Perocier–Morales v. United States

• Decision Date: 20 August 2012
• Docket Number: Civil No. 11–1811 (DRD).
• Citation: 887 F.Supp.2d 399
• Parties: Elias PEROCIER–MORALES, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

887 F.Supp.2d 399

Elias PEROCIER–MORALES, Petitioner,

v.UNITED STATES of America, Respondent.

Civil No. 11–1811 (DRD).

United States District Court, D. Puerto Rico.

Aug. 20, 2012.

Elias Perocier–Morales, Butner, NC, pro se.

Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.

AMENDED OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Petitioner Elias Perocier–Morales was working as an on-duty San Juan Municipal Police Department officer on July 20, 2003. In the early morning hours, Petitioner responded to a report over the police radio that an individual, subsequently identified as José Antonio Rivera Robles, had injured a fellow police officer and stolen the officer's police vehicle. Other officers had located Rivera Robles at a gasoline station and were arresting him when Petitioner arrived on the scene. While Rivera Robles was lying face down on the ground and was in the process of being handcuffed, Petitioner, and other officers, kicked Rivera Robles both before and after he was actually handcuffed. At some point, after handcuffing Rivera Robles, Petitioner demanded that Rivera Robles tell him where he left the stolen police car and punched Rivera Robles in the face several times. Rivera Robles did not perform any action towards Petitioner, or any other officer, at the time he was beaten that could be described as aggressive at the gasoline station.

Petitioner later escorted Rivera Robles to the police station. While outside the station, Petitioner noticed that Rivera Robles appeared unconscious and again kicked Rivera Robles. Petitioner and other officers then carried Rivera Robles into the police station and laid him down on the ground. ¹ As found by the jury, Rivera Robles died a few minutes later as a result of the kicks and punches he sustained from Petitioner and the other officers.

On June 8, 2009, Petitioner reached a plea agreement with the Government (08–cr–246, Docket No. 229) pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure (a “C type” plea).² Under the plea agreement, Petitioner would pled guilty to Count One of the Indictment, aiding and abetting his fellow officers in the deprivation of civil rights under color of law in violation 18 U.S.C. §§ 242 and 2, become a cooperating government witness, and would be sentenced to 120 months imprisonment. Accordingly, Petitioner pled guilty on June 9, 2009 (08–cr–246, Docket No. 234) and was sentenced under the plea agreement on December 21, 2009 (08–cr–246, Docket No. 434).³

I. Procedural History

Pending before the Court is Petitioner Elias Perocier–Morales's writ of habeas corpus under 28 U.S.C. § 2255 filed on August 18, 2011 (Docket No. 3). Therein, Petitioner concedes that the instant habeas corpus petition is time barred, but argues that the statute of limitations should be tolled in light of extraordinary circumstances. Petitioner claims that he was afraid for his life as he was a police officer incarcerated for civil rights violations. Petitioner states that:

he was afraid to talk to anyone about his case due the susceptibility to abuse in prison he faced [were] any prisoners to find out that he a former police officer for Puerto Rico, let alone that he was convicted for civil rights violations while in pursuit of a criminal suspect. Petitioner was afraid to go to the jail law library and discuss his case there with inmate law clerks because they too would spread the word of his prior crime and of the fact that he was a former police officer.

(Docket No. 3–1, page 5). Petitioner also advances that his fear is justified as police officers are a unique category of inmates that are extremely vulnerable to serious assaults, and even death, by fellow prisoners. Petitioner further asserts that he was unaware of the one year statute of limitations. Petitioner finally avers that once the drafter of his petition learned of facts surrounding Petitioner's incarceration, on July 19, 2011, Petitioner and his drafter worked diligently to submit the habeas petition to the Court.

Additionally, Petitioner posits that his attorney, Richard Dansoh, provided ineffective assistance of counsel. Petitioner avers that Attorney Dansoh did not attempt to negotiate a favorable plea nor did he investigate all of options available to Petitioner before allowing him to plea guilty. Petitioner also states that the C type plea prevented Attorney Dansoh from arguing for a downward departure at sentencing. Petitioner claims that he never would have accepted a C type plea, and would have instead proceeded with an open plea, if he had been fully apprised of other options that may have potentially resulted in a more favorable sentence.⁴

Finally, Petitioner asserts that while he was honest and forthright with federal agents and the U.S. Attorneys' Office in 2008 in relation to the incident on July 20, 2003, Petitioner admits that he lied to Puerto Rico Police Division's Criminal Investigation Corps when they investigate the facts of the case in 2003. Nevertheless, Petitioner argues that his attorney should have objected to the Government's inclusion of a two-level enhancement for obstruction of justice.

