of carjacking categorically qualifies as crime
of violence under the force clause of section 924(c).
United
States v. Cruz-Rivera, 904 F.3d 63, 66-67 (1st Cir. 2018).
circuits to
confront
the
question
after
Johnson
I
Other
have
also
concluded that carjacking qualifies as a crime of violence.
See
United States v. Gutiérrez, 876 F.3d 1254, 1257 (9th Cir. 2017);
United States v. Evans, 848 F.3d 242, 247-48 (4th Cir. 2017); United
States v. Jones, 854 F.3d 737, 740-41 (5th Cir. 2017); Ovalles v.
United States, 861 F.3d 1257, 1267-69 (11th Cir. 2017).
5 Section 2119 defines carjacking as follows:
Whoever, with the intent to cause
death or serious bodily harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or attempts to do
so, shall--- . . . 18 U.S.C. § 2119.
Civil No. 16-2292 (FAB)
11
Accordingly, the offense of carjacking in violation of
18 U.S.C. § 2119 for which Aponte-Ramos was convicted and sentenced
is categorically a “crime of violence” under the force clause of
section 924(c)(3)(A).
As neither petitioner’s conviction nor
sentence rest upon the residual clause of section 924(c)(3)(B),
Johnson II is inapplicable to the circumstances of his case.
Therefore, petitioner’s claim seeking his conviction and sentence
as to Count Two be vacated under Johnson II is DENIED.
B.
Claim of incorrect Criminal History Category.
The
FPD’s
Supplemental
Brief,
besides
supporting
petitioner’s section 2255 motion, raises a claim of improperly
imposed sentencing enhancement.
Aponte-Ramos claims that he is
entitled to a new sentencing hearing to be resentenced using a
reduced criminal history category of II instead of III.
Docket No. 9 at pp. 14-16.)
(Civil
Aponte-Ramos argues that Johnson II,
which struck down the residual clause of the ACCA due to vagueness,
invalidates the similarly worded residual clause of the Sentencing
Guidelines.
Id.
He asserts that absent this clause his prior
Puerto Rico robbery conviction would not have received any criminal
history point under U.S.S.G. § 4A1.1(e), reducing his criminal
history score to 3 and placing him in a criminal history category
of II.
Id.
In addition, petitioner argues that he was improperly
subjected to the career offender enhancement, U.S.S.G. 4B1.1(a),
Civil No. 16-2292 (FAB)
12
because his prior Puerto Rico convictions were for robbery and
robbery pursuant to Puerto Rico law do not qualify as “crimes of
violence” under Guidelines § 4A1.1(e).
Id.
Petitioner did not file an appeal and thus, this claim
of improperly imposed sentencing enhancement is raised here for
the first time.
Section 2255 motions have exhaustion requirements
and previously appealing an issue raised collaterally is one of
them.
See Pinillos v. United States, 990 F. Supp. 2d 83, 100
(D.P.R. 2013). A petitioner may only overcome a procedural default
if he can demonstrate cause and actual prejudice or that he is
actually innocent.
Id.
A review of the record reflects that
petitioner’s claim that his sentence enhancement was improperly
imposed is unfounded and therefore, he has failed to overcome
procedural default.
At the time of Aponte-Ramos’ sentencing, the Sentencing
Guidelines defined a “crime of violence” as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that— (l) has as
an element the use, attempted use, or threatened use of
physical force against the person of another, or (2) is
burglary of a dwelling arson, or extortion, involves use or
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (2015).
Article 173 of the Puerto Rico Penal Code, in effect at
the time of Aponte-Ramos’ robbery convictions, provided:
Civil No. 16-2292 (FAB)
13
Every person who unlawfully appropriates for himself
personal property belonging to another, whether taking
them from his person or from the person having possession
thereof, or in his immediate presence and against his
will, by means of violence or intimidation, shall be
punishable [in accordance with the remainder of the
statute].
P.R. Laws Ann. tit 33, § 4279.
