Cortes-Morales v. USA
Filing
24
OPINION AND ORDER: Petitioner Jorge Corts-Morales' motion pursuant to 28 U.S.C. section 2255 and all subsequent related filings are DENIED. (Docket Nos. 1, 10, 13, 19 & 21.) This case is DISMISSED with prejudice. Signed by Judge Francisco A. Besosa on 3/26/2021. (AA) Modified on 3/29/2021 to edit title and signature date (ab).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JORGE CORTÉS-MORALES,
Petitioner,
Civil No. 17-2237 (FAB)
v.
related to
UNITED STATES OF AMERICA,
Criminal No. 05-424 (FAB)
Respondent.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is Petitioner Jorge Cortés-Morales (“CortésMorales”)’ pro-se motion to vacate, set aside, or correct his
sentence in Criminal Case No. 15-462, pursuant to 28 U.S.C. section
2255, with Supplement (“section 2255”),(Civil Docket Nos. 1 & 11); Petitioner’s Supplemental Brief in Support of his Motion to
Vacate, 1 (Civil Docket No. 13); the Government’s Response, (Civil
Docket No. 14); Petitioner’s Reply to the Government’s Response
(Civil Docket No. 19); and Petitioner’s Second Supplemental Brief
in Support of his Motion to Vacate (Civil Docket No. 21). For the
reasons set forth below, the Court DENIES petitioner’s request,
1
In his original filing, Cortés-Morales raised a claim based on Johnson v.
United States, 135 S.Ct. 2551 (2015), and the Court appointed counsel Jose C.
Romo-Matienzo to act as counsel for petitioner for his Johnson II claim, (Civil
Docket entry dated 10/11/2017).
Civil No. 17-2237(FAB)
2
and dismisses petitioner’s motion to vacate his sentence as well
as all his subsequent filings, with prejudice.
I.
BACKGROUND
On December 7, 2005, Cortés-Morales was charged in a three
count Indictment with possession with intent to distribute heroin
and cocaine,
in
violation
of
21
U.S.C.
sections
841(a)(1)
&
(b)(1)(C), (count one); possessing, carrying and using firearms
during and in relation to a drug trafficking offense, in violation
of 18 U.S.C. section 924(c)(1), (count two); and being a convicted
felon in possession of a firearm/armed career criminal in violation
of 18 U.S.C. section 922(g)(1)/924(e),(count three).
(Criminal
Docket No. 1).
On February 20, 2006, Cortés-Morales pled guilty to count
three
of
the
indictment.
(Crim.
Docket
Nos.
18
and
20).
Subsequently, the Court sentenced Cortés-Morales to a term of
imprisonment of two hundred ten months.
(Crim. Docket No. 31).
A month after entering judgment, the Court set a hearing
pursuant to Federal Rule of Criminal Procedure 35 (“Rule 35”).
(Crim. Docket No. 34.)
Rule 35 sets forth the procedure to correct
a reduce a sentence pursuant to certain circumstances, such as an
arithmetical
error
or
if
the
defendant
assistance” to the United States.
post-judgment
memorandum,
rendered
“substantial
Fed. R. Crim. Pro. 35.
Cortés-Morales
requested
an
In a
amended
Civil No. 17-2237(FAB)
3
sentence for assisting the United States “in investigating or
prosecuting another person.”
Crim. Pro. 35(b). 2
Crim. Docket No. 38; see Fed. R.
The United States disagreed.
Id.
Cortés-
Morales retorted, asserting that “the government is not acting in
good faith.”
Id. at p. 5.
On February 2, 2007, Cortés-Morales filed a pro-se motion to
reduce
his
sentence
(Crim.
Docket
No.
43.) 3
He
purportedly
provided information to the United States in a succession of
interviews, and helped resolve criminal cases.
Id.
Also, the
Assistant United States Attorneys allegedly took advantage of him.
Id. Cortés-Morales requested that the Court take note of all the
information he provided, and reduce his sentence pursuant to Rule
35 (Crim. Docket No. 43).
On February 6, 2007, Cortés-Morales filed his first Motion to
Vacate Sentence pursuant to 28 U.S.C. section 2255.
Crim. Docket
No. 45; Civil Case No. 07-1107(JAF).
On February 20, 2007, the Government filed its Opposition to
the Motion Requesting Reduction of sentence. (Crim. Docket No.
46.) In its motion, the United States contends that the information
provided by Cortés-Morales was sparse and insufficient to advance
2 Cortés-Morales’ criminal docket reflects a series of sealed documents related
to Rule 35.
Out of an abundance of caution, and in order to maintain the
documents sealed, the Court will not refer to their contents.
