Rodriguez v. Martinez

• Decision Date: 30 January 2013
• Docket Number: Civil No. 09–2187 (DRD).,Criminal No. 97–161(JAF).
• Citation: 935 F.Supp.2d 389
• Parties: Israel RODRIGUEZ, Petitioner v. Jerry C. MARTINEZ, Warden, MDC Guaynabo, Respondent.
• Court: U.S. District Court — District of Puerto Rico

935 F.Supp.2d 389

Israel RODRIGUEZ, Petitioner

v.Jerry C. MARTINEZ, Warden, MDC Guaynabo, Respondent.

Civil No. 09–2187 (DRD).

Criminal No. 97–161(JAF).

United States District Court, D. Puerto Rico.

Jan. 30, 2013.

Israel Rodriguez, San Juan, PR, pro se.

Ginette L. Milanes, U.S. Attorney's Office, San Juan, PR, for Respondent.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, Senior District Judge.

Pending before this Court is a petition for a writ of habeas corpus under 28 U.S.C. § 2241 filed by petitioner Israel Rodriguez (“Petition”) (Docket No. 1), which was opposed by the United States (Docket No. 4) and referred to Magistrate Judge Justo Arenas for a Report and Recommendation (Docket No. 24).

Magistrate Judge Arenas recommended that the Petition be denied without a hearing based on four grounds:

1) [the Petition] is a second or successive 2255 motion, regardless of title, and the district court has no jurisdiction to consider the same.

2) Because the [P]etition lacks merit of any type, the petition should not be transferred to the court of appeals as a second or successive petition.

3) The Prison Reform Litigation Act does not provide the jumping board for this court to acquire jurisdiction over a section 2241 petition.

4) the court of appeals has considered all of the issues raised by petitioner and has decided them against him, including the issue petitioner has proffered, the lack of existence of a marijuana-laden ship, as revealed in his FOIA requests related to newly discovered evidence.

(Docket No. 29, page 26).¹

On April 27, 2012, Petitioner filed, in a timely basis, his opposition to the Magistrate Judge's Report and Recommendation. (Docket No. 31). In his opposition, Petitioner contends to having “submitted numerous documents and information showing the Honorable Court a denial of [his] fundamental constitutional rights” which would have acquitted Petitioner of all charges “had it [been] presented during trial.” Id. at 2.

Upon review of Magistrate Judge's Report and Recommendation (Docket No. 29) and Plaintiff's opposition thereto (Docket No. 31), the Court hereby ACCEPTS, ADOPTS and INCORPORATES the Report and Recommendation as outlined below and DENIES the Petition without a hearing.

I. MAGISTRATE'S REPORT AND RECOMMENDATION

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See alsoFed.R.Civ.P. 72(b); D.P.R. Civ. R. 72(a), Local Rules, District of Puerto Rico; and Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Nonetheless, an adversely affected party may contest the Magistrate Judge's Report and Recommendation by filing its objections to the recommendations made. Fed.R.Civ.P. 72(b). In such respect, 28 U.S.C. § 636(b)(1), in pertinent part, provides that:

[w]ithin fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.

(Emphasis added).

“Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Additionally, “failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150–51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate's recommendation, as well as the magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate's report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”); United States v. Valencia, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

The Court, in order to accept unopposed portions of the Magistrate Judge's Report and Recommendation, needs only satisfy itself that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996) ( en banc ) (extending the deferential “plain error” standard of review to the un-objected to legal conclusions of a magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) ( en banc ) (appeal from district court's acceptance of un-objected to findings of magistrate judge reviewed for “plain error”); Nogueras–Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (finding that the “Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous”) (adopting the Advisory Committee note regarding FED. R.CIV. P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) (finding that “when no objections are filed, the district court need only review the record for plain error”).

An adversely affected party may “contest the [m]agistrate [j]udge's report and recommendation by filing objections ‘within ten ² days of being served’ with a copy of the order.” United States v. Mercado Pagan, 286 F.Supp.2d 231, 233 (D.P.R.2003) (citing 28 U.S.C. § 636(b)(1)). If objections are timely filed, the district judge shall make a de novo determination of those portions of the report or specified findings or recommendation to which an objection is made. See Bonefont–Igaravidez v. International Shipping Corp., 659 F.3d 120 (1st Cir.2011); and Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006). In reviewing objections, this Court need not “consider frivolous, conclusive, or general objections.” Espada–Santiago v. Hospital Episcopal San Lucas, Civil No. 07–2221, 2009 WL 702350 at *1 (D.P.R.2009); see also Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991) (holding that “[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object”).

In the instant case, Petitioner made no specific objection as to any portion of the Report and Recommendation except to emphasize the last sentence of note 5 of the Report and Recommendation, which reads: “The government does not argue that petitioner lacks standing to bring the current petition. Indeed, the government addresses no details of the petition.” (Docket No. 29). Nonetheless, Petitioner fails to contest any of the determinations of the Magistrate Judge. (Docket No. 31). Consequently, the Court reviews the Report and Recommendation only for plain error.

II. DISCUSSION

Petitioner challenges the validity of his federal conviction and sentence, not its execution, alleging that he is “legally, factually, and actually innocent” of the charges filed against him, and that his conviction violates his Constitutional rights. (Docket No. 1). Petitioner's challenge is raised in a motion for a writ of habeas corpus under 28 U.S.C. § 2241 (“Section 2241”) instead of a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 (“Section 2255”). This distinction is relevant, as the use of a motion under Section 2241 requires compliance with certain requirements that are simply not met in the instant case, and which will require the Court to recharacterize as a Section 2255 motion, as explained below.

Section 2241 affords the district courts the power to issue a writ of habeas corpus if a prisoner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241. A “motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, including such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Thornton v. Sabol, 620 F.Supp.2d 203, 206 (D.Mass.2009) (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2nd Cir.2001)) (emphasis in original). The case law is clear that the proper vehicle for a collateral challenge to a criminal conviction and/or sentence is through a motion filed under Section 2255 with the sentencing court. See Heredia v. Grondolsky, 2012 WL 5932061, *2 (D.Mass.2012).

Section 2255 provides the primary means of a collateral attack on a federal sentence. See United States v. DiRusso, 535 F.2d 673, 674–676 (1st Cir.1976) (§ 2255 grants jurisdiction over post-conviction claims attacking the “imposition or illegality of the sentence.”); Rogers v. United States, 180 F.3d 349, 357 n. 15 (1st Cir.1999), cert. denied, 528 U.S. 1126, 120 S.Ct. 958, 145 L.Ed.2d 831 (2000) (motion under § 2255 is the “exclusive remedy in the sentencing court for any errors occurring at or prior to sentencing, including construction of the sentence itself.”). Section 2255 provides for post-conviction relief when the petitioner has demonstrated that his sentence “(1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack.” Moreno–Morales v. United States, 334 F.3d 140, 148 (1st Cir.2003) (citing David v....