Ramirez-Rivera v. United States
| Decision Date | 30 September 2021 |
| Docket Number | CIVIL 17-1206 (RAM) |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | PEDRO L. RAMÍREZ-RIVERA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
Pending before the Court is Petitioner Pedro L. Ramirez-Rivera's (“Petitioner” or “Ramrez-Rivera”) Motion Under 28 U.S.C § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (“§ 2255 motion”). (Docket No. 1). Having considered the arguments of the parties at Docket Nos. 1 and 7, the Court DENIES Petitioner's motion. No certificate of appealability shall issue as the § 2255 motion fails to make a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2) . In accordance with Rule 22(b)(1) of the Federal Rules of Appellate Procedure, Petitioner may still seek a certificate directly from the United States Court of Appeals for the First Circuit (“First Circuit”). Judgment of DISMISSAL WITH PREJUDICE shall be entered accordingly.
On June 20, 2012, a Grand Jury returned a Superseding Indictment (“the Indictment”) in case 12-cr-00200. (Docket Nos. 1 and 196). Petitioner in five counts of 33-count indictment. Id. The Counts included: Count 1: Racketeering Influenced and Corrupt Organizations Act in violation of 18 U.S.C. § 1962(d) and 2; Count 2: Conspiracy to Possess with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. § 846, 806 and 2; Count 3: Conspiracy to Possess Firearms During and in Relation to Narcotics Trafficking Offenses in violation of 18 U.S.C. § 924(c)(1)(1); Count 29: Violent Crime in Aid of Racketeering Activity (“VICAR”) in violation of 18 U.S.C. § 1959(a)(1) and 2; and Count 30: Use and Carry of a Firearm in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A), 924(j)(1) and 2. Id. at 323 and 52-53.
After a seven-day trial, the jury returned a guilty verdict as to all five counts for Ramirez-Rivera and co-defendants Jose Laureano-Salgado (“Laureano-Salgado”) and Ismael E. Cruz-Ramos (“Cruz-Ramos”). (Docket Nos. 794). Judgment was entered against Ramirez Rivera on October 3, 2013. (Docket No. 1198) . He was sentenced therein to forty (40) years as to Count 1, twenty (20) years as to Count 2, Twenty (20) years as to Count 3, Life in Prison Without Possibility of Parole as to Count 29 and twenty (20) years as to Count 30. Id. at 3. He was also sentenced to ten (10) years of supervised release as to Count 2. Id. at 4.
Petitioner appealed his judgment, raising multiple issues regarding jury empanelment, jury instructions, impeachment of witness, vouching for a witness, and sentencing errors, among others. (Docket Nos. 1213 and 1673). The Court of Appeals for the First Circuit (“First Circuit”) ultimately affirmed Ramirez-Rivera's conviction and sentence. See e.g., United States v. Ramirez-Rivera., 800 F.3d 1, 27 (1st Cir. 2015), cert denied, 577 U.S. 1108 (2016), abrogated on other grounds by United States v. Leoner-Aguirre, 939 F.3d 310 (1st Cir. 2019).
Petitioner subsequently sought to adopt and join co-defendant Laureano-Salgado's request for a new trial in light of newly discovered evidence allegedly showing that Christian Toledo Sanchez, alias “Pekeke, ” the leader of the gang La Rompe, was killed by members of La Rompe and not by members of the rival gang La ONU. (Docket No. 1893 at 2-4). Ramirez-Rivera, a member of La ONU, had been found guilty of killing Pekeke alongside Laureano-Salgado and Cruz-Ramos. (Docket No. 196). This murder was the predicate “crime of violence” for Petitioner's § 924(c) conviction under Count 30 (Use and Carry of a Firearm in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A), 924(j)(1) and 2). (Docket No. 196). The District Court eventually denied the request for new trial. (Docket No. 1936).
Ramirez-Rivera appealed this decision. (Docket No. 1939). The First Circuit affirmed the denial because “the alleged new evidence cannot be reasonably viewed as ‘greatly undermin[ing]' the pertinent verdicts.” United States v. Laureano-Salgado, 933 F.3d 20, 32 (1st Cir.), cert. denied, 140 S.Ct. 619 (2019), and cert. denied sub nom. Ramirez-Rivera v. United States, 140 S.Ct. 977 (2020) (quotation omitted).
