Munoz v. USA

Filing 35

ORDER denying Petitioner's 32 Motion to Relate Back. ORDERED denying a certificate of appealability and leave to proceed in forma pauperis on appeal. Signed by Senior Judge Frederick J Martone on 1/23/2015.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juan Victor Munoz,
Petitioner,

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vs.

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United States,
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Respondent.
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No. CV-12-2240-PHX-FJM
No. CR-09-0784-1-PHX-FJM
ORDER

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Before the court is petitioner’s “Motion to Relate Back” (doc. 32), and the

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government’s response (doc. 34). Petitioner was found guilty by a jury of conspiracy to

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possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and

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841(b)(1)(B)(ii); possession of a firearm in furtherance of a drug trafficking offense, in

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violation of 18 U.S.C. § 924(c); and, being a felon in possession of a firearm, in violation of

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18 U.S.C. §§ 922(g)(1) and 924(a)(2).

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On December 31, 2013, after a de novo review, we adopted the report and

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recommendation of the United States Magistrate Judge, rejecting petitioner’s argument for

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specific performance of a plea agreement, and recommending that petitioner’s motion to

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vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 be denied (doc. 18). We

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also rejected petitioner’s motion to add two new grounds for relief, concluding that the new

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claims do not relate back to the original habeas petition, and therefore the new claims are

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time-barred. Order at 2 (citing Mayle v. Felix, 545 U.S. 644, 649, 125 S. Ct. 2562, 2566

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(2005)).

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In this latest motion, petitioner again seeks to supplement his § 2255 petition by

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claiming that application of a recent Supreme Court decision in Bond v. United States, 134

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S. Ct. 2077 (2014), renders him “actually innocent of all the statutes in his indictment.”

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Motion at 6. He contends that his new motion is timely under § 2255(f)(3) because it was

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filed within one year of the Court’s decision in Bond. We disagree, and instead conclude that

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petitioner’s claim is untimely and without merit.

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Generally, a petitioner has one year from the date on which his judgment of conviction

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becomes final to file an action seeking to vacate, set aside or correct a sentence. 28 U.S.C.

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§ 2255(f)(1). Alternatively, under § 2255(f)(3), the one-year statute of limitations begins to

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run on the “date on which the right asserted was initially recognized by the Supreme Court,

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if that right has been newly recognized by the Supreme Court and made retroactively

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applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). Petitioner contends that

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his latest motion is timely because he asserts a right newly recognized in Bond that is

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retroactively applicable to his case. We disagree. Not only did Bond not identify a new

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right, but it has no application to petitioner’s case.

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In Bond, the Supreme Court considered whether application of the Chemical Weapons

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Convention Implementation Act of 1998 (the “Chemical Weapons Act”), 18 U.S.C. § 229,

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to a “purely local crime,” exceeded Congress’s enumerated powers and invaded the police

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powers reserved to the States. The petitioner in Bond was charged with possession and use

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of a chemical weapon in violation of the Chemical Weapons Act when she spread two legal,

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toxic chemicals on the car, mailbox and door knob of her husband’s mistress, in hopes of

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causing “an uncomfortable rash.” Id. at 2085. The issue presented in Bond was whether the

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Chemical Weapons Act, meant to prohibit weapons of mass destruction, can be

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constitutionally applied to a purely local crime.

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The Court first recognized that, “lacking a police power, Congress cannot punish

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felonies generally.” Id. at 2086 (citation omitted). Therefore, federal criminal statutes may
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not be applied to purely local criminal activity “unless Congress has clearly indicated that

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the law should have such reach.” Id. at 2083. Finding that there was no “clear indication

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that Congress meant [the Chemical Weapons Act] to reach purely local crimes,” the Court

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concluded that application of the Act to this “unremarkable local offense” would

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“dramatically intrude upon traditional state criminal jurisdiction.” Id. at 2083, 2088. Based

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on this holding, petitioner now argues that none of the federal criminal statutes under which

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he was convicted could be constitutionally applied to his purely local conduct, and he is

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therefore “actually innocent” of those crimes. Motion at 6. This is an overly broad and

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incorrect reading of the Court’s ruling.

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First, Bond did not announce a newly recognized constitutional right. The case did

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not break new ground or impose a new obligation on the government. Instead, it simply

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considered application of the Chemical Weapons Act to the specific facts of that case.

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Therefore, Bond does not extend the statute of limitations under § 2255(f)(3) and petitioner’s

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current motion is time-barred.

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But even if timeliness was not an issue, the motion would nevertheless fail on its

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merits. In contrast to the Chemical Weapons Act, it is well established that each of the

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federal statutes under which petitioner was convicted are constitutional exercises of

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Congress’s power under the Commerce Clause. See Gonzales v. Raich, 545 U.S. 1, 15-16,

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125 S. Ct. 2195, 2205 (2005) (holding that the Controlled Substances Act, 21 U.S.C. §§ 841

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and 846, is a constitutional exercise of congressional power under the Commerce Clause);

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United States v. Hanna, 55 F.3d 1456, 1461-62 (9th Cir. 1995) (holding that 18 U.S.C. § 922

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(felon in possession) is constitutional under the Commerce Clause); and United States v.

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Lynch, 437 F.3d 902, 912 (9th Cir. 2006) (holding that 18 U.S.C. § 924 (use of a firearm in

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relation to a “drug trafficking crime”) is constitutional under the Commerce Clause).

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Therefore, the statutes under which petitioner was convicted are constitutional exercises of

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congressional authority. Petitioner’s claim of actual innocence is wholly without merit.

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IT IS ORDERED DENYING petitioner’s “Motion to Relate Back” (doc. 32).

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IT IS FURTHER ORDERED DENYING a certificate of appealability and leave
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to proceed in forma pauperis on appeal because dismissal of the habeas petition is justified

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by a plain procedural bar and jurists of reason would not find the ruling debatable, and

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because petitioner has not made a substantial showing of the denial of a constitutional right.

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DATED this 23rd day of January, 2015.

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