Sánchez-Burgos v. Vega-Aponte
| Decision Date | 27 April 2021 |
| Docket Number | CIVIL NO. 18-1031 (PAD) |
| Parties | ANTONINO SÁNCHEZ-BURGOS, Petitioner, v. JOSÉ VEGA-APONTE, et. al. Respondents. |
| Court | U.S. District Court — District of Puerto Rico |
The petitioner was sentenced for second-degree murder in 1998 and for first-degree murder and firearm violations in 1999. On January 22, 2018, he applied pro se for federal habeas relief challenging the 1999 conviction pursuant to 28 U.S.C. § 2254. On July 31, 2020, he filed through court-appointed counsel a motion to vacate both the 1998 and 1999 convictions under Section 2254. Respondents moved to dismiss. Because petitioner did not exhaust all claims in state court; even if he had done so the petition would be untimely; and the record does not justify reliance on the narrow "miscarriage of justice" gateway that the Supreme Court has recognized for defaulted and untimely claims involving tenable assertions of actual innocence, respondents' motion is GRANTED, and the case DISMISSED.
In July 1997, petitioner pled guilty in the Court of First Instance of Puerto Rico ("CFI") to the second-degree murder of Mr. José Hernández-Jiménez (Docket No. 56, p. 2). As he was on probation for firearms and controlled substance violations at the time of the event, on December 7,1998, the CFI revoked probation and sentenced him to 22 years of imprisonment. Id. He did not challenge the sentence on appeal. In September 1999, he was found guilty after a jury trial in the CFI of weapons law violations and of the first-degree murder of Mr. Osvaldo Jiménez-Vélez. Id. at 2. On November 23, 1999, the CFI sentenced him to 105 years of imprisonment. Id. On December 22, 1999, he appealed that sentence (id., at 4), which the Puerto Rico Court of Appeals ("CA") affirmed on October 25, 2000. Id. He did not seek direct review of the CA's determination with the Puerto Rico Supreme Court. Id.
Nearly 14 years later, on October 23, 2014, petitioner filed a motion for a trial de novo as to the 1999 conviction in the CFI under Rule 192.1 of the Puerto Rico Rules of Criminal Procedure, P.R. Laws Ann. tit. 34, Ap. II, R. 192.1 (Docket No. 2-1, p. 2).2 On August 12, 2015, the CFI conducted an evidentiary hearing (Docket No. 21-1, p. 2). On January 11, 2016, it issued a Resolution, notified on January 12, 2016, denying petitioner's request (Docket No. 56 p. 5). On January 26, 2016, petitioner moved for reconsideration (Docket No. 21-1, p. 7). By Resolution dated February 3, 2016, notified on February 8, 2016, the CFI turned down the reconsideration motion. Id. On March 9, 2016, petitioner asked the CA to issue a writ of certiorari to overturn the CFI's decision (Docket No. 21-1). On May 17, 2016, the CA affirmed the CFI. Id. On November 4, 2016, the Puerto Rico Supreme Court denied a request for certiorari regarding the CA's ruling (DocketNo. 21-2). On January 20, 2017, it denied a request to reconsider its previous order (Docket No. 21-3).
On January 22, 2018, petitioner filed, pro se, an application for habeas relief under 28 U.S.C. § 2254 in relation to the 1999 conviction (Docket No. 2-1, p. 15). On April 5, 2018, respondents moved to dismiss (Docket No. 14). In the meantime, petitioner requested that the court appoint counsel, which the court did (Docket Nos. 4, 19, 23, 25, 28, and 29). In light of the appointment, the court denied respondents' motion to dismiss without prejudice of it being refiled at a later stage (Docket No. 29). On July 31, 2020, court-appointed counsel filed on petitioner's behalf a renewed motion to vacate the 1999 sentence and, for the first time, to vacate the 1998 conviction (Docket No. 50, pp. 1-2, 22-23).3 On September 25, 2020, respondents moved to dismiss (Docket No. 56).
