Garcia v. U.S.
| Decision Date | 28 April 2005 |
| Docket Number | No. CIV. 04-2336(SEC).,CIV. 04-2336(SEC). |
| Citation | 371 F.Supp.2d 11 |
| Parties | Deri Ventura GARCIA Petitioner v. UNITED STATES of America Respondent |
| Court | U.S. District Court — District of Puerto Rico |
Deri Ventura Garcia, Edgefield, SC, for Petitioner.
Nelson Perez-Sosa, Asst.U.S.Atty., San Juan, PR, for Respondent.
Before the Court is Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Docket # 1). On February 15, 2005 the Court referred this case to Magistrate-Judge Camille Velez-Rive for a Report and Recommendation (Docket # 11). On April 6, 2005 Magistrate Velez-Rive issued her report, recommending that the petition be denied and the case be dismissed with prejudice (Docket # 13). Petitioner has not filed any objections to the Magistrate's report and the time allotted for doing so has expired. Therefore, the Court will APPROVE and ADOPT the Magistrate's Report and Recommendation; DENY Petitioner's motion, and DISMISS WITH PREJUDICE the above captioned action.
The scope of review of a Magistrate's recommendation is set forth in 28 U.S.C. 63(b)(1)(c). This section provides that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified findings or recommendations to which [an] objection is made." Id. However, no review is required of those issues to which objections are not timely raised. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Borden v. Secretary of Health, 836 F.2d 4, 6 (1st Cir.1987). In fact, a party who fails to file any objections to the Magistrate Judge's Report and Recommendation within ten days of its filing waives his or her right to appeal from this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994). See also Rule 72(d) of the Local Rules for the District of Puerto Rico.
Since neither party has objected to the Magistrate Judge's Report and Recommendation, we are not required by law to review it. However, upon review, we find no fault with Magistrate Judge Velez-Rive's assessment and thus APPROVE and ADOPT her Report and Recommendation as our own. Consequently, Petitioner's motion is DENIED and the above captioned action will be DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly.
SO ORDERED.
REPORT AND RECOMMENDATION
VELEZ-RIVE, United States Magistrate.
On December 2, 2004, petitioner Deri Ventura-Garcia filed a motion and affidavit in support of a 28 U.S.C. § 2255 petition seeking to vacate his sentence after he was convicted by a jury trial of a violation to 21 U.S.C. § 846, a conspiracy to possess with intent to distribute multi kilogram amounts of cocaine, heroin, and marijuana as prohibited by Title 21 U.S.C. § 841(a)(1). Petitioner submits the court's sentencing upon facts not reflected in the jury's general verdict or the Superseding Indictment related to drug quantity amounted to a due process violation. Ineffective assistance of counsel is also claimed for failure to object to the court's consideration of these sentencing issues. In addition, petitioner avers the trial court committed error by denying his motion for new trial. (Docket No. 1).
The government filed a Response in Opposition (Docket No. 9) and petitioner thereafter filed a Traverse (Docket No. 12).
On February 15, 2005, the § 2255 petition was referred to this Magistrate Judge for report and recommendation. (Docket No. 11).
Petitioner was indicted, together with other seventy six (76) co-defendants, for participating in a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846.1
Petitioner and other co-defendants were convicted after a jury trial which lasted over forty (40) days and was found guilty of Count I (the drug conspiracy). On December 19, 2001, petitioner was sentenced to the maximum statutory imprisonment of twenty (20) years, that is, two hundred and forty (240) months, to be served consecutive to a state sentence for murder to which he had previously pleaded guilty. The federal sentence also included a term of supervised release of five (5) years and a special monetary assessment of $100. (Criminal No. 97-0082, Sentencing Transcript 12-19-2001).
Petitioner timely filed a direct appeal and on August 22, 2003, his conviction and sentence were affirmed. United States v. Garcia-Torres, 341 F.3d 61 (1st Cir.2003). Only co-defendant Garcia-Torres submitted a certiorari petition before the Supreme Court which was denied on February 23, 2004.
