Garcia-Cruz v. USA

Filing 3

ORDER Denying Defendant's Motion to Vacate under 28 U.S.C. § 2255. Signed by Judge Michael M. Anello on 7/31/2017.(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 96cr1908-MMA Related Case No.: 16cv1508-MMA UNITED STATES OF AMERICA, Plaintiff, 12 13 v. 14 FREDERICK GARCIA-CRUZ, 15 ORDER DENYING DEFENDANT’S MOTION TO VACATE UNDER 28 U.S.C. § 2255 Defendant. 16 [Doc. No. 110] 17 18 On March 17, 1998, the Court sentenced Defendant Frederick Garcia-Cruz as a 19 career offender to a term of 360 months imprisonment. See Doc. No. 74. Defendant 20 appealed his conviction and sentence, alleging ineffective assistance of trial counsel. See 21 Doc. No. 76. The United States Court of Appeals for the Ninth Circuit dismissed the 22 appeal, indicating that Defendant’s claims were not suitable for direct review. See Doc. 23 No. 83. On April 13, 2000, Defendant, proceeding pro se, sought collateral review by 24 filing a motion in this Court to vacate, set aside, or otherwise correct his sentence 25 pursuant to 28 U.S.C. § 2255, raising six grounds for relief. See Doc. No. 90. On April 26 28, 2000, the Court denied Defendant’s 2255 motion in all respects. See Doc. No. 106. 27 Both this Court and the circuit court denied Defendant’s request for a certificate of 28 appealability. See Doc. Nos. 108, 109. 1 96cr1908-MMA 1 Defendant has filed a second or successive motion pursuant to Section 2255, 2 proceeding through counsel, challenging his classification as a career offender under the 3 United States Sentencing Guidelines in light of Johnson v. United States, 576 U.S. ---, 4 135 S. Ct. 2551 (2015). See Doc. No. 110. On January 24, 2017, the Ninth Circuit 5 granted Defendant’s application for authorization to file a second or successive 2255 6 motion, finding that Defendant made a prima facie showing for relief under Johnson. See 7 Doc. No. 116 (citing Welch v. United States, 136 S. Ct. 1257, 1264-68 (2016) (Johnson 8 announced a new substantive rule that has retroactive effect in cases on collateral 9 review)). The government filed a response to Defendant’s motion, to which Defendant 10 replied. See Doc. Nos. 117, 118. For the reasons set forth below, the Court DENIES 11 Defendant’s 2255 motion. 12 BACKGROUND 13 On April 19, 1995, while incarcerated at the Metropolitan Correctional Center in 14 San Diego, California, Defendant placed his cellmate in a headlock, threatened to break 15 his neck, and forcibly sodomized him. See Doc. No. 106 at 3.1 On June 6, 1997, a jury 16 found Defendant guilty of one count of aggravated sexual abuse, in violation of 18 U.S.C. 17 § 2241(a). See Doc. No. 47. 18 The Court sentenced Defendant in accordance with the Presentence Report and 19 United States Sentencing Guidelines in effect at the time the offense occurred. See 20 U.S.S.G. § 1B1.11(b)(1). At that time, the Sentencing Guidelines were mandatory. See 21 United States v. Booker, 543 U.S. 220, 245 (2005) (rendering previously mandatory 22 sentencing guidelines advisory). Based on the applicable Guidelines provisions, 23 Defendant’s conviction for aggravated sexual abuse established a Base Offense Level of 24 27. See U.S.S.G. § 2A3.1(a) (1995 Ed.). The offense level was increased to 29 because 25 Defendant’s victim was in the custody of the Bureau of Prisons at the time of the offense. 26 27                                                 28 1 Citations to documents in the record refer to the pagination assigned by the CM/ECF system. 2 96cr1908-MMA 1 See id. § 2A3.1(b)(3). With Defendant’s criminal history category of VI, this established 2 a Guidelines range of 151 to 188 months imprisonment. See id. § 5C1.1(f). 3 The Court next determined that Defendant qualified as a career offender, based on 4 the instant conviction and his prior felony convictions for crimes of violence. See id. § 5 4B1.1. As such, the Court increased his offense level to 37. See id. With a criminal 6 history category of VI, this established an enhanced Guidelines range of 360 months to 7 life imprisonment. See id. § 5C1.1(f). The Court sentenced Defendant at the low end of 8 the range to a term of 360 months imprisonment. See Doc. No. 74. 9 Defendant now moves to vacate and correct his sentence, arguing that after the 10 Supreme Court’s holding in Johnson the instant conviction no longer qualifies as a crime 11 of violence under the residual clause of Section 4B1.2 of the Guidelines. 2 The 12 government opposes Defendant’s motion. The government argues, inter alia, that 13 Johnson’s holding does not extend to the residual clause of the Guidelines, and even if it 14 did, Defendant’s conviction for aggravated sexual assault remains a crime of violence. 