Santos v. Ebbert, CIVIL NO. 3:11-CV-2270
| Decision Date | 10 May 2012 |
| Docket Number | CIVIL NO. 3:11-CV-2270 |
| Parties | RAFAEL SANTOS, Petitioner v. DAVID EBBERT, WARDEN, Respondent |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE NEALON)
(MAGISTRATE JUDGE PL EWITT)
On December 8, 2011, Rafael Santos ("Petitioner"), an inmate currently incarcerated at the Allenwood Federal Correctional Institute in White Deer, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his 1989 criminal conviction in the United States District Court for the Southern District of New York. (Doc. 1). Petitioner also filed a motion to appoint counsel. (Doc. 3). Pursuant to Rule 4 of the Rules Governing Section 2255 Cases, Magistrate Judge Thomas M. Blewitt screened the petition. See U.S.C. Sec. 2255 Cases R. 4; Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979) (Nealon, J.) (). On January 31, 2012, Magistrate Judge Thomas M. Blewitt issued a Report and Recommendation ("R&R") recommending that the habeas petition be dismissed for lack of jurisdiction. (Doc. 9). On February 9, 2012, Petitioner filed objections to the R&R. (Doc. 10). For the reasons set forth below, the R&R will be adopted.
The R&R thoroughly outlines the factual and procedural history of this case, which will not be repeated in toto here. See (Doc. 9, pp. 1-6). Significantly, in September 1988, two DrugEnforcement Administration ("DEA") confidential informants bought cocaine from Rafeal Romero and Albert Rodriguez in an apartment used for large-scale drug trafficking operations, (hi); see also United States v. Romero, 897 F. 2d 47, 49 (2d Cir. 1990), cert. denied, 497 U.S. 1010 (1990); United States v. Romero, et al., No. 1:88-cr-642 (S.D.N.Y. September 20, 1988). During the drug transaction, Petitioner hid in a closet, armed with a .357 Magnum revolver, as a look-out in case anything went wrong. Id. A jury found that when DEA agents raided the apartment, Petitioner shot one of the agents in the face causing serious injuries. Id. Petitioner and one of the DEA informants were also injured in the ensuing gun battle. Id. On March 14, 1989, the jury convicted Petitioner of conspiracy to distribute more than five (5) kilograms of cocaine, 21 U.S.C. § 846; possession of approximately one (1) kilogram of cocaine with intent to distribute, 21 U.S.C. § 841; conspiracy to murder a federal officer, 18 U.S.C. § 1117; attempted murder of a federal officer, 18 U.S.C. §§ 1111 and 1114; assault of a federal officer with a deadly weapon, 18 U.S.C. § 111; use of a firearm during the course of a narcotics trafficking offense, 18 U.S.C. § 924(c); and receipt and possession of a firearm with a defaced serial number, 26 U.S.C. §§ 5861(h). Id. Petitioner received concurrent sentences of life imprisonment on each of the conspiracy charges, twenty (20) years for attempted murder, ten (10) years each for the assault and the possession, and a consecutive five (5) years for use of a firearm and receipt of a defaced firearm. Id. Petitioner's conviction and sentence were affirmed on direct appeal and a petition of writ of certiorari was denied by the United States Supreme Court. Id.
On March 3, 1993, Petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255 in the sentencing court. See Santos v. United States, 1993 U.S. Dist. LEXIS 9735 (S.D.N.Y. 1993); see also United States v. Romero, et al., 1:88-cr-642 (S.D.N.Y. filed September 20, 1988).The United States District Court for the Southern District of New York dismissed the petition, concluding that Petitioner was barred from collateral review because he failed to raise his claims on direct appeal and could not establish cause to excuse his procedural default. Santos, 1993 U.S. Dist. LEXIS 9735 at *4-6.
Petitioner filed several additional section 2255 motions in the Southern District of New York. See Santos v. Dodrill, No. 3:02-cv-1449 (M.D. Pa. filed August 19, 2002) (Nealon, J.) at (Doc. 21) (The Third Circuit Court of Appeals noted that Petitioner's first motion pursuant to 28 U.S.C. § 2255 was denied by the sentencing court in 1993, he voluntarily dismissed his second section 2255 motion, and a third section 2255 motion was denied in 2002.). He currently has an application for DNA testing pending with the trial court. (Doc. 1, Ex. A); United States v. Romero, et al., 1:88-cr-642 at (Doc. 140) (S.D.N.Y. September 19, 2011).