This § 2255 petition was filed before the Court on December 2, 2004 (Docket No. 1). A review of the record shows petitioner dated the petition November 3, 2004. Petitioner timely filed a direct appeal and on August 22, 2003, his conviction and sentence were affirmed. There is no mention that certiorari before the Supreme Court was ever filed as to this petitioner. As such, the date to be considered for purposes of AEDPA3 is one year since the last judicial determination on petitioner became final and absent certiorari this would be ninety (90) days since August 22, 2003.4 If this Magistrate Judge considers the date when petitioner signed the § 2255 while incarcerated, not necessarily when the petition appears to have been received and filed with this Court almost one month later, that is, December 2, 2004, the effective date would not exceed the one-year limitation period under AEDPA. In fact, the envelope wherein the petition was mailed to this District Court appears stamped by the Federal Prison in Edgefiled, SC, November 4, 2004.5
In conclusion, conviction for a federal defendant who fails to file a petition for a writ of certiorari becomes "final," for purposes of running of period of limitations on post-conviction review and applicability of a newly announced rule of criminal procedure on that review, when the period in which he seasonably might have done so expires. 28 U.S.C.A. §§ 2244(a); 28 U.S.C. § 2255.6 See Derman v. United States, 298 F.3d 34 (1st Cir.2002).
Accordingly, petitioner's claim is timely.
Petitioner submits the sentencing court's determination as to facts not reflected in the jury's verdict or on the Superseding Indictment as to quantity of drugs to be attributed to him in the conspiracy violates his due process and the Apprendi rationale.
In a conspiracy case, to apply the mandatory minimum to a particular co-conspirator, the sentencing court must make a specific finding, supportable by a preponderance of the evidence, ascribing the triggering amount to that co-conspirator. See United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir.2004); United States v. Swiney, 203 F.3d 397, 401-06 (6th Cir.2000); United States v. Becerra, 992 F.2d 960, 967 n. 2 (9th Cir.1993); United States v. Gilliam, 987 F.2d 1009, 1013-14 (4th Cir.1993).
In Apprendi, the Supreme Court held as a matter of constitutional law that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," 530 U.S. at 488, 120 S.Ct. 2348. Thus, the due process clauses of the Fifth and Fourteenth Amendments make the jury the proper decision maker and the reasonable doubt standard is the proper burden, when a fact raises the maximum lawful punishment. Id. This is only applicable in situations where "the judge-made factual determination increased the maximum sentence beyond the statutory maximum, and not in situations where the defendant's potential exposure is increased within the statutory range." United States v. Baltas, 236 F.3d 27, 40 (1st Cir.2001).
Prior to the Apprendi decision courts were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir.1996). However, subsequent to Apprendi, where drug quantity elevated the statutory maximum sentence, it needs to be proven beyond a reasonable doubt to the jury, although judges could still make all other drug quantity determinations at sentencing. See United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir.2002). Thus, Apprendi has resulted in verdict questions to juries about drug quantity, which questions were asked only if the jury had found guilt on the underlying offense.
Additionally, after Blakely v. Washington8, various courts have ruled that all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. See United States v. Perez, 338 F.Supp.2d 154 (D.Me.2004); see also United States v. Rivera-Calderon, 354 F.Supp.2d 86 (D.P.R.2005).
Turning to this case, the Apprendi issues raised in this petition, even on the most liberal interpretation, should be subject of summary dismissal.
The arguments raised under Apprendi fail to present a challenge to the conviction nor to the question of guilt or innocence in this post-conviction motion. Apprendi does not apply either to cases in which a guideline finding does not increase the sentence beyond a statutory maximum. United States v. Marino, 277 F.3d 11 (1st Cir.2002), cert. denied 536 U.S. 948, 122 S.Ct. 2639, 153 L.Ed.2d 819 (2002).
Apprendi would not preclude a sentencing court from considering a fact that has not been submitted to the jury for purposes authorized by the sentencing guidelines — so long as the sentence imposed does not exceed the applicable statutory maximum. See United States v. Caba, 241 F.3d 98, 100 (1st Cir.2001). Nor is Apprendi violated by the imposition of consecutive sentences to the extent necessary to achieve the prescribed total punishment under § 5G1.2 — so long as the defendant does not receive greater than the statutorily...
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