Opinion
09-CV-02063 (JSR) (JLC) 00-CR-00761 (JSR)
08-28-2018
DIEGO B. RODRIGUEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT & RECOMMENDATION JAMES L. COTT, United States Magistrate Judge.
To the Honorable Jed S. Rakoff, United States District Judge:
In 2004, petitioner Diego B. Rodriguez was found guilty of racketeering, drug trafficking, and murder, and sentenced to life imprisonment. Since then, he has brought various unsuccessful challenges to his conviction and sentence. Rodriguez now moves, pro se, for relief pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that his motion be denied as beyond the scope of Rule 60(b).
I. BACKGROUD
A. Procedural History
For purpose of this Report and Recommendation, familiarity with the facts and the record of the prior proceedings is assumed. The facts are summarized herein only to the extent necessary to decide Rodriguez's Rule 60(b) motion.
The facts underlying Rodriguez's conviction are described in detail in the Second Circuit's decision dated December 28, 2007 affirming Rodriguez's conviction and sentence. See United States v. Quinones, 511 F.3d 289 (2d Cir. 2007).
1. Trial and Direct Appeal
Rodriguez and a co-defendant, Alan Quinones, were tried before the Honorable Jed S. Rakoff and a jury on charges arising from their participation in a criminal enterprise primarily focused on the distribution of cocaine and heroin, and for their involvement in the death of a confidential informant of the New York City Police Department. Quinones, 511 F.3d at 292. On July 27, 2004, the jury found Rodriguez and Quinones guilty on counts of substantive and conspiratorial racketeering, conspiracy to distribute narcotics, and murder in relation to a continuing criminal drug enterprise. Id. at 294. On September 27, 2004, Rodriguez and Quinones were each sentenced to life imprisonment as well as to other, shorter sentences running concurrently. Id. at 294-95 & n.5.
Rodriguez and Quinones were acquitted on two counts: conspiracy to commit murder in aid of racketeering, and murder in aid of racketeering. Quinones, 511 F.3d at 291 n.2.
Rodriguez and Quinones timely appealed and sought reversal of their convictions or, alternatively, a remand for resentencing. Id. at 291. They argued on appeal that, inter alia, the district court erred by imposing a life sentence on the count of conviction relating to the murder of the confidential informant. Id. at 316. On December 28, 2007, the Second Circuit affirmed their judgments of conviction. Id. at 324. On April 15, 2008, the Second Circuit issued an order denying Rodriguez and Quinones' application for a rehearing en banc. Quinones v. United States, No. 08-5349 (U.S. Supreme Court docket). On October 6, 2008, the U.S. Supreme Court denied certiorari. Quinones v. United States, 555 U.S. 910 (2008).
2. Subsequent Proceedings
Following the direct appeal proceedings, Rodriguez filed a petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and the instant civil action, Docket Number 09 Civ. 2063, was opened on March 6, 2009. Rodriguez v. United States, No. 09-CV-2063, 2012 WL 1059355, at *3 (S.D.N.Y. Mar. 29, 2012). Rodriguez's Section 2255 petition sought relief on two grounds: (1) the imposition of a life sentence was plain error in light of United States v. Booker, 543 U.S. 220 (2005), and (2) Rodriguez's trial and appellate counsel provided ineffective assistance resulting in constitutional deprivations implicating the Fifth and Sixth Amendments. Rodriguez, 2012 WL 1059355, at *4.
On March 11, 2010, Rodriguez's habeas proceeding and underlying criminal action were consolidated. Unless stated otherwise, citations to "Dkt. No." refer to the criminal action, Docket Number 00 Crim. 761.
