Opinion
Civil No. 04-1882 (PG), Related to Criminal No. 90-130 (PG).
April 29, 2005
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Erick Flores-Rivera (hereafter "Flores"), proceeding pro se, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on August 24, 2004 ( Docket No. 1). On March 31, 2005, the government responded to the motion and asks that it be dismissed on the basis that this Court lacks jurisdiction. ( Docket No. 6).
The matter was referred to the undersigned for Report and Recommendation ( Docket No. 2). For the reasons set forth below, this Magistrate-Judge RECOMMENDS that the motion be DENIED, and that the matter be dismissed as premature.
I. Procedural and Factual Background
On April 11, 1991, Flores, along with seventeen other persons, was named in a thirty-four count superseding indictment charging various drug related offenses. Following a jury trial, Flores was convicted on April 14, 1993, on one count of conspiracy to import cocaine and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 846 and 963 (Count 2), and two counts of assaulting a federal officer with a deadly weapon, in violation of 18 U.S.C. § 111, (Counts 5 and 6). Flores was acquitted on Counts 3, 4, and 34, which charged importation of cocaine, possession of cocaine with intent to distribute, and use of a communication facility to commit a drug crime, in violation of 21 U.S.C. §§ 952, 841(a)(1), and 843(b), respectively. He was sentenced to 324 months' imprisonment and a five-year term of supervised release.
Flores appealed his conviction and sentence raising the issues of sufficiency of the evidence, severance, errors in jury selection, double jeopardy, and prosecutorial misconduct. He also raised various evidentiary matters and challenged his sentence. United States v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995). On June 1, 1995, after addressing the issues raised, the Appellate Court affirmed Flores' conviction. Id.
Flores next sought § 2255 relief in Civil Case No. 98-2320(PG), raising the issues of newly discovered evidence and destruction of evidence. The Court determined that his claims failed to meet any of the requirements for a § 2255 claim. The Court also noted that Flores had failed to raise these claims on direct appeal. Accordingly, the § 2255 was denied on August 1, 2000 (Civil Case No. 98-2320(PG), Docket Nos. 1, 14, 15). Flores did not seek to appeal the decision.
Four years later, on January 21, 2004, Flores, proceeding pro se, filed a motion to reduce sentence pursuant to 18 U.S.C. § 3585 (Criminal No. 90-130(PG), Docket No. 1121). He was resentenced in absentia on April 5, 2004, to a total term of 324 months as to count two, and a term of 84 months as to each of counts five and six, said terms to be served consecutively to each other, but concurrently to the term imposed in count two. Id. at Docket No. 1128. In April 2004, Flores filed a notice of appeal, and the matter is now pending before the United States Court Appeals for the First Circuit, Case No. 04-1601 awaiting the filing of briefs by the parties. Four months after the Notice of Appeal was filed Flores filed a second § 2255 motion, again seeking relief. Now petitioner raises the following the grounds:
Counsel for Flores filed a notice of appeal on April 7, 2004, and Flores filed a pro se notice of appeal on April 27, 2004. Criminal No. 90-130, Docket Nos. 1129, 1130. The Court of Appeals dismissed the case filed as a result of the second notice of appeal, Case No. 04-1608, and advised the parties that the appeal would proceed under Case No. 04-1601. Id. at Docket No. 1132.
1. He was denied effective assistance of counsel on direct appeal when appellate counsel failed to challenge the imposition of his sentence, which resulted in an incorrect application of the sentencing guidelines.
2. His May 24, 1993, conviction on conspiracy charges pursuant to 21 U.S.C. §§ 846 and 963 violated his constitutional rights, and there was no unanimous jury agreement on the offense of conviction.
3. He was denied effective assistance of counsel at trial and on direct appeal when counsel failed to object to the duplicative indictment.
II. Conclusions of Law
Pursuant to 28 U.S.C. § 2255 there are four grounds upon which a federal prisoner may base a claim for relief. The prisoner may assert that: 1) the sentence was imposed in violation of the Constitution or laws of the United States; 2) the court was without jurisdiction to impose such sentence; 3) the sentence was in excess of the maximum authorized by law; and, 4) that the sentence is otherwise subject to collateral attack. A federal prisoner may claim "the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . ." 28 U.S.C. § 2255. However, such a petition may be summarily denied where it contains mere bald assertions without specific factual allegations. Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992).
The government contends that this § 2255 motion is premature, and that there are no extraordinary circumstances to warrant simultaneous entertainment of both actions. It further argues that this is Flores' second § 2255 motion and he has failed to comply with the Antiterrorism and Effective Death Penalty Act (hereafter "AEDPA") requisites before seeking to prosecute a second or successful § 2255 motion. See: Pub.L. No. 104-132, 110 Stat. 1214 (1996); 28 U.S.C. §§ 2244, 2255.
Flores is well aware that this is his second § 2255 motion but contends that it raises issues that are newly discovered and although he exercised due diligence to the best of his ability, he did not discover said issues until July 1, 2004. He also argues that his first § 2255 motion was dismissed for technical procedural reasons and was not adjudicated on the merits such that the current § 2255 motion is not and should not be considered a successive petition for purposes of the AEDPA.
A. Timeliness
This § 2255 motion should be dismissed as premature. Pursuant to Rule 5 of the Rules Governing Section 2255 Proceedings in the United States District Courts "absent extraordinary circumstances a district court should not entertain a § 2255 petition while a direct appeal from the same conviction is pending." United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 n. 9 (1st Cir. 1995); United States v. Gordon, 634 F.2d 638 (1st Cir. 1980).
As previously discussed Flores appealed his recently amended sentence to the First Circuit Court of Appeals. He has not proffered any "extraordinary circumstance" for this Court to entertain the current petition while that appeal is pending. Consequently, the § 2255 motion is premature.
B. Second or Successive Petition
Also at issue is whether the § 2255 motion is a second or successive petition. At the present time the undersigned makes no ruling on this issue. Flores, however, is forewarned that the AEDPA requires a federal prisoner, before prosecuting a second or successive habeas petition in the district court, to 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); see Raineri v. United States, 233 F.3d 96, 99 (1st Cir. 2000). More so, the second or successive motion must be certified to contain "(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255.
Apart from the two scenarios outlined above, Flores may also proceed in a successive petition if the § 2255 motion he files is considered to be a first petition or his claim fits within § 2255's savings clause for cases in which § 2255 provides an "inadequate or ineffective" remedy. Courts have recognized that "[n]ot every literally second or successive § 2255 petition is second or successive for purposes of AEDPA." Sustache-Rivera v. United States, 221 F.3d 8, 12 (1st Cir. 2000) (citing Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46, 118 S.Ct. 1618 (1998)). The Supreme Court and the First Circuit Court of Appeals have outlined several situations wherein a later petition is not considered "second or successive:" For example, it is not to be considered a successive petition:
(1) where the later petition raises the same grounds as a previous petition that had been dismissed as premature; (2) where a state prisoner's later petition raises the same grounds as a previous petition that had been dismissed for failure to exhaust state remedies; (3) where the earlier petition terminated without a judgment on the merits; or (4) where the later petition attacks a different criminal judgment, such as where a prisoner who has successfully brought a first habeas claim is retried, reconvicted, and resentenced and then attacks the new judgment, see Pratt, 129 F.3d at 62; see also Shepeck v. United States, 150 F.3d 800, 801 (7th Cir. 1998) (later petition presenting issues that were unripe until re-sentencing that resulted from first petition not second or successive).Id. (citations omitted).
At first blush it appears that this is a successive § 2255 petition. However, the undersigned does not wish to rush to judgment on the matter, particularly since the underlying criminal case is now again on appeal. Now is not the time to determine if the present filing is considered a second or successive petition.
III. Conclusion
Based upon the foregoing analysis this Magistrate-Judge RECOMMENDS that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody be DISMISSED, without prejudice, as premature.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 72(a) and Local Criminal Rule 157.1. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Local Rule Civ. Rule 72(d); Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation waives the right to review by the District Court, and waives the right to appeal the District Court's order. United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).
SO RECOMMENDED.