3
The motion was filed in the Spanish language and not under seal.
Civil No. 17-2237(FAB)
4
any investigation. (Crim. Docket No. 46.) It requested the denial
of a Rule 35 reduction of sentence.
Id.
On February 22, 2007, the Court issued an Order denying
Cortés-Morales’ Motion for reduction of sentence. (Crim. Docket
No. 47).
On March 28, 2008, the Court entered judgment as to CortésMorales’ original 2255 Petition.
(Civil Case No. 07-1107(JAF)).
The Court granted the 2255 motion in part, “for the limited purpose
of amending the judgment to impose a concurrent sentence.”
Docket No. 10 at p. 8.
grounds.
Id.,
The petition was denied on all other
(Crim. Docket No. 53).
On April 3, 2008, in alignment with the Court’s judgment in
Civil Case No. 07-1107(JAF), the Court entered an amended judgment
in
Criminal
Case
No.
05-424(FAB),
for
the
sole
purpose
of
clarifying that Cortés-Morales’ term of imprisonment was to run
concurrently with his Puerto Rico sentence.
(Crim. Docket No.
54.) 4
On May 15, 2008, Cortés-Morales appealed his sentence in Civil
Case No. 07-1107(JAF), (Civil Docket No. 12.)
On May 15, 2008, he
filed a Motion for Certificate of Appealability. (Case No. 071107, Docket No. 14.)
4
Cortés-Morales’ original sentence of imprisonment of two hundred ten months
for violating Count Three of the Indictment remained the same. (Crim. Docket
No. 54.)
Civil No. 17-2237(FAB)
5
On June 17, 2008, the Court issued its Opinion & Order
concerning the requested Certificate of Appealability. In it the
Court stated: “Plaintiff argues that his conviction is barred by
the Double Jeopardy Clause because Puerto Rico is not a separate
sovereign from the United States . . . Because reasonable jurists
could debate the status of Puerto Rico with respect to the Double
Jeopardy Clause, we are required to grant Petitioner’s request for
a certificate of appealability.” 5
(Case No. 07-1107, Docket No.
17.)
On December 23, 2009, the First Circuit Court of Appeals
entered its judgment stating: “Since the federal weapon offense to
which appellant pled guilty contains elements not present in any
of the Commonwealth offenses of which he was convicted, double
jeopardy does not apply to his case.
F.3d 11, 39 (1st Cir. 2005).
United States v. Marino, 277
Therefore, the district court
judgment denying the request for habeas relief is affirmed.”
Judgment, Cortés-Morales v. United States, No. 08-1741 (1st Cir.
Dec. 23, 2009).
On June 23, 2016, six years after final judgment in his
original 2255 petition had been entered, Cortés-Morales requested
5 As to Cortés-Morales’ second argument, that his guilty
intelligent and voluntary, the Court ruled that it was
and voluntary and, upon a review of the record, the
reasonable jurist would agree with the Court’s March 27,
(Case No. 07-1107, Docket No. 17.)
plea was not knowing,
knowing, intelligent,
Court found that any
2008 Opinion & Order,
Civil No. 17-2237(FAB)
6
leave to file a successive 2255 petition for relief with the First
Circuit Court of Appeals See COA No. 16-1822, application filed
6/23/2016).
Cortés-Morales sought to litigate his Johnson II and
double jeopardy
claims.
See
Commonwealth
of
Puerto
Rico
v.
Sánchez-Valle, 136 S. Ct. 1863 (2016).
The Government filed its response to Cortés-Morales’ request
for leave, and conceded that his Johnson II sentencing claim was
not a second or successive petition that required authorization
pursuant
to
section
2255(h),
but
that
the
double
jeopardy
constituted a second successive Section 2255 petition which should
not be permitted, (See: COA 16-1822, response filed 12/21/2016).
On February 14, 2017, the First Circuit Court of Appeals
issued its judgment and stated: “Since petitioner’s sentence was
amended after he filed his first habeas petition, his challenge to
his sentence, as the government concedes, is not successive.
Magwood v. Patterson, 561 U.S. 320(2010).
unnecessary
petitioner’s
application
to
See:
Therefore, we deny as
file
a
second
or
successive Section 2255 petition and direct the Clerk to transfer
the petition to the district court to be considered as his first
challenge to his new sentence.
We leave to the district court the
question whether petitioner may also challenge his conviction as
part of that challenge and express no opinion on the issue.”
(Criminal Docket No. 67).
Civil No. 17-2237(FAB)
7
With authorization from the First Circuit Court of Appeals,
Cortés-Morales commenced this action.
He sets forth two arguments
in support of the second section 2255 motion.
