Silva, Natividad v. Ward, Lester

Filing 13

ORDER denying 1 Petition for Writ of Habeas Corpus and dismissing this case with prejudice. Signed by District Judge William M. Conley on 1/6/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
NATIVIDAD SILVA, JR.,
Petitioner,

OPINION AND ORDER

v.
14-cv-424-wmc
LEANN LARIVA, Warden,
Federal Medical Center – Rochester,1
Respondent.

Petitioner Natividad Silva, Jr., seeks habeas corpus relief under 28 U.S.C. § 2241
from his continued confinement at the Federal Medical Center in Rochester, Minnesota,
under an enhanced sentence for successive firearms convictions under 18 U.S.C.
§ 924(c). United States v. Silva, 92-cr-342 (N.D. Tex.). The government has filed an
answer and both parties have submitted briefing. After considering all of the pleadings
and exhibits, the court concludes that the petition must be denied for reasons set forth
below.
PROCEDURAL HISTORY
Because Silva has made multiple attempts to challenge his conviction and
sentence, an overview of the case’s procedural history is necessary before addressing his
challenge here.

Since filing his petition, Silva was transferred to the Federal Medical Center in Rochester,
Minnesota. The caption has been updated accordingly.
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A. Underlying Charges, Guilty Plea and Sentencing
On July 30, 1992, a grand jury in the Dallas Division of the Northern District of
Texas returned a six-count indictment against Silva. The charges stemmed from a series
of armored-car robberies in and around the Dallas metropolitan area. (Dkt. # 10, Exh. 4,
Rearraignment Trans. at 7-10.) Counts one, two, three and five charged Silva with robbery
affecting commerce. Count four charged Silva with using a firearm during a crime of
violence, while count six charged Silva with using a firearm during a crime of violence as
a second or successive offense.
On November 3, 1992, Silva pled guilty to all six counts of the indictment. (Dkt.
# 10, Exh. 4, Rearraignment Trans. at 3.) The undisputed facts underlying the charged
offenses are as follows:
On June 8, 1992, the defendant [Silva] robbed Michael Rodriguez, a
guard for Loomis Armed, Inc. at gunpoint as he was exiting the Home
Depot store, 1975 W. Northwest Highway, Dallas, Texas. The defendant
took Mr. Rodriguez’ gun and a money bag that contained approximately
$43,508.86, including $15,101 in cash.
On June 17, 1992, Silva robbed Robert Robles, a guard employed by
Loomis Armed, Inc., at gunpoint as he was exiting the Home Depot store,
1441 Trinity Mills Roads, Carrollton, Texas.
On July 6, 1992, Silva robbed Charles Wallace, a guard for Loomis
Armed, Inc., at gunpoint as he was entering DFW Check Cashiers Store,
102 West Main Street, Grand Prairie, Texas. The defendant took Mr.
Wallace’s gun but did not receive any money because the robbery took
place before the guard entered the store.
On July 6, 1992, approximately one hour after the robbery at DFW
Check Cashiers Store, the defendant robbed Jose Garza, a guard for
Armored Transport of Texas, at gunpoint as he was leaving the K-Mart
Store, Cedar Hill, Texas. The defendant took Mr. Garza’s gun and
approximately $45,980, including $19,000 in cash.
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(Dkt. # 11, Exh. 3, Presentence Report at ¶¶ 2-5.) Silva admitted that he was the gunman
during each of the robberies. Silva’s co-defendant and brother, Jesus Silva, confessed to
being the driver during the two robberies on July 6, 1992.
Silva’s sentencing hearing took place on January 3, 1993. During that proceeding,
the district court sentenced Silva to concurrent 97-month terms of imprisonment for the
robbery charges lodged in counts one, two, three and five. The district court imposed a
consecutive 60-month term of imprisonment on the first firearms offense alleged in count
four, for carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c).
The district court then imposed a consecutive 20-year prison sentence on the second
firearm offense outlined in count six, also for using a deadly weapon during a crime of
violence in violation of § 924(c). In doing so, the district court expressly found that the
conviction in count six was subject to an enhancement found in § 924(c) for “second or
successive” convictions for the use of a deadly weapon during a crime of violence, relying
on the holding of the Fifth Circuit Court of Appeals in United States v. Deal, 954 F.2d
262 (5th Cir. 1992). (Dkt. # 10, Exh. 4A, Sentencing Trans. at 32-33.)
In Deal, which also involved a string of armed robberies, the Fifth Circuit ruled
that a second or successive conviction for use of a firearm during a crime of violence can
result from the same indictment as the first such conviction. Deal, 954 F.2d at 263.
Specifically, where separate counts relate to bank robberies committed on different
occasions, the court held that the enhancement applies even when the second or
successive convictions are part of the same indictment. Id. Any doubt as to this reading
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of the statute was removed after the United States Supreme Court granted certiorari
review and similarly held that a “second or subsequent conviction” as used in § 924(c)
can arise in a single proceeding when multiple offenses are proved. See Deal v. United
States, 508 U.S. 129 (1993). In other words, § 924(c) does not require a previous § 924
conviction to become final before the second or subsequent offense in order for an
enhanced sentence to be imposed.
B. Silva’s Direct Appeal
On direct appeal to the Fifth Circuit, Silva understandably enough, chose not to
challenge it recently minted Deal opinion, but rather argued that the district court erred
by failing to authorize a downward departure under U.S.S.G. § 5K2.12, relying on
evidence that he committed the offenses because of coercion by local drug dealers. Silva
argued further that the district court erred by refusing to authorize a downward
departure for acceptance of responsibility.
The Fifth Circuit rejected both arguments, affirming the conviction and sentence
in an unpublished opinion. See United States v. Silva, N. 93-1311, 1993 WL 481588 (5th
Cir. Nov. 3, 1993). Thereafter, the Supreme Court denied Silva’s petition for a writ of
certiorari. See Silva v. United States, 510 U.S. 1183 (1994).
C. Post-Conviction Motion to Vacate Under 28 U.S.C. § 2255
After his conviction was affirmed on appeal, Silva filed a motion to vacate, correct
or set aside his sentence pursuant to 28 U.S.C. § 2255, arguing that he was denied
effective assistance of counsel.

