Rodriguez-Rivera v. United States
| Decision Date | 13 July 2015 |
| Docket Number | Civil 12–1486CCC. |
| Parties | Omar E. RODRIGUEZ–RIVERA, Petitioner v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Omar E. Rodriguez–Rivera, Talladega, AL, pro se.
Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.
Petitioner Omar E. Rodríguez–Rivera was convicted on two counts of interfering with interstate commerce by threats or violence in violation of 18 U.S.C. § 1951 and sentenced on February 17, 2005 to serve two consecutive terms of 240 months of imprisonment. On June 19, 2012, more than 5 years after his convictions and sentences became final subsequent to his direct appeal, he filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (D.E. 1 ) claiming that his trial counsel was ineffective. A detailed description of the facts of his criminal case, Crim. No. 04–158, and of the issues raised in his direct appeal which were ultimately rejected by the Court of Appeals, can be found in United States v. Rodríguez–Rivera, 473 F.3d 21 (1st Cir.2007). The 28 U.S.C. § 2255 Motion was opposed by the United States (D.E. 3), and a reply brief (D.E. 4) and "supplemental authority" (D.E. 5) were subsequently filed by petitioner. Before the Court now is the Report and Recommendation filed by U.S. Magistrate–Judge Justo Arenas on August 11, 2014 (D.E. 8 ), to which petitioner objected on September 29, 2014 (D.E. 12).
Having thoroughly considered the Magistrate–Judge's Report and Recommendation and petitioner's objections to the same, as well as the applicable law and jurisprudence, we APPROVE said Report and ADOPT its recommendation since we are in full agreement with its finding that the § 2255 Motion is time-barred since it was filed way beyond the statutory limitations period of one-year from the date his judgment of conviction became final and unappealable on April 10, 2007 and there are no extraordinary circumstances present which would justify an equitable tolling of this limitations period. Accordingly, petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (D.E. 1 ) is DENIED as time-barred. Judgment shall be entered DISMISSING this action.
SO ORDERED.
On April 6, 2004, petitioner Omar E. Rodriguez–Rivera was charged in a six- count indictment with conspiracy to interfere with commerce by threats or violence, and aiding and abetting in using weapons in those robberies. Count One charges petitioner with participating in a conspiracy with two other persons not charged in this indictment, Elin Lugo Echevarria and Samuel Santos–Ortiz, and others known and unknown to the grand jury, to unlawfully obstruct, delay and affect commerce as that term is defined according to Title 18, United States Code, Section 1951(b)(3), and the movement of articles and commodities in such commerce, by robbery as that term is defined in Title 18, United States Code, Section 1951(b)(1), by unlawfully taking or obtaining property consisting of money belonging to Narbel's Café & Bar, in Guayama, Puerto Rico from the person of or in the presence of the possessor of said money, against his will by means of actual or threatened force, violence, or fear of injury, immediate or future, to his person or the person of a relative or member of his family. All in violation of Title 18, United States Code, Sections 1951(a) and 2. (Crim. No. 04–0158, Docket No. 2). Count Two is the corresponding aiding and abetting charge. Count Three charges petitioner and the same two others who are not indicted with knowingly using or carrying firearms, as the term is defined in Title 18, United States Code, Section 921(a)(3), during and in relation to a crime of violence as that term is defined in Title 18, United States Code, Section 924(c)(3) to wit: interference with commerce by robbery, an offense for which they may be prosecuted in a Court of the United States, as charged in Count Two, all in violation of Title 18, United States Code, Section 924(c)(1)(A)(ii) and 2. (Crim. No. 04–0158, Docket No. 2 at 2–3). Counts Four through Six trace similar criminal activity with the same players on a different date where the victims are "V. Suarez & Co., Inc.", which had purchased beer from Coors Light Brewing Company located in Memphis, Tennessee, a Puerto Rico trucking company, "Ponce Safety Corporation", and a beer truck driver Jose Vazquez Feliciano, who at the relevant time was distributing a quantity of Coor Light Beer. The predicate crimes occurred during the spring and summer of 2001. In each one, a victim was killed. Samuel Santos–Ortiz did the killings.