First, Cortés-
Morales argues that the underlying criminal action violates the
Double Jeopardy Clause because the Puerto Rico conviction is for
the same offense.
Case No. 17-2237, Docket No. 1; see Sánchez-
Valle, 136 S. Ct. 1863.
Second, he purports that Puerto Rico
conviction for aggravated assault is longer classified as a violent
crime pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015).
Id.
The Court does not have before it a typical section 2255
claiming ineffective assistance of counsel.
Before the Court are
two claims, a double jeopardy claim pursuant to Sánchez-Valle, and
a Johnson claim.
II. DISCUSSION
A. Cortés-Morales’
Double
Jeopardy
claim
pursuant
to
Commonwealth of Puerto Rico v. Sánchez-Valle, 136 S.Ct.
1862 (2016).
Cortés-Morales alleges that his federal conviction and
sentence
violate
the
Double
Jeopardy
Clause
because
he
was
previously prosecuted for the same offense in the Puerto Rico
Superior Court. (Crim. Docket No. 1-1).
At the federal level, petitioner pled guilty to, and was
convicted of, violating 18 U.S.C. sections 922(g)(1) and 924(e) –
Civil No. 17-2237(FAB)
8
being a convicted felon in possession of a firearm/armed career
criminal (Crim. Docket No. 31).
As stated in the Indictment, the
prior state conviction, No. AVI97GOO46, was for a felony aggravated
assault, with a term of imprisonment of two (2) years. (Crim.
Docket No. 1.)
Whether petitioner’s federal conviction constituted double
jeopardy was previously reviewed and rejected by the First Circuit
Court of Appeals.
In his original 2255 petition for relief,
Cortés-Morales raised the issue of double jeopardy.
The district
court denied the claim, but issued a certificate of appealability
on the matter which the First Circuit Court of Appeals accepted
(Civil Case No. 07-1107(JAF)).
The First Circuit Court of Appeals has previously stated that
“Since the federal weapon offense to which appellant pled guilty
contains elements not present in any of the Commonwealth offenses
of which he was convicted, double jeopardy does not apply to his
case.” (Case No. 07-1107, Civil Docket No. 21.)
Sánchez-Valle presents a completely different set of facts
than those in Cortés-Morales’ federal conviction.
In Sanchez-
Valle, the Supreme Court of the United States held that:
“the Commonwealth and the United States are not separate
sovereigns.
That means the two governments cannot ‘twice
put’ respondents Sanchez Valle and Gomez Vazquez ‘in
jeopardy’ for the ‘same offense.’ U.S. Const., Amend.5.
Civil No. 17-2237(FAB)
9
136 S. Ct. 1862 at 2264 (2016).
The
facts
in
Sánchez-Valle
petitioner’s federal conviction.
differ
from
the
facts
of
The First Circuit Court of
Appeals has clearly held:
Since the federal weapon offense to which appellant pled
guilty contains elements not present in any of the
Commonwealth offenses of which he was convicted, double
jeopardy does not apply to his case. United States v.
Marino, 277 F.3d 11, 39 (1st Cir. 2005). Therefore, the
district court judgment denying the request for habeas
relief is affirmed.” Cortés-Morales v. United States,
(1st Cir. Judgment No. 08-1741, Dec. 23, 2009).
(Case No. 07-1107, Civil Docket No. 21.)
Not only does the Supreme Court holding in Sánchez-Valle not
apply to this case, Cortés-Morales is precluded from relitigating
that which has already been decided.
The First Circuit of Appeals
has decided the issue on the merits, and petitioner is barred from
further raising the issue in a Section 2255 petition, United States
v. Escobar-de Jesús, 187 F.3d 148, 159-162 (1st Cir.1999), (cert.
denied, 528 U.S. 1176 (2000).
Accordingly, petitioner’s request
for 2255 relief based on a double jeopardy allegation is DENIED.
B. The Johnson Claim
Cortés-Morales alleges that his federal sentence as an
armed
career
criminal,
predicated
on
two
prior
Puerto
Rico
controlled substance convictions and a Puerto Rico aggravated
assault conviction, do not make him a career criminal, based on
Civil No. 17-2237(FAB)
10
Johnson v. United States, 135 S. Ct. 2551 (2015).
In Johnson the Supreme Court held that the “residual clause”
of the Armed Criminal Career 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.” Id. at 2555-63. The ACCA provides for enhanced penalties
for defendants with three qualifying prior felony convictions for
either serious drug offenses or “violent felonies.”
924(e).
18 U.S.C. §
The ACCA defines a “violent felony” as a crime punishable
by imprisonment for a term exceeding one year “that- (1) 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. Sec. 924(C)(2)(B)(ii) (emphasis added).