On August 19, 2002, Petitioner filed his first1 section 2241 habeas corpus petition in this Court. Santos. No. 3:02-cv-1449 (M.D. Pa. 2002) (). The petition was dismissed for lack of jurisdiction because 28 U.S.C. § 2255 provided an adequate and effective remedy. Id. at (Docs. 10,14). This decision was affirmed on appeal by the Third Circuit Court of Appeals and a petition forwrit of certiorari was denied by the United States Supreme Court. Id. at (Docs. 21, 23).
The instant habeas petition, pursuant to 28 U.S.C. § 2241, was filed on December 8, 2011. (Doc. 1). Petitioner alleges, inter alia, that he did not fire his weapon at the DEA agents; rather, one of the DEA agents accidently shot Agent Travers. (Id. at pp. 14, 32). Petitioner claims that the shots he fired either went into the floor or into his own hand. (Id.). He believes DNA testing of the bullet will confirm his theory and has submitted an application for DNA testing in the trial court. (Id., Ex. A). Petitioner argues that this new evidence will support a conviction for attempted felony murder, but will exonerate him of conspiracy and attempted murder or assault of a federal officer. (Id. at p. 32).
Petitioner claims that in 1991, years after his trial, several newspaper articles were published stating that Group 33 DEA agents were being investigated for wrongful activity and that the United States Attorney's Office was aware of the complaints no later than August 1990. (Doc. 1, pp. 23-25). He alleges that Group 33 DEA agents, including Agents Geisel, Hunt, and Travers, were involved in his case, but the Government failed to disclose information regarding their misconduct in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that he was thereby denied due process. (Id. at pp. 23-25, 31-45). Petitioner alleges that he would not have been convicted if the jury was aware of the credibility issues with the DEA agents. (Id.) (citing United States v. Wallach, 935 F.2d 445 (2d Cir. 1991)).3 He acknowledges that there is no proof theGovernment had such information before 1990, but argues that should not be the end of the Brady inquiry because the Government had this knowledge at the time of Petitioner's direct appeal and first section 2255 motion. (Id.). Additionally, he claims the Government knew of the glaring instances of misconduct prior to his arrest and should have been more diligent in investigating these agents. (Id. at p. 43).
Petitioner acknowledges that a habeas corpus petition under 28 U.S.C. § 2241 is not a substitute for a section 2255 motion and may not be used merely because he is procedurally barred from filing under section 2255. (Doc. 1, p. 4). However, he asserts that section 2241 is the proper vehicle for him to obtain relief because he is actually innocent. (Id. at p. 2). Petitioner argues that his actual innocence creates an exception to the procedural default barriers regardless of whether he can show cause for failing to bring the claims earlier. (Id. at pp. 27-30), citing Schlup v. Delo, 513 U.S. 298 (1995) (); Coleman v. Thompson, 501 U.S. 722 (1991) (). Petitioner alleges he is actually innocent of conspiracy to murder and attempted murder of a federal agent. (Id. at pp. 31- 34). He contends that without the testimony of Agents Geisel and Hunt he would not have been convicted of the most serious offenses. (Id. at pp. 31-34, 39-44).
The R&R explains that a "motion under 28 U.S.C. § 2255 is the proper procedure for afederal prisoner to raise a collateral attack on his or her federal sentence for any error that occurred at or prior to sentencing." (Doc. 9, p. 11) (quoting Paulino v. United States, 2010 U.S. Dist. LEXIS 61100 (W.D. Pa. 2010)). Magistrate Judge Blewitt finds that the instant habeas claims fall within the purview of section 2255 because they challenge the validity of Petitioner's conviction and sentence. (Id.), citing Manna v. Schultz, 591 F.3d 664, 665 (3d Cir. 2010) (), cert. denied, 131 S. Ct. 192 (2010).
The Magistrate Judge concludes there is a high bar to allow a petitioner to seek relief under section 2241. (Doc. 9, p. 13). Magistrate Judge Blewitt reasons that simply because Petitioner's prior motions were denied, section 2255 is not inadequate or ineffective. (Id. at p. 10), citing Romero v. Holt, 240 Fed. Appx. 934 (3d Cir. 2007);4 Fake v. Yost, 416 Fed. Appx. 133 (3d Cir. 2011) (). The Magistrate Judge rejects Petitioner's argument that section 2255 is unavailable because he did not discover the Brady violation until after the time expired to file a motion to vacate. (Doc. 9, p. 12). The R&R explains that Petitioner can still file...
To continue reading
Request your trial