Contreras v. Somoza

• Decision Date: 23 June 2015
• Docket Number: Civil No. 12–1685CCC.
• Parties: Manuel CONTRERAS, Plaintiff v. Guillermo SOMOZA, Defendant.
• Court: U.S. District Court — District of Puerto Rico

113 F.Supp.3d 527 (Mem)

Manuel CONTRERAS, Plaintiff

v.Guillermo SOMOZA, Defendant.

Civil No. 12–1685CCC.

United States District Court, D. Puerto Rico.

Signed June 23, 2015.

Manuel Contreras, Penuelas, PR, pro se.

Jaime J. Zampierollo–Vila, Yadhira Ramirez–Toro, Puerto Rico Department of Justice, San Juan, PR, for Respondent.

ORDER

CARMEN CONSUELO CEREZO, District Judge.

Having considered the complaint filed by petitioner Manuel Contreras pro se and all its attachments (D.E. 4), the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (D.E. 14 ) filed by respondent César Miranda–Rodríguez, the current Attorney General of the Commonwealth,¹ and the Report and Recommendation filed by U.S. Magistrate–Judge Arenas on June 1, 2015 (D.E. 20 ), which remains unopposed, said Report and Recommendation is APPROVED and ADOPTED and respondent Miranda–Rodríguez, Motion to Dismiss is GRANTED given that this action is barred by the one-year statute of limitations established in 28 U.S.C. 2244(d)(1). Judgment shall be entered accordingly.

SO ORDERED.

MAGISTRATE JUDGE REPORT AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 1, 2006, now petitioner under 28 U.S.C. § 2254 Manuel Contreras was sentenced by the San Juan Superior Court to 48 years of imprisonment for second-degree murder, and weapons law violations. (Case No. KVI2005–G0116). (Docket No. 4 at 4). Petitioner appealed that sentence and on August 14, 2009, the Puerto Rico Court of Appeals affirmed the judgment of conviction. (Case No. KLAN2007–0053). Pueblo v. Contreras, 2009 WL 5842152 (T.C.A., June 30, 2009). That decision was further reviewed by the Supreme Court of the Commonwealth of Puerto Rico, and affirmed on September 3, 2010. Petitioner sought no further review of the judgment of conviction, either directly or through collateral attack via motion to vacate sentence or for new trial under Rule 192.1 of the Puerto Rico Rules of Criminal Procedure.

This matter is before the court on pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by Manuel Contreras on August 21, 2012. (Docket No. 4). Petitioner argues that he was incriminated in relation to crimes he did not commit, but rather as the result of discrimination and fabrication of charges by an "unlawful" agent, Terrence R. Torres, (badge number 31253), of the homicide division of San Juan. He alleges that the persecution occurred all because he did not want to risk his life and become a secret informant. Even to this day, there is another case pending against him because of this agent. (Docket No. 4 at 11). He notes that he had a DNA test performed and was never read the results of the same. (Docket No. 4 at 12). He notes that agent Torres told him that he would pin any other case that was related to him directly as well as the present case, unless he became his informant.

Petitioner informs that when he was before the "grand jury" he was handcuffed and shackled and in prison clothes and that therefore the jury saw him in an incriminating manner. Petitioner also complains of the inadequate performance of his attorney who did not confront the witnesses the way she should have and did not object at his being presented in front of the jury in prison garb and shackles.

Petitioner also argues that the witnesses were also fabricated and that one of them, Manuel Buten, was never submitted to a line-up to identify anyone. Nor could he say that he saw the face of petitioner nor of anyone. "They" also said so during trial and "they" never saw him nor knew him. (Docket No. 4 at 13).

The Commonwealth of Puerto Rico filed a responsive pleading on April 8, 2015 seeking dismissal of the petition for failure to state a claim under Rule 12(b)(6), Federal Rules of Civil Procedure. (Docket No. 14). It argues that the petition was filed two years after petitioner's sentence became final and is therefore time-barred. It also alleges that petitioner has failed to exhaust available state remedies and that consequently the petitioner must be dismissed because it is a mixed petition which includes exhausted and unexhausted claims.

