Cruz-Danzot v. USA
Filing
13
OPINION AND ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 11-388) filed by Miguel Angel Cruz-Danzot, 8 MOTION to Dismiss/Lack of Jurisdiction as to Miguel Angel Cruz-Danzot filed by USA. Thi s Court lacks jurisdiction to entertain Cruz's successive petition. Consequently, the Court GRANTS the government's motion to dismiss at ECF No. 8. Cruz's petition at ECF No. 1 is DISMISSED WITHOUT PREJUDICE. See Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997). Clerk of Court is to enter judgment accordingly. Signed by U.S. District Judge Aida M. Delgado-Colon on 8/20/2018.(wm)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MIGUEL ANGEL CRUZ-DANZOT,
Petitioner,
v.
Civil No. 17-1837 (ADC)
[Related to Crim. No. 11-388-71 (ADC)]
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Before the Court is Petitioner Miguel Ángel Cruz-Danzot’s (“Cruz”) petition for relief
under 28 U.S.C. § 2255. ECF No. 1. The government responded with a motion to dismiss. ECF
No. 8. For the following reasons, the Court GRANTS the government’s motion to dismiss the
petition. ECF No. 8.
By a Judgment, dated July 20, 2012, Cruz was convicted before this Court, by guilty plea,
of Conspiracy to Possess with Intent to Distribute Cocaine Base within a Protected Location, 21
U.S.C. §§ 841(a)(1), 846, 860, and was sentenced to seventy-eight months in prison, followed by
eight years of supervised release. Crim. No. 11-388, ECF No. 1259. The Judgment became final
on August 6, 2012, fourteen days after its entry, when Cruz failed to timely appeal the judgment
pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A)(i).
Civil No. 17-1837 (ADC)
Page 2
More than three years later, on or about September 22, 2015, Cruz filed an untimely notice
of appeal. Crim. No. 11-388, ECF No. 3444. By a Judgment, dated January 20, 2016, the Court of
Appeals dismissed the appeal as untimely, remitting Cruz “to his remedies, if any, under 28
U.S.C. § 2255.” Id. at ECF No. 3630. On or about February 15, 2017, nearly five years after the
underlying judgment became final, Cruz filed his first pro-se application for relief pursuant to
28 U.S.C. § 2255. Civil No. 17-1229, ECF No. 3. This Court denied that application as untimely.
Id. at ECF No. 8. Cruz then filed another habeas petition pursuant to 28 U.S.C. § 2241 in the
district in which he was incarcerated, the Middle District of Pennsylvania, arguing that the
principles announced in McFadden v. United States, 135 S.Ct. 2298 (2015); Rosemond v. United
States, 134 S.Ct. 1240 (2014); and Burrage v. United States, 134 S.Ct. 881 (2014), render his guilty
plea involuntary and unintelligent. Cruz-Danzot v. Baltazar, 2017 WL 4550986, at *1 (slip copy)
(M.D. Pa. Oct. 12, 2017). The Pennsylvania Court denied his petition without prejudice, noting
that it was successive, raised no new arguments, and was prohibited under the “safety valve
clause” of 28 U.S.C. § 2255(e). Id. at *2. The Pennsylvania Court also noted that Rosemond and
Burrage do not apply retroactively and McFadden was not relevant to Cruz’s circumstances. Id.
at *2–3.
In Cruz’s present application for habeas relief under section 2255, he similarly challenges
his guilty plea as “unintelligent and involuntary,” on the basis that he lacked knowledge of: (1)
“the Controlled Substance Act or Analogue of § 802(32)(A) of Schedule II,” (2) a requirement
that “death or serious bodily injury had to result from the use of the cocaine base,” and (3) “Aid
Civil No. 17-1837 (ADC)
Page 3
& Abetting in the Conspiracy to Manufacture and Possession with Intent to Distribute.” ECF
No. 1 at 4. He relies on the same three United States Supreme Court cases that were rejected by
the Pennsylvania Court in dicta as inapplicable. Id. at 4, 10. Cruz now argues that because these
cases “were previously unavailable until 2014 and 2015,” the present petition is not untimely.
Id. at 10. See 28 U.S.C. § 2255(f)(3).
The government opposes Cruz’s petition, arguing that Cruz failed to obtain leave from
the First Circuit Court of Appeals to file this “second or successive” application in accordance
with 28 U.S.C. § 2244(b)(3)(A). ECF No. 8 at 2.
The Court agrees with the government. This Court denied Cruz’s first petition for habeas
relief on the merits, rendering the present filing his second or successive petition for habeas
relief. See Cook v. Ryan, 2012 WL 5064492, *2 (D. Mass. Oct. 15, 2012) (mem.) (collecting cases
holding that a dismissal of a habeas petition on statute of limitations grounds is an adjudication
on the merits); accord Candelario v. Warden, 592 Fed. Appx. 784, 785 n.1 (11th Cir. 2014) (per
curiam); In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam); Stokes v. Gehr, 399 Fed.
Appx. 697, 699 n.2 (3rd Cir. 2010) (per curiam); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir.
2009); Villanueva v. United States, 346 F.3d 55, 61 (2nd Cir. 2003) (explaining that, “unlike cases
where a habeas or § 2255 petition is dismissed without prejudice for failure to exhaust or as
premature, a time-bar cannot be corrected,” rendering a dismissal on statute of limitations
grounds an adjudication on the merits). Thus, Cruz must obtain leave from the First Circuit
Court of Appeals to file this petition.
Civil No. 17-1837 (ADC)
Page 4
Accordingly, this Court lacks jurisdiction to entertain Cruz’s successive petition.
Consequently, the Court GRANTS the government’s motion to dismiss at ECF No. 8. Cruz’s
petition at ECF No. 1 is DISMISSED WITHOUT PREJUDICE. See Pratt v. United States, 129 F.3d
54, 57 (1st Cir. 1997). Clerk of Court is to enter judgment accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on this 20th day of August, 2018.
S/AIDA M. DELGADO-COLÓN
United States District Judge
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