Rosado v. Martinez, Civ. No. 553-72.

• Citation: 369 F. Supp. 477
• Decision Date: 23 January 1974
• Docket Number: Civ. No. 553-72.
• Parties: Francisco Rivera ROSADO, Petitioner, v. Tomas Concepcion MARTINEZ, Respondent.
• Court: U.S. District Court — District of Puerto Rico

369 F. Supp. 477

Francisco Rivera ROSADO, Petitioner, v. Tomas Concepcion MARTINEZ, Respondent.

Civ. No. 553-72.

United States District Court, D. Puerto Rico.

January 23, 1974.

Blas C. Herrero, Jr., San Juan, P. R., for petitioner.

Ulpiano F. Crespo, Pros. Atty., Dept. of Justice of Commonwealth of Puerto Rico, San Juan, P. R., for respondent.

ORDER

CANCIO, Chief Judge.

On June 29, 1972, the petitioner, Francisco Rivera Rosado, filed a petition for a writ of habeas corpus. The petitioner is collaterally attacking the validity of a guilty plea to a charge of having violated Section 29 of the Narcotic Law of Puerto Rico, which makes the possession of heroin a punishable offense. A brief review of the chronological events leading up to the petition indicates the following:

On January 7, 1961, the petitioner was arrested in the company of Francisco Lloret Ríos in Cataño, Puerto Rico. Sworn statements were taken of the petitioner, of another person subsequently charged, and of the arresting officer. In a sworn statement dated January 9, 1961, the arresting officer, Héctor M. Lugo Montalvo, said that at approximately 11:30 p. m. on the 6th of January, 1961, he surprised the petitioner and Francisco Lloret Ríos while they were injecting themselves. Policeman Lugo Montalvo states that Francisco Rivera Rosado was detained in the act of injecting himself, using for this purpose an eyedropper with a number 22 hypodermic needle and a nipple tied with a black thread. The eyedropper contained a mixture of blood and a liquid. He was injecting this into the vein of his left arm.

Policeman Lugo Montalvo further stated that Francisco Rivera Rosado told him "that this was the first time that he ever had injected himself and that the material had been supplied by the other individual." Francisco Lloret Ríos (the other individual) in his statement said that he "injected himself every day and that the liquid he bought from another individual for $5.00."

Residual traces of heroin were found on a bottle cap in the possession of Francisco Lloret Ríos, arrested at the same time as petitioner. The material taken from the petitioner in the act of injecting himself was sent to a chemist for analysis. The chemist reported that there was no narcotic drug whatsoever. Nevertheless, the petitioner was charged with violation of Section 29 of the Narcotic Law of Puerto Rico on February 27, 1961 in an indictment which charged that he and "Francisco Lloret Ríos, jointly and by mutual agreement, had in their possession and control and applied to themselves the narcotic drug known as heroin."

On April 26, 1961 the defendant pleaded guilty. At no time did the prosecuting attorney indicate to the Court that there was anything in his file which favored the accused. Absolute silence was maintained throughout by the government. The only mitigating circumstances which were presented by the attorney for the defendant was that the boy was eighteen years old, was a good person and that one day the defendant began to drink, had a few drinks, and from there on had commenced the situation in which the defendant was now involved. No mention was ever made by either the prosecution or the defense of the fact that no narcotics were found on any of the items taken from the petitioner. No mention was made of the fact that the chemical analysis of the bloody liquid that was taken from the defendant in the act of injecting himself was negative as to any narcotic drug.

On July 21, 1961, the petitioner was sentenced to five to ten years imprisonment and the sentence imposed was suspended and the petitioner placed on probation. Sometime later while still on probation, he was re-arrested on other charges and the sentence was re-imposed, probation having been revoked.

In 1967, the petitioner, finding himself incarcerated as a direct consequence of the original charge to which he had pleaded guilty for possession of heroin, determined to re-open the question of the legal validity of his plea of guilty to the original charge. By then he had found out about the negative results of the chemical test. Accordingly, he filed a petition for a writ of habeas corpus, which was denied on November 10, 1967 by the sentencing Court. Again, on December 3, 1968, the petitioner, through his attorney, filed a motion before the same court requesting that his sentence be annulled, alleging the illegality of the sentence. This motion was argued on February 14, 1969 and was denied. He then filed the petition for a writ of habeas corpus that is now before this Court.

There can be no doubt that Francisco Rivera Rosado had no actual possession of any narcotic drug. Neither in the eyedropper nor in the bloody liquid with which he was injecting himself, nor on the hypodermic needle was there even the slightest trace of any narcotic drug. This is the clear result of the chemical analysis performed at the time of petitioner's arrest and now part of the record of this case, but never brought to light until after the conviction and sentencing of the petitioner.

The only question, then, is whether, as a matter of fact and of law, the petitioner was in constructive possession of the residual traces of heroin to be found in the possession of the codefendant, Francisco Lloret Ríos. The argument presented by the attorney representing the respondent is that the conviction and sentence of Francisco Rivera Rosado should be sustained by attributing to Francisco Rivera Rosado the possession of the residual traces of the narcotic drug found on the bottle cap in the possession of Francisco Lloret Ríos, who was beside the petitioner when he was arrested. This Court...