After garden-variety motion practice, the jury trial began on July 27, 2004. (Crim. No. 04–0158, Docket No. 25). A special verdict was returned August 12, 2004. (Crim. No. 04–0158, Docket No. 39). See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Petitioner was convicted on two counts, and was sentenced on February 17, 2005 to two consecutive terms of 240 months imprisonment. (Crim. No. 04–0158, Docket No. 57). Petitioner filed a notice of appeal on the following date. Judgment was entered by the United States Court of Appeals for the First Circuit on January 10, 2007. As a result of that judgment, the conviction and sentence of petitioner were affirmed. United States v. Rodriguez–Rivera, 473 F.3d 21 (1st Cir.2007). No petitioner for a writ of certiorari was filed. Therefore, the conviction became final ninety days after the court of appeals affirmed the judgment of conviction. See Clay v. United States, 537 U.S. 522, 525, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ; Ramos–Martinez v. United States, 638 F.3d 315, 319 (D.P.R.2011) ; Cruz–Delgado v. United States, 2014 WL 645736 at *1 (D.P.R. February 19, 2014).
On appeal, petitioner raised issues under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as well as a sentencing issue and procedural trial issues related to the treatment of defense counsel by the trial judge. The court entered into great detail about all of the issues raised and found them to be without merit. United States v. Rodriguez–Rivera, 473 F.3d at 25–30.
This matter is before the court on motion filed by petitioner Omar Rodriguez–Rivera on June 19, 2012 to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1.) The government filed a response in opposition to the motion on September 24, 2012. (Docket No. 3.) Petitioner filed a reply to the response on October 15, 2012. (Docket No. 4.) Supplemental authority was filed by petitioner on November 26, 2012. (Docket No. 5).
Having considered the arguments of the parties and for the reasons set forth below, I recommend that the petitioner's motion to vacate, set aside or correct sentence be DENIED.
Petitioner argues that his inexperienced attorney rendered ineffective assistance as reflected by the observations of the trial judge. Defense counsel's failure to investigate the case, to interview and call witnesses, and to contest the court's subject matter jurisdiction are all raised by petitioner. Petitioner informs that counsel did not challenge the admission of co-conspirator statements, and also notes that the government's key witness gave a different testimony at a later proceeding in state court.
Petitioner prefixes the substance of his argument by emphasizing the timeliness of this motion. He notes that an affidavit from Samuel Santos–Ortiz is dated September 15, 20111 and that therefore this petition is timely because it was filed within one year of that affidavit.2 He further argues that he does not speak or understand English, and must therefore rely on others to inform him of his rights. Nobody told petitioner that he had one year from April 10, 2007 to file his petition. He then goes into a discussion of the requirements of equitable tolling. See Ryan v. Gonzales, ––– U.S. ––––, 133 S.Ct. 696, 704 n. 6, 184 L.Ed.2d 528 (2013)
Petitioner presents new facts upon which he bases his request for collateral review and relief. The affidavit from Samuel Santos–Ortiz exonerates petitioner's involvement in the Narbel bakery robbery as well of the Coors truck robbery.3 An affidavit from defense counsel Jorge Armenteros–Cervoni notes that this was his first federal trial without help and that he admits it was error not to call Santos–Ortiz to testify for the defense.4 Petitioner attests in an affidavit that he was mislead by counsel into thinking that counsel would represent him in this collateral review. He notes that counsel did not discuss with him whether he wished to testify in his own defense.5 A jurisdictional issue is also raised. He concludes that he is entitled to relief based upon the cumulative effect of the errors sustained by his trial attorney Jorge Armenteros–Cervoni.
On September 24, 2012, the government filed a response in opposition to the petitioner's motion stressing that the petition is untimely and should be summarily denied. (Docket No. 3). The government notes the exonerating affidavit of Samuel Santos–Ortiz, who perpetrated the robberies and the killings of the Coors truck driver and of the owner operator of the Narbel Café & Bar in Guayama, and who now denies that petitioner was involved in the planning or organizing of the crimes. It also notes petitioner's affidavit where he states that he had told counsel to call Samuel Santos–Ortiz as a witness, and argues that counsel made the strategic choice not to call the witness. But ultimately the government relies on the lack of timeliness in its argument. (Docket No. 3).
Petitioner filed a reply to the response on October 15, 2012. (Docket No. 4). Petitioner repeats his argument and goes into more details, but stresses that the unique circumstances presented justifies the...
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