Garcia v. United States, CIVIL ACTION NO. 15-00141-CG

• Decision Date: 26 August 2015
• Docket Number: CRIMINAL ACTION NO. 04-147-CG-N,CIVIL ACTION NO. 15-00141-CG
• Parties: JOSE RIVERA GARCIA, a/k/a Johnny a/k/a Bladimir Riascos Arbodela, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Alabama

JOSE RIVERA GARCIA, a/k/a Johnny a/k/a Bladimir Riascos Arbodela, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 15-00141-CG

CRIMINAL ACTION NO. 04-147-CG-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

August 26, 2015

REPORT AND RECOMMENDATION

Jose Rivera Garcia a/k/a Johnny a/k/a Bladimir Riascos Arbodela ("Garcia"), proceeding pro se, has filed a document dated March 3, 2015, styled "Motion under 28 U.S.C. § 455 to Strike and Dismiss the Supervision Conditions of Violation Pursuant to Mandatory Condition by Admitted to a Violation; and to be Eligible Under Section 212(c); Motion for Disposition under Rule 27-2, for the Court to Reconsider and Modify an Order to Dismiss Thirty-Three (33) Months Sentence that was Run Consecutively on a Violation of Supervision Condition" (Doc. 100¹).² Having considered the motion, and liberally construing the allegations therein, the undersigned finds that it is, in substance, both a motion to vacate, amend, or set aside sentence brought under 28 U.S.C. § 2255 and a motion to enforce Garcia's plea agreement. See Means v. Alabama, 209 F.3d 1241, 1242 (11th Cir. 2000) (per curiam) ("[F]ederal courts must look beyond the labels of motions filed by pro seinmates to interpret them under whatever statute would provide relief." (citing United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990) ("Federal courts have long recognized that they have an obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework."))).

This matter has been referred to the undersigned Magistrate Judge for the holding of an evidentiary hearing, if necessary, and for entry of a report and recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, and SD ALA LR 72.1(c). Upon consideration, and for the reasons stated herein, the undersigned will RECOMMEND that the March 3, 2015 motion (Doc. 100) be DISMISSED without prejudice for lack of jurisdiction to the extent it is a § 2255 motion challenging his underlying conviction and sentence, and that it be otherwise DENIED.

I. Background

Pursuant to a written plea agreement, Garcia pled guilty to one count of conspiracy, in violation of 21 U.S.C. § 846, and on June 7, 2005, was sentenced to 72 months imprisonment and 5 years of supervised release, with conditions. (See Doc. 59). No direct appeal was taken. On a motion of the Government, based on Garcia providing substantial assistance (Doc. 63), Garcia's term of imprisonment was subsequently reduced to 60 months. (Doc. 64).

On May 29, 2006 (the date Garcia represented it was delivered to prison officials for mailing), Garcia filed his first § 2255 motion (Doc. 65) challenging the judgment against him in the above-styled criminal action. On November 16, 2009, the Court denied Garcia's first § 2255 motion on the merits. (Doc. 81). Garcia did not appeal this ruling.

On July 29, 2010, Garcia was charged with various new drug offenses (SD ALA Case No. 1:10-cr-179-CG-N-1). On December 22, 2011, upon Garcia's admission of guilt to violating his supervision conditions (including incurring new criminal offenses in Case No. 1:10-cr-179-CG-N-1), the Court revoked Garcia's supervised release and sentenced him to 33 months imprisonment, "to run consecutively to the term of imprisonment imposed in 1:10-cr-179-001." (Doc. 99). Garcia did not appeal his revocation judgment.

On March 3, 2015 (the date Garcia certifies it was delivered to prison officials for mailing), Garcia filed the present motion (Doc. 100), which, liberally construing the allegations, appears, in addition to attacking his conviction and sentence in SD ALA Criminal Action No. 1:10-cr-179-CG-N-1, to attack the judgment against him in this criminal action. Garcia asserts that Latisha Colvin of the Federal Defender's Office for this District, Garcia's appointed counsel for the revocation proceedings in this action, as well as the charges against him in SD ALA Criminal Action No. 1:10-cr-179-CG-N-1, was ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010), for failing to advise him of the deportation risk he faced in entering a plea of guilty and to take other measures to protect him against possible deportation. The motion alsomakes passing reference to Missouri v. Frye, 132 S. Ct. 1399 (2012), Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Alleyne v. United States, 133 S. Ct. 2151 (2013). Finally, Arbodela requests that the Court order the Government, [ICE] "Senior Special Agent Melvin Howard and Group Supervisor Blaine C. Crum and U.S. Attorney Kenyen R. Brown and U.S. Assistant Attorney Gloria A. Bedwell ... to grant Mr. Arbodela a S Non-immigrant Visa and Mr. [sic] Nancy Romero with an U Visa ... because it was promised by Agent Melvin Howard and my Defense Counsel Mr. Latisha Colvin and Mr. Carlos A. Williams[,]" as "[t]hese Visas were promised to Mr. Arbodela and Ms. Romero before Mr. Arbodela accepted a guilty plea without knowing the government and his Defense Counsel failed to put this in the plea contract..." (Doc. 100 at 3).

