Ortiz v. U.S.

Full title: JAVIER FRANKY ORTIZ, Petitioner v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, D. Puerto Rico

Date published: Apr 27, 2005

Civil No. 01-2469(SEC) (D.P.R. Apr. 27, 2005)

Opinion

Civil No. 01-2469(SEC).

April 27, 2005

ORDER

SALVADOR CASELLAS, District Judge

DENIED. Petitioner's Section 2255 motion was denied on September 24, 2004. See Docket # 18. Subsequently, on October 19, 2004, Petitioner filed the present motion. Because Petitioner's motion was filed well in excess of the ten-day period prescribed for Rule 59(e) motions, Petitioner's motion will be construed as one filed pursuant to Rule 60. F.R.Civ.P. 60(b). Petitioner requests that the Court reconsider the denial of his § 2255 motion and apply the Supreme Court's ruling inBlakely v. Washington, 124 S. Ct. 2531 (2004) to his case. Based on the arguments contained in Petitioner's motion, we find that he presents a paradigmatic habeas claim and thus, we must treat his request as a successive habeas petition and apply the restrictions contained in the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. See Rodwell v. Pepe, 324 F.3d 66, 71 (1^st Cir. 2003) (holding that "a district judge should treat a Rule 60(b) motion in a habeas case as a second or successive habeas petition whenever the motion threatens to encroach upon precincts patrolled by the AEDPA, that is, whenever the factual predicate set forth in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction"). See also Munoz v. United States, 331 F.3d 151 (1^st Cir. 2003) (extending the Rodwell holding to § 2255 habeas cases). Thus, in order for Petitioner to be able to obtain any relief from judgment, he must first obtain from "the appropriate court of appeals . . . an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A) (as incorporated in 28 U.S.C. § 2255). Petitioner has not obtained said authorization. That being the case, we must DENY Petitioner's motion for reconsideration.

In any event, with respect to Petitioner's argument underBlakely, we stress that the First Circuit in Cuevas v. Derosa, 386 F.3d 367, 367-68 (1^st Cir. 2004), expressed that "a new rule of law can form the basis for a second or successive habeas petition only if that rule is `made retroactive to cases on collateral review by the Supreme Court'" and that the Supreme Court has not made its ruling in Blakely retroactive to cases on collateral review (internal citation omitted). See Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004) (noting that "the Supreme Court has not made the Blakely rule applicable to cases on collateral review"); Simpson v. United States, 376 F.3d 679, 681-682 (7^th Cir. 2004) (same); In re Dean, 375 F.3d 1287, 1290 (11^th Cir. 2004) (observing that "the Supreme Court has strongly implied that Blakely is not to be applied retroactively").