Villega-Angulo v. United States
| Decision Date | 30 September 2016 |
| Docket Number | Criminal No. 99–295,Civil No. 06–1914 (DRD) |
| Citation | 213 F.Supp.3d 305 |
| Parties | Victor Manuel VILLEGA–ANGULO, Petitioner, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Victor Manuel Villega–Angulo, Coleman, FL, pro se.
Nelson J. Perez–Sosa, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION RE: SECOND OR SUCCESSIVE § 2255 PETITION
Pending before the Court are: (a) Notice of Filing of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 United States Code, Section 2255 (F)(3) , filed by petitioner Victor Manuel Villega–Angulo ("Villega–Angulo"), Docket No. 14; (b) the United States' Response to Petitioner's Motion under 28 U.S.C. § 2255 , Docket No. 16; (c) Petitioner's Reply to the United States' Response to Petitioner's Motion under 28 U.S.C. § 2255 , Docket No. 17; and, (d) the Magistrate Judge's Report and Recommendation Denying a Second or Successive Motion under 28 U.S.C. § 2255 , Docket No. 18. For the reasons set forth by the Hon. Magistrate Judge Justo Arenas ("Magistrate Judge Arenas"), the Court adopts in toto the report and recommendation, as supplemented herein.
The issue before the Court is whether Villega–Angulo's second or successive motion under 28 U.S.C. § 2255 or merely petitioner's application entitled Notice of Filing of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 United States Code, Section 2255(F)(3) , within thirty days constitutes sufficient grounds to allow the petitioner's second or successive 2255 motion, or even a potential second or successive 2255 motion. See Docket No. 14. This matter was referred to Magistrate Judge Arenas for report and recommendation, Docket No. 19. Magistrate Judge Arenas issued a thorough Report and Recommendation denying petitioner's application to file a second or successive motion under 28 U.S.C. § 2255, Docket No. 18. As of this date, the Report and Recommendation issued by Magistrate Arenas stands unopposed.
The Court is familiar with petitioner Villega–Angulo as this is not the first time that this petitioner knocks on this Court's door. Notwithstanding, a summary of the facts that leads to a second or successive petition under 28 U.S.C. § 2255 is warranted, after fifteen years of continued litigation.
Petitioner Villega–Angulo was first indicted on five counts on September 8, 1999,1 Criminal No. 99–295 (DRD), "charging crimes related to a violent robbery, hostage-taking, two murderers and serious injury to a third victim." See Report and Recommendation , Docket No. 18, page 1. "The object of the robbery was the expected cash on hand at a warehouse operated by Fernandes Editores, a Mexican company which published coloring books and other materials for children." Id. Petitioner was charged with four other defendants, and all were found guilty by a jury on August 2, 2002. See Report and Recommendation , Docket No. 18, page 3.
On March 31, 2003, the district court sentenced petitioner Villega–Angulo to a term of imprisonment of 240 months as to Count One, 180 months as to Count Three, and life imprisonment as to each of Counts Two, Four and Five, the terms to be served concurrently with each other. See Report and Recommendation , Docket No. 18, page 3. Mr. Villega–Angulo appealed his judgment, and the United States Court of Appeals for the First Circuit ("First Circuit"), granted in part, reversed in part, and remanded the petitioner's judgment for further proceedings. On July 14, 2005, the district court on remand, "sentenced petitioner to serve 24 months of imprisonment as to Count One, 180 months as to Count Three, and life imprisonment as to each of Counts Two and Five." Id. , page 4. "Petitioner was resentenced to 60 months of imprisonment as to Count Four. Id.
Shortly thereafter, on September 14, 2006, Mr. Villega–Angulo's first petition under 28 U.S.C. § 2255 followed. On July 9, 2008,2 the Court denied with prejudice petitioner's first petition under Section 2255 on the grounds that the "petition was timed barred since there had been no appeal after resentencing and the one-year statute of limitations had run." See Opinion and Order, Judgment and Report and Recommendation , Docket entries No. 8, 9 and 18.
After the Judgment of July 9, 2008 became final, petitioner filed a pro se motion entitled Petitioner's Request For Excusable Neglect For Untimely Filing Of His § 2255 Motion And Any Notice Of Appeal Where Circumstances Beyond His Control Has Caused Any Untimeliness , Docket No. 10. On April 19, 2011, the Court denied petitioner's request for excusable neglect and equitable tolling for failure to meet the threshold that the one year statute of limitations was equitable tolled. See Docket No. 12. Notwithstanding, the Court granted the petitioner a certificate of appealability in the event petitioner files a notice of appeal of the Order entered on April 19, 2011, and in the event that the First Circuit finds that there is a scintilla of evidence showing that Villega–Angulo "has made a substantial showing of the denial of a constitutional right." Id. page 13.
More than a year elapsed when on May 16, 2012, petitioner Villega–Angulo filed a Notice Of Filing Of Motion To Vacate, Set Aside, Or Correct Sentence Pursuant To 28 United States Code, Section 2255(F)(3) . See Docket No. 14. In sum, petitioner notified the Court that he would be filing a [second] motion to vacate, set aside, or correct his sentence within thirty days. Id.
The record shows that, as of May 16, 2012, petitioner did not appeal the Order of April 19, 2011 or requested authorization from the First Circuit before filing the second or successive motion under Section 2255 in the district court. The United States filed its Response To Petitioner's Motion Under 28 U.S.C. § 2255 on July 18, 2012, Docket No. 16, treating petitioner's pleading of May 16, 2012, "as a second or successive 2255 motion" ... and "it stresses that this second petition should be summarily dismissed because it is in fact a second or successive 2255 motion filed without the approval of the court of appeals." See Report and Recommendation , Docket No. 18, page 6. "In the alternative, the United States notes that referral to the court of appeals is appropriate as this court lacks subject matter jurisdiction." Id.
On August 17, 2012, petitioner filed a reply without leave of court "explaining that the pleading he had filed was not the 2255 motion but rather a notice to file such a motion within thirty days thence, which motion would rely on two intervening Supreme Court decisions Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) and Missouri v. Frye , 566 U.S. 133, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012)." See Report and Recommendation , Docket No. 18, pages 6–7. The Court finds important to include the analysis made by Magistrate Judge Arenas regarding the Supreme Court opinions of Lafler v. Cooper and Missouri v. Frye in footnote number 33 of the Report and Recommendation .
The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993) ; Rule 72(b) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."); Rule 72 of the Local Rules for the District of Puerto Rico ("Local Rules"). See Mathews v. Weber , 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As a general rule, an adversely affected party may contest the Magistrate Judge's report and recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72 ; Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides that:
Within 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.
However, "[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a 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). Moreover, "[f]ailure 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 objection are precluded on appeal." Davet v. Maccarone , 973 F.2d 22, 30–31 (1st Cir. 1992). See also Nogueras–Cartagena v. United States , 172 F.Supp.2d 296 (D.P.R.2001), affirmed by Nogueras–Cartagena v. United States , 75 Fed.Appx. 795 (1st Cir.2003) (), cert. denied, Nogueras–Cartagena v. Department of Justice, 540 U.S. 1183, 124 S.Ct. 1424, 158 L.Ed.2d 87 (2004).
Hence, in order to accept the unopposed Report and Recommendation , the Court needs only satisfy itself by ascertaining 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 unopposed legal conclusions of a magistrate judge); Nettles v. Wainwright , 677 F.2d 404, 410 (5th Cir. 1982) (en banc ) (); Nogueras–Cartagena v. United States , 172 F.Supp.2d 296, 305 (D.P.R. 2001) (...
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