Claudio Anthony Diaz Torres v. United States, 564 F.2d 617, 1st Cir. (1977)
Claudio Anthony Diaz Torres v. United States, 564 F.2d 617, 1st Cir. (1977)
2d 617
Julio Morales Sanchez, U. S. Atty., and Jose A. Quiles, Asst. U. S. Atty., San
Juan, P. R., on brief, for respondent, appellee.
At the sentence hearing which took place on December 10, 1971, the
prosecutor advised the sentencing judge that defendant was the prime force
during the bank robbery, namely that "he carried the shotgun, directed the
operations, planned the crime, and, by his actions, not only succeeded in getting
away with a substantial amount of money, but, more importantly, he placed in
jeopardy the lives of three peaceful citizens of this community." The District
Court listed the following factors it relied on in deciding what sentence to
impose:
8
This
pre-sentence report shows that you were the leader of this whole movement of
robbing the Banco Credito Y Ahorro Ponceno. It shows that you elaborated the plan
and that after having elaborated the plan and after having formed the group you got
to the point of not allowing anyone from leaving that group by telling your
companions that if they left they would be killed by you.
9
Even
though this plan was preconceived by somebody else, this somebody else
apparently did not have the guts to carry it through but this plan got to your
knowledge and then you thought that you had the guts to do it so you planned it.
10 record shows the previous conviction; it shows that you left your wife and
The
without divorcing her you married somebody else committing bigamy and so that
you would not be charged with bigamy, you divorced your second wife. It shows a
way of life that is not the way of life of a straightforward citizen of this community.
11
The transcript indicated that prior to the imposition of sentence, the Court
extended the right of allocution to defendant, who made statements tending to
establish that subsequent to the offense he had changed his ideals, ambitions,
and way of thinking, and had, in effect, acquired religion. An argument on his
behalf was also made by his attorney. Significantly, after the prosecutor had
made his statement and the trial court had listed the factors relied on in
determining the extent of sentence, defense counsel made a further response
which in no way challenged anything said by the prosecutor or the trial judge
as to the extent of defendant's leadership and responsibility for the robbery.
Defendant made no further attempt to use his right of allocution.
12
13
Appellant waited until December 13, 1976 to file the instant petition to vacate
sentence pursuant to 28 U.S.C. 2255 (1970), i. e., five years and three days
after the imposition of sentence.
14
17
This Court is not prepared to hold that the information relied on by a sentencing
judge may never be challenged at a point in time subsequent to the hearing at
which sentence was imposed. However, when confronted by such a petition,
this Court will carefully scrutinize the information advanced by petitioner as
justifying his delay and as excusing his failure to challenge the information
during the course of the hearing. Any other position would serve to encourage
defendants serving lengthy sentences to lie back and wait, and to attack the
basis of the sentencing after witnesses with relevant knowledge have died or
have otherwise become unavailable, or after pertinent records have become
routinely destroyed, lost or otherwise unavailable.
18