15 DISCUSSION 16 1. Legal Standard 17 If a defendant in a federal criminal case collaterally challenges his conviction or 18 sentence, he must do so pursuant to Title 28, section 2255. Tripati v. Henman, 843 F.2d 19 1160, 1162 (9th Cir. 1988). A court may grant relief to a defendant who challenges the 20 imposition or length of his incarceration on the ground that: (1) the sentence was imposed 21                                                 22 23 24 25 26 27 28 2 The version of Section 4B1.2 in effect at the time of Defendant’s sentencing provided as follows: The term “crime of violence” means any offense under federal or state law punishable by imprisonment for a term exceeding one year that--(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(1) (1995 Ed.). The residual clause is italicized. Section 4B1.2 was amended in November 2016. The current version eliminated the residual clause in light of the Supreme Court’s holding in Johnson. 3 96cr1908-MMA 1 in violation of the Constitution or laws of the United States; (2) the court was without 2 jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum 3 authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. 4 § 2255(a). 5 A court may grant relief to a defendant on a second or successive 2255 motion 6 only if the defendant shows: “1) newly discovered evidence that, if proven and viewed in 7 light of the evidence as a whole, would be sufficient to establish by clear and convincing 8 evidence that no reasonable factfinder would have found the movant guilty of the 9 offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral 10 review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). 11 The circuit court’s determination that a defendant has made a prima facie showing 12 for relief does not preclude the district court from ultimately denying a defendant’s 13 motion for failing to satisfy the statutory requirements for filing a second or successive 14 motion.3 See United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir. 2000). 15 “[U]nder section 2244(b)(4), a district court must conduct a thorough review of all 16 allegations and evidence presented by the prisoner to determine whether the motion 17 meets the statutory requirements for the filing of a second or successive motion.” Id. at 18 1165. Section 2244(b)(4) provides that “[a] district court shall dismiss any claim 19 presented in a second or successive application that the court of appeals has authorized to 20 be filed unless the applicant shows that the claim satisfies the requirements of this 21 section.” 28 U.S.C. § 2244(b)(4). 22 2. Analysis 23 24 In this case, because his second or successive motion is not based upon newly discovered evidence, Defendant must demonstrate “that the claim relies on a new rule of 25 26                                                 27 3 28 The Court notes that the Ninth Circuit granted Defendant’s application to file the instant motion several months prior to the Supreme Court issuing its ruling Beckles v. United States, 137 S.Ct. 886, 896 (2017). 4 96cr1908-MMA 1 constitutional law, made retroactive to cases on collateral review by the Supreme Court, 2 that was previously unavailable.” Id. § 2244(b)(2)(A); § 2255(h)(2). Defendant claims 3 his conviction for aggravated sexual assault does not qualify as a predicate offense under 4 the career offender provisions of the Guidelines in light of Johnson’s holding that the 5 residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) 6 (“ACCA”), was void for vagueness, and Welch’s holding that Johnson applies 7 retroactively to cases on collateral review. Defendant’s claim superficially satisfies the 8 requirements of Sections 2255(h)(2) and 2244(b)(4). Johnson announced a new rule of 9 constitutional law and Welch explicitly made it retroactive to cases on collateral review. 10 Johnson’s rule was previously unavailable to Defendant for use in his initial 2255 11 motion. Defendant has presented a sufficient legal basis for his claim, such that he has 12 satisfied the statutory prerequisite for filing a second or successive motion. The Court 13 turns to the merits of Defendant’s claim. 14 In Johnson, the Supreme Court held the residual clause in the definition of a 15 “violent felony” in the ACCA to be unconstitutionally vague and a violation of the Due 16 Process Clause of the Fifth Amendment. 135 S. Ct. at 2557. Defendant’s case is 17 distinguishable because he was not sentenced under the ACCA’s residual clause. As 18 explained above, he was sentenced based on the career offender enhancement provision 19 of the Sentencing Guidelines. Nonetheless, Defendant argues that Johnson’s holding is 20 applicable, because the ACCA’s residual clause is identical in language to Section 21 4B1.2’s former residual clause. 