On March 29, 2012, I issued a report and recommendation recommending that the Section 2255 petition be denied, except that a minor correction be made to Rodriguez's sentence. Id. at *14. By order dated September 27, 2012, Judge Rakoff adopted all pertinent portions of the report and recommendation. Dkt. No. 321. Rodriguez filed an appeal from Judge Rakoff's order, and on March 7, 2013, the Second Circuit denied his request for a certificate of appealability. Rodriguez v. United States, No. 12-3977, Dkt. No. 59 (2d Cir. Mar. 7, 2013). On October 1, 2013, the Second Circuit denied Rodriguez's request for a hearing en banc. Rodriguez v. United States, No. 12-3977, Dkt. No. 93 (2d Cir. Oct. 1, 2013).
That is, I recommended that Rodriguez's Section 2255 petition be granted to the extent necessary to reflect that he was not convicted of Count Six (in which only Quinones had been charged) by "specifically excluding from his sentence the 20-year concurrent term to which he was mistakenly sentenced and reimbursing him the $100 special assessment as to that count." Rodriguez, 2012 WL 1059355, at *14.
Specifically, Judge Rakoff agreed with all of the conclusions of the report and recommendation "except the conclusion that Rodriguez was mistakenly sentenced on Count Six." Dkt. No. 321 at 1.
Subsequently, on September 22, 2015, Rodriguez filed a single-paragraph, pro se motion under 18 U.S.C. § 3582(c)(2) seeking to modify his sentence based on a particular retroactive amendment to the United States Sentencing Guidelines. Dkt. No. 343. By order dated March 10, 2016, Judge Rakoff denied the motion on the ground that Rodriguez was ineligible for resentencing under the amendment in question. Dkt. No. 346. On September 13, 2017, Rodriguez filed a second pro se motion under 18 U.S.C. § 3582(c)(2), again seeking resentencing based on retroactive drug amendments. Dkt. No. 347. By order dated October 3, 2017, Judge Rakoff denied the motion, again finding Rodriguez ineligible for resentencing. Dkt. No. 348.
3. The Instant Rule 60(b)(6) Motion
On February 23, 2018, Rodriguez, proceeding pro se, filed a submission entitled "Motion to File 60(b)(6) in Light of Buck v. Davis Establishing Reasonable Jurist Would Believe Movant Has Debatable Issue." Dkt. No. 349 ("Pet. Mot."). In this motion, Rodriguez states that he is seeking "reconsideration of the Court['s] first decision," Pet. Mot. at 1, which apparently refers to Judge Rakoff's order of September 27, 2012 denying Rodriguez's habeas petition. See Pet. Mot. at 6 (seeking "reconsideration of 2255 petition"). While lacking in clarity, Rodriguez's Rule 60(b)(6) motion appears to challenge the denial of his request for habeas relief on four grounds, all arising from the alleged ineffective assistance of his trial and appellate counsel. Specifically, Rodriguez contends counsel were ineffective due to their failure to argue the following:
1. Counts Five and Seven of the indictment, as set forth in the jury instructions at Rodriguez's trial, were duplicative and violated double jeopardy principles;Pet. Mot. at 2-9. On these grounds, Rodriguez asserts that his conviction on Count Seven of the indictment (murder in relation to a criminal drug enterprise) should be vacated and that, as a result, his life sentence should also be vacated and replaced with a prison sentence "in the range of 20-30 years." Id. at 3, 9.
2. there was insufficient evidence at trial to establish that Rodriguez's drug-related activities were "jointly undertaken" with others, and thus that the quantity of drugs attributed to him at sentencing was overly inflated;
3. the quantity of drugs attributed to Rodriguez at trial should have been measured according to the "street weight" of the drugs in the diluted form in which they were sold, which would have led to consideration of a lower weight of drugs for purpose of sentencing; and
4. based on the factors contained in 18 U.S.C. § 3553, Rodriguez's sentence was excessive when compared to sentences imposed on similarly situated defendants.
On March 27, 2018, Judge Rakoff issued an order referring Rodriguez's Rule 60(b)(6) motion to me for a report and recommendation. Dkt. No. 350. On April 30 30, 2018, the Government filed a memorandum of law in opposition, arguing that Rodriguez's Rule 60(b)(6) motion should be denied because it is procedurally improper and substantively meritless. Dkt. No. 353 ("Gov't Opp. Mem."). On May 15, 2018, Rodriguez filed a reply in further support of his motion. Dkt. No. 355 ("Pet. Reply Mem.").