In People v. Batista
Montañez, 113 P.R.R. 401 (1982), the Puerto Rico Supreme Court
revisited
their
previous
holding
on
robbery’s
violence
or
intimidation and ruled “that ‘[a]ny use of force or aggression
which has or may have the effect of forcing a person to give up
his property . . . is sufficient to constitute the force’ required
by [the robbery statute].’
broadened
the
Id. (citation omitted).
violence-or-intimidation
element
of
That ruling
the
robbery
statute beyond the generic physical force element used in the
guidelines.”
United States v. Castro-Vázquez, 176 F. Supp.3d 13
(2016).
The
Supreme
Court,
however,
in
Stokeling
v.
United
States, 586 U.S. __ (2019), a case involving a Florida robbery
statute, held that a robbery offense that has as an element the
use
of
force
sufficient
to
overcome
a
victim’s
resistance,
necessitates the use of “physical force” within the meaning of the
“elements clause” of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(i).
Stokeling, Slip Opinion, at pp. 3-12.
Construing the language of the elements clause and its opinion in
Civil No. 16-2292 (FAB)
14
Johnson I, the Supreme Court concluded “that the elements clause
encompasses robbery offenses that require the criminal to overcome
the victim’s resistance.”.
Stokeling, Slip Opinion, at p. 3.
The
Supreme Court clarified its definition of “physical force” by
accepting the widely accepted definitions of robbery among the
States, a significant majority of which defined “nonaggravated
robbery as requiring force that overcomes a victim’s resistance.”
Stokeling, Slip Opinion, at p. 7.
The Supreme Court held that
“physical force,” or “force capable of causing physical pain or
injury,” Johnson I, 559 U.S., at 140, includes the amount of force
necessary to overcomes a victim’s resistance and thus, concluded
that robbery under Florida law qualifies as a ACCA-predicate
offense of the elements clause. 6
Stokeling, Slip Opinion, at
pp. 12-13.
Accordingly,
Puerto
Rico
Supreme
Court’s
ruling
on
“force” - any use of force or aggression which has or may have the
effect of forcing a person to give up his property is sufficient
to constitute the force required by the robbery statute - is
consistent with the definition of “physical force” within the
meaning of the “elements clause” of the ACCA.
Therefore, robbery
under Puerto Rico law qualifies as an ACCA-predicate offense under
6
“[T]he Florida Supreme Court has made clear that the robbery statute requires
‘resistance by the victim that is overcome by the physical force of the
offender’.” Stokeling at p. 13 (citing Robinson v. State, 692 So. 2d 883, 886.)
Civil No. 16-2292 (FAB)
15
the elements clause and thus, Aponte-Ramos’ claim of incorrect
criminal history category is meritless.
C.
Claim of involuntary guilty plea.
Petitioner
claims
that
his
plea
was
not
voluntary
because he was “scared into pleading guilty to possession of a
weapon.”
(Civil Docket No. 1 at p. 5.)
Petitioner avers that he
“never had constructive possession of any weapon”.
Id.
Petitioner has procedurally defaulted his involuntary
plea allegation by failing to raise it on appeal.
In addition,
the record contradicts petitioner’s contentions and thus, he has
failed to overcome procedural default.
First, the plea agreement
states that Aponte-Ramos “acknowledges that no threats have been
made
against
him
and
that
he
is
voluntarily because he is guilty.”
No. 91 at p. 9.)
pleading
guilty
freely
and
(Criminal No. 13-294, Docket
Second, at the change of plea hearing Aponte-
Ramos stated under oath that no one had attempted in any way to
force him to sign the plea agreement, that no one had made any
promise or assurance to him of any kind in an effort to induce him
to sign the plea agreement and, that he was pleading guilty of his
own free will because he was guilty.
Docket No. 107 at pp. 13-14.)
(Criminal Case No. 13-294,
Third, at the Change of Plea hearing
the Court went thoroughly over the two counts he was pleading
guilty to:
Civil No. 16-2292 (FAB)
16
THE COURT: The plea agreement is ordered filed and taken
under advisement to be considered by the Court in
sentencing.
