Cruz-Rivera v. USA
Filing
32
OPINION AND ORDER re 4 Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 15-486); re 7 Supplemental Motion; re 10 Motion to Vacate, Set Aside or Correct Sentence (2255); and 21 Reply to Motion. Petitioner Carlos Cruz -Rivera's Motion under 28 U.S.C. § 2255 (Civil Docket No. 10) as well as all subsequent related filings (Civil Docket Nos. 4, 7 and 21) are DENIED. Petitioner's request for an Evidentiary Hearing is also DENIED. This case is DISMISSED with prejudice. Judgment shall be entered accordingly. Signed by Senior Judge Francisco A. Besosa on 09/27/2023. (brc)
Case 3:20-cv-01170-FAB Document 32 Filed 09/27/23 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARLOS CRUZ-RIVERA,
Petitioner,
Civil No. 20-1170 (FAB)
related to
v.
Criminal No. 15-486 (FAB)
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
BESOSA, Senior District Judge.
Before the Court is Carlos Cruz-Rivera’s (“Petitioner” or
“Cruz-Rivera”) pro se Motion to Vacate, Set Aside, or Correct
Sentence in Criminal Case No. 15-486, pursuant to Title 28, United
Sates Code, § 2255 (“section 2255”), (Civil Docket No. 10), an
Amended Motion to Vacate, Set Aside, or Correct Sentence, (Civil
Docket No. 4); a Supplemental Motion to Vacate, Set Aside, or
Correct Sentence, (Civil Docket No. 7); the Government’s Response
in Opposition (Civil Docket No. 20), and Petitioner’s Reply (Civil
Docket No. 21).
dismisses
with
For the reasons set forth below, the Court
prejudice
all
of
Petitioner’s
pending
motions
(Civil Docket Nos. 4, 7, 10, and 21).
I.
BACKGROUND
On September 9, 2015, Cruz-Rivera was charged in a sevencount Superseding Indictment.
Count One charged Cruz-Rivera with
Case 3:20-cv-01170-FAB Document 32 Filed 09/27/23 Page 2 of 17
Civil No. 20-1170 (FAB)
carjacking,
§ 2119(1).
in
2
violation
of
Title
18,
United
States
Code,
Count Two charged Cruz-Rivera with carrying a Firearm
during and in relation to a crime of violence in violation of Title
18, United States Code, § 924(c).
Counts Three charged Cruz-
Rivera with another carjacking, in violation of Title 18, United
States Code, § 2119(1).
Count Four charged Cruz-Rivera with again
carrying a firearm during and in relation to a crime of violence
in violation of Title 18, United States Code, § 924(c).
Count
Five
by
charged
Cruz-Rivera
with
possession
of
a
firearm
a
convicted felon in violation of Title 18, United States Code,
§ 922(g)(1).
carjacking,
Count Six charged Cruz-Rivera with still another
in
violation
of
Title
18,
United
States
Code,
§ 2119(2). Count Seven charged Cruz-Rivera with once more carrying
a firearm during and in relation to a crime of violence in
violation of Title 18, United States Code, § 924(c) 1.
(Criminal
Docket No. 14).
On October 6, 2015, Petitioner entered a straight plea to the
three carjacking Counts, One, Three, and Six of the Superseding
The three separate carjackings were committed by Petitioner against three
women. Victim number one was six months pregnant at the time of the carjacking;
Cruz-Rivera, in addition to the carjacking, proceeded to fondled her. Victim
number two was not physically harmed. Victim number three was violently and
repeatedly raped and sodomized, suffering serious bodily injury.
(Criminal
Case 15-486 Trial Transcript, Docket Nos. 87, 88 and 89.)
1
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Civil No. 20-1170 (FAB)
3
Indictment, (Criminal Docket No. 37), and elected to be tried for
Counts Two, Four, Five, and Seven.
On October 13, 2015, Cruz-Rivera’s jury trial began as to
Counts Two, Four, Five and Seven.
(Criminal Docket No. 46.)
On October 15, 2015, the jury found Cruz-Rivera guilty as to
all those counts.
(Criminal Docket No. 53.)
On March 2, 2016, Cruz-Rivera was sentenced to a term of
imprisonment of one hundred-eighty (180) months as to Counts One
and Three, one hundred-twenty (120) months as to Count Five, one
hundred eighty-eight (188) months as to Count Six, eighty-four
(84) months as to Count Two and three hundred (300) months as to
Counts Four and Seven, all to be served consecutively to each other
for a total term of imprisonment of eight hundred seventy-two (872)
months.
(Criminal Docket No. 71).