II. DISCUSSION
A. Applicable Legal Standard
Federal Rule of Civil Procedure Rule 60(b) "allows for relief from a final judgment, order, or proceeding." Davis v. New York, No. 07-CV-9265 (SHS), 2017 WL 5157458, at *2 (S.D.N.Y. Nov. 6, 2017), certificate of appealability denied, 2018 WL 2273610 (2d Cir. Apr. 24, 2018). Subdivisions (b)(1) to (5) of Rule 60 provide specific grounds for relief, including mistake, newly discovered evidence, and fraud. Subdivision (b)(6) serves as a "catchall category," which "permits a court to reopen a judgment for any other reason that justifies relief." Buck v. Davis, 137 S. Ct. 759, 777 (2017) (quotations omitted).
"As the Supreme Court has recognized, Rule 60(b) applies in habeas corpus cases and may be used to reopen a habeas proceeding." Yuzary v. United States, No. 04-CV-2809 (RPP), 2007 WL 4276864, at *3 (S.D.N.Y. Nov. 30, 2007) (citing Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)). However, "[a] Rule 60(b) motion has a 'different objective' than a habeas petition." Carbone v. Cunningham, 857 F. Supp. 2d 486, 488 (S.D.N.Y. 2012) (quoting Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001)) (alterations omitted). "Specifically, habeas 'petitions seek to invalidate an underlying criminal conviction [or sentence], whereas Rule 60(b) motions only seek to vacate a judgment, such as a judgment dismissing a habeas petition.'" Robles v. Lempke, No. 09-CV-2636 (AMD) (JO), 2018 WL 1320657, at *4 (E.D.N.Y. Mar. 14, 2018) (quoting Ackridge v. Barkley, No. 06-CV-3891 (CS) (LMS), 2008 WL 4555251, at *5 (S.D.N.Y. Oct. 7, 2008)).
"Notwithstanding its label, a Rule 60(b) motion for relief from denial of a habeas petition may in certain circumstances be considered a second or successive habeas petition." Peace v. United States, No. 05-CV-1854 (SHS), 2011 WL 2471067, at *2 (S.D.N.Y. June 21, 2011) (citing Gonzalez, 545 U.S. at 531). In particular, "[a] motion that 'seeks to add a new ground for relief' or that 'attacks the federal court's previous resolution of a claim on the merits' can only be raised in a successive habeas petition, as compared to a motion identifying 'some defect in the integrity of the federal habeas proceedings,' which may be considered on a Rule 60(b) motion." United States v. Spigelman, No. 05-CR-960 (JPO), 2017 WL 2275022, at *3 (S.D.N.Y. May 24, 2017) (quoting Gonzalez, 545 U.S. at 532). A motion challenges "the integrity of the federal habeas proceedings"—and is thus properly brought under Rule 60(b)—when, for example, it asserts that "a court erroneously avoided deciding the merits of a claim for reasons such as 'failure to exhaust, procedural default, or statute-of-limitations bar.'" Robles, 2018 WL 1320657, at *4 (quoting Gonzalez, 545 U.S. at 532 n.4).
In evaluating the relief sought by a petitioner bringing a Rule 60(b) motion, the reviewing court "has the obligation to characterize the request for relief properly, regardless of the label that the petitioner applies." Dent v. United States, No. 09-CV-1938 (BMC), 2013 WL 2302044, at *2 (E.D.N.Y. May 24, 2013). If it is determined that the petitioner's motion should actually be considered a successive habeas petition, the court then has "two options: it may either transfer the motion to the Second Circuit for possible certification or it may simply deny the motion as beyond the scope of Rule 60(b)." Davis, 2017 WL 5157458, at *3 (citing Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004)).
