Zambrana-Sierra v. USA, No. 3:2015cv01844 - Document 7 (D.P.R. 2016)

Court Description: OPINION AND ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 13-694) filed by William Zambrana-Sierra). The court finds that a factual dispute exists on a particular issue raised warranting an evidentiary h earing. Accordingly, the court hereby APPOINTS Miguel Oppenheimer, Esq., to represent Zambrana until the petition is either granted or denied. The court ORDERS the Government to call attorney Joseph A. Boucher-Martinez as a witness at the hearing. The Defendant shall be present in court and available to testify. Evidentiary Hearing set for 2/24/2016 09:30 AM in Courtroom 7 before Judge Jose A. Fuste. Signed by Judge Jose A. Fuste on 1/20/2016.(mrj)

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Zambrana-Sierra v. USA Doc. 7 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 WILLIAM ZAMBRANA-SIERRA, Petitioner, Civil No. 3:15-CV-01844 (JAF) v. UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 On May 19, 2014, petitioner William Zambrana-Sierra (“Zambrana”) was 8 convicted, by guilty plea, of aiding and abetting interference with commerce by robbery 9 in violation of 18 U.S.C. §§ 2 and 1951(a) and sentenced to seventy months in prison, to 10 be served consecutively to the sentence imposed under docket number 11-CR-00495-1, 11 followed by three years of supervised release, due to his role in a criminal conspiracy that 12 led to the gunpoint robbery of a Kmart in Guaynabo, Puerto Rico, on December 31, 2010. 13 He did not appeal the judgment of conviction. On or about June 2, 2015, Zambrana, who 14 is still incarcerated under the judgment, appears to have timely filed a pro-se petition for 15 a writ of habeas corpus under 28 U.S.C. § 2255, alleging that his lawyer was ineffective 16 by, among other things, neglecting to file a notice of appeal. 1 (ECF No. 1-1 at 3-6.) 1 Zambrana declares, under penalty of perjury, that he deposited his habeas petition in his prison’s internal mailing system on June 2, 2015. (ECF Nos. 1 at 12.) The declaration complies with 28 U.S.C. § 1746(2). However, Zambrana does not declare that he prepaid first-class postage for the petition. As a result, he has not yet shown that the petition was timely under the inmate-filing rule. See Rule 3(d) of the Rules Governing Section 2255 Cases in the United States District Courts. Moreover, the filing was timely only if the judgment of conviction became final upon the expiration of the 14-day period to file a notice of appeal under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure. See Brooks v. United States, No. 13-CV-00388, 2013 U.S. Dist. LEXIS 171667, at *5-6 (D.Me. Nov. 5, 2013) (finding that “the First Circuit apparently has not yet decided the issue of when an unappealed judgment is final,” and noting a circuit split on the issue). The court invites further argument on the timeliness of the petition. Dockets.Justia.com Civil No. 3:15-CV-01844 (JAF) -2- 1 “[P]ro se habeas petitions normally should be construed liberally in [a] petitioner’s 2 favor.” United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005). Zambrana alleges that 3 his appointed trial attorney, Joseph A. Boucher-Martínez, Esq., rendered him ineffective 4 assistance when Boucher-Martínez did not file a notice of appeal after Zambrana had 5 allegedly sent the attorney “a letter requesting for [him] to file for an appeal.” (ECF 6 No. 1 at 6.) 7 Zambrana “never requested the filing of an appeal, neither verbally, [n]or in writing.” 8 (ECF No. 5 at 8 n.2.) The court finds that this constitutes a factual dispute warranting an 9 evidentiary hearing. See Rule 8 of the Rules Governing Section 2255 Cases in the United 10 States District Courts. If a party believes that any other factual issue needs to be resolved 11 at the hearing, the party should promptly file a brief motion, of no longer than five (5) 12 pages, setting forth the reasons why. In response, the Government claims that Boucher-Martínez says that 13 Accordingly, the court hereby APPOINTS Miguel Oppenheimer, Esq., to 14 represent Zambrana until the petition is either granted or denied. The court ORDERS 15 the Government to call Boucher-Martínez as a witness at the hearing. 16 17 The Evidentiary Hearing shall be held on February 24, 2016, at 9:30 A.M. The Defendant shall be present in court and available to testify. 18 IT IS SO ORDERED. 19 San Juan, Puerto Rico, this 20th day of January, 2016. 20 21 22 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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