Torres v. United States of America

Middle District of Florida, flmd-8:2016-cv-01525

ORDER denying {{1}} --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Torres and to CLOSE the case. Signed by Judge Steven D. Merryday on 6/28/2016. (BK)

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PageID 31 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. CASE NO. 8:10-cr-483-T-23MAP 8:16-cv-1525-T-23MAP ROGELIO TORRES / ORDER Torres's motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the validity of his convictions for conspiracy to commit robbery, aiding and abetting to commit robbery, and aiding and abetting the brandishing a firearm during a crime of violence, for which offenses he is imprisoned for a total of 192 months. Torres was convicted and sentenced under a plea agreement. (Doc. 45 in 10-cr-483) Rule 4, Rules Governing Section 2255 Cases, requires both a preliminary review of the motion to vacate and a summary dismissal "[i]f it plainly appears from the face of the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief. . . ." Accord Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)1 (finding the summary dismissal of a Section 2255 motion was proper "[b]ecause in this case the record, uncontradicted by [defendant], shows 1 Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). PageID 32 that he is not entitled to relief"); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978) ("Rule 4(b) [Rules Governing § 2255 Proceedings], allows the district court to summarily dismiss the motion and notify the movant if 'it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief. . . .'"). See United States v. Deal, 678 F.2d 1062, 1065 (11th Cir. 1982) (citing Wright and Hart). FACTS2 On October 18, 2010, at approximately 12:17 a.m., an armed robbery occurred at Charley's Steakhouse, Tampa, Florida. The robbery had been planned by Edgar Colon (who worked at Charley's as a dishwasher), Kyle Anthony Larson, Rogelio Torres, and Osvaldo Yasel Martinez. Colon had told Torres that the plan was to rob the restaurant, but they needed a driver. Torres, [who] also worked at the restaurant, agreed to be the driver. The robbers that entered the restaurant were Kyle Anthony Larson and Osvaldo Yasel Martinez. Colon had worked the night of the robbery and left shortly before the robbery, advising Larson, Martinez, and Torres what the situation would be in the restaurant when they got there to rob it, such as how many people were still present in the restaurant and when it was good to go in. The updates occurred via the use of cell phones, including while Colon had still been in the restaurant. Larson and Martinez were driven to the robbery location to commit the robbery by the defendant, Rogelio Torres. Larson was armed with an SKS assault rifle and Martinez was armed with a hunting knife. After being dropped off at Charley's by Torres, Larson and Martinez entered the restaurant, which was closed for business for the evening, and went to a rear office where two employee-victims were located, brandished their respective weapons [and] demand[ed] money. Larson and Martinez struck the victims repeatedly in the head and face. The victims were bound with flex ties prior to Larsen and Martinez fleeing on foot to the vehicle that Torres was waiting for them in. 2 This summary of the facts is from the plea agreement. (Doc. 45 in 10-cr-483). -2- PageID 33 A Tampa police officer responded to the scene as Larsen and Martinez were running away from the restaurant and saw them get into the vehicle in which Torres was waiting and speed off. A full police pursuit began and Torres was ultimately stopped on the Howard Franklin Bridge by police cars that blocked him in. The defendant and Martinez were arrested in the vehicle. Larson, who fled from the vehicle and jumped into Tampa Bay, was later pulled from the water and arrested. A Tampa police diver recovered a bag that Larson was observed carrying as he jumped in the water. The bag contained approximately $15,000, which was stolen from Charley's Steakhouse. The loaded SKS was recovered from the car that the defendants fled in, as was a hunting knife. Charley's Steakhouse is a business actively participating in interstate commerce, and was so at the time of the robbery. Specifically, they are a restaurant that receives the bulk of their inventory outside the State of Florida and also outside the United States (meat products, fish products, beer, wine, liquor). Additionally, the proceeds from the sale of these inventory items are maintained in the store prior to being deposited into a business account. Funds from this account are utilized for operational expenses incurred by Charley's to include restocking such inventory items, paying overhead, and paying employees so that the restaurant can operate. Therefore, the theft of money from these stores resulted in a depletion of assets needed for the continuation of their participation in interstate commerce. After affording him a reduction under Section 5K1.1, United States Sentencing Guidelines, and a three-level enhancement (instead of a four-level enhancement) for the victims' injuries, Torres was sentenced to concurrent terms of 108 months for the two robberies and a mandatory consecutive 84 months for the brandishing of a firearm. Torres appealed, notwithstanding the standard appeal waiver in the plea agreement. (Doc. 45 at 10–11 in 10-cr-483) The convictions and sentences were affirmed. (Doc. 179) On October 7, 2013, the Supreme Court denied Torres's petition for the writ of certiorari. (Doc. 182) Torres's motion to vacate is untimely. -3- PageID 34 STATUTE OF LIMITATIONS Torres's motion is time-barred. See Day v. McDonough, 547 U.S. 198, 209 (2006) ("[W]e hold that district courts are permitted. . . to consider, sua sponte, the timeliness of a state prisoner's habeas petition."), and Jackson v. Sec'y, Dep't of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (holding that the district court possesses discretion to sua sponte question the timeliness of a petition for the writ of habeas corpus). The Anti-Terrorism and Effective Death Penalty Act creates a limitation for a motion to vacate. "A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of. . . the date on which the judgment of conviction becomes final. . . ." 