Perez v. Suarez

• Decision Date: 01 August 2022
• Docket Number: Civil Action 3:19-cv-01555-WGY
• Parties: DAVID NUNEZ PEREZ, Petitioner, v. ERIK ROLON SUAREZ, HECTOR HERNANDEZ-MORALES, and COMMONWEALTH OF PUERTO RICO, Respondents.
• Court: U.S. District Court — District of Puerto Rico

DAVID NUNEZ PEREZ, Petitioner, v. ERIK ROLON SUAREZ, HECTOR HERNANDEZ-MORALES, and COMMONWEALTH OF PUERTO RICO, Respondents.

Civil Action No. 3:19-cv-01555-WGY

United States District Court, D. Puerto Rico

August 1, 2022

MEMORANDUM AND ORDER

WILLIAM G. YOUNG JUDGE ^[1]

I. INTRODUCTION

“The Constitution's Double Jeopardy Clause^[2] is an analytically gnarly beast. What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls. At the center is the so-called dual sovereignty doctrine.” Anthony J. Colangelo, Gamble, Dual Sovereignty, and Due Process, 2019 Cato Sup. Ct. Rev. 189, 189. Under our system of government, the federal government and the States are separate sovereigns and as such can charge, convict, and sentence the same individual for the same crime. What about the Commonwealth of Puerto Rico? Somewhat late in the game, “[t]he Supreme Court has only once directly addressed whether Puerto Rico is a separate sovereign from the federal government, in a criminal case.” Centro de Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt. Bd. for Puerto Rico, 35 F.4th 1, 14 (1st Cir. 2022). In 2016, the Supreme Court held in Puerto Rico v. Sanchez Valle that the United States of America and the Commonwealth of Puerto Rico are not - and never have been -separate sovereigns for purpose of the Double Jeopardy Clause.

579 U.S. 59, 78 (2016). The Supreme Court reasoned that, “while each State is a separate sovereign from the federal government for purposes of the Fifth Amendment's Double Jeopardy Clause, Puerto Rico is not because the historical source of Puerto Rico's prosecutorial power was derived from the federal government.” Centro de Periodismo Investigativo, Inc., 35 F.4th at 14 (citing Sanchez Valle, 579 U.S. at 68-69, 75).

The case before the Court illustrates the profound difference this distinction makes. Petitioner David Nunez Perez (“Nunez Perez”) claims that he has suffered Double Jeopardy, having been convicted and sentenced by the United States for the same crime for which he was later convicted and sentenced by the Commonwealth of Puerto Rico. See Pet. 6, ECF No. 3; Pet., Ex. 1, Pet. Pursuant 28 U.S.C. § 2254 (“Section 2254 Petition”) 5, ECF No. 3-1. In fact, the parties agree that if these criminal actions were prosecuted today, at least the Puerto Rico convictions and sentences for carjacking and manslaughter - totaling forty-six years and six months' additional prison time - constitutionally would be barred by the Double Jeopardy Clause. See Joint Mot. Compl. Court Order (“Joint Mot.”) 4, 10, ECF No. 49.^[3] The Respondents, Erik Rolon Suarez, Hector Hernandez-Morales, and the Commonwealth of Puerto Rico (collectively “the Commonwealth”) argue, however, that Nunez Perez's petition is time-barred under the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) pursuant to 28 U.S.C. 2244(d)(1)(C). See Mot. Dismiss Habeas Corpus Pet. (“Mot. Dismiss”) 3-5, ECF No. 17. The Petitioner and Respondents disagree about the retroactivity of Sanchez Valle, but agree that even if, arguendo, the Supreme Court's decision in Sanchez Valle (1) established a “right” that was “newly recognized by the Supreme Court” and (2) “made retroactively applicable to cases on collateral review,” the petition is untimely by eleven days and must be dismissed without reaching the merits unless equitable tolling applies.

For the reasons stated below, the Commonwealth's motion to dismiss the petition for a writ of habeas corpus under 28 U.S.C. § 2254, ECF No. 17, is hereby DENIED. Sanchez Valle is retroactive, and equity demands that the eleven-day defalcation on the AEDPA's statute of limitations be excused. Furthermore, because the parties do not dispute that the federal charge and certain later Puerto Rico charges are identical, the Commonwealth of Puerto Rico's prosecution, conviction, and sentencing of Nunez Perez violates the Double Jeopardy Clause with respect to the charge, conviction, and resultant sentenc for carjacking and manslaughter, with the effect of reducing Nunez Perez's sixty-nine-year sentence by forty-six years and six months.^[4]

II. BACKGROUND

A. Facts Concerning Underlying Federal And Puerto Rico Convictions

1. Nunez Perez Convicted in Federal Court for Carjacking with Resultant Death and Sentenced to Ten Years' Custody.

The facts of the crime are as senseless as they are heartbreaking. On June 26, 2001, Nunez Perez with two others participated in a carjacking of a customer at a fast-food restaurant, netting $90.00. See Third Mot. Submitting Certified Trans., Ex. C, Offic. Trans. J. P.R. Cir., Puerto Rico v. Nunez Perez, KLAN0400170 (“P.R. Cir. J.”) 2, ECF No. 47-3. Nunez Perez was a passenger in that stolen car. Id. 2-3. After being pursued by police, the driver struck and killed Puerto Rico Police Officer William Camacho who was on foot and attempting to protect the public by stopping or diverting traffic.^[5] Id. 3.