On March 7, 2016, an Amended Judgment (to correct a clerical
error) was entered.
(Criminal Docket No. 74.)
On the same date,
Cruz-Rivera filed a timely Notice of Appeal.
(Criminal Docket
No. 75.)
The First Circuit Court of Appeals issued its opinion and
order affirming the district court’s judgment, United States v.
Cruz-Rivera, 904 F.3d 63 (1st Cir. 2018). The Supreme Court denied
Cruz-Rivera’s petition for certiorari on March 25, 2019, CruzRivera v. United States, 139 S.Ct. 1391 (2019).
Case 3:20-cv-01170-FAB Document 32 Filed 09/27/23 Page 4 of 17
Civil No. 20-1170 (FAB)
After
4
Cruz-Rivera’s
Petition
for
Certiorari
was
denied,
Petitioner moved to recall the court of appeals’ mandate, alleging
that he was entitled to relief under the First Step Act, United
States v. Cruz-Rivera, 954 F.3d 410 (1st Cir. 2020).
The court of
appeals denied the motion, holding that the First Step Act did not
apply to Cruz-Rivera’s case because the sentence was imposed before
the act’s effective date, even though Cruz-Rivera’s appeal was
pending at the time of its enactment.
Id. (Cert. Denied 141 S.Ct.
601, October 13, 2020.)
On March 31, 2020, Cruz-Rivera filed his 2255 motion.
Docket No. 1.)
No. 1-2.)
It was mailed by a third party.
(Civil
(Civil Docket
It is untimely because it was filed after the one-year
statute of limitation for the filing of 2255 petitions had expired.
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
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,
Case 3:20-cv-01170-FAB Document 32 Filed 09/27/23 Page 5 of 17
Civil No. 20-1170 (FAB)
5
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 filed pursuant to section 2255 is not a substitute
for a direct appeal.
(2016).
Foster v. Chatman, 136 S. Ct. 1737, 1758
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
omitted).
is
rejected
on
direct
appeal.”
Id.
(citations
Moreover, “[c]ollateral relief in a § 2255 proceeding
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.”
F.3d
18,
omitted).
27
(1st
Cir.
2011)
Bucci v. United States, 662
(quotation
marks
and
citations
If a section 2255 petitioner does not raise a claim on
direct appeal, that claim is barred from judicial review unless a
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).
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Civil No. 20-1170 (FAB)
6
III. DISCUSSION
A.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) went into effect on April 24, 1996. AEDPA established
a limitations period of one (1) year from the date on which a
prisoner’s conviction becomes “final” within which to seek federal
habeas corpus relief.
Congress intended that AEDPA be applied to
all section 2255 petitions filed after its effective date, Pratt
v. United States, 129 F.3d 54, 58 (1st Cir. 1997).
The
Supreme
Court
denied
Cruz-Rivera’s
petition
for
certiorari on March 25, 2019, with the judgment becoming final on
the same date, Cruz-Rivera v. United States, 139 S.Ct. 1391(2019).
For purposes of Title 28, United States Code, § 2255, a conviction
becomes final, and the one-year period of limitations starts to
run when a petition for certiorari is denied.
F.3d 9, 10 (1st Cir. 2006).
In re Smith, 436
In Petitioner’s case, the one-year
period of limitations expired on March 25, 2020, and his motion
was filed on March 31, 2020, six days after the statute of
limitations
had
expired.
Absent
an
applicable
exception,
petitions filed outside the one-year period are untimely.
See
Dixon v. United States, 729 F. App’x 16, 19 (1st Cir. 2018) (holding
that petition, mailed from prison even one day after the expiration
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Civil No. 20-1170 (FAB)
7
of grace period of limitations could not be deemed timely filed).
Lattimore v. Dubois, 311 F.3d 46 (1st Cir. 2002).
Because Cruz-Rivera filed his 2255 petition through a
third party rather than using the prison mail system (Civil Docket
No. 1-2), he is not entitled to the benefit of the prison mailbox
rule that deems a motion filed on the date the motion is deposited
in a prison’s internal mail system.
See Rule 3 of the Rules
Governing 2255 motions. See also, Morales-Rivera v. United States,
184 F.3d 109, 109 (1st Cir. 1999).
(“A pro se prisoner’s motion
under 28 U.S.C. § 2255 or § 2254 is filed on the date that it is
deposited in the prisoner’s internal mail system for forwarding to
the
district
court,
provided
that
the
prisoner
utilizes,
if
available, the prisoner’s system for recording mail.”)
Although Cruz-Rivera filed his 2255 petition pro se, it
is clear from the envelope used to mail it that it was mailed by
a
third
party,
Petitioner’s
(Civil Docket No. 1-2.)
court-appointed
appeals
attorney.
