Claudio-Ortiz v. United States
| Decision Date | 29 May 2015 |
| Docket Number | Civil No. 13–1620CCC. |
| Citation | 115 F.Supp.3d 238 |
| Parties | Jose L. CLAUDIO–ORTIZ, Petitioner v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Jose L. Claudio–Ortiz, Mendota, CA, pro se.
Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.
Having considered the Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 filed by petitioner Jose L. Claudio–Ortiz (D.E. 1 ), the United States' Response in Opposition (D.E. 5), and the Report and Recommendation issued by U.S. Magistrate–Judge Justo Arenas (D.E. 6 ), to which no objections have been filed, said Report and Recommendation is APPROVED and ADOPTED and petitioner's Motion Under 28 U.S.C. § 2255 is DENIED. Accordingly, it is ORDERED and ADJUDGED that judgment be and is hereby entered DISMISSING this action.
No certificate of appealability shall be issued, as petitioner has not made a substantial showing of the denial of a constitutional right within the meaning of Title 28 U.S.C. § 2253(c)(2). Miller–El v. Cockrell, 537 U.S. 322, 336–38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
SO ORDERED AND ADJUDGED.
On July 18, 2003, petitioner herein Jose L. Claudio–Ortiz was charged in local court (Superior Court, Carolina Part) with first degree murder among other charges. (F V12004G0006). On January 31, 2006, five days after being sentenced in this court, petitioner pleaded guilty to second degree murder and was sentenced to 17 years imprisonment in local court. (Docket No. 1–1 at 10)1 . Over four years later, on October 26, 2010, he moved the state court to make the sentence concurrent with the federal sentence which had been in existence prior to his sentence.
On March 11, 2004, petitioner Jose L. Claudio–Ortiz and eleven other defendants were charged in this court in a six-count superceding indictment which included charges for serious narcotics and weapons violations. (Criminal 04–052(CCC), Docket No. 60.) Petitioner was charged in Counts One, Two and Five.
This matter is before the court on motion filed by petitioner on August 14, 2013 to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1.) The government filed a response in opposition to the motion on August 26, 2014. (Docket No. 5).
Having considered the arguments of the parties and for the reasons set forth below, I recommend that the petitioner's motion to vacate sentence be DENIED as time-barred and otherwise lacking in merit.
On October 3, 2005, petitioner filed a motion to vacate trial setting and for change of plea. (Criminal 04–052(CCC), Docket No. 364.) On the following day, he pleaded guilty to Counts One and Five of the superceding indictment. (Criminal 04–052(CCC), Docket No. 60.) He was charged in the first count in that he did knowingly, intentionally and unlawfully combine, conspire, confederate and agree together and with each other and with diverse other persons, to commit an offense against the United States, that is, to possess with intent to distribute and distribute controlled substances, to wit: five kilograms or more of cocaine, and/or fifty grams of cocaine base ("crack"), both Schedule II Narcotic Drug Controlled Substances; and/or one kilogram or more of heroin, and/or 1000 kilograms or more of marijuana, both Schedule I Controlled Substances, inside or within 1,000 feet of the real property comprising a housing facility owned by a public housing authority, that is, the Nuestra Senora de Covadonga Public Housing Project, Trujillo Alto, Puerto Rico, in violation of prohibited by Title 21, United States Code, Section 841(a)(1) and (b)(1)(A), 846 and 860. (Criminal 04–052(CCC), Docket No. 60.) Count Five of the indictment charges that on or about April 13, 2003, in the District of Puerto Rico and within the jurisdiction of this court, petitioner did knowingly, willfully, intentionally and unlawfully possess, use, brandish or carry a firearm during and in relation to a drug trafficking crime as charged in Count One, all in violation of 18 U.S.C. § 924(c)(1)(A)(ii). According to a plea agreement signed by petitioner, the remaining counts were to be dismissed at the time of sentence.
The plea agreement was signed by petitioner on the same day that petitioner entered a guilty plea pursuant to Rule 11(c)(1)(A) and (C) of the Federal Rules of Criminal Procedure. (Criminal 04–052(CCC), Docket No. 367.)
The sentencing hearing was held on January 26, 2006. In keeping with the plea agreement, the court sentenced the petitioner to 72 months of imprisonment as to Count One and 60 months as to Count Five to be served consecutively, as required by law. (Criminal 04–052(CCC), Docket No. 413.)
Over seven years after being sentenced, and clearly attacking the legality of his sentence, petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner argues that the court should adjust his sentence by entering a downward departure so that his state sentence will run more correctly and completely concurrent, with his federal sentence, citing as authority U.S.S.G. § 5G1.3(b). That is, he asks that the court adjust his sentence so that he may be credited with time from July 18, 2003, the date of his state charge so that he can serve the time he is entitled to serve. This would be in keeping with a ruling by the local court made in 2010 decreeing his state and federal sentences to be concurrent. (Docket No. 1–1 at 10). That is the argument.
The government filed a response in opposition to the petitioner's motion arguing primarily arguing that it should be summarily denied because it is clearly untimely. The government also addresses the lack of merit of the petition in an appropriately terse manner. It stresses that the claim is not of constitutional dimension since it is a mere sentencing issue.
Under 28 U.S.C. § 2255, a federal prisoner may move for post conviction relief if:
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....
28 U.S.C. § 2255(a) ; Hill v. United States, 368 U.S. 424, 426–27 n. 3, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ; David v. United States, 134 F.3d 470, 474 (1st Cir.1998) ; Cintron–Boglio v. United States, 943 F.Supp.2d 292, 296 (D.P.R.2013). The burden is on the petitioner to show his or her entitlement to relief under section 2255, David v. United States, 134 F.3d at 474, including his or her entitlement to an evidentiary hearing. Cody v. United States, 249 F.3d 47, 54 (1st Cir.2001) (quoting United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993) ). It has been held that an evidentiary hearing is not necessary if the 2255 motion is inadequate on its face or if, even though facially adequate, "is conclusively refuted as to the alleged facts by the files and records of the case." United States v. McGill, 11 F.3d at 226 (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974) ). "In other words, a ‘§ 2255 motion may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are "inherently incredible." ’ " United States v. McGill, 11 F.3d at 226 (quoting Shraiar v. United States, 736 F.2d 817, 818 (1st Cir.1984) ).
The Antiterrorism and Effective Death Penalty Act instituted a limitations period of one year from the date on which a prisoner's conviction became final within which to seek federal habeas relief.See Pratt v. United States, 129 F.3d 54, 58 (1st Cir.1997). The current petition was filed over a year from the date petitioner's sentence became final and unappealable. Indeed, the petition was filed over seven years after his sentence became final.
President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which instituted a time limitation period for the filing of motions to vacate or reduce criminal federal sentences. In its pertinent part, section 2255 reads:
28 U.S.C. § 2255(f).
This petition is time-barred. The petition does not describe any circumstances that fall within any of the exceptions which would equitably toll the limitations period of the statute. Hernandez–Albino v. United States, 16 F.Supp.3d 10, 16 (D.P.R.2014) ; see e.g. Ramos–Martinez v. United States, 638 F.3d 315, 321–24 (1st Cir.2011). Petitioner could have addressed this matter near the time of sentence or on appeal. He did not. Once sentenced at the state level, petitioner was still within time to request the federal district court for relief directly. He did not. Therefore, I am forced to conclude that petitioner's claim is time-barred. See Trenkler v. United States, 268 F.3d 16, 24–27 (1st Cir.2001).
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