22 On March 6, 2017, the Supreme Court ruled that Johnson’s holding does not 23 extend to the Sentencing Guidelines, in so far as “the advisory Guidelines are not subject 24 to vagueness challenges under the Due Process Clause.” Beckles v. United States, 137 25 S.Ct. 886, 896 (2017) (emphasis added). However, once again, Defendant’s case is 26 distinguishable because he was sentenced prior to the Supreme Court’s holding in 27 Booker. At that time, the Sentencing Guidelines were still mandatory. 28 5 96cr1908-MMA 1 Beckles does not directly control Defendant’s motion, but this fact offers 2 Defendant no relief. Defendant contends that the Due Process Clause prohibits 3 enhancing his mandatory Guidelines range pursuant to the former residual clause of 4 Section 4B1.2, because that clause is void for vagueness. Johnson did not establish that 5 rule, the Supreme Court expressly declined to extend Johnson to the advisory Guidelines, 6 see Beckles, 137 S.Ct. at 896, and likewise declined to determine whether Johnson should 7 be extended to the pre-Booker mandatory Guidelines, see id. at 903 n.4 (2017) 8 (Sotomayor, J., concurring) (“That question is not presented by this case and I, like the 9 majority, take no position on its appropriate resolution.”). 10 The Court agrees with its sister courts who have determined that claims such as 11 Defendant’s do not involve “a mere application of Johnson but rather require[] a new rule 12 extending Johnson.” Hirano v. United States, No. 16-00686 ACK-KJM, 2017 U.S. Dist. 13 LEXIS 94989, at *19 (D. Haw. June 20, 2017) (citing United States v. Russo, No. 14 8:03CR413, 2017 U.S. Dist. LEXIS 63875, 2017 WL 1533380, at *3 (D. Neb. Apr. 27, 15 2017) (quoting Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir. 2016), which 16 denied a § 2255 motion requiring an extension of Johnson to the advisory guidelines); see 17 also Hodges v. United States, Case No. C 16-15621JLR, 2017 U.S. Dist. LEXIS 67694, 18 2017 WL 1652967, at *3 (W.D. Wash. May 2, 2017) (denying 2255 motion for career 19 offender sentence given pursuant to the mandatory guidelines)); see also United States v. 20 Beraldo, No. 3:03-cr-00511-AA, 2017 U.S. Dist. LEXIS 104050, at *4 (D. Or. July 5, 21 2017) (“The right asserted by defendant is the right not to be subjected to a sentence 22 enhanced by a vague mandatory sentencing guideline. Particularly in view of the Beckles 23 Court’s statements about the differences between mandatory and advisory sentencing 24 guidelines, that right is a logical extension of the right recognized in Johnson. But after 25 Beckles, it is doubtful that right is the same right recognized in Johnson.” (emphasis 26 added)). 27 28 In sum, Defendant’s claim arises out of an extension, not an application, of the rule announced in Johnson. The authority to extend Johnson’s rule in a manner that would 6 96cr1908-MMA 1 implicate cases on collateral review lies solely within the province of the Supreme Court. 2 See 28 U.S.C. § 2255(h)(2) (“a new rule of constitutional law, made retroactive to cases 3 on collateral review by the Supreme Court”). As such, it is not for this Court to 4 determine whether Johnson invalidates the residual clause of Section 4B1.2 of the 5 Guidelines in effect at the time of Defendant’s sentencing. Accordingly, the Court 6 DENIES Defendant’s motion.4 7 CERTIFICATE OF APPEALABILITY 8 9 Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that “[t]he district court must issue or deny a certificate of 10 appealability when it enters a final order adverse to the applicant.” A defendant must 11 obtain a certificate of appealability before pursuing any appeal from a final order in a 12 Section 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). Because Defendant has not 13 made a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 14 2253(c)(2), and because the Court finds that reasonable jurists would not debate the 15 denial of Defendant’s motion, the Court declines to issue a certificate of appealability. 16 Slack v. McDaniel, 529 U.S. 473, 483 (2000), superseded on other grounds by 28 U.S.C. 17 § 2253(c)(2); see also Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009). 18 CONCLUSION 19 Based on the foregoing, the Court DENIES Defendant’s 2255 motion. The Court 20 DECLINES to issue a certificate of appealability. The Clerk of Court is instructed to 21 enter judgment in accordance herewith and close the related civil case. 22 23 IT IS SO ORDERED. DATE: July 31, 2017 24 25 26 27 28 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge                                                 4 The Court declines to hold an evidentiary hearing in this case because the motion and record conclusively demonstrate that Defendant is not entitled to relief. See 28 U.S.C. § 2255(b); United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citing United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980)). 7 96cr1908-MMA

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