The prison mailbox rule does not extend
to prisoners who provide their motions to third parties to mail to
the court.
See, Cook v. Stegall, 295 F.3d 517, 521 (6th Cir.
2002). This failure to use the prison’s internal mail system makes
Cruz-Rivera’s petition untimely and must be dismissed by the court.
There are exceptions, however, to the fatal one-year
statute of limitations.
A review of the record reveals that
Case 3:20-cv-01170-FAB Document 32 Filed 09/27/23 Page 8 of 17
Civil No. 20-1170 (FAB)
Petitioner
requested
8
leniency
from
the
court
as
to
the
applicability of the statute of limitations due to extreme COVID
restrictions placed on prisoners and Cruz-Rivera’s lack of access
to the law library. (Civil Docket No. 5.)
Furthermore,
Petitioner’s
court
appointed
attorney, 2
although late in the game, filed a motion claiming that equitable
tolling applies to Cruz-Rivera’s petition.
B.
(Civil Docket No. 21.)
EQUITABLE TOLLING DOCTRINE
The equitable tolling doctrine suspends the running of
a statute of limitations if a plaintiff, in the exercise of
reasonable
diligence,
essential to his claim.
could
not
have
discovered
information
Ramírez-Carlo v. United States, 496 F 3d.
41 (1st Cir. 2007).
A threshold question is whether equitable tolling is
available when a federal prisoner files a motion pursuant to
28 U.S.C. § 2255.
The Supreme Court has held that the limitations
period under AEDPA, when applied to federal habeas corpus petitions
filed by prisoners in state custody, is subject to equitable
tolling in appropriate instances.
2549 (2010).
Holland v. Florida, 130 S.Ct.
The First Circuit Court has held that “given the
compelling textual similarity and congruent purpose that section
Cruz-Rivera requested and obtained a court appointed attorney to help him with
his 2255 filing. (Civil Docket Nos. 2, 3 and 9.)
2
Case 3:20-cv-01170-FAB Document 32 Filed 09/27/23 Page 9 of 17
Civil No. 20-1170 (FAB)
9
224[sic]4(d) and section 2255(f) share and the common heritage of
both provisions as part of the same statutory framework, we hold
that section 2255(f)’s one year limitations period is subject to
equitable tolling in appropriate instances.”
United
States,
applicability
automatic.
638
of
F.3d
315
equitable
at
322
tolling,
(1st
Ramos-Martínez v.
Cir.
however,
2011).
is
far
The
from
A court’s power to invoke equitable tolling must be
exercised on a case-by-case basis.
See, Irwin v. Dep’t of Vet.
Affairs, 498 U.S. 89 (1990).
A
habeas
petitioner
corpus
bears
the
burden
of
establishing the basis for equitable tolling, Riva v. Ficco, 615
F.3d 35, 39 (1st Cir. 2010).
must show:
To carry this burden, a petitioner
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.”
Holland, 130 S. Ct. at 2562 (quoting
Pace v. Di Guglielmo, 544 U.S. 408 (2005)).
Equitable tolling
decisions are made on a case-by-case basis; the determination of
whether to toll a limitations period for equitable reasons is factintensive.
Holland at 2565.
AEDPA’s statute of limitations will
not be equitably tolled merely because the underlying grounds for
habeas corpus relief are extraordinary; rather the “extraordinary
circumstance” must be one that actually caused the untimely filing.
Holmes v. Spencer, 685 F.3d 51, 62 (1st Cir. 2012).
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Civil No. 20-1170 (FAB)
Through
his
10
counsel,
Cruz-Rivera
has
invoked
the
equitable tolling doctrine. Petitioner states that since his first
2255
motion
he
informed
the
court
about
the
exceptional
circumstance that the coronavirus had bought to USP Tucson, where
he is imprisoned.
Cruz Rivera also filed an emergency motion for
a ruling that the one-year statute of limitations for his 2255
petition began to run from the date the government demonstrated
that restrictions of access to the law library, imposed in response
to the COVID-19 crisis were lifted.
and Dockets No. 2 and 5.)
(Civil Docket No. 21 at p. 6;
Although the Court granted the requested
appointment of counsel, it remained silent as to the tolling of
the one-year statute of limitations.
Cruz-Rivera was required to present evidence that he was
prevented from filing timely due to restrictions imposed because
of the COVID pandemic.
Petitioner was required to show that he
took at least some action to overcome this.
See, Dominguez v.
Duval, 527 F. App’x 38 (1st Cir. 2013).
