Reyes-Santana v. USA

Filing 2

OPINION AND ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 13-597) filed by Rodolfo Reyes-Santana. The Court hereby DISMISSES the petition as both untimely and meritless. See ECF No. 1. The Court also D ENIES Reyes a certificate of appealability pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts because he has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); see also Jennings v. Stephens, 135 S. Ct. 793, 802 (2015). The Clerk of Court is to enter judgment accordingly. Signed by Chief Judge Aida M. Delgado-Colon on 4/7/2017.(wm)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

RODOLFO REYES-SANTANA,
Petitioner,
Civil No. 16-2989 (ADC)
[Related to Crim. No. 13-597-05 (ADC)]

v.
UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
On September 10, 2015, petitioner Rodolfo Reyes-Santana (Reyes) was convicted before
the Court, by guilty plea, of Conspiracy to Import Heroin, 21 U.S.C. §§ 952(1) and 963, and was
sentenced to ninety-six months in prison, to be followed by five years of supervised release.
United States v. Reyes-Santana, No. 13-CR-597-5 (D.P.R. Sept. 10, 2015), ECF No. 409. The Court
entered the judgment on September 14, 2015. Id. Reyes did not appeal the judgment.
On October 18, 2016, the Court received, via the mail, Reyes’ instant petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2255. ECF Nos. 1 (the petition), 1-1 (memorandum in
support of the petition), 1-2 (mailing envelope). On November 17, 2016, the Court docketed the
petition. ECF No. 1. The Court now summarily dismisses the petition pursuant to Rule 4(b) of
the Rules Governing Section 2255 Proceedings for the United States District Courts.
“Summary dismissal of a § 2255 petition is appropriate if it plainly appears from the face
of the motion that the movant is not entitled to relief.” Carey v. United States, 50 F.3d 1097, 1098

Civil No. 16-2989 (ADC)

Page 2

(1st Cir. 1995) (citing Rule 4(b) of the Rules Governing Section 2255 Proceedings for the U.S.
District Courts). “The court must take the allegations contained in the petitioner’s motion as
true, except to the extent that ‘they are . . . merely conclusions rather than statements of fact.’”
Id. (quoting Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980)). Although “[o]ur judicial
system zealously guards the attempts of pro se litigants on their own behalf,” “pro se status
does not insulate a party from complying with procedural and substantive law.” Ahmed v.
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). For example, federal law “establishes a one-year
limitations period for habeas petitions filed by prisoners in federal custody,” which “period runs
from ‘the date on which the judgment of conviction becomes final.’” Ramos-Martínez v. United
States, 638 F.3d 315, 321 (1st Cir. 2011) (quoting 28 U.S.C. § 2255(f)(1)). Where, as here, appellate
review is not sought, the judgment becomes “a final judgment for habeas purposes once the
deadline for filing a notice of appeal expire[s] 14 days later.” United States v. Gilbert, 807 F.3d
1197, 1200 (9th Cir. 2015) (citing Fed. R. App. P. 4(b)(1)(A)); see generally Clay v. United States, 537
U.S. 522, 532 (2003); United States v. Ciampi, 419 F.3d 20, 23 n.2 (1st Cir. 2005).
In this case, the Court finds that Reyes’ petition is untimely. As noted above, the Court
entered Reyes’ underlying judgment of conviction on September 14, 2015. The unappealed
judgment became final on September 28, 2015, when the deadline to appeal set forth in Federal
Rule of Appellate Procedure 4(b)(1)(A) expired. Gilbert, 807 F.3d at 1200. Reyes’ limitations
period to file a habeas petition then expired, pursuant to 28 U.S.C. § 2255(f)(1), on September 28,
2016. Ramos-Martínez, 638 F.3d at 321. However, the Court did not receive Reyes’ petition until

Civil No. 16-2989 (ADC)

Page 3

October 18, 2016. ECF No. 1-2. Even if Reyes could take advantage of the inmate-filing rule,
which he cannot because he has failed to make the requisite declarations under Rule 3(d) of the
Rules Governing Section 2255 Proceedings for the United States District Courts, the rule would
not render his petition timely because, at best, the petition shows that he deposited it into his
prison’s internal mailing system only on or after October 11, 2016. See ECF No. 1 at 6. Moreover,
no reason appears in the record to equitably toll the limitations period. As a result, the Court
finds that Reyes’ petition warrants summary dismissal for being untimely.
In any event, it plainly appears from the face of the petition that Reyes is not entitled to
relief on the merits. The petition alleges that Reyes’ lawyer was ineffective assistance because
the lawyer did not move the Court to postpone his sentencing until after November 1, 2015,
when Amendment 794 to the Sentencing Guidelines took effect. ECF No. 1 at 6. The Court takes
judicial notice that the Sentencing Commission first published Amendment 794, which clarified
the commentary to the minor-role adjustment, on May 5, 2015. 80 Fed. Reg. 25,782 (May 5, 2015).
Thus, Reyes is correct that if his attorney had known of the Amendment and predicted its timely
enactment, counsel could have moved the Court to postpone sentencing until afterward. See
ECF No. 1-1 at 1, 10. But Reyes is wrong that his lawyer’s decision not to do so constituted
ineffective assistance. See id. at 10. After all, Reyes does not contend that the Court erred in
sentencing him. And, even if he had made such an allegation based on the subsequent
enactment of the Amendment, the allegation would have been unavailing. See Knight v. United
States, 37 F.3d 769, 772-74 (1st Cir. 1994). Instead, Reyes criticizes his attorney for failing to delay

Civil No. 16-2989 (ADC)

Page 4

his sentence until the Amendment, once effective, “could have provided a benefit” to him due
to its “potential to reduce [his] sentence.” ECF No. 1-1 at 10. But having already sentenced
Reyes to a prison term below what his plea agreement had recommended, the Court fails to see
how Amendment 794 could have convinced it to impose an even lower sentence. See 18 U.S.C.
§ 3553(a). 1 Since the result of counsel’s alleged failure to seek a post-ponement of sentencing is
“wholly speculative,” Reyes cannot prove that he was prejudiced. See Janosky v. St. Amand, 594
F.3d 39, 49 (1st Cir. 2010); see also Strickland v. Washington, 466 U.S. 668, 694 (1984). Accordingly,
it is quite plain that Reyes cannot succeed on the merits.
In sum, the Court hereby DISMISSES the petition as both untimely and meritless. See
ECF No. 1. The Court also DENIES Reyes a certificate of appealability pursuant to Rule 11(a)
of the Rules Governing Section 2255 Proceedings for the United States District Courts because
he has not “made a substantial showing of the denial of a constitutional right.” See 28 U.S.C. §
2253(c)(2); see also Jennings v. Stephens, 135 S. Ct. 793, 802 (2015). The Clerk of Court is to enter
judgment accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on this 7th day of April, 2017.
S/AIDA M. DELGADO-COLÓN
Chief United States District Judge

For these reasons, the Court would also have denied Reyes’ petition if it had been brought,
instead, pursuant to 18 U.S.C. § 3582(c)(2).
1