On November 14, 2011, the Government opposed Petitioner's § 2255 motion (Docket No. 6) and solely focused its objections on the timeliness of the petition. The Government states that as judgment was entered on December 29, 2009 (08–cr–246, Docket No. 435), Petitioner's conviction became final, that is unappealable, on January 12, 2010. Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides one year from the date that a prisoner's conviction becomes final for said prisoner to seek habeas relief, the Government asserts that Petitioner had until January 12, 2011 to timely commence this instant suit. However, Petitioner instead waited an additional two hundred and five (205) days to bring the instant action.

The Government also posits that Petitioner's fear of retribution because he was a police officer imprisoned for civil rights violations to be insufficient to support equitable tolling. Further, the Government advances that Petitioner has failed to diligently pursue his rights and that there were no extraordinary circumstances that prevented him from timely filing his habeas petition. Lastly, the Government argues that Petitioner's ignorance of the law is not a defense.

On April 23, 2012, the Court directed the Clerk of the Court to refer the instant matter to Magistrate Judge Justo Arenas for his Report and Recommendation (Docket No. 12).

On April 27, 2012, Magistrate Judge Arenas submitted a Report and Recommendation to the Court (Docket No. 14). The Magistrate Judge determined that the instant habeas petition is clearly filed after the one year statute of limitations period established in the AEDPA from the date that Petitioner's sentence because final and unappealable. Magistrate Judge Arenas also concluded that Petitioner failed to identify any circumstances that would fall into an exception to the limitations period and thus allow Petitioner to obtain the benefits of equitable tolling. Nevertheless, the Magistrate Judge addressed Petitioner's claim squarely on the merits. Magistrate Judge Arenas stated:

This was a negotiated plea agreement. The plea agreement was exactly what was negotiated and petitioner, an obviously intelligent and educated person, was informed of his alternatives if the court rejected the same. Ultimately, petitioner received the sentenced bargained for.... There is no credible evidence to support the petitioner's claim that his attorney's representation fell below an objective standard of reasonableness, nor does the record support that but for the alleged errors by the attorney, petitioner instead of pleading guilty would have done something else, such as proceeding to trial, or standing fast for a more favorable plea offer, or entering a straight plea.

(Docket No. 14, pages 408–09). Hence, Magistrate Judge Arenas ascertained that Petitioner failed to demonstrate that Attorney Dansoh was ineffective and thus recommended that Petitioner's § 2255 motion be denied without an evidentiary hearing.

On May 18, 2012, Petitioner timely submitted his objections to the Report and Recommendation (Docket No. 17).⁵ Petitioner objects to the Magistrate's rendition of the factual and procedural background and augments the information provided.⁶ Petitioner also notes that his co-defendants' sentences ranged from 57 months to 200 months. Petitioner further restates his argument that equitable tolling applies on account of the continuous duress he faces as an incarcerated former police officer. Petitioner argues that duress is an extraordinary circumstance that triggers tolling. Petitioner similarly advances that “the magistrate judge should have recognized that tolling the statute of limitations on the basis of duress, (fear, threats, etc.), even without an explicit threat directed at preventing the filing of the § 2255 petition is acceptable.” (Docket No. 17, pages 10–11).

Petitioner also posits that he endured ineffective assistance of counsel at the plea hearing and during plea negotiations due to the C Type plea. Petitioner additionally claims that he received ineffective assistance of counsel at sentencing due to the disparities between similarly situated defendants. On these twin claims of ineffective assistance of counsel, Petitioner states:

[C]ounsel was ineffective by impulsively negotiating a ‘Type C’ plea agreement, thereby prejudicing [Petitioner] by disallowing any opportunity to object or argue, later, under 18 U.S.C. § 3553(a).... Petitioner's counsel unnecessarily limited the available sentencing possibility by negotiating a fixed 120–month sentence.... [T]he sentences for all six, similarly-situated defendants ranged from 57 months to 200 months (including both guilty pleas and trial convictions). Despite the plea agreements being ‘the result of extensive...