It is common knowledge that the COVID pandemic not only
closed the regular functioning of prisons but of all government
entities across the nation and the world.
To invoke that COVID
restrictions did not allow a timely filing of a section 2255
petition, however, is not enough.
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Civil No. 20-1170 (FAB)
11
From the very beginning of his case Cruz-Rivera has
stated that he was unable to timely file due to a lock down of the
prison law library brought on by COVID.
The AEDPA statute of
limitations defense is not jurisdictional “and is subject to
equitable tolling in appropriate cases.”
U.S. 631, 645 (2010).
Holland v. Florida, 560
“To obtain tolling . . . a petitioner bears
a substantial burden to establish that he exercised reasonable
diligence in trying to preserve his rights but was prevented from
timely
filing
by
extraordinary
circumstances.”
Duval, 527 F. App’x 38, 40 (1st Cir. 2013).
Dominguez
v.
“The diligence prong
covers those affairs within the petitioner’s control, while the
extraordinary
control.”
circumstance
prong
covers
matters
outside
his
Blue v. Medeiros, 913 F.3d 1, 8 (1st Cir. 2019).
In Easler v. United States, 2023 WL 4868278, at *2 (D.
Maine, Sept. 15, 2023), the court stated:
equitable
tolling
that
Petitioner
“the only basis for
mentioned
lockdowns” resulting from the COVID-19 pandemic.
was
“sporadic
While courts
have recognized the exceptional nature of the pandemic for some
purposes, “the COVID-19 pandemic does not automatically warrant
equitable tolling for any petitioner who seeks it on that basis.
The petitioner must establish that he was pursuing his rights
diligently and that the COVID-19 pandemic specifically prevented
him from filing his motion.”
Easler v. United States, 2023 WL
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Civil No. 20-1170 (FAB)
12
4868278 (D. Maine, July 31, 2023), citing United States v. Henry,
2020 WL 7332657 at *4 (W.D.Pa. Dec. 14, 2020).
Cruz-Rivera informed the Court that he was unable to
file his 2255 petition due to a COVID lockdown in the prison
library on the eve that his one-year statute of limitations was to
expire.
What Petitioner fails to indicate is what other steps he
took prior to the lockdown or prior to the one-year statute of
limitations expiring to diligently pursue his right to file in a
timely fashion.
In Mack v. Alves, 588 F. Supp. 3d 150 (D. Mass. 2022),
the Court was faced with a similar argument for equitable tolling
as that raised by Cruz-Rivera.
The Court determined that the
allegation of COVID restrictions was just not enough, citing Blue
v. Medeiros, 913 F.3d 1, 10 (1st Cir. 2019), which holds that a
petitioner must demonstrate continued diligence throughout the
statutory period to establish a basis for equitable tolling.
The
question to be answered is what did Petitioner do during the period
prior to COVID?
“Mack does not explain why he was unable to file
his petition during the initial months of the limitations period
before COVID-19 restrictions were imposed, nor why the resources
at his disposal during the pendency of such restrictions including
postal mail, were insufficient for that purpose.
No jurist of
reason could disagree with this Court’s conclusion that Mack failed
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Civil No. 20-1170 (FAB)
13
to prove that he diligently pursued his rights throughout the
pendency of the relevant limitation period.”
Mack v. Alves, 588
F. Supp. 3d 150, 152 (D. Mass. 2022).
The same question must be asked about Cruz-Rivera. There
is no doubt that just when the statute of limitations was set to
expire, COVID restrictions were put in place at the prison where
Rivera-Cruz was housed.
These restrictions did not allow him
access to the law library.
What Rivera-Cruz fails to demonstrate
is
in
what
action
he
took
the
months
prior
to
the
COVID
restrictions that would demonstrate that he actively pursued his
2255 filing timely before the COVID restrictions.
While the one-year period of limitations for filing his
2255 petition was running, Cruz-Rivera filed, pro-se, in his
criminal case a Motion to Amend or Correct Sentence (Criminal
Docket No. 96) but chose not to timely file his section 2255
request for relief.
There is no doubt that the COVID pandemic
created a whole new and never before seen set of circumstance for
individuals to function in their daily lives.
That does not mean,
however, that equitable tolling is warranted for any petitioner
who seeks it on that basis.
For these reasons the Court concludes
that Cruz-Rivera has not meet the requirements of equitable tolling
and
his
2255
prejudice.
petition
is
time
barred
and
dismisses
it
with
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Civil No. 20-1170 (FAB)
C.
14
THE RUVALCABA CLAIM
The Court, out of an abundance of caution, will now
address his Ruvalcaba claim.
In United States v. Ruvalcaba, 26 F. 4th 14, (1st Cir.