In an amended motion, Silva argued further that his
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firearm conviction in count six of the indictment was part of the same conduct charged in
count four and, therefore, could not have been a second or subsequent conviction for
purposes of the enhancement found in 18 U.S.C. § 924(c).
The government filed a response opposing the amended motion on the grounds
that Silva had procedurally defaulted these new claims by failing to raise the challenges in
his direct appeal, and pointing out that, in any event, the claim was without merit
because each of the two firearm convictions was related to a different armed robbery.
(Dkt. # 10, Exh. 6B.) As the government further pointed out, even though two of the
armed robberies occurred on the same day, July 6, 1992, they also each involved different
times, victims, and locations, and were separate and distinct acts. Id. As support for
counting the second robbery on July 6, 1992, for enhancement purposes under 18 U.S.C.
§ 924(c)(1)(C)(i), the government relied in part on the Supreme Court’s decision in Deal
v. United States, 508 U.S. 129 (1993).
Finding that the offense charged in count six was separate and distinct from the
offense lodged in count four, a magistrate judge concluded that the enhancement for the
second conviction was proper. (Dkt. # 10, Exh. 6C.) The magistrate judge concluded
further that none of Silva’s other claims were valid and recommended denying relief.
The

district

court

adopted

the

magistrate

judge’s

findings,

conclusions

and

recommendations and denied relief under § 2255. (Dkt. # 10, Exhs. 6D, 6E.) The Fifth
Circuit affirmed that decision in an unpublished opinion. See United States v. Silva, No.
97-10266, 1998 WL 29992 (5th Cir. Jan. 6, 1998).
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D. Successive Motions for Collateral Review
On August 20, 1999, Silva filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 in the Eastern District of Texas. See Silva v. United States, No. 99-cv548. The district court construed that petition as a motion to vacate under § 2255,
transferring it to the Northern District of Texas, where Silva was convicted and
sentenced.

(Dkt. # 10, Exh. 1A.) The Northern District dismissed the motion, citing

Silva’s failure to obtain permission from the Fifth Circuit to file a successive motion
under § 2255. See Silva v. United States, No. 99-cv-2036. Thereafter, the Fifth Circuit
denied Silva’s motion to authorize a successive § 2255 motion. See In re Natividad Silva,
No. 99-11277 (5th Cir. Dec. 29, 1999).
In early 2002, Silva sought leave to file another § 2255 motion. The Fifth Circuit
also denied that request.

See In re Natividad Silva, No. 02-10176 (5th Cir. Dec. 29,

1999). Undeterred, Silva promptly repeated his request for leave to file a successive
motion under § 2255. The Fifth Circuit denied that request as well, while at the same
time issuing a sanctions warning against him for filing frivolous motions.

