Cabrera-Agosto v. USA
Filing
11
OPINION AND ORDER - DISMISSING Petitioner's 1 pro se Motion to Vacate, Set Aside or Correct Sentence, with prejudice. Signed by Judge Carmen C. Cerezo on 4/11/2019. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EZEQUIEL CABRERA AGOSTO
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 16-2410CCC
(Related Crim. 14-0429-01CCC)
OPINION AND ORDER
Before the Court is Ezequiel Cabrera Agosto’s (hereinafter “Petitioner”
or “Cabrera Agosto”) pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence (d.e. 1), and the Government’s response (d.e. 8).
For the reasons discussed below, the Court finds that the Petition shall be
dismissed.
I.
BACKGROUND
On March 2, 2015, Cabrera Agosto pled guilty to possession of a firearm
in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)
(Count Four) (Criminal 14-429(CCC), d.e. 39). On June 3, 2015, he was
sentenced to serve a term of imprisonment of 60 months, followed by 4 years
of supervised release, and a special monetary assessment of $100.00
(Criminal 14-429(CCC), d.e. 52). Judgment was entered on June 8, 2016
(Criminal 14-429(CCC), d.e. 53). Cabrera Agosto did not file a direct appeal.
On July 24, 2016, Petitioner filed this 28 U.S.C. § 2255 motion raising two
claims of ineffective assistance of counsel,1 and claiming entitlement to relief
1
Cabrera Agosto raises the following allegations of ineffective assistance of counsel:
(1) counsel was ineffective for failing to advise him of his right to appeal, and (2) counsel failed to
raise the argument of his “proper 922(G) statut[e], instead of 924(c)” (d.e. 1, p. 10). Cabrera
Agosto argues that his counsel took advantage of his lack of English and comprehension of the
Federal Law and chose not to proceed with his legal rights. (d.e. 1, pp. 14, 15 and 27).
CIVIL 16-2410CCC
(Related Crim. 14-0429-01CCC)
2
under Johnson v. United States, 135 S.Ct. 2551 (2015) (d.e. 1).
On
January 17, 2017, the Government opposed Petitioner’s Motion as untimely
and meritless (d.e. 8).
II.
DISCUSSION
A.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
became effective on April 24, 1996. AEDPA establishes a limitations period
of one (1) year from the date on which a prisoner’s conviction becomes “final”
to seek federal habeas relief. Congress intended that AEDPA be applied to all
Section 2255 petitions filed after its effective date. Pratt v. United States,
541 F.3d 814, 816 n.2 (8th Cir. 2008). “When a defendant does not appeal his
conviction or sentence, the judgment of conviction becomes final when the time
for seeking review expires.” Anjulo-Lopez v. United States, 541 F.3d 814, 816
n.2 (8th Cir. 2008). “For purposes of section 2255 motions, an unappealed
federal criminal judgment becomes final when the time for filing a direct appeal
expires.”
Sanchez-Castellano v. United States, 358 F.3d 424, 428
(6th Cir. 2005).
Pursuant to the Federal Rules of Appellate Procedure, Petitioner had
fourteen days after the judgment was entered to file an appeal. See Fed. R.
App. P. 4(b)(1)(A)(i).
Judgment was entered on June 8, 2015
(Criminal 14-429(CCC), d.e. 53). Petitioner had until June 22, 2015 to file a
timely appeal or his conviction would become final. Cabrera Agosto did not file
an appeal, therefore, his conviction became final on June 22, 2015. The
one-year statute of limitations for the timely filing of a 2255 Petition expired on
June 22, 2016. Petitioner signed and delivered to the prison mail his petition
for relief on July 24, 2016 (d.e. 1), that is, one month and two days after the
CIVIL 16-2410CCC
(Related Crim. 14-0429-01CCC)
3
statute of limitations expired. Thus, Cabrera Agosto’s claim for ineffective
assistance of counsel is untimely and subject to dismissal.
B.
Claim under Johnson v. United States, 135 S.Ct. 2551 (2015).
In Johnson v. United States, ___ U.S. ____, 135 S.Ct. 2551 (2015), the
United States 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.” Johnson, ___ U.S. at ____, 135 S.Ct.
at 2555-63. The ACCA provides for enhanced penalties for those 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 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 above is known as the ACCA's “residual clause.” The
Supreme Court found the ACCA's “residual clause” to be unconstitutionally
vague because its application was too “wide- ranging” and “indeterminate.” Id.
On April 18, 2016, the United States Supreme Court determined that Johnson
announced a new substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, ___ U.S. ____, 136 S.Ct. 1257,
194 L.Ed. 2d 387 (2016).
Section 924(c)(1)(A), under 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
CIVIL 16-2410CCC
(Related Crim. 14-0429-01CCC)
4
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) (emphasis added). The above underlined portion is
known as the “residual clause” of Section 924(c)(3). However, Petitioner was
convicted and sentenced under 18 U.S.C. § 924(c)(1)(A)'s provision pertaining
to the use of a firearm during and in relation to a drug crime. See United
States v. Hare, 820 F.3d 93, 105-06 (4th Cir. 2016) (declining to address the
merits of defendant's Johnson claim where defendant was convicted of
possessing a firearm in furtherance of a drug trafficking crime). As neither
Petitioner’s conviction nor sentence rest upon Section 924(c)'s definition of a
“crime of violence,” Johnson is inapplicable to this case.
III.
CONCLUSION
For the reasons stated, the Court concludes that Petitioner Ezequiel
Cabrera Agosto’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct Sentence (d.e. 1) be and is hereby DISMISSED, with prejudice.
Judgment to be entered on this same date.
SO ORDERED.
At San Juan, Puerto Rico, on April 11, 2019.
S/CARMEN CONSUELO CEREZO
United States District Judge
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