Munoz v. United States of America

Filing 21

OPINION AND ORDER denying 17 Motion to Reopen and Reurge Previously Filed Motion for Post-Conviction Relief Under 28 U.S.C. 2255 Pursuant to Federal Rule of Civil Procedure 60. Signed by Judge John E. Steele on 8/4/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PEXIS MUNOZ,
Petitioner,
v.

Case No: 2:09-cv-115-FtM-29DNF
Case No. 2:01-CR-49-FTM-29DNF

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner's Motion to
Reopen and Reurge Previously Filed Motion for Post-Conviction
Relief Under 28 U.S.C. 2255 Pursuant to Federal Rule of Civil
Procedure 60 (Cv. Doc. #17; Cr. Doc. #159) 1 filed on June 1, 2015.
The United States’ Response (Cv. Doc. #19; Cr. Doc. #160) was filed
on July 2, 2015.

On May 17, 2016, the Court appointed the Federal

Public Defender’s Office to review petitioner’s case, and to file
a supplement or reply or seek leave to file a successive petition
if appropriate.

(Cv. Doc. #20.)

On September 5, 2001, petitioner and his co-defendants were
charged in a five-count First Superseding Indictment (Cr. Doc.

1The

Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”

#44) with (1) Conspiracy to Possess with Intent to Distribute 500
Grams or More of Cocaine, (2) Possession With Intent to Distribute
500 Grams or More of Cocaine, (3) Using and Carrying a Firearm
During and in Relation to a Drug Trafficking Crime, and as to
petitioner only, (4) Possession of a Firearm by a Convicted Felon
as an Armed Career Criminal. 1
offenses:

Count Four identified four predicate

Carrying a Concealed Firearm in violation of Fla. Stat.

§ 790.01(2); Battery on a Law Enforcement Officer in violation of
Fla. Stat. §§ 784.03 and 784.07; Robbery in violation of Fla. Stat.
§ 812.13(2)(c); and Resisting Arrest with Violence in violation of
Fla. Stat. § 843.01.

(Id.)

Pursuant to a Plea Agreement (Cr. Doc. #71), petitioner pled
guilty to Counts One, Three, and Four.

In the Factual Basis of

the Plea Agreement, petitioner admitted that he had been convicted
of all four of the offenses identified in the First Superseding
Indictment (Cr. Doc. #71, p. 19.)
The Presentence Report reflects that petitioner qualified as
a career offender under Sentencing Guidelines §4B1.1 and as an
Armed

Career

Criminal

under

the

ACCA.

The

calculation

of

petitioner’s Sentencing Guidelines range was driven by his career
offender status, which resulted in a base offense level of 37.
After

receiving

a

three

level

reduction

for

acceptance

1 Count Five pertains to co-defendant Alexander Diaz only.

of

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responsibility, petitioner’s adjusted base offense level was 34.
Defendant was a Criminal History Category of VI, both because of
the extent of his criminal convictions and because of his career
offender status.
Criminal

History

With an Adjusted Offense Level of 34 and a
Category

of

VI,

petitioner’s

Sentencing

Guidelines range was 262 to 327 months imprisonment.
On March 18, 2002, petitioner was sentenced to concurrent
terms of 262 months imprisonment on Counts One and Four, followed
by a consecutive 60 months imprisonment on Count Three (Cr. Docs.
## 109, 110.)

Concurrent 60 month terms of supervised release

were also imposed.

Count Two was dismissed.

Petitioner did not

file a timely direct appeal.
On September 29, 2003, petitioner filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, and to Correct, Sentence By a
Person in Federal Custody (Cr. Doc. #123), which was denied as
time-barred.

(Cr. Doc. #129.)

for want of prosecution. 2

Petitioner’s appeal was dismissed

On February 26, 2009, petitioner filed

another Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, and to
Correct, Sentence By a Person in Federal Custody (Cv. Doc. #1; Cr.
Doc. #151).

Petitioner asserted that the intervening cases of

Begay v. United States, 128 S. Ct. 1591 (2008) and United States
v. Archer, 531 F.3d 1347 (11th Cir. 2008) established that he did

2 See Case No. 2:03-cv-568-FTM-29SPC, Doc. #24.

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not have a sufficient number of predicate convictions to qualify
as a career offender under either the Sentencing Guidelines or the
ACCA.

(Cv. Docs. ## 1-2.)

On August 13, 2009, the undersigned

issued an Opinion and Order (Cv. Doc. #11) dismissing petitioner’s
§ 2255 motion as untimely because Begay and Archer were not
retroactive.

Judgment (Cv. Doc. #12) was entered the next day.

Petitioner appealed that decision, and on January 19, 2010, the
Eleventh

Circuit

Court

of

Appeals

denied

a

certificate

of

appealability because the § 2255 motion was barred by the one-year
statute of limitations period and petitioner was not entitled to
equitable tolling.

(Cv. Doc. #16).

On December 24, 2013, the Eleventh Circuit held that the rule
announced in Begay applied retroactively to cases on collateral
review.

Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253,

1276–77 (11th Cir. 2013) (holding “that the new rule announced in
Begay applies retroactively for purposes of a first § 2255 motion.
. . .”).

See also Mackey v. Warden, FCC Coleman-Medium, 739 F.3d

657, 662 (11th Cir. 2014).

On June 26, 2015, the Supreme Court

found the residual clause of the ACCA was unconstitutionally vague
and invalid in Johnson v. United States, 576 U.S.

, 135 S. Ct.

2551 (2015), which was made retroactive to cases on collateral
review in Welch v. United States, 136 S. Ct. 1257, 1260 (2016).
Petitioner’s present motion seeks to reopen this § 2255
motion, arguing that the case law since his sentencing establishes

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he does not have a sufficient number of predicate convictions to
qualify under the ACCA or as a career offender under the Sentencing
Guidelines.
On June 2, 2016, the Court appointed the Federal Public
Defender to represent petitioner in his underlying criminal case.
(Cr. Doc. #163.)

On June 21, 2016, the Eleventh Circuit Court of

Appeals granted leave to file a successive petition because he
made a prima facie of a Johnson v. United States, 135 S. Ct. 2551
(2015) claim “only as to his § 922(g) conviction for possession of
a firearm by a convicted felon” related to Count Four of the (First
Superseding) Indictment.

(Cr. Doc. #169, p. 8.)

The same day,

the Federal Public Defender filed a Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence By a Person in Federal
Custody and a new case, Case No. 2:16-cv-491-FTM-29MRM, was opened.
(Cr. Doc. #170.)
In light of the new and pending § 2255 case, the Court finds
no

exceptional

circumstances

which

would

justify

allowing

petitioner to reopen his original § 2255 motion under Rule 60(b),
or

otherwise.

Therefore,

petitioner’s

current

motion

for

reconsideration in this case will be denied.
Accordingly, it is hereby
ORDERED:
Petitioner's Motion to Reopen and Reurge Previously Filed
Motion for Post-Conviction Relief Under 28 U.S.C. 2255 Pursuant to

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Federal Rule of Civil Procedure 60 (Cv. Doc. #17; Cr. Doc. #159)
is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
August, 2016.

Copies:
Petitioner
Counsel of Record

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4th

day of