Abundis v. United States

• Court: District Court, D. Nevada
• Decided: November 30, 2020
• Docket: 2:20-cv-00637
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 UNITED STATES OF AMERICA, Case Nos. 2:18-cr-00158-MMD-VCF-1 2:20-cv-00637-MMD1 7 Respondent/Plaintiff, v. ORDER 8 JULIO ABUNDIS, 9 Petitioner/Defendant. 10

11 12 I. SUMMARY 13 Abundis plead guilty to one count of Felon in Possession of a Firearm, in violation 14 of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (ECF No. 27), and on March 21, 2019, the Court 15 sentenced him to 46 months imprisonment (ECF No. 39). Before the Court is Abundis’ 16 motion to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 17 2255(a). (ECF No. 42 (the “Motion”).)2 Abundis filed his Motion in response to the 18 Supreme Court’s ruling in Rehaif v. U.S., 139 S. Ct. 2191 (2019), arguing that the 19 Supreme Court’s reinterpretation of 18 U.S.C. §§ 922(g) and 924(a)(2) in Rehaif renders 20 his indictment defective for failure to include a requisite mens rea element. But because 21 Abundis waived the right to raise constitutional claims like this one when he plead guilty 22 unconditionally, and as further explained below, the Court will deny the Motion. 23 /// 24 /// 25 26 1Case No. 2:18-cr-00158-MMD-VCF-1 is the underlying criminal matter. Case No. 27 2:20-cv-00637-MMD is the civil matter opened when the Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. 2255 was filed on April 3, 2020. 28 2The government opposes the Motion. (ECF No. 46.) Abundis filed a reply. (ECF 2 On May 16, 2018, a grand jury indicted Petitioner Julio Abundis on one count of 3 Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 4 (ECF No. 1.) The grand jury issued a superseding indictment on June 6, 2018. (ECF No. 5 6.) As to Count One, Felon in Possession of a Firearm, both indictments allege the 6 following: 7 On or about September 29, 2017, in the State and Federal District of Nevada, Julio Abundis, having been convicted of crimes punishable by 8 imprisonment for a term exceeding one year . . . did knowingly possess a firearm . . . said possession being in and affecting interstate commerce and 9 said firearm having been shipped and transported in interstate commerce, 10 all in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). 11 12 (Id.) Abundis entered into a plea agreement (ECF No. 27), and the Court accepted his 13 guilty plea on October 18, 2018 (ECF No. 26). On March 21, 2019, the Court sentenced 14 Abundis to 46 months imprisonment, to run concurrently with his sentence from a Texas 15 state court case. (ECF Nos. 39, 40.) Judgment was entered on March 25, 2019. (ECF 16 No. 40.) Abundis did not appeal his sentence, and thus his conviction became final on 17 April 8, 2019. (ECF No. 42 at 10.) On April 3, 2020, he filed the Motion. (ECF No. 42.) 18 III. LEGAL STANDARD 19 As noted, Abundis requests his sentence be vacated, set aside, or corrected under 20 28 U.S.C. § 2255(a) following the Supreme Court’s decision in Rehaif, 139 S. Ct. 2191. 21 (Id.) Under § 2255, a federal prisoner may “move the court which imposed the sentence 22 to vacate, set aside or correct the sentence” if the sentence was imposed in violation of 23 the Constitution or laws of the United States. 28 U.S.C. § 2255(a). On June 21, 2019, the 24 Supreme Court decided Rehaif, overruling longstanding Ninth Circuit precedent regarding 25 the required mens rea under §§ 922(g) and 924(a)(2).3 See 139 S. Ct. at 2200. Before 26 Rehaif, the government was only required to prove the defendant knowingly possessed 27

28 3See U.S. v. Enslin, 327 F.3d 788,798 (9th Cir. 2003) (holding the government did not need to prove defendant knew of their prohibited status under 922(g).) 2 knew he possessed a firearm and that he knew he belonged to the relevant category of 3 persons barred from possessing a firearm.” Id. Thus, the decision added a new mens rea 4 element to §§ 922(g) and 924(a)(2). 5 IV. DISCUSSION 6 Abundis argues that his indictment failed to state a federal crime by omitting a 7 necessary element of § 922(g)(1) required under Rehaif, depriving the court of subject 8 matter jurisdiction and rendering his conviction unconstitutional. (ECF No. 42.) As to the 9 constitutionality of the conviction, Abundis claims that the indictment lacked a cognizable 10 claim, violating his Fifth Amendment right requiring that the grand jury find probable cause 11 to support all necessary elements of the crime, and his Sixth Amendment right 12 guaranteeing notice of the nature and cause of the accusations against him. (Id.) Further, 13 Abundis argues that the government was required to demonstrate not only that he knew 14 of his prohibited status, but also that he knew his status prohibited him from possessing 15 a firearm. (Id.) Ultimately, Abundis maintains these errors are structural, requiring the 16 Court vacate his conviction and release him. (Id.) 17 The government responds that Abundis’ claims are waived by his unconditional guilty 18 plea, and procedurally barred because they were not raised on direct appeal. (ECF No. 19 46 at 2.) 20 As further explained below, the Court addresses each issue Abundis raises and 21 finds as follows. First, Abundis’ petition is timely. Second, Rehaif applies retroactively. 22 Third, the government is not required to demonstrate Abundis knew he was barred from 23 possessing a firearm. Fourth, the Court had subject matter jurisdiction at the time it 24 imposed his sentence. Fifth, Abundis’ claims are not procedurally barred because he can 25 demonstrate cause and prejudice. But, Abundis waived his right to assert constitutional 26 claims by pleading guilty unconditionally. In short, the Motion is ultimately denied because 27 Abundis waived his right by pleading guilty. 28 /// 2 Under 28 U.S.C. § 2255, a “1-year period of limitation” applies and runs from the 3 latest of four time triggers.4 See 28 U.S.C. § 2255. Abundis claims that his Motion is timely 4 because it was filed within one year of his conviction becoming final, and one year of 5 Rehaif being decided. (ECF No. 42 at 10.) The Court agrees. When a defendant does not 6 seek direct appeal, as here, the conviction becomes final when time for filing a direct 7 appeal expires. See U.S. v. Gilbert, 807 F.3d 1197, 1200 (9th Cir. 2015). 8 Under this standard, the Motion is timely. Abundis’ conviction became final on April 9 8, 2019 (ECF No. 42 at 10), and the Motion was filed April 3, 2020 (ECF No. 42). 10 Therefore, it was filed within one year of his conviction becoming final. Further, Rehaif 11 was decided June 21, 2019, and thus the Motion was also filed within one year of the 12 Court’s decision in Rehaif. Moreover, the government does not contest timeliness. In sum, 13 the Court finds the Motion timely filed. 14 B. Retroactivity 15 Abundis next argues that the new rule established in Rehaif applies retroactively 16 to his case. (ECF No. 