B. Analysis
In his Rule 60(b)(6) motion, Rodriguez does not identify, or even attempt to identify, any flaw or error committed during his prior habeas proceedings that had affected the "integrity" of those proceedings. Instead, in grounds two, three, and four of the Rule 60(b)(6) motion, Rodriguez presents entirely new ineffective assistance claims involving his trial and appellate counsel that were not raised during his habeas proceedings. These claims directly attack, and seek modification of, Rodriguez's sentence. Such claims cannot be presented for the first time in a Rule 60(b)(6) motion. See Gonzalez, 545 U.S. at 531-32 (Rule 60(b) motion cannot be used to raise new claims for relief in a manner that circumvents AEDPA's restrictions on successive habeas petitions); see also 28 U.S.C. § 2255(h).
Unlike grounds two, three, and four of Rodriguez's Rule 60(b)(6) motion, the ineffective assistance claim raised in ground one is similar to a claim Rodriguez had raised in his Section 2255 petition. In the Section 2255 petition, Rodriguez had contended that his attorneys were ineffective because they failed to argue that Counts One and Two (substantive and conspiratorial racketeering) and Count Seven (murder in relation to a criminal drug enterprise) of the indictment were "multiplicitous" and thus violated double jeopardy. See Rodriguez, 2012 WL 1059355, at *12. Rodriguez now contends in the Rule 60(b)(6) motion that his attorneys were ineffective because they failed to argue that Count Five (conspiracy to distribute narcotics) and Count Seven "stem from the same act" and thus violate double jeopardy. Pet. Reply Mem. at 1; Pet. Mot. 2-3. However, nowhere in the Rule 60(b)(6) motion does Rodriguez identify any defect concerning the dismissal of the double jeopardy claim that had been raised in his habeas proceedings. To the contrary: Rodriguez explicitly contends that the double jeopardy claim he had raised in his Section 2255 proceedings is "clearly different" than the one he now raises in his Rule 60(b)(6) motion. Pet. Reply Mem. at 2. As such, ground one of the Rule 60(b)(6) motion, like the other grounds, fails to challenge the integrity of Rodriguez's habeas proceedings.
Because I recommend finding that ground one of the Rule 60(b)(6) motion impermissibly attempts to assert a claim that could have been raised only in a successive habeas petition, I do not reach the Government's argument that "the law-of-the-case doctrine provides an additional, and independent, basis to reject Rodriguez's current multiplicitous argument." Gov't Opp. Mem. at 12 n.6.
As Rodriguez's Rule 60(b)(6) motion challenges his underlying conviction and sentence, not the integrity of his prior Section 2255 habeas proceedings, the motion should be considered a successive habeas petition. See, e.g., Rodriguez v. United States, 164 F. Supp. 3d 561, 567 (S.D.N.Y. 2016) (where petitioner's motion did "not actually challeng[e] the integrity of the Section 2255 proceeding" but instead "attack[ed] his underlying sentence by arguing that had the Court provided him with counsel, discovery, and an evidentiary hearing, five ultimate factual conclusions would have been reached," the motion was "correctly characterized as a successive Section 2255 petition as opposed to a Rule 60(b) motion"); Simmons v. United States, No. 12-CV-04693 (ILG), 2014 WL 4628700, at *2 (E.D.N.Y. Sept. 15, 2014) ("Simmons' argument regarding the denial of his misplaced ineffective assistance of counsel claim relates to the integrity of his sentence. Essentially, it is nothing more than a disguised successive § 2255 petition. Therefore, it is denied as beyond the scope of a Rule 60(b) motion."); Yuzary, 2007 WL 4276864, at *4 (Rule 60(b) motion treated as successive habeas petition where petitioner "reassert[ed] that the assistance of his trial and sentencing counsel was ineffective and challenge[d] his sentence under Booker").
Furthermore, the timing of Rodriguez's filing of the Rule 60(b)(6) motion strongly suggests that it should be deemed a successive habeas petition. Rodriguez filed the Rule 60(b)(6) motion on February 23, 2018, more than five years after Judge Rakoff issued the order denying Rodriguez's Section 2255 habeas petition, and more than four years after the Second Circuit denied his request for a certificate of appealability. The Rule 60(b)(6) motion is premised on the Supreme Court's 2017 decision in Buck v. Davis, which, according to Rodriguez, established "new law" entitling him to relief. See Pet. Reply Mem. at 3. It is evident, therefore, that Rodriguez seeks relief based on recent decisional law issued by the Supreme Court and other courts rather than on the basis of errors that had affected the integrity of his prior habeas proceedings. Such relief may be sought in a successive habeas proceeding, not a Rule 60(b)(6) motion. See 28 U.S.C. § 2255(h)(2) (successive habeas petition may be certified when it contains "a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable").
Rodriguez's reliance on Buck v. Davis is misplaced. In that case, the petitioner brought a proper motion under Rule 60(b)(6) challenging the integrity of his habeas proceedings. Buck, 137 S. Ct. at 778-80. Rodriguez's motion, by contrast, challenges his underlying criminal conviction and sentence and thus is improperly designated as a Rule 60(b)(6) motion. See, e.g., Davis, 2017 WL 5157458, at *2 (where petitioner's motion is considered "a second or successive habeas petition, he cannot rely on the line of recent U.S. Supreme Court decisions," including Buck v. Davis, "which address when relief from judgment is proper under Rule 60" and in which the initial petition was denied on procedural grounds rather than the merits, as here).
If Rodriguez's Rule 60(b)(6) motion is not considered a successive habeas petition, then it should be denied on timeliness grounds given that it was made more than five years after the denial of his petition and more than four years after the dismissal of his appeal. See, e.g., Spigelman, 2017 WL 2275022, at *4 (Rule 60(b) motion untimely when brought more than four years after denial of Section 2255 motion and more than three years after Second Circuit's dismissal of appeal); Carbone, 857 F. Supp. 2d at 488 (petitioner's Rule 60(b)(6) motion untimely when brought "more than four years after the Court denied his habeas petition" and petitioner "d[id] not provide any reason for the delay").
As noted, when a motion, like Rodriguez's, is properly characterized as a successive habeas petition, the reviewing court has the option of either transferring the motion to the Second Circuit for possible certification or denying the motion as "beyond the scope of Rule 60(b)." Davis, 2017 WL 5157458, at *3 (citing Harris, 367 F.3d at 77). In order to provide Rodriguez with notice and to conserve judicial resources, and given his pro se status, I recommend that Rodriguez's motion be denied as beyond the scope of Rule 60(b)(6). See id. ("The Second Circuit suggests that a district court should give a prisoner notice before transferring a Rule 60(b) motion to the Court of Appeals as a second or successive habeas petition in order that the prisoner be given an opportunity to withdraw or restyle the motion.") (citing Gitten v. United States, 311 F.3d 529, 534 (2d Cir. 2002)).
Because I recommend considering Rodriguez's Rule 60(b)(6) motion as a successive habeas petition, and denying it on that ground, I do not address the underlying merits of his ineffective assistance claims. See, e.g., Spigelman, 2017 WL 2275022, at *3 (declining to address merits of Rule 60(b) motion that "amount[ed] to a back-door challenge" to petitioner's conviction and failed due to "procedural defects").
III. CONCLUSION
For the foregoing reasons, I recommend that Rodriguez's motion be denied as beyond the scope of Rule 60(b).
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (including weekends and holidays) from service of this Report to file written objections (plus three days because the Report is being mailed to Petitioner). See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. If Rodriguez does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for Respondent. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009). Dated: New York, New York
August 28, 2018
/s/_________
JAMES L. COTT
United States Magistrate Judge
A copy of this Report and Recommendation has been mailed to the following:
Diego Rodriguez Register No. 49597-054 FCI Allenwood Medium P.O. Box 2000 White Deer, PA 17887