OrtíZ-Rivera v. Caro

• Decision Date: 28 September 2018
• Docket Number: Civil No. 15-2216 (ADC)
• Parties: RAFAEL ORTÍZ-RIVERA, Petitioner, v. NICANOR CARO, et al. Respondents.
• Court: U.S. District Court — District of Puerto Rico

RAFAEL ORTÍZ-RIVERA, Petitioner, v. NICANOR CARO, et al. Respondents.

Civil No. 15-2216 (ADC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

September 28, 2018

OPINION AND ORDER

I. Introduction

Before the Court is petitioner Rafael Ortíz-Rivera's ("Ortíz" or "petitioner") amended motion to vacate, set aside or correct sentence under 28 U.S.C. § 2254 ("Section 2254"). ECF No. 20. The petitioner alleges, in essence, that his conviction for murder, assault and other crimes issued by the Puerto Rico Court of First Instance, ensuing incarceration, and denial of his request for a new trial are erroneous and in violation of his Fifth and Fourteenth Amendment rights, because they are based on the testimony of a witness who later recanted in the subsequent criminal proceedings of two other co-defendants. Id. Before the Court is also the Puerto Rico Department of Justice's ("PRDOJ") motion to dismiss Ortíz's Section 2254 petition for failure to state a claim under Fed. R. Civ. P. 12(b)(6). ECF No. 35. After a thorough review of the aforementioned motions, related filings, and the record as a whole, the Court DENIES both the PRDOJ's motion to dismiss and the petitioner's motion for habeas relief under Section 2254. ECF Nos. 20, 35.

II. Procedural background

In a bench trial held by the Puerto Rico Court of First Instance upon the petitioner's waiver of his right to a trial by jury, he was found guilty of murder in the second degree, two counts of serious assault, and violations of Articles 5.04 and 5.07 of the Puerto Rico Weapons Act of 2002, P.R. Laws Ann. tit. 34, §§ 485c, 485f. ECF Nos. 20 at 1; 35-1 at 1-2. On February 23, 2007, Ortíz was sentenced to 136 years of prison, which the petitioner is currently serving in the Ponce Maximum Security Correctional Complex. Id. Ortíz opportunely filed an appeal of his conviction before the Puerto Rico Court of Appeals ("PRCA"). ECF No. 35-1 at 1-2. Subsequently, the PRCA held the appeal process in abeyance as requested by the petitioner in order for him to pursue a request for a new trial before the Puerto Rico Court of First Instance based on the recantation of José Martínez-Morales ("Martínez"), the main witness against him. Martínez had recanted his testimony at Ortíz's trial in the subsequent criminal proceedings of co-defendant Luis Díaz-Rivera ("Díaz"). Id., ECF No. 20 at 2-7. Martínez later recanted again in the criminal trial of co-defendant Onix Núñez-Alamo ("Núñez"). Id. at 4.

On November 5, 2007, Ortíz filed a motion requesting a new trial before the Puerto Rico Court of First Instance based on Martínez's recantation. Id. Said Court construed his motion asone under both Rules 192 and 192.1 of the Puerto Rico Rules of Criminal Procedure,¹ and held an evidentiary hearing regarding the same in which Martínez testified, among other witnesses and case participants. ECF No. 20-2 at 17-20.

On January 21, 2011, the Puerto Rico Court of First Instance issued an order denying the petitioner's motion requesting a new trial. Id. at 20-30. Ortíz opportunely filed a petition for writ of certiorari before the PRCA as to the lower court's denial of the motion for new trial. ECF No. 35-2. In his petition for writ of certiorari before the PRCA, Ortíz argued, in essence, that the Puerto Rico Court of First Instance had erred in the denial of his request for a new trial in light of a conviction based on the testimony of a witness that had committed perjury, thus violatingOrtíz's rights under the Fourteenth Amendment and acting "with passion, prejudice, and bias." ECF No. 35-2 at 2. The PRCA declined to issue the writ of certiorari requested by Ortíz, and he then filed a petition for issuance of writ certiorari before the Puerto Rico Supreme Court, which also denied Ortíz's petition. ECF No. 20 at 7-8. On November 22, 2013, the PRCA issued its judgment upholding the Puerto Rico Court of First Instance's conviction against Ortíz. ECF No. 35-1. He then opportunely filed a petition for issuance of writ of certiorari before the Supreme Court of Puerto Rico as to the conviction, which was denied as well. ECF No. 20 at 7-8.

