Gomez v. United States of America
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SANTOS PABLO GOMEZ,
Movant,
Case No. 1:16-cv-1003
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
This matter comes before the Court on Movant Gomez’s motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.) On August 29, 2016, the
Government filed a response in opposition. (ECF No. 5.) On October 11, 2016, Movant
filed a brief in support of his § 2255 motion. (ECF No. 6.) For the reasons that follow,
Movant’s § 2255 motion is denied.
I.
On August 7, 2014, Movant pleaded guilty to aggravated felon reentry, in violation
of 8 U.S.C. §§ 1326(a), (b)(2), and 1101(a)(43)(A). This Court sentenced Movant to 36
months in custody. Movant filed a direct appeal, arguing that he received an excessive
sentence because the Court improperly applied a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). On October 9, 2015, a divided panel of the Sixth Circuit affirmed the
sentence, holding that Movant’s prior conviction was a crime of violence. United States v.
Gomez, 628 F. App’x 400, 406-07 (6th Cir. 2015). Subsequently, Movant filed this motion
to vacate, set aside or correct sentence raising claims of ineffective assistance of counsel for
failure to argue that the Michigan conviction for criminal sexual conduct with a minor was
not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) and was not a crime of violence
under 18 U.S.C. § 16(b).
II.
A prisoner who moves to vacate his sentence under § 2255 must show that the
sentence was imposed in violation of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such a sentence, that the sentence was in excess of
the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an
error of constitutional magnitude which had a substantial and injurious effect or influence
on the guilty plea or the jury’s verdict.’” Humphress v. United States, 398 F.3d 855, 858 (6th
Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).
Non-constitutional errors are generally outside the scope of § 2255 relief. United
States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255
motion alleging non-constitutional error only by establishing a “fundamental defect which
inherently results in a complete miscarriage of justice, or, an error so egregious that it
amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir.
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1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal
quotations omitted)).
As a general rule, claims not raised on direct appeal are procedurally defaulted and
may not be raised on collateral review unless the petitioner shows either (1) “cause” and
“actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504
(2003); Bousley v. United States, 523 U.S. 614, 621–22 (1998); United States v. Frady, 456
U.S. 152, 167–68 (1982). An ineffective assistance of counsel claim, however, is not subject
to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of
counsel claim may be raised in a collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal. Id.
III.
Movant argues that his criminal sexual conduct conviction no longer qualifies as
an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) or a crime of violence under 18
U.S.C. § 16(b) in light of Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v.
United States, 136 S. Ct. 1257 (2016) (holding that Johnson applied retroactively). In
Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutional. But Johnson and Welch do not
apply because Movant was not convicted of a violation under § 922(g), and he was not
sentenced under any provision of § 924, including its residual clause. Rather, Movant
pleaded guilty to being present in the United States after having been removed subsequent
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to his conviction of an aggravated felony under 8 U.S.C. §§ 1326(a) and (b)(2). “[T]he
Johnson opinion itself stressed that its reasoning did not control other statutes that refer to
predicate crimes.” United States v. Taylor, 814 F.3d 340, 378 (6th Cir. 2016). The basis
for Movant’s conviction is not related to the ACCA’s residual clause; therefore, Movant’s
Johnson claim is meritless.
Further, a § 2255 motion “may not be used to relitigate an issue that was raised on
appeal absent highly exceptional circumstances,” DuPont v. United States, 76 F.3d 108,
110 (6th Cir. 1996) (internal citations and quotation marks omitted), or “an intervening
change in the case law,” Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999).
Movant argues that he received an excessive sentence because the Court improperly
applied a 16-level enhancement under U.S.S.G. § 2L1.2. The Government contends that
this claim must be denied because Movant previously raised it on appeal and the Sixth
Circuit rejected it. The Court agrees. Gomez, 628 F. App’x at 406-07 (“Based on the
foregoing, we hold that Gomez’s conviction under Mich. Comp. Laws § 750.520d(1)(a)
of criminal sexual conduct in the third degree qualifies as a forcible sex offense and, thus,
a crime of violence under U.S.S.G. § 2L1.2.”).
Movant has not shown that highly exceptional circumstances exist nor has he
shown an intervening change in the case law relevant to his sentencing. Although the
Sixth Circuit has held that the definition of a “crime of violence” in 8 U.S.C.
§ 1101(a)(43)(F) is also unconstitutionally vague, Shuti v. Lynch,828 F.3d 440, 447 (6th
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Cir. 2016), Movant was not convicted or sentenced under § 1101(a)(43)(F). Nor did the
Court rely on the definition of a violent crime in 18 U.S.C. § 16 for his sentence
enhancement. Rather, the Court sentenced Movant based on the specific predicate
offense of sexual abuse of a minor under § 1101(a)(43)(A), as enumerated in U.S.S.G. §
2L1.2, Appl. Note 2. Neither Johnson nor Shuti affected this enhancement. Thus,
Movant has not shown any intervening change in case law relevant to his sentence.
Movant also raises two ineffective assistance of counsel claims. There is a twoprong test to evaluate claims of ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). A defendant must prove that (1) counsel’s
performance fell below an objective standard of reasonableness; and (2) counsel’s
deficient performance prejudiced the defendant resulting in an unreliable or
fundamentally unfair outcome. Id. A court considering a claim of ineffective assistance
must “indulge a strong presumption that counsel’s conduct falls within a wide range of
professional assistance.” Id. at 689. Movant bears the burden of proof for each prong,
and the Court may dismiss a claim of ineffective assistance if he fails to carry his burden
of proof on either element. Strickland, 466 U.S. at 687, 697.
Movant had the same attorney for his plea, sentencing, and direct appeal. He
argues that he had ineffective assistance of counsel because his attorney failed to argue
that his Michigan conviction was not an aggravated felony or crime of violence during
sentencing. But counsel objected to the 16-level enhancement in his sentencing
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memorandum, arguing that Movant’s criminal sexual conduct conviction was not a crime
of violence. (Gomez, No. 1:14-cr-101, Sentencing Mem. 2-4, ECF No. 23, PageID.5456.) His attorney also objected to the enhancement during Movant’s sentencing hearing.
(Gomez, No. 1:14-cr-101, Sentencing Tr. 3-4, ECF No. 30, PageID.118-19.)
Movant also argues that counsel’s failure to raise a Johnson claim on direct appeal
violated his Sixth Amendment right. Although Johnson was before the Supreme Court
while Movant sought direct review of his sentence, the Court did not sentence Movant
under the residual clause of the ACCA. Therefore, Johnson was not relevant to Movant’s
appeal.
Movant has not overcome the strong presumption that counsel’s conduct fell inside
the wide range of professional assistance. Even assuming that this was constitutionallydeficient performance, Movant has not shown that he was prejudiced by counsel’s errors
because Johnson does not apply to his sentence. Thus, Movant’s ineffective assistance of
counsel claims are without merit.
IV.
For the reasons stated above, Movant’s motion to vacate, set aside, or correct the
sentence imposed upon him by this Court will be denied. Because the Court finds that the
“motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief,” 28 U.S.C. § 2255(b), no evidentiary hearing is required.
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Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a
certificate of appealability. To warrant the grant of a certificate of appealability, Movant
“must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Sixth Circuit has disapproved of the issuance of blanket denials of a certificate of
appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court
must “engage in a reasoned assessment of each claim” to determine whether a certificate
is warranted.” Id. at 467. Because Movant cannot make a substantial showing of the
denial of a federal constitutional right with respect to any of his claims, a certificate of
appealability will be denied.
A judgment and order will enter in accordance with this opinion.
Dated:
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
November 23, 2016
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