Ramirez-Burgos v. United States, Civil No. 11–2040(DRD).

• Court: United States District Courts. 1st Circuit. District of Puerto Rico
• Citation: 990 F.Supp.2d 108
• Docket Number: Civil No. 11–2040(DRD).,Criminal No. 94–078(1)(DRD).
• Parties: Julio RAMIREZ–BURGOS, Petitioner v. UNITED STATES of America, Respondent.
• Decision Date: 23 December 2013

990 F.Supp.2d 108

Julio RAMIREZ–BURGOS, Petitioner
v.
UNITED STATES of America, Respondent.

Civil No. 11–2040(DRD).
Criminal No. 94–078(1)(DRD).

United States District Court,
D. Puerto Rico.

Dec. 23, 2013.

[990 F.Supp.2d 109]

Julio Ramirez–Burgos, Fort Worth, TX, pro se.

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

OPINION AND ORDER
DANIEL R. DOMÍNGUEZ, Senior District Judge.

Pending before this Court is a Motion to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody under 28 U.S.C. § 2255 filed by Julio Ramirez–Burgos (“Petitioner”) (Docket No. 1), which was opposed by the United States (Docket No. 5) and referred to Magistrate Judge Justo Arenas for a Report and Recommendation (Docket No. 6).

Upon review of Magistrate Judge's Report and Recommendation (Docket No. 8) which is unopposed by Petitioner, the Court hereby ACCEPTS, ADOPTS and INCORPORATES the Report and Recommendation as outlined below and DENIES the Petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 24, 1994, Petitioner was indicted (Crim. No. 94–0078, Docket No. 14) on a three count indictment, charging him and another co-defendant in the carjacking of two vehicles (in violation of 18 U.S.C. § 2119(1) and (2)), and a weapons violations during the carjackings (in violation of 18 U.S.C. § 924(c)(1) and (2)). Both acts occurred on February 24, 1994, in Bayamón, Puerto Rico; one of the carjackings involved the sexual assault of the car's

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female driver. (See Crim. No. 94–078, Docket No. 179–2).

On March 30, 1994, after the arrest and the initial indictment, Petitioner appeared before Magistrate Judge Justo Arenas and pleaded not guilty to all counts. (Crim. No. 94–078, Docket No. 16). Petitioner moved to dismiss Count Three of the indictment on the basis of a Blockburger¹ attack.² (Crim. No. 94–078, Docket No. 24). The challenge was rejected by this Court and also, on interlocutory appeal by the Court of Appeals, based on jurisdictional grounds as a “collateral order” exception ³ to the final judgment rule. United States v. Ramírez–Burgos, 44 F.3d 17, 18 (1st Cir.1995) (Crim. No. 94–078, Docket Nos. 44, 58).

A superseding indictment was subsequently filed to which Petitioner pleaded not guilty (Crim. No. 94–078, Docket Nos. 82, 85, 90). At trial, Petitioner's testimony was allegedly exculpatory, embracing the theory that he was in the wrong place at the wrong time. United States v. Ramírez–Burgos, 114 F.3d 1170 at *2 (1st Cir.1997). Petitioner was convicted on all three superseding charges, all which were related to the two armed carjackings (Crim. No. 94–078, Docket No. 113), and was sentenced to serve two concurrent terms of imprisonment of 360 months as to Counts One and Two; 60 months in Count Three, to be served consecutively with the prison terms of Counts One and Two. The total sentencing was 420 months of imprisonment. Restitution was also ordered paid to both victims (Crim. No. 94–078, Docket Nos. 113, 138).

Petitioner appealed his conviction. (Crim. No. 94–078, Docket No. 139). The conviction was affirmed on appeal on May 21, 1997, but the terms of imprisonment for Count Two were reduced from 300 to 180 months (Crim. No. 94–078, Docket Nos. 154, 155). United States v. Ramírez–Burgos, 114 F.3d 1170 at *5–8 (1st Cir.1997). The Court of Appeals explained that the total permissible sentence for all three counts was 360 months instead of the 420 months initially imposed. Id. at *5–8.

Petitioner appealed the corrected sentence on remand challenging the imposition of 300 months on Count Two. On appeal after remand, the Court modified the sentence imposed on Count Two to 180 months, and affirmed as modified. (Crim. No. 94–078, Docket No. 158). United States v. Ramírez–Burgos, 181 F.3d 81 (1st Cir.1999).

Petitioner's sentence was corrected on May 21, 1999. (Crim. No. 94–078, Docket No. 158). A term of imprisonment of 300 months was imposed as to Count One; 180 months were imposed as to Count Two, said terms concurrent with each other. As to Count Three, 60 months were imposed, consecutive to the term imposed as to Count One. Id.