Because petitioner appears pro se, his pleadings are considered more liberally, however inartfully pleaded, than those penned and filed by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; Paez–Fontana v. U.S., 31 F.Supp.3d 328, 331 (D.P.R.2014) ; Campuzano v. United States, 976 F.Supp.2d 89, 97 (D.P.R.2013) ; Proverb v. O'Mara, 2009 WL 368617 at *1 (D.N.H. Feb. 13, 2009). Notwithstanding such license, petitioner's pro se status does not excuse him from complying with both procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.1997) ; Nazario–Baez v. Batista, 29 F.Supp.3d 65, 69 (D.P.R.2014) ; Boudreau v. Englander, 2009 WL 2602361 at *1 (D.N.H. Aug. 24, 2009). Proverb v. O'Mara, 2009 WL 368617 at *1 (D.N.H. Feb. 13, 2009).

II. ANALYSIS

A federal court will consider an application for a writ of habeas corpus, when a petitioner asserts that his conviction is in violation of the Constitution of the United States. 28 U.S.C. § 2254(a). "It is commonly said that ‘mere’ errors under state law in the admission of evidence are not recognizable under federal habeas review. This means that the question is not whether the admission of the evidence was state-law error, but whether any error rendered the trial so fundamentally unfair that it violated the Due Process Clause." Kater v. Maloney, 459 F.3d 56, 64 (1st Cir.2006) ; Nazario–Baez v. Batista, 29 F.Supp.3d at 68 ; Collanzo v. Gerry, 2010 WL 428960 at *3 (D.N.H. Jan. 29, 2010). Title 28 U.S.C. § 2254(d) reads thus:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)

As a threshold matter, petitioner also raises the ineffective assistance of counsel in her allowing certain matters to be presented to the jury and for her performing poorly in allowing certain evidence to be presented before the jury.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

In asserting ineffective assistance of counsel, (which petitioner has done in a perfunctory manner) the petitioner has the burden of proving that his counsel failed to provide adequate legal assistance and that the assistance provided to him was below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686–688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; United States v. Downs–Moses, 329 F.3d 253, 265 (1st Cir.2003). He must also show that the outcome of the proceedings would have been altered if his counsel had provided effective legal assistance. See Strickland v. Washington, 466 U.S. at 682, 104 S.Ct. 2052.

"In all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence." U.S. Const. amend. 6. The right to counsel is "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), citing, among others, Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 55–60, 77 L.Ed. 158 (1932). See Pinillos v. U.S., 990 F.Supp.2d 83, 94 (D.P.R.2013). To establish a claim of ineffective assistance of counsel, a petitioner "must show that counsel's performance was deficient," and that the deficiency prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

" ‘[J]udicial scrutiny of counsel's performance must be highly deferential,’ and ‘every effort [should] be made to eliminate the distorting effects of hindsight.’ " Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996) (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052 ); see United States v. Valerio, 676 F.3d 237, 246 (1st Cir.2012) ; United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir.2012) ; Pinillos v. U.S., 990 F.Supp.2d at 94. The test includes a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996) (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052 ).

The second element of the two-part test "also presents a high hurdle. ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ " Argencourt v. United States, 78 F.3d at 16 (quoting Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. 2052 ). There must exist a reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Dugas v. Coplan, 428 F.3d 317, 334 (1st Cir.2005) (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052 ). "[A] reasonable probability is one ‘sufficient to undermine confidence in the outcome.’ " González–Soberal v. United States, 244 F.3d 273, 278 (1st Cir.2001) (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052 ); see Turner v. United States, 699 F.3d 578, 584 (1st Cir.2012).

B. STANDARD OF REVIEW, RULE 12(b)(6)

Respondent has moved under Fed.R.Civ.P. 12(b)(6) for dismissal of the complaint. Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of an action for "failure to state a claim upon which relief can be granted[.]" Fed.R.Civ.P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to...