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Rodolfo v. Bell

United States District Court, D. Minnesota

January 10, 2018

Montoya Flores Rodolfo, Petitioner,
v.
R. Bell, Warden, Respondent.

          Montoya Flores Rodolfo (pro se Petitioner); and

          Miranda Dugi, Assistant United States Attorney (for Respondent).

          REPORT & RECOMMENDATION

          Tony N. Leung United States Magistrate Judge

         I. INTRODUCTION

         This matter comes before the Court on Petitioner Montoya Flores Rodolfo's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”) (Pet., ECF No. 1); Petitioner's Motion Requesting Equitable Tolling (ECF No. 3); and Respondent R. Bell's Motion to Dismiss Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Resp.'s Mot. to Dismiss, ECF No. 6). This matter has been referred to the undersigned for a report and recommendation to the Honorable Donovan W. Frank, United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636 and D. Minn. LR 72.1. For the reasons discussed below, this Court recommends that this matter be dismissed without prejudice for lack of jurisdiction.

         II. BACKGROUND

         Petitioner is currently confined at the Federal Medical Center in Rochester, Minnesota. (See Pet.; Resp.'s Mot. to Dismiss at 4.)

         A. Conviction & Sentence

         In 2007, Petitioner was indicted in the United States District Court for the District of Utah “on one count of conspiracy to distribute one kilogram or more of heroin and . . . one count of possession with intent to distribute heroin.” Montoya-Flores v. United States, Case No. 2:09-CV-891 (TS), 2010 WL 3447832, at *1 (D. Utah Aug. 30, 2010) (footnote omitted) [hereinafter Montoya-Flores II]. (See United States v. Montoya-Flores, 2:07-CR-572 (TS) (D. Utah) [hereinafter Montoya-Flores I] at ECF No. 43.) Petitioner subsequently pleaded guilty to the conspiracy count. Montoya-Flores II, 2010 WL 3447832, at *1. (See Montoya-Flores I at ECF Nos. 237, 238.)

         In February 2009, Petitioner was “found to be a career offender” and sentenced to 262 months imprisonment. Montoya-Flores II, 2010 WL 3447832, at *5. (See Montoya-Flores I at ECF No. 546.) As part of the plea agreement, Petitioner waived the right to appeal his sentence except in certain limited circumstances and waived the right to challenge his sentence collaterally, including but not limited to 28 U.S.C. § 2255. Montoya-Flores II, 2010 WL 3447832, at *1. (See Montoya-Flores I at ECF No. 238.) Petitioner did not pursue a direct appeal. Montoya-Flores II, 2010 WL 3447832, at *1.

         B. Motion Under 28 U.S.C. § 2255

         In October 2009, Petitioner brought a motion under 28 U.S.C. § 2255, challenging his sentence. Id. (See Montoya-Flores II at ECF Nos. 1, 2.) Petitioner challenged his sentence on grounds that there was a disparity between his sentence and that of his co-defendants; the district court's finding regarding the drug quantity violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and he received ineffective assistance of counsel. Montoya-Flores II, 2010 WL 3447832, at *4-5. (See Montoya-Flores II at ECF Nos. 1, 2.)

         The district court denied the motion. Montoya-Flores II, 2010 WL 3447832, at *5. The district court first found that Petitioner's collateral challenge to his sentence was “within the scope of [his] waiver, that the waiver was knowing and voluntary, and that enforcing the waiver would not result in a miscarriage of justice.” Id. at *3. The district court next found that, with the exception of the ineffective-assistance-of-counsel claim, Petitioner's claims could have been but were not raised on direct appeal, and therefore procedurally barred. Id. at *3-4.

         Because Petitioner's ineffective-assistance-of-counsel claim was based on the failure to raise the sentencing-disparity and Apprendi claims on direct appeal, the district court turned to the merits of the claims themselves. Id. at *4-5. With respect to the sentencing disparity, the district court determined that “[t]he facts on the record justify the differences between Petitioner's sentence and those of his co-Defendants.” Id. at *5. Recognizing that Petitioner's co-defendants “received a variety of sentences ranging from 33 to 240 months, ” the district court observed that, “unlike his co-Defendants, [Petitioner] was found to be a career offender.” Id. “Further, Petitioner admitted to being responsible for a total of 1125 grams of heroin.” Id. Therefore, “[a]ny disparity between [Petitioner's] sentence and that of his co-Defendants was based on the amount of narcotics [he] admitted to distributing and his significant criminal history, ” and there was “no unwarranted disparity.” Id. Similarly, the district court rejected Petitioner's Apprendi claim because Petitioner “admitted that he was responsible for a total of 1125 grams of heroin” in the plea agreement. Id.

         Lastly, the district court found that Petitioner “failed to meet his burden” with respect to his “general ineffective assistance argument.” Id. Because “each of Petitioner's claims . . . [was] without merit, ” Petitioner's counsel “was not ineffective for not raising them” ...


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