See In re

Natividad Silva, No. 02-10797 (5th Cir. Sept. 23, 2002).
In October 2002, Silva submitted a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 in the Northern District of Texas. See Silva v. Wendt, No. 02-cv2265. In that petition, Silva argued that he was actually innocent of the firearm offense
lodged against him in count six of the indictment because he did not actively employ the
weapon during the underlying robbery, citing Bailey v. United States, 516 U.S. 137
6

(1995).

In Bailey, the Supreme Court held that use of a firearm during a crime of

violence for purposes of 18 U.S.C. § 924(c) means active employment of the firearm, not
mere possession.

516 U.S. at 143.

Silva further denied committing the robbery

referenced in count six, accusing his co-defendant and brother, Jesus, of committing that
offense.
In response to Silva’s petition, the government argued that his request for relief
under § 2241 was improper because he could not meet the requirements found in 28
U.S.C. § 2255(e), otherwise known as the § 2255 “savings clause.” The savings clause
provides review in limited situations, as follows:
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to [§ 2255], shall not be
entertained if it appears that the applicant has failed to apply for relief by
motion [to vacate sentence pursuant to § 2255], to the court which
sentenced him, or that such court has denied him relief, unless it appears that
the remedy by motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added).
The government argued further that Silva could not show that he was entitled to
relief under Bailey because he previously admitted robbing the victim identified in count
six at gun point and Silva failed to show that his brother committed the robbery.
Moreover, the government argued that Bailey did not apply because Silva actively
employed his weapon during the robbery. Finally, the government observed that Silva
could have raised a Bailey claim during his initial proceeding under § 2255, meaning that
his claims were not properly considered under the savings clause.

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A magistrate judge later issued findings and conclusions recommending that
Silva’s petition be dismissed.

See Silva v. Wendt, No. 02-cv-2265 (dkt. # 23.)

The

magistrate judge found, in particular, that the evidence showed Silva actively employed a
weapon during the robbery referred to in count six of the indictment, meaning Bailey did
not apply to Silva’s case. The magistrate judge noted further that Silva raised the same
claims in two motions for leave to file a successive motion under § 2255, which the Fifth
Circuit twice rejected as frivolous. See In re Natividad Silva, No. 02-10176 (5th Cir. Dec.
29, 1999); In re Natividad Silva, No. 02-10797 (5th Cir. Sept. 23, 2002). The magistrate
judge concluded, therefore, that Silva failed to establish that § 2255 was “inadequate or
ineffective” within the meaning of savings clause. See Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001) (requiring a petitioner to establish that his petition was
based on a retroactively applicable Supreme Court decision showing that he was
convicted of a non-existent offense or that he was foreclosed by circuit law from bringing
his claim at trial, appeal, or in his initial § 2255 motion).
The

district

court

adopted

the

magistrate’s

findings,

conclusions

and

recommendations and dismissed the petition. See Silva v. Wendt, No. 02-cv-2265 (dkt.
#25.) The Fifth Circuit affirmed the district court’s decision in an unpublished opinion.
See Silva v. Wendt, No. 03-11084 (5th Cir. July 26, 2004).
Subsequently, Silva filed two more unsuccessful habeas petitions challenging his
conviction on count six of the indictment. See Silva v. Berkebile, No. 08-cv-1240 (N.D.
Tex.) (rejecting Silva’s claim of actual innocence under Bailey), aff’d, No. 08-10914, 326
8

F. App’x 821, 822 (5th Cir. Aug. 24, 2009) (finding Silva’s appeal frivolous); Silva v.
Fisher, No. 12-1934, 2012 WL 4794138 (D. Minn. Oct. 9, 2012) (rejecting a similar
Bailey claim as already adjudicated and noting that Silva admitted he actually used the
gun during the robbery at issue, rather than his brother), aff’d, No. 12-3637 (8th Cir.
Feb. 21, 2013).
E. Silva’s Pending Petition for Relief Under 28 U.S.C. § 2241
In this case, Silva is yet again seeking relief under 28 U.S.C. § 2241 from his
enhanced sentence.

In particular, Silva contends that relief is warranted from his

conviction and sentence for the firearms offense charged in count six for the following
reasons: (1) the district court erred by enhancing his sentence under 18 U.S.C. § 924(c)
because he was a first-time offender; and (2) he was denied effective assistance of counsel
at sentencing when his defense attorney failed to object to the application of this
enhancement. Arguing further that he is actually innocent of the enhancement, Silva
maintains that he must be resentenced, relying on Carachuri-Rosendo v. Holder, 560 U.S.
563 (2010) and Clark v. United States, No. 13-cv-1026, 2013 WL 3032602 (C.D. Ill.
June 17, 2013).
OPINION
As an initial matter, Silva seeks relief under 28 U.S.C. § 2241 based on claims that
are normally reserved for review under 28 U.S.C. § 2255, which is the exclusive means
for challenging the validity of a federal sentence. See Unthank v. Jett, 549 F.3d 534, 534
(7th Cir. 2008). Although Silva is essentially restricted from seeking further relief under
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§ 2255 here by the prohibition on successive motions and by the statute of limitations, a
federal prisoner who is barred from seeking relief under § 2255 may not ordinarily
circumvent those statutory restrictions on review by challenging his conviction or
sentence under § 2241. See United States v. Prevatte, 300 F.3d 792, 799 (7th Cir. 2002)
(quoting Garza v. Lappin, 253 F.3d 918, 921 (7th Cir. 2001)). To re-litigate his claims,
therefore, Silva must meet a heavy burden to satisfy the savings clause found in
§ 2255(e) by establishing that remedy is inadequate or ineffective to test the legality of
his detention. See Light v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014) (noting that relief
is available under the savings clause only in “rare circumstances”).
Unfortunately for Silva, he must satisfy three conditions before being allowed to
proceed under the savings clause. In re Davenport, 147 F.3d 605, 610-12 (7th Cir. 1998).
First, his claim for relief must rely on “a ‘statutory-interpretation case,’ rather than a
‘constitutional case.’” Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (quoting
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). Second, the case relied upon must
apply retroactively such that he could not have invoked it in his first § 2255 motion. Id.
Third, where a sentence enhancement is alleged to be erroneous, there must “have been a
grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas
corpus proceeding.” Id.
Silva’s claim that his attorney was ineffective for failing to object to the sentence
enhancement found in 18 U.S.C. § 924(c) meets none of the conditions for review under
the savings clause. Certainly, the record reflects that Silva’s defense counsel did raise an
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objection to the sentencing enhancement that was imposed in connection with count six
of the indictment. (Dkt. # 11, Presentence Report and Objections at ¶ 69). Nevertheless,
Silva’s proposed objection to the sentence enhancement found in 18 U.S.C. § 924(c)
remains foreclosed because the law is clearly settled that a second firearms conviction for
purposes of § 924(c) can result from the same indictment as the first firearms conviction.
See Deal, 508 U.S. at 132-37; see also Greenlaw v. United States, 554 U.S. 237, 241 (2008)
(citing Deal and noting that when a defendant is charged in the same indictment with
more than one offense qualifying for punishment under § 924(c), all convictions after the
first qualify as second or successive for purposes of the enhancement). Silva does not
otherwise show that his defense counsel had, but failed to make, a valid objection to the
enhancement or that his sentence was imposed in error.
Finally, Silva’s claim that he is entitled to relief from his enhanced sentence
pursuant to Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), is without merit because
the case is not retroactive or even relevant. In Carachuri-Rosendo, the Supreme Court held
that an alien’s second state misdemeanor conviction for simple drug possession, which
was not enhanced based on the fact of a prior conviction, was not an “aggravated felony”
punishable under the Controlled Substances Act, 18 U.S.C. § 924(c)(2), which would
preclude relief in the form of cancellation of removal for purposes of the immigration
statutes, see 8 U.S.C. § 1229b(a)(3). Carachuri-Rosendo, 560 U.S. at 582. Silva does not
demonstrate that this holding applies to him, nor does it appear to the court to apply.2

2

Similarly, Silva fails to show that the district court decision in Clark v. United States, No. 13-cv-

11

Even if it did, the Supreme Court has not held that the holding in Carachuri-Rosendo is
retroactive such that it could apply to him. See 28 U.S.C. § 2255(h)(2).
Based on this record, Silva fails to demonstrate that he satisfies the requisite
conditions for review under the savings clause found in 28 U.S.C. § 2255(e).
Accordingly, his petition is subject to dismissal.

More importantly, Silva does not

establish that his enhanced sentence was imposed in error, nor that he is in custody in
violation of the Constitution or laws of the United States. For this reason, his petition
will be denied.

ORDER
IT IS ORDERED that the federal habeas corpus petition filed by Natividad Silva,
Jr., pursuant to 28 U.S.C. § 2241 is DENIED and this case is DISMISSED with
prejudice.
Entered this 6th day of January, 2017.
BY THE COURT:
/S/
_____________________
WILLIAM M. CONLEY
District Judge

1026, 2013 WL 3032602 (C.D. Ill. June 17, 2013), which references Carachuri-Rosendo, is of any
assistance to him.

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