Mr. Aponte, you’re charged in Count One that on
August 27, 2012, here in Puerto Rico, you and another
co-defendant, aiding and abetting each other, took a
2009 Toyota Yaris, with Puerto Rico license plate HJT043,
Vehicle
Identification
Number
JTB
-JTDBT923291310170, a car that had been transported,
shipped and received in interstate or foreign commerce,
from the person or in the presence of an individual by
the name of L.R.Q. by force, violence and intimidation,
with the intent to cause death and serious bodily harm.
As to Count One, is that what you did?
THE DEFENDANT:
Yes.
THE COURT: . . . Now, as to Count Two, you’re charged
that on or about August 27, 2012, here in Puerto Rico,
you and other co-defendant, aiding and abetting each
other, did knowingly brandish, carried and used a
firearm, a black revolver of unknown brand, brand and
caliber, during and in relation to a crime of violence,
as charged in Count One, which may be prosecuted in a
Court of the United States.
As to Count Two, Mr. Aponte, is that what you did?
THE DEFENDANT:
THE COURT:
Yes.
Is that what you’re pleading guilty to?
THE DEFENDANT:
Yes.
(Criminal Case No. 13-294, Docket No. 107 at pp. 14-15.) (emphasis
ours)
Aponte-Ramos
represented
to
the
pleading guilty knowingly and voluntarily.
Court
that
he
was
At no time during the
change of plea hearing did Aponte-Ramos give any indication that
Civil No. 16-2292 (FAB)
17
he was being threatened or coerced into pleading guilty.
Quite
the contrary, he admitted to every element of the offenses charged
and did so in an intelligent and voluntary manner, with full
knowledge of the consequences of his guilty plea.
No. 13-294, Docket No. 107 at p. 20.)
(Criminal Case
Therefore, petitioner’s
claim that he was “scared into pleading guilty to possession of a
weapon” is meritless.
D.
Claim of unconstitutional sentence
Petitioner
claims
that
his
sentence
was
“unconstitutional” and the only specific contention he indicates
is
that
his
consecutively.
sentences
should
run
concurrently
(Civil Docket No. 1 at p. 5.)
no other support for this claim.
instead
of
Petitioner provides
(Civil Docket No. 1.)
The Court recognizes that pro-se litigants are entitled
to a liberal construction of their pleadings which are held to
less stringent standards than formal pleadings drafted by lawyers.
Nevertheless, while pro-se litigants are held to less stringent
standards,
their
requirements.
(1st Cir. 2003).
motions
must
meet
certain
fundamental
See United States v. Nishnianidze, 342 F.3d 6, 18
Specifically, all petitioners have the obligation
of explicitly spelling out their arguments, because “it is not
enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the ossature
Civil No. 16-2292 (FAB)
18
for the argument, and put flesh on its bones.”
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
to
in
a
perfunctory
manner,
United States v.
Issues that are “adverted
unaccompanied
developed argumentation, are deemed waived.”
by
some
effort
at
Id.
Because petitioner barely provides any support for his
“unconstitutional” sentence claim, it is impossible to decipher
what he is requesting or alleging.
In addition, petitioner’s only
specific contention about his sentence – that his sentences should
run concurrently instead of consecutively – is contrary to the law
and
the
plea
petitioner’s
agreement.
claim
that
Due
his
to
this
sentence
lack
is
of
development,
unconstitutional
is
rejected.
IV.
CONCLUSION
For the reasons stated, petitioner Josué Aponte-Ramos’ Motion
under 28 U.S.C. § 2255 (Civil Docket No. 1) and Supplemental Brief
(Civil Docket No. 9) are DENIED.
prejudice.
This case is DISMISSED with
Judgment shall be entered accordingly.
Petitioner’s
request for an evidentiary hearing is DENIED.
If petitioner files a notice of appeal, no certificate of
appealability shall issue because he has not made a substantial
showing of the denial of a constitutional right.
§ 2253(c)(2).
See 28 U.S.C.
Civil No. 16-2292 (FAB)
19
IT IS SO ORDERED.
San Juan, Puerto Rico, July 19, 2019.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?