Torres–Santiago v. United States

• Decision Date: 31 March 2012
• Docket Number: Civil No. 09–1028 (DRD).,Criminal No. 01–0640(DRD).
• Citation: 865 F.Supp.2d 168
• Parties: Raymond TORRES–SANTIAGO, Petitioner v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

865 F.Supp.2d 168

Raymond TORRES–SANTIAGO, Petitioner
v.
UNITED STATES of America, Respondent.

Civil No. 09–1028 (DRD).
Criminal No. 01–0640(DRD).

United States District Court,
D. Puerto Rico.

March 31, 2012.

[865 F.Supp.2d 172]

Raymond Torres–Santiago, White Deer, PA, pro se.

Nelson J. Perez–Sosa, United States Attorneys Office, San Juan, PR, for Respondent.

OPINION AND ORDER
DANIEL R. DOMINGUEZ, District Judge.

Pending before this Court is a motion filed by petitioner Raymond Torres–Santiago (“Petitioner”) to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1), which was referred to Magistrate Judge Justo Arenas for a Report and Recommendation (Docket No. 13).

Upon review of Magistrate Judge's Report and Recommendation (Docket No. 15) and Plaintiff's opposition thereto (Docket No. 18), the Court hereby ACCEPTS, ADOPTS and INCORPORATES the Report and Recommendation as outlined below and DENIES Petitioner's motion filed under 28 U.S.C. § 2255.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2009, Petitioner, along with ten other defendants, were charged in a two-count indictment in that, as to the first count, defendants knowingly and intentionally combined, conspired, confederated and agreed with each other and with diverse other persons, to distribute multi-kilogram quantities of controlled substances in excess of one (1) kilogram of heroin (a Schedule I, Narcotic Drug Controlled Substance), in excess of five (5) kilograms of cocaine (a Schedule II Narcotic Drug Controlled Substance), and in excess of fifty (50) pounds of marijuana (a Schedule I Controlled Substances), as prohibited in 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. The second count was under 18 U.S.C. § 982 for forfeiture to the U.S. on any property constituted or derived from proceeds obtained directly or indirectly as a result of the activities described in the first count of the indictment. (Criminal No. 01–0640(DRD), Docket No. 2).

Pursuant to the record in Criminal No. 01–0640(DRD), the jury trial began on June 9, 2003 (Criminal No. 01–0640(DRD), Docket No. 226), but the next day, Petitioner entered a plea of guilty as a result of a plea agreement. Petitioner was sentenced on September 30, 2003 to 336 months of imprisonment (Criminal 01–0640(DRD), Docket No. 287). On October 9, 2003, Petitioner filed a notice of appeal (Criminal 01–0640(DRD), Docket No. 302). On May 26, 2006, judgment was entered by the U.S. Court of Appeals for the First Circuit. As a result of that judgment, the conviction and sentence of petitioner were affirmed. Thereafter, Petitioner filed a writ of certiorari with the U.S. Supreme Court, which was denied on October 10, 2006.¹

On September 26, 2007, approximately eleven (11) months into the one-year statute of limitations for filing a Section 2255 Motion, Petitioner was sent to a special housing unit (“SHU”) as a result of an incident report he received while in prison. Petitioner's stay at the SHU ended on January of 2008. (Docket No. 1–2, pages 31–32).

On November 8, 2007, Petitioner requested the Clerk of the Court to provide

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the necessary documents for filing a Section 2255 Motion. Nonetheless, by such date the one-year statute of limitations had expired almost one full month before Petitioner sent his request to the Clerk of the Court. (Docket No. 1–2, page 28). Thereafter, Petitioner alleges that various other unfortunate events further prevented him from filing a Section 2255 Motion. (Docket No. 1–2, page 32). Nonetheless, those attempts were made after October of 2007, well after the statute of limitations had already run on Petitioner for filing his Section 2255 Motion.

On January 13, 2009, Petitioner filed a Section 2255 Motion alleging that Petitioner's guilty plea was not voluntary or with understanding of the nature of the charges and the consequences to the guilty plea; and that Petitioner's legal counsel was ineffective because Plaintiff's counsel failed to: (a) raise the Apprendi² error; (b) object to the calculations of the controlled substances quantities; (c) object to the unlawful sentencing enhancements; and (d) present mitigating evidence at Petitioner's sentencing proceeding. (Docket No. 1).

On July 8, 2009, the government filed a response in opposition to Petitioner's Section 2255 Motion. (Docket No. 6). In their opposition, the government alleged that Petitioner failed to meet the criteria of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for purposes of establishing ineffective assistance of counsel; that Petitioner understood the consequences of accepting the plea agreement; that Petitioner accepted the plea voluntarily and without reservations; and that Petitioner was satisfied with his counsel. In support of such allegations, the government quoted a few portions of Petitioner's testimony during the sentencing and change of plea hearings. Specifically, the government quoted Petitioner's responses to the Court's inquiries in connection with Petitioner's acceptance of the quantity of the drugs; Petitioner's satisfaction with his legal representation; the translation of the plea agreement documents by Petitioner's counsel; Petitioner's understanding of the plea agreement and its terms; and Petitioner's voluntary acceptance of the plea agreement. (Docket No. 6, pages 2–4). Further, the government noted that the Court stated it could have imposed a harsher sentence to Petitioner upon remand. (Docket No. 6, page 4). Lastly, the government alleged that the instant case should be dismissed because it is time-barred. (Docket No. 6, pages 4–5).

On March 8, 2010, Petitioner filed a reply to the response rehashing all of the allegations already included in his Section 2255 Motion. (Docket No. 12).

On February 14, 2012, the Court referred Petitioner's Section 2255 Motion to Magistrate Judge Justo Arenas. (Docket No. 13). On February 17, 2012, Magistrate Judge Arenas entered his Report and Recommendation recommending that the Court deny Petitioner's Section 2255 Motion because it is time barred; nonetheless, Magistrate Judge Arenas went on to analyze the merits of Petitioner's arguments regarding the alleged lack of a voluntary plea and ineffective legal assistance. (Docket No. 15). Magistrate Judge Arenas concluded that, based on the record of Criminal No. 01–0640(DRD), Petitioner's

[865 F.Supp.2d 174]

allegations are without merit and that Petitioner failed to establish that his counsel's representation fell below an objective standard of reasonableness.

On March 13, 2012, Petitioner opposed the Report and Recommendation. (Docket No. 18). In his opposition, Petitioner alleged that Magistrate Judge Arenas failed to consider Petitioner's showing of reasonable or due diligence so as to warrant equitable tolling of the statute of limitations for filing a Section 2255 Motion. Lastly, Petitioner made a general objection to the Report and Recommendation in its entirety.

II. 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

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Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) ( en banc ) (appeal from district court's acceptance of...