II. Section 2255 Motion

It is unclear from the motion what aspects of the criminal judgment against him in this action Garcia is challenging, as the allegations largely seem to concern what occurred in SD ALA Criminal Action No. 1:10-cr-179-CG-N-1. None of his allegations appear to challenge his judgment on revocation of supervised release, and any assertion that his counsel was ineffective in his revocation proceedings is affirmatively contradicted by the record, which indicates that Garcia waived his right to a hearing and unconditionally admitted to the allegations against him in the petition for revocation, both verbally and in writing (see Doc. 98 [Waiver of Final Revocation Hearing]; SD ALA Criminal Action No. 1:10-cr-179-CG-N-1, Doc. 141 at13 - 16 [Revocation Sentencing Trans.]).³ Thus, to the extent the present motion challenges his judgment on revocation, it is due to be DENIED.

To the extent his motion challenges the underlying conviction and/or sentence in the above-styled criminal action, this Court is without jurisdiction to hear it.

The Eleventh Circuit has held that

a defendant, facing re-incarceration upon the revocation of supervised release, may not sidestep Section 2255 and challenge the validity of his original sentence during the revocation proceedings. United States v. Almand, 992 F.2d 316, 317-18 (11th Cir. 1993); see also United States v. White, 416 F.3d 1313, 1316 (11th Cir. 2005) (holding that a prisoner may not challenge, "for the first time on appeal from the revocation of supervised release," his underlying sentence and instead must bring a Section 2255 motion to vacate). "A sentence is presumed valid until vacated under § 2255." Almand, 992 F.2d at 317.

United States v. Nicolas, 490 F. App'x 300, 303 (11th Cir. Sept. 24, 2012) (per curiam) (unpublished). However, Garcia has previously filed an attack on his underlying conviction and sentence under § 2255. That motion was denied on the merits, and "allowing him to raise his claim in the revocation context would allow him to circumvent the statutory restrictions on filing a successive § 2255 motion. See 28 U.S.C. § 2255(h)." United States v. El-Amin, 343 F. App'x 488, 492 n.3 (11th Cir. Aug. 28, 2009) (per curiam) (unpublished).

Section 2255 motions filed after April 24, 1996, are governed by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241 et seq. ("AEDPA"). See, e.g., San Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011).

AEDPA dramatically limits successive attempts at habeas relief. If a § 2255 motion is deemed "successive," a court may consider it only if it complies with that section's gatekeeping provision, which provides:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

Stewart v. United States, 646 F.3d 856, 859 (11th Cir. 2011). See also Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014) ("Only a single § 2255 motion is authorized and successive attempts at relief are limited...If a court determines that a § 2255 motion is 'second or successive,' the motion must be certified by the court of appeals before the district court may reach the merits of the motion. 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255(h)."). "[S]econd or successive status ... attaches to a judgment on the merits." Boyd, 754 F.3d at 1302.

To the extent the present motion is construed as an attack on Garcia's underlying conviction and sentence, that means he will have "twice brought claimscontesting the same custody imposed by the same judgment of [this C]ourt. As a result, under AEDPA, he [i]s required to receive authorization from the Court of Appeals before filing his second challenge." Burton v. Stewart, 549 U.S. 147, 153 (2007) (per curiam).⁴ "Without authorization, the district court lacks jurisdiction to consider a second or successive petition." United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (per curiam) (citing Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam). See also Burton, 549 U.S. at 153 ("[B]ecause the 2002 petition is a 'second or successive' petition that Burton did not seek or obtain authorization to file in the District Court, the District Court never had jurisdiction to consider it in the...