28 U.S.C. § 2255(f)(1). Torres's conviction became final on October 7, 2013, upon the denial of his petition for the writ of certiorari, and his limitation expired one year later on October 7, 2014. Torres's motion to vacate, which is dated June 5, 2016, is more than a year late. Recognizing his untimeliness under Section 2255(f)(1), Torres asserts entitlement to a new limitation under Section 2255(f)(3), which establishes a limitation from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. . . ." Torres erroneously asserts entitlement to the retroactive application of Johnson v. United States, 135 S. Ct. 2551 (2015), which holds unconstitutional the residual clause of the Armed Career Criminal Act ("ACCA"), codified at 18 U.S.C. § 924(e). Torres was not sentenced -4- PageID 35 under the ACCA; his mandatory consecutive sentence is under Section 924(c) for brandishing the firearm. Johnson is not directly applicable. Torres argues for extending Johnson to Section 924(c)'s residual clause, which is nearly identical to the ACCA's residual clause. Torres would not benefit from extending Johnson to the residual clause in Section 924(c) because Johnson found that only the residual clause of the ACCA was unconstitutionally vague — Johnson is inapplicable to the "enumerated offenses clause" and the "elements clause" of the ACCA. Under Section 924(c)(3), a "crime of violence" is defined by both a "use-of- force clause" and a "residual clause." Even if Johnson extended to Section 924(c)'s residual clause, Torres would not benefit because Johnson is inapplicable to the "use- of-force clause." In re Charles Hines, No. 16-12454 ___ F.3rd ___, 2016 WL 3189822, at *2–3 (11th Cir. June 8, 2016) (some brackets original), explains: As noted, Johnson rendered the residual clause of [the ACCA] invalid. It spoke not at all about the validity of the definition of a crime of violence found in § 924(c)(3).3 Further, our Court has not held that Johnson invalidates § 924(c)(3)(B). However, even were we to extrapolate from the Johnson holding a conclusion that § 924(c)(3)(B) was also unconstitutional, it would not help Hines because his § 924(c) conviction on Count 2 was explicitly based on his companion Count 1 conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). And a conviction for armed bank robbery clearly meets the requirement for an underlying felony offense, as set out in § 924(c)(3)(A), which requires the underlying offense to include as an element, "the use, attempted use, or threatened use of physical force against the person or property of another."4 3 Section 924(c)(3) defines a crime of violence as a felony offense that "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk -5- PageID 36 that physical force against the person or property of another may be used in the course of committing the offense." Section 924(c)(3)(B) is similar, but not identical, to the language of the ACCA residual clause invalidated by the Supreme Court in Johnson. 4 Similarly, the ACCA's elements clause, whose validity Johnson did not question, defines "violent felony" as a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another." See 18 U.S.C. § 924(e)(2)(B)(i). Here, Count 1 charged that Hines "by force, violence and intimidation, did take from the person or presence of [a teller] monies belong[ing] to [a federally-insured bank]" and that in doing so, Hines "did assault and put in jeopardy the life of [two individuals] by use of a dangerous weapon," all in violation of 18 U.S.C. § 2113(a) and (d). These allegations in the indictment mimic the requirements of § 2113 (a) and (d). The statutory elements that these allegations of the indictment repeat clearly meet § 924(c)(3)(A)'s requirement that the underlying felony offense must have "as an element the use, attempted use, or threatened use of physical force against the person or property of another." This means that Hines's conviction under § 924(c) would be valid even if Johnson renders the "crime of violence" definition in § 924(c)(3)(B) unconstitutional. Torres's sentence under Section 924(c) is based on his conviction for both conspiracy to commit robbery and aiding and abetting to commit robbery in violation of 18 U.S.C. § 1951(a). A conviction under Section 1951(a) requires that the defendant commit a robbery and Section 1951(b)(1) defines robbery as "the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate of future to his person or property. . . ." Torres's two -6- PageID 37 convictions involving the robbery of the restaurant — crimes that involved the beating of two victims and the threatened use of both a firearm and a hunting knife — meet the "use-of-force clause" in Section 924(c)(3)(A) without reliance on the "residual clause." As Hines instructs, Torres would gain no benefit from extending Johnson to Section 924(c). Accordingly, the motion to vacate (Doc. 1) is DENIED as untimely and Johnson v. United States, 135 S. Ct. 2551 (2015), is inapplicable. The clerk must enter a judgment against Torres and close this case. DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS Torres is not entitled to a certificate of appealability ("COA"). A prisoner moving under Section 2255 has no absolute entitlement to appeal a district court's denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a certificate of appealability, Torres must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the motion to vacate is clearly time-barred and he is entitled to relief under neither Johnson nor Welch, Torres is entitled to neither a certificate of appealability nor an appeal in forma pauperis. -7- PageID 38 Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Torres must obtain permission from the circuit court to appeal in forma pauperis. ORDERED in Tampa, Florida, on June 28, 2016. -8-