On July 24, 2001, Nunez Perez was indicted, with two others, on three counts in the United States District Court for the District of Puerto Rico (the “Federal Criminal Action”) for:

Count One -- Violation of 18 USC § 2119(3) and §2: taking a motor vehicle by force or violence, with the intent to cause death or serious bodily harm and resulting in death (“Federal Carjacking Count”)

Count Two -- Violation of 18 USC § 924(c)(1)(A)(ii): possessing, brandishing or carrying firearms in relation or furtherance of a carjacking.

Count Three -- Violations of 18 USC § 922(g)(1) and 18 USC § 924 (a)(2): possessing a firearm having been convicted in court of a crime being punishable by imprisonment of a term exceeding one year.

Judgment, United States v. Nunez-Perez et al., Criminal No. 010519 (D.P.R. Sept. 18, 2002), ECF No. 71. On May 2, 2002, Nunez Perez pled guilty to aiding and abetting the Federal Carjacking Count, and was later sentenced to 120 months' - ten years - incarceration for his participation in the carjacking. See Id. The remaining two firearms charges were dismissed. Id.

2. Nunez Perez Subsequently Convicted in Puerto Rico Court on Charges Relating to Same Incident and Sentenced to Sixty-Nine Years to Run Consecutively to Federal Sentence.

In February 2002, while the Federal Criminal Action was pending, Nunez Perez was indicted by the Commonwealth of Puerto Rico in the Mayaguez Superior Court (the “Puerto Rico Criminal Action”) for Carjacking (Case IDP2002G0408), First Degree Murder (IVI2002G0029) (collectively “the Puerto Rico Carjacking and Manslaughter^[6] Counts”), and two other weapons' possession charges relating to the same incident (collectively “the Puerto Rico Weapons' Possession Charges”). See Third Mot. Submitting Certified Trans., Ex. B, Offic. Trans. J. P.R. Ct. First Instance, Puerto Rico v. Nunez Perez, Criminal No. PD2002G0320 3-10, ECF No. 47-2. Nunez Perez was found guilty by a jury on all of the charges, except the murder charge for which he was found guilty of manslaughter. See id.

Nunez Perez received a sixty-nine-year Puerto Rico prison sentence to run consecutively to his ten-year federal sentence as follows: forty-five years' custody for carjacking, one year and six months' custody for manslaughter, and twenty-two years and six months' custody on the weapons' possession charges. See id. 3-10.

The Respondents stipulate that the Federal Carjacking Count on the one hand, and the Puerto Rico Carjacking and Manslaughter Counts on the other, are identical crimes for purposes of Double Jeopardy analysis. See Joint Mot. 10.

B. Post-Conviction Procedural History In Puerto Rico Courts

1. Nunez Perez's Conviction Affirmed and Double Jeopardy Claim Rejected on Direct Appeal.

Nunez Perez appealed his Puerto Rico convictions arguing among other things that Double Jeopardy applied. On August 31, 2006, the Puerto Rico Court of Appeals rejected that argument, and the convictions were affirmed. P.R. Cir. J. 24-25. That court held that “[t]he doctrine of dual sovereignty applies to the Commonwealth of Puerto Rico. Therefore, conduct that constitutes a crime in both jurisdictions may be punished independently by both entities, without violating the constitutional clause against double jeopardy or constituting multiple punishments for the same conduct.” Id. (citation omitted). Nunez Perez's request for certiorari to the Supreme Court of Puerto Rico was denied on February 2, 2007, for lack of jurisdiction. First Mot. Submitting Certified Trans., Ex. 1, Certified Trans. Res. Denying Cert. P.R. Supreme Ct., Puerto Rico v. Nunez Perez, CC-2006-1062 1, ECF No. 39-1.

2. Nunez Perez's Rule 192.1 Motion based upon Supreme Court Decision Sanchez Valle was Denied.

On June 9, 2016 -- ten years after Nunez Perez's conviction became final -- the Supreme Court issued its decision in Puerto Rico v. Sanchez Valle.

On June 20, 2017 -- one year and eleven days after that decision -- Nunez Perez, with the assistance of the Legal Aid Society, filed a motion pursuant to Rule 192.1 of the Puerto Rico Rules of Criminal Procedure, arguing that Double Jeopardy applied to his Puerto Rico convictions under Sanchez Valle. See Fourth Mot. Submitting Certified Trans., Ex. 1, Offic. Trans. Res. Denying Req. Release P.R. Ct. First Instance, Civ. No. IPD2002GO4O8, IVI2002GOO29 (“P.R. Ct. First Instance Res.”) 1, ECF No. 50-1. The Rule 192.1 motion was denied on September 12, 2018. Id. 5.

Nunez Perez applied for certiorari to the Puerto Rico Court of Appeals, which denied the writ on December 18, 2018. See Third Mot. Submitting Certified Trans., Ex. 4 Offic. Trans. Res. Denying Writ Cert. P.R. Cir. Ct., KLCE201801466 (“P.R. Cir. Ct. Res.”) 1, 7, ECF No....