2022), the First Circuit Court of Appeals held that a district
court may consider non-retroactive changes in sentencing law to
determine whether an extraordinary and compelling reason exists
for a sentence reduction.
Id.
Cruz-Rivera seeks a sentence
reduction on the ground that his “stacked” 924(c) sentences present
an extraordinary and compelling reason for a reduction in his
sentence.
Before the First Step Act, a person who was previously
convicted of a section 924(c) violation received a mandatory
minimum sentence of twenty-five (25) years of imprisonment for
each
subsequent
conviction.
These
sentences
would
run
consecutively to each other, as the sentences imposed on Petitioner
ran.
The First Step Act amended section 924(c) so that the twenty-
five mandatory minimum that applies to a subsequent conviction is
triggered only after the prior one has become final.
Cruz-Rivera
alleges that his second and third sentences for his section 924(c)
convictions are stacked and illegal.
That ship has sailed.
On May 26, 2020, Petitioner, through the Federal Public
Defender, filed a Motion for Reduction of Sentence pursuant to the
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Civil No. 20-1170 (FAB)
15
First Step Act in which he argued, as an “extraordinary and
compelling reason” to reduce his sentence, the “stacking” of his
924(c)
convictions
incarceration.
which
substantially
extended
(Criminal Docket No. 100.)
Petitioner’s request.
his
term
of
The Court denied
(Criminal Docket No. 111.)
Cruz-Rivera
timely appealed the court’s ruling.
The First Circuit Court of Appeals, after briefing on
the matter was completed, directed the parties to supplement their
filings addressing the impact, if any, of the court of appeals’
decision in United States v. Ruvalcaba, 26 F.4th 4, 16 (1st Cir.
2022).
After
Petitioner
and
the
government
submitted
their
supplemental filings, the court of appeals stated, “We conclude
that vacatur and remand are in order.
The ruling of the district
court is vacated, and the matter is remanded to the district court
for
further
Ruvalcaba.
consideration
consistent
with
this
judgment
and
We express no opinion at this time to the appropriate
outcome on remand.”
United States v. Cruz-Rivera, No. 20-2071
(1st Cir. May 13, 2022).
(Criminal Docket No. 117.)
Following the ruling of the court of appeals, this Court
ordered both parties to file simultaneous memoranda addressing the
matter.
The Court appointed counsel for Cruz-Rivera.
Docket Nos. 118 and 121.)
(Criminal
Both parties complied, and this Court
issued its judgment, as follows:
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Civil No. 20-1170 (FAB)
16
“Having reviewed the court of appeals’ judgment in this
case, its opinion in U.S. v. Ruvalcaba, and the parties’
well-thought out and thorough filings (Docket Nos. 125,
126, 131 and 132), the Court again denies defendant CruzRivera’s motion [for] compassionate release (docket
100).”
(Criminal
Docket
No. 133.)
Cruz-Rivera
timely
Court’s Judgment (Criminal Docket No. 135).
appealed
the
It is currently
pending before the court of appeals.
The Court has not changed its position on the matter.
Although there is no doubt that Cruz-Rivera is serving a lengthy
sentence in part due to the 924(c) stacking permissible at the
time of his sentence, the lengthy sentence is appropriate.
The
Court’s sentence is long but just; the heinous crimes committed by
Cruz-Rivera
which
will
have
everlasting
repercussions
multiple victims must have severe consequences.
on
his
There is no doubt
that Cruz-Rivera received a fair and valid sentence.
Even if Cruz-Rivera’s 2255 Petition had been timely
filed or subject to equitable tolling it still would have still
been denied by the Court.
IV.
CONCLUSION
For
the
reasons
stated,
Petitioner
Carlos
Cruz-Rivera’s
Motion under 28 U.S.C. § 2255 (Civil Docket No. 10) as well as all
subsequent related filings (Civil Docket Nos. 4, 7 and 21) are
DENIED.
Petitioner’s request for an Evidentiary Hearing is also
Case 3:20-cv-01170-FAB Document 32 Filed 09/27/23 Page 17 of 17
Civil No. 20-1170 (FAB)
DENIED.
17
This case is DISMISSED with prejudice.
Judgment shall
be entered accordingly.
V.
CERTIFICATE OF APPEALABILTY
No certificate of appealability shall be issued in the event
that Petitioner files a notice of appeal because there is no
substantial showing of the denial of a constitutional right within
the meaning of 28 U.S.C. 2253(c)(2).
IT IS SO ORDERED.
San Juan, Puerto Rico, September 27, 2023.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
SENIOR UNITED STATES DISTRICT JUDGE
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