The underlined portion is known as the “residual clause.”
The
Supreme
was
Court
determined
that
ACCA’s
“residual
clause”
unconstitutionally vague because its application was too “wideranging” and “indeterminate.” Id.
On April 18, 2016, however, the
United States Supreme Court determined that Johnson II announced
a new substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257 (2016).
Civil No. 17-2237(FAB)
Cortés-Morales
was
11
convicted
and
sentenced
for
being
a
convicted felon in possession of a firearm/Armed Career Criminal
in violation of Title 18, United States Code, Sections 922 (g)(1)
and 924 (e).
At the change of plea hearing, the Court specifically
informed petitioner that the crime for which he had been previously
convicted was a December 1997 conviction for aggravated assault,
for which Cortés-Morales was sent to prison for a term of two (2)
years, (C.O.P. Hrg. Crim. Docket No. 48 at p. 7).
Article 95 of the Puerto Rico 1974 Penal Code typifies the
aggravated assault offense under various modalities, Laws of P.R.
Ann. tit. 33, sec. 4032.
The matter has already been addressed
and resolved by the First Circuit Court of Appeals in United States
v. Bauzó-Santiago, 867 F.3d 13 (1st Cir. 2017). The Bauzó-Santiago
court stated that:
Civil No. 17-2237(FAB)
12
felony aggravated assault under Article 95 ‘any person
who used force or violence upon the person of another
with the intent to injure him’ has committed the
misdemeanor version of this crime. P.R. Laws Ann. tit.
33, sec. 4031 (2001). The felony version -Bauzó’s crime
of conviction 6- can be committed in one of seven
different ways, and so the parties agree that the statute
is divisible. Id. Sec.4032(2).
Bauzó argued [as does
Cortés-Morales] that not all versions of the crime
include an element of physical force capable of causing
pain or injury, so the sentencing court clearly erred in
counting his conviction as an ACCA predicate.
We
disagree, the felony enhancements include the infliction
of ‘serious bodily injury on the person assaulted or the
use of deadly weapons under circumstances not amounting
to an intent to kill or maim.’ Id. Sec. 4032(2)(b)(c).
Thus, the text of sections 4031 and 4032 ‘strongly
suggest that the statute’s physical-force element
involves the kind of violent force’ required by ACCA’s
force clause-force ‘capable of causing physical pain or
injury to another person.’ Serrano-Mercado, 784 F.3d at
845 (quoting Johnson I, 559 U.S. at 140); see United
States v. Nieves-Borrero, 856 F.3d 5, 8-9 (1st Cir
2017).” United States v. Bauzó, 867 F.3d at p. 27.
Because it is undisputed that Cortés-Morales was sentenced to a
term of imprisonment of two (2) years for his conviction for
aggravated
assault
or
aggravated
battery
(depending
on
the
translation) there is no doubt that the Article 95 modalities
applicable to him are all felonies, all of which, as previously
stated, can be construed to require force capable of causing
physical
pain
or
injury
to
another
person.
Consequently,
petitioner’s ACCA’s enhancement does not violate the Supreme Court
holding in Johnson.
6
It is also Cortés-Moralés’ crime of conviction.
Civil No. 17-2237(FAB)
Finally,
falls
beyond
13
Cortés-Morales
of
the
argues
purview
of
that
ACCA’s
his
prior
force
conviction
clause,
so
the
sentencing court must have counted all his prior convictions under
the residual clause. Since the residual clause is invalid, CortésMorales
alleges
that
he
is
entitled
to
re-sentencing.
As
established previously, it is not clear error for the sentencing
court to count Cortés-Morales’ predicated offenses under the force
clause,
and
petitioner’s
argument
fails
from
the
start.
Furthermore, petitioner has failed to meet his burden of showing
what error occurred, United States v. Reed, 830 F. 3d 1 (1st Cir.
2016).
Cortés-Morales’ Johnson claim is DENIED.
III. CONCLUSION
For
the
reasons
stated,
Petitioner
Jorge
Cortés-Morales’
Motion pursuant to 28 U.S.C. section 2255 (Civil Docket No. 1.)
and all subsequent related filings are DENIED.
1, 13, 19 & 21.)
(Civil Docket Nos.
This case is DISMISSED with prejudice.
Judgment
shall be entered accordingly.
If Petitioner files a notice of appeal, no certificate of
appealability shall issue because he has not made a substantial
___
Civil No. 17-2237(FAB)
14
showing of the denial of a constitutional right.
See 28 U.S.C.
§ 2253(c)(2).
IT IS SO ORDERED.
San Juan, Puerto Rico, March 26, 2021.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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