On May 24, 2000, Plaintiff filed his initial Section 2255 petition (“First 2255 Motion”), attacking the validity of the sentence. (Civ. No. 00–1645, Docket No. 1). A judgment was entered dismissing the petition on October 30, 2000. (Civ. No. 00–1645, Docket No. 8). In the First 2255 Motion, Petitioner alleged ineffective assistance of counsel (as to his attorneys at trial and on appeal) and raised the issue of

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“actual innocence.” As to his legal representation at trial, the Court found that Petitioner's argument was insufficient as a matter of law in relation to an element of one of the offenses, and that Petitioner also failed to carry his burden under Strickland v. Washington,⁴ to show that his attorney's performance fell below the wide range of presumed reasonable professional assistance and sound trial strategy. (Civ. No. 00–1645, Docket No. 7). The District Court also rejected Petitioner's attack on his appellate counsel's performance which focused on counsel's not arguing the applicability of Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) on appeal, given the numerous dissimilarities between Jones and Petitioner's case. (Civ. No. 00–1645, Docket No. 7 at page 2).

Upon dismissal of the First 2255 Motion, Petitioner filed an application requesting certificate of appealability, which the District Court denied on the ground that Petitioner failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c). (Civ. No. 00–1645, Docket Nos. 10, 12). Nonetheless, the District Court granted leave for Petitioner to apply for the certificate of appealability to the Court of Appeals. Id. at Docket No. 12. On March 19, 2002, the Court of Appeals granted the certificate of appealability as to the applicability of the Jones⁵ doctrine. Although the First Circuit found plain error in certain instructions provided to the jury, such errors did not affect Petitioner's substantial rights nor the fairness, integrity, and public reputation of the judicial proceedings. The First Circuit also found that the second prong of the Strickland test—prejudice—was not established. (Civ. No. 00–1645, Docket No. 16). Ramírez–Burgos v. United States, 313 F.3d 23 at 32–33 (1st Cir.2002). On March 12, 2003, the First Court entered judgment, affirming the judgment issued by the District Court, dismissing the First 2255 Motion. ( Civ. No. 00–1645, Docket No. 18). Petitioner formally filed a petition for a writ of certiorari in the Supreme Court; the same was denied on January 21, 2003. Ramírez–Burgos v. United States, 537 U.S. 1167, 123 S.Ct. 981, 154 L.Ed.2d 907 (2003).

Thereafter, Petitioner moved the District Court again for a modification of his sentence under 18 U.S.C. § 3582(c)(2) based upon United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). (Crim. No. 94–078, Docket No. 179). The Court denied the motion on June 10, 2005, finding the statute inapplicable and otherwise finding that it had no jurisdiction to modify the sentence. (Crim. No. 94–078, Docket No. 183). The District Court noted that the sentencing range for the violations for which Petitioner had been sentenced had not been lowered by the Sentencing Commission, and that Booker did not apply retroactively, citing Cirilo–Muñoz v. United States, 404 F.3d 527, 523–33 (1st Cir.2005), and for the proposition that the guidelines are to be treated as advisory rather than mandatory. (Crim. No. 94–078, Docket No. 183). Petitioner appealed the denial on June 27, 2005. (Crim. No. 94–078, Docket No. 184). The First Circuit entered judgment on February 21, 2006, stating that it agreed with the reasoning of the District Court. The First Circuit also noted that Petitioner was effectively mounting a collateral

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attack on his sentence, but that he lacked permission from the Appellate Court to file a second or successive motion under § 2555 ¶ 8, now 28 U.S.C. § 2255(h)(2). (Crim. No. 94–078, Docket No. 187). Construing the appeal in part as a request for permission to file a second or successive motion under 28 U.S.C. § 2255, the First Circuit denied the request and affirmed the judgment of the District Court. Id.

Petitioner filed later another pro se motion to modify sentence, pursuant to 18 U.S.C. § 3582(c)(2) on June 25, 2008 (Crim. No. 94–078, Docket No. 188) which was denied on January 29, 2010. (Crim. No. 94–078, Docket No. 194). On September 12, 2011, Petitioner filed a notice of appeal 19 months after the denial of his first motion to modify sentence under 18 U.S.C. § 3582(c)(2). (Crim. No. 94–078, Docket No. 196). The appeal was dismissed on March 12, 2012. (Crim. No. 94–078, Docket No. 202).

Petitioner filed pro se a third motion to modify and correct a sentence pursuant to 18 U.S.C. § 3582(c)(2). This third motion was based on Retroactive Guideline Amendment # 599, “Double Counting,” which stated that possession of a firearm is the lesser included offense of 18 U.S.C. § 2119(a)(d) as included in Counts One and Two. (Crim. No. 94–078, Docket No. 200). Petitioner alleged that possession of a firearm is an element to carjacking under 18 U.S.C. § 2119(a)(d), citing Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Rita v. U.S. 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). (Crim. No. 94–078, Docket No. 200). Petitioner also averred a distinction between “possession of a firearm” and “using and carrying a firearm”, citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) and Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007). Supra. On November 19, 2011, the District Court denied the third motion to modify and correct sentence. (Crim. No....