On September 2, 2015, Ortíz timely filed a pro se petition in the Spanish language for habeas corpus by a person in state custody pursuant to Section 2254 and a motion to appoint counsel. ECF Nos. 4, 5. This Court appointed the Office of the Federal Public Defender (FPDO) to represent Ortíz, and ordered the filing of an amended Section 2254 petition in the English language. ECF No. 7. On June 2, 2016, Ortíz filed an amended Section 2254 petition, regarding which the PRDOJ filed a response and subsequently an amended answer in compliance with this Court's order holding that the original response was non-compliant with the rules governing Section 2254 litigation. ECF Nos. 29, 30, 33. On August 30, 2017, the PRDOJ filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), to which Ortíz opposed. ECF Nos. 35, 40.

III. Factual background

In accordance with First Circuit standards as to habeas petitions under Section 2254, the factual background included herein is drawn from the Puerto Rico Court of First Instance's orderdenying the petitioner's request for new trial, the PRCA's order affirming said denial, and the PRCA's judgment affirming the petitioner's conviction, "supplemented with other record facts consistent with the [Puerto Rico courts'] findings." Shuman v. Spencer, 636 F.3d 24, 27 (1st Cir. 2011) (quoting Yewboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009)). ECF Nos. 20-2, 35-1, 35-2. And, as discussed below, the Court accepts as true all well-pleaded facts and draws all reasonable inferences in the petitioner's favor when adjudicating the PRDOJ's motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008).

The acts upon which the petitioner was convicted occurred in the Campanilla Ward of Toa Baja, Puerto Rico, in the evening of August 7, 2005, when pastor Walter Montañez ("Mr. Montañez"), church congregant Ms. Sandra Torres ("Ms. Torres"), and two of her young nephews were victims of a shooting while they were riding in Mr. Montáñez's car on their way from Ms. Torres' relative's house in the aforementioned neighborhood. ECF Nos. 20-2, 35-1, 35-2. One of the boys was killed; the other boy and Mr. Montañez were seriously injured. Id.

At the petitioner's trial, Martínez testified, in essence, that he was a resident of the Campanilla Ward in Toa Baja, where he lived with his father, and on the night of the aforementioned events, he had gone out in the neighborhood to buy illegal drugs. Upon returning from that transaction, he heard gunshots and witnessed three four-track vehicles, one of which was driven by Ortíz, who was carrying a black rifle and was shouting "stop motherfucker" at a wine-colored car with broken windows in which Mr. Montañez, Ms.Rodríguez, and her two nephews were traveling. ECF No. 35-1 at 13. As he continued walking to his house, he heard more gun shots and saw that the wine-colored car had crashed into a fence, after which the men on the four tracks continued to shoot at the car after it had crashed. As held by the Puerto Rico Court of First Instance in its order denying the petitioner's motion for a new trial, Martínez

described in detail how the events occurred, the participation of each one of the defendants, the firearms they were carrying, the place where the events occurred, with the names of the streets, the motor vehicles involved and the structures and adjacent locations. He even made a drawing on the blackboard of the place to illustrate his testimony, wherein he indicated the streets, a park, his residence, a church; where the car in which the victims were traveling came to a stop after the gunshots, amongst other details. His testimony is more detailed than the one contained in his sworn statement of the 31st of January of 2006. He had no uncertainty in identifying the petitioner, whom he knew as "Poetita," and whom he described as a handsome person. On two occasions he pointed at him, spontaneously, without waiting for the [p]rosecutor's question for identification. He assured that he knew the petitioner's father as well as the petitioner since he was a child, because he was raised in the ward. He added that, on one occasion in which he came out of jail, he saw him again taking drugs to the point at the ward. He described himself as a crack and heroin drug addict on the date of the events. He affirmed that the petitioner and Mr. Núñez gave him the drug so that he could try it before buying it. He was vigorously cross-examined during 40 minutes. His answers display certainty in what he is narrating and with the type of exchange with the attorney typical of the witness that does not want to let himself be impeached.

ECF No. 20-2 at 14-15.

Martínez first went to the police to inform having witnessed the aforementioned events in December 2005, at a time when "he was afraid because he had taken the drug stash that a person had tossed when he was being intervened with by the police in the Campanilla[ ] Ward."Id. at 15. Martínez then informed the police "that he knew about the murder which had occurred and requested, prior to testifying, that they allow him to kick his habit." Id. Consequently, the police procured his admission at a rehabilitation center "so that subsequently he would be able to serve as a witness," and later in a witness protection facility. Id. at 21. On January 31, 2006, he gave a sworn statement about what he had witnessed to Mario Torres, the prosecutor in charge of the petitioner's case ("Prosecutor Torres"), and thereafter consistently testified about the same on the following five occasions in criminal proceedings while Martínez was being housed in the witness protection facility: (i) cause-for-arrest hearing "for all the alleged perpetrators;" (ii) the petitioner' preliminary hearings; (iii) co-defendant Díaz's preliminary hearing; (iv) co-defendant Díaz's...