In his § 2255 motion, Ramirez-Rivera requests that his sentence be remanded for resentencing or, in the alternative, for an evidentiary hearing. (Docket No. 1-1 at 28). His first two grounds for resentencing aver that his counsel provided ineffective assistance of counsel. (Docket Nos. 1 at 5-6; 1-1 at 4-17). The first ground states that “[t]rial counsel was ineffective when he failed to file a motion to suppress the warrantless search of the residence where the firearms and the drugs that were presented against [R]amirez-[R]ivera were submitted during trial.” (Docket No. 1 at 4). Whereas the second ground argues that “[t]rial counsel rendered ineffective assistance when he failed to object to the prosecutor vouching for the testimony of witness [Christian] Figueroa-Viera during the trial.” Id. at 5. Furthermore, the third and fourth grounds claim that Ramirez-Rivera's sentence must be vacated in light of the Court of Appeals for the Eleventh Circuit's United States v. Johnson, 803 f.3d 610 (11th Cir. 2015) and the United States Supreme Court's decision in Johnson v. United States, 576 U.S. 591 (2015). (Docket No. 1 at 7-8).
On December 6, 2019, Defendant United States of America (“the Government”) responded to Petitioner's § 2255 motion (“Response”). (Docket No. 7). Regarding Petitioner's first ground, the Government contends that his counsel did not provide ineffective assistance for failing to move to suppress evidence in another codefendant's property because Ramirez-Rivera lacked standing to suppress said evidence. Id. at 6-7. As to the second ground, it held that Ramirez-Rivera's counsel was not ineffective because per First Circuit precedent, once the plea agreement's content was admitted at trial, a prosecutor can comment upon a witness's motivation to testify truthfully. Id. at 7-8. As to the third and fourth grounds, the Government posits that Petitioner is not entitled to relief under the Supreme Court's decision because “murder, ” the predicate offense to Petitioner's § 924(c) conviction, is a “crime of violence” under the elements clause (or the “force clause”) of § 924(c). Id. at 8-9. Lastly, it argues that an evidentiary hearing is not proper and that the Court should not grant a certificate of appealability. Id. at 9-10.
Pursuant to 28 U.S.C. § 2255, a prisoner who is in custody under a sentence imposed by a Federal Court may move to vacate, set aside, or correct his sentence:
[U]pon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
A petitioner's post-conviction request for relief “must show that his sentence ‘reveal[s] fundamental defects which, if uncorrected, will result in a complete miscarriage of justice.'” Lebron-Martinez v. United States, 2021 WL 3609658, at *2 (D.P.R. 2021) (quoting Gomez-Olmeda v. United States, 2021 WL 785725, at *2 (D.P.R. 2021)). Petitioner has the burden of establishing such a defect. Id. Moreover, an evidentiary hearing on a § 2255 petition is not necessary when the motion “is inadequate on its face.” Id. (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974)). Nor is it necessary when there are no factual issues to be resolved. Id. (quoting Miller v. United States, 564 F.2d 103, 106 (1st Cir. 1977)) (“Where there are no disputed facts crucial to the outcome, leaving only questions of law, [§] 2255 does not require a hearing; the motion may be decided” without an oral presentation).
Petitioner's § 2255 motion does not require resolving factual issues as he only presents legal issues. Id. at *2; see also Forteza-Garcia v. United States, 2021 WL 784875, at *2 (D.P.R. 2021). Thus, a hearing is not necessary in this case.
Petitioner avers his counsel was ineffective by failing “to file a motion to suppress the warrantless search of the residence where the firearms and the drugs” were found and presented against Ramirez-Rivera during trial. (Docket No. 1 at 5). In his petition, Ramirez-Rivera references a motion to suppress filed by his codefendant Cruz-Ramos's counsel regarding guns and narcotics found after a warrantless search of Cruz-Ramos's car and house where another of the defendants implicated in the Indictment, Edwin Bernardo Astacio-Espino, and Cruz-Ramos were located. (Docket No. 1-1 at 12). Ultimately, the First Circuit held that Cruz-Ramos was entitled to a new trial based on suppression error. See Ramirez-Rivera, 800 F.3d at 23-35. Therefore, Ramirez-Rivera argues his counsel “had an obligation to motion the court for the suppression of the evidence from the illegal search of the residence in order to avoid the spillover effect of the illegally seized evidence being used against Ramirez-Rivera during the trial.” (Docket No. 1-1 at 12-13).
In response, the Government posits that Ramirez-Rivera lacks standing to challenge his counsel's failure to file a motion to suppress because Fourth Amendment rights are personal rights. (Docket No. 7 at 6).[2] Therefore Ramirez-Rivera must show he had an actual and subjective expectation of privacy over the place searched. Id. Since his § 2255 motion does not argue he had such an...
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