Challenges by a state prisoner to the "fact or length" of confinement are brought by petition for a writ of habeas corpus on the authority of 28 U.S.C. § 2254. Preiser v. Rodríguez, 411 U.S. 475, 487 (1973); Ira P. Robbins, Habeas Corpus Checklists, Thomson Reuters (2019-2020 Ed.), Sec. 2.1, p. 12. To this end, Section 2254(a) provides that a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treatises of the United States." 28 U.S.C. § 2254(a). Additionally, the Rules Governing Section 2254 Cases in the United States District Courts cover cases of persons in custody under a state-court or federal-court judgment who seek a determination that future custody under a state-court judgment would violate the Constitution, laws, or treatises of the United States. See, Rule 1(a)(2). Collateral review of a conviction is not a "rerun of the direct appeal." Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir.), cert denied 502 U.S. 895 (1991). An error that may justify reversal on direct appeal "will not necessarily support a collateral attack on a final judgment." Brecht v. Abrahamson, 507 U.S. 619, 634 (1993).
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 214 (1996) ("AEDPA") instructs that federal habeas relief "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011). This requirement "embodies principles of federal-state comity and is designed to provide state courts with an initial opportunity to pass upon and correct alleged violations of [their] prisoners' federal rights." Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002)(quoting Picard v. Connor, 404 U.S. 270, 275 (1971))(alteration in original). For the same reason, "a petitioner's failure to present his federal constitutional claim to the state courts is ordinarily fatal to the prosecution of a federal habeas case." Coningford, 640 F.3d at 482. To satisfy the exhaustion requirement, the petitioner must present the federal claim "fairly and recognizably to the state courts." Clemens v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007). A claim is fairly presented when the petitioner has tendered his federal claim in such a way as to "make it probable that a reasonable jurist would have been alerted to the existence of the federal question." Id.
Petitioner did not appeal or collaterally attack in the state the 1998 conviction. For this reason, he is precluded from doing so here. Conversely, exhaustion was accomplished as to the 1999 conviction, but only with respect to three of the nine claims that petitioner included in the original 2018 petition as amended by the July 2020 motion, namely: actual innocence related to recantation of a trial witness' testimony; suppression of report with potentially exculpatory evidence; and the fact that jury foreperson's son had some sort of friendship with the victim. See, Appendix, Sections A-F.4 With this, the record reflects what may properly be considered a mixed petition, that is, apetition with "both exhausted and unexhausted claims." Gaskins v. Duval, 640 F.3d 443, 449 (1st Cir. 2011).
In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that a federal district court could not adjudicate mixed habeas petitions. Id. at 510. The Court reasoned that such a rule would "further [ ] the policy of comity underlying the exhaustion doctrine." Id. at 514. It expressed that requiring "total exhaustion" would "encourage state prisoners to seek full relief first from state courts, thus giving those courts the first opportunity to review all claims of constitutional error." Id. at 518-519. Moreover, it observed that federal claims that have been fully exhausted in state courts would more often "be accompanied by a complete factual record to aid the federal courts in their review." Id. at 519. And it pointed out that both courts and prisoners would benefit, for as a result, the district court would be "more likely to review all of the prisoner's claims in a single proceeding [which would provide] for a more focused and thorough review." Id. at 510, 520. At the same time, the Court gave petitioners the option of deleting the unexhausted claims or voluntarily dismissing the petition and returning to state court to fully exhaust claims. Id. Once all claims are exhausted, the petitioner may refile the petition in federal court. See, Slack v. McDaniel, 529 U.S. 473, 486 (2000)( that a Lundy dismissal contemplates that the prisoner could return to federal court after the requisite exhaustion).
With this background, as part of the AEPDA Congress adopted a one-year statute of limitations for the filing of fully exhausted claims in a federal habeas petition but did not provide for the tolling of the limitations period while a habeas petition was pending in federal court. See, Duncan v. Walker, 533 U.S. 167, 169, 172-173, 181-182 (2001)(Congress did not intend properly filed applications for federal review to toll limitations period to exhaust state post-conviction or collateral review proceedings); Josselyn v. Dennehy, 475 F.3d 1, 4 (1st Cir. 2007)(Congress did not provide for the tolling of the limitations period while a mixed habeas petition is pending in federal court). Consequently, petitioners who come to federal court with a mixed petition ran the risk of forever losing their opportunity for any federal review of their unexhausted claims. See, Watt v. Marchilli, 217 F.Supp.3d 434, 440 (D. Mass. 2016)(so recognizing). To remedy the problem, in Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court approved a "stay and abeyance" procedure whereby rather than dismissing a mixed petition, a district court can stay the petition and hold it in abeyance while the petitioner exhausts the unexhausted claims. Id. at 271. Once all of the claims have been exhausted, the district court can lift the stay and adjudicate the perfected...
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