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Rosa v. United States

United States District Court, C.D. California

January 20, 2017

OSVALDO ROSA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DISMISSING PETITION FOR LACK OF SUBJECT MATTER JURISDICTION

          HONORABLE JESUS G. BERNAL United States District Judge.

         I.

         INTRODUCTION

         Petitioner Osvaldo Rosa (“Petitioner”) has filed a Petition for Extraordinary Relief[1] pursuant to Title 28 of the United States Code, section 1651 (“Section 1651”), and in the alternative, a Petition for Writ of Habeas Corpus by a Person in Federal Custody (collectively “Petition”) pursuant to Title 28 of the United States Code, section 2241 (“Section 2241”). Petitioner challenges his 1998 federal conviction and sentence imposed in the Middle District of Florida. As discussed below, the Court dismisses the Petition without prejudice for lack of subject matter jurisdiction.

         II.

         BACKGROUND

         On July 6, 1998, following a jury trial in the United States District Court for the Middle District of Florida, Petitioner was convicted of: (1) conspiracy to possess with intent to distribute heroin and cocaine hydrochloride; and (2) conspiracy to import heroin and cocaine hydrochloride in violation of Title 21 of the United States Code, sections 846 and 963. See USA v. Rosa, 6:98-cr-00069-ACC-GJK-1 (M.D. Fla., filed Mar. 23, 1998).[2] On October 20, 1998, Petitioner was sentenced to 500 months in prison and ten years of supervised release. See Rosa v. Calvin Johnson, 2:16-cv-05342-JGB-KK (CD. Cal., filed July 5, 2016), Dkt. 1, Pet. at 2.

         On November 2, 1998, Petitioner appealed his conviction to the Eleventh Circuit Court of Appeals. USA v. Rosa, 6:98-cr-00069-ACC-GJK-1, Dkt. 130, Notice of Appeal. On January 23, 2001, Petitioner's conviction was affirmed. Id. Dkt. 159, USCA Decision.

         On November 20, 2001, Petitioner filed a motion to vacate his 1998 conviction and sentence pursuant to Title 28 of the United States Code, section 2255 (“Section 2255”) in the Middle District of Florida. Id Dkt. 160, Mot. On July 20, 2004, Petitioner's Section 2255 motion was denied. Id Dkts. 186, 199, Orders.

         On March 12, 2013, Petitioner constructively filed[3] a second motion to vacate his 1998 conviction and sentence pursuant to Section 2255 in the Middle District of Florida.[4] See Rosa v. USA, 6:13-cv-00435-ACC-GJK (M.D. Fla., filed Mar. 18, 2013). Petitioner argued the prosecutor knowingly used “perjured testimony and false evidence” in his trial. Id Dkt. 1, Mot. at 24. Petitioner attached a faxed letter dated September 1, 1999 addressed to “AUSA Bruce Hinshelwood” and signed by Eric Tirschwell. Id Dkt. 1-1 at 10, Exs. On April 3, 2013, Petitioner's Section 2255 motion was denied. Id Dkt. 3, Judgment.

         On July 5, 2016, Petitioner constructively filed a petition (“First Petition”) for Writ of Habeas Corpus in this Court, challenging the legality of his detention based on his 1998 conviction and sentence pursuant to Section 2255's “escape hatch.” Rosa v. Calvin Johnson, 2:16-cv-05342-JGB-KK (CD. Cal., filed July 5, 2016), Dkts. 1, 5, First Pet.

         On August 30, 2016, Petitioner's First Petition was dismissed without prejudice for lack of subject matter jurisdiction. Id Dkt. 6, 7, Order and Judgment. This Court held Petitioner did not qualify for Section 2255's “escape hatch” exception because: (1) Petitioner did not offer “any evidence that would lead the Court to conclude ‘in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him'” (internal citation omitted); and (2) Petitioner failed to demonstrate he lacked an unobstructed procedural shot, the legal basis for his claims did not arise until after he had exhausted his direct appeal and Section 2255 Motion, or the law changed in any way relevant to Petitioner's claims after the Section 2255 Motion. Order at 5. Consequently, this Court, as the custodial court, determined it was precluded from adjudicating Petitioner's challenge to the legality of his sentence. Id at 3-5.

         On November 14, 2016, Petitioner filed the instant Petition. Dkt. 1, Pet. In the Petition, Petitioner once again challenges the legality of his detention based on his 1998 conviction and sentence pursuant to Section 2255 “escape hatch.” Petitioner bases his challenge on allegations of “ gross governmental misconduct . . . which denied Petitioner a fair trial.” Id at 7, 16[5]. Petitioner claims actual innocence and denial of “an unobstructed procedural shot because the government never disclosed evidence of perjury, [and] withheld pertinent information regarding evidence of perjury.” Id at 16. To support his claims of perjury, ...


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