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United States v. Martinez

United States District Court, E.D. Pennsylvania

March 23, 2017

HAROLD MARTINEZ Civil Action Nos. 14-1044, 16-2257


          Juan R. Sánchez, J.

         Defendant Harold Martinez, proceeding pro se, has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, asserting numerous claims of ineffective assistance of counsel. Since filing his original § 2255 motion, Martinez has filed two motions to amend, seeking to raise additional ineffective assistance of counsel claims. More recently, Martinez filed a new § 2255 motion in which he seeks relief from certain of his convictions based on the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Government urges this Court to dismiss Martinez's original § 2255 motion, arguing the motion is untimely because it was filed more than one year after Martinez's conviction became final.

         Because the record in this case conclusively shows Martinez's original § 2255 motion is time barred, his ineffective assistance of counsel claims will be dismissed and the motions to amend, which seek leave to pursue additional ineffective assistance claims that are also untimely, will be denied. Martinez's request for relief based on Johnson, in contrast, is timely, having been filed within one year after the Supreme Court issued the Johnson decision, which has since been held to apply retroactively to cases on collateral review. As explained below, because Martinez's original § 2255 motion remained pending when he filed his Johnson motion, the Court will construe the latter motion as a further motion to amend the original § 2255 motion, rather than as a second § 2255 motion, and will grant the motion. Consistent with the May 16, 2016, Administrative Order governing motions for collateral relief based on Johnson in this District, and the practice for handling Johnson motions in this District, the Court will appoint counsel for Martinez for purposes of litigating his Johnson claims, and further proceedings in this case will be stayed pending further court order.


         On February 18, 2011, Martinez, a citizen of the Dominican Republic and a native Spanish speaker, was convicted following a jury trial of federal offenses relating to his involvement in a planned robbery of a purported drug stash house from which he and his codefendants believed more than five kilograms of cocaine could be stolen.[1] On March 6, 2011, [2]after his conviction but before sentencing, Martinez filed a pro se “Motion of Direct Appeal” pursuant to the “Federal Rules of Civil Appellate Procedure, ” challenging, among other things, this Court's denial of his pretrial motion to dismiss his court-appointed counsel, who Martinez believed had provided inadequate representation, and requesting that the Court dismiss his counsel and “appoint competent effective counsel, as deemed fair and proper.” Def.'s Mot. of Direct Appeal 1-2, 7, ECF No. 201. Construing the motion as a notice of appeal, the Clerk of Court transmitted the filing to the Third Circuit, which docketed the appeal, appointed Martinez's trial counsel to continue to represent Martinez on appeal, and stayed the appeal pending entry of a judgment and commitment order.

         A month later, on April 11, 2011, Martinez filed a pro se “Motion to Dismiss Ineffective Defense Counsel” in this Court, again asserting he had received ineffective assistance of counsel prior to and during trial and asking the Court to appoint new counsel for purposes of sentencing and appeal. After a hearing, this Court denied the motion, and the case proceeded to sentencing, with Martinez represented by his trial counsel.[3] On May 31, 2011, this Court sentenced Martinez to a total of 211 months of imprisonment, [4] and Martinez's counsel thereafter filed a notice of appeal on June 9, 2011. Martinez filed a further pro se notice of appeal on July 28, 2011.

         On February 7, 2012, the Third Circuit issued an opinion rejecting Martinez's claims on appeal and entered judgment affirming Martinez's judgment of conviction and sentence.[5] See United States v. Martinez, 460 F. App'x 190 (3d Cir. 2012). Martinez filed a petition for panel rehearing and/or rehearing en banc, but the Court of Appeals denied the petition by Order of March 5, 2012. Martinez did not file a petition for a writ of certiorari in the United States Supreme Court, though he contends he requested his counsel to do so.[6]

         On September 6, 2013, approximately a year and a half after the Third Circuit decided his direct appeal, Martinez requested a copy of his sentencing transcript for purposes of preparing a § 2255 motion. On November 25, 2013, the Court denied the request without prejudice. See Order, Nov. 25, 2013, ECF No. 295. Three weeks later, on December 16, 2013, Martinez filed a motion for an order directing his trial counsel to provide Martinez with a complete copy of his file. The Court referred the motion to Martinez's trial counsel for a response, and, on March 5, 2014, trial counsel sent Martinez a copy of his sentencing transcript and agreed that if Martinez would specify the additional items he wished to receive, counsel would attempt to provide the items to Martinez. In view of this resolution, the Court denied Martinez's motion without prejudice on April 3, 2014. See Order, Apr. 3, 2014, ECF No. 303.

         In the meantime, on February 14, 2014, Martinez filed the instant § 2255 motion, alleging his counsel was ineffective in numerous respects both at trial and on appeal. Specifically, Martinez contends his attorney was ineffective in failing to file a petition for a writ of certiorari with the Supreme Court despite Martinez's request that he do so; failing to challenge Martinez's sentence as procedurally and substantively unreasonable on direct appeal; failing to seek a downward departure or variance based on numerous mitigating factors at sentencing; failing to adequately investigate Martinez's claim that the officers who arrested him beat him, rendering his consent to the search of his car involuntary; failing to adequately advise Martinez of the pros and cons of testifying in his own defense at trial; providing the Government with evidence that led to the obstruction of justice conviction; failing to competently challenge the firearm and drug charges; and failing to formulate an appropriate objection to the Court's proposed response to a jury question. Since filing his original § 2255 motion, Martinez has twice sought leave to amend and/or supplement the motion to include additional ineffective assistance of counsel claims.[7]

         On April 24, 2014, the Government responded to Martinez's § 2255 motion. The Government argues the motion should be dismissed without an evidentiary hearing because it is untimely on its face, having been filed more than one year after Martinez's conviction became final.

         In a reply filed on November 21, 2014, Martinez argues his § 2255 motion is timely because it relates back to the filing of his March 2011 “Motion of Direct Appeal, ” in which he first raised issues concerning his counsel's ineffectiveness, and which he contends should be construed as his original § 2255 motion. Alternatively, Martinez argues the statute of limitations should be equitably tolled because of his lack of knowledge of the English language and the American judicial system, the lack of Spanish speaking inmates to assist him in prison, and his trial counsel's failure to cooperate with his requests for transcripts and other case-related materials.

         On May 3, 2016, Martinez filed a new § 2255 motion, seeking relief from his convictions for conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and possession of a firearm in furtherance of a violent crime or a drug trafficking crime, in violation of 18 U.S.C. § 924(c), based on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague and that imposing an increased sentence under that provision violates due process. Martinez argues, inter alia, that under Johnson, the similarly worded residual clause in § 924(c)(3)(B) is also unconstitutionally vague, and that his § 924(c) conviction is therefore invalid.


         Section 2255 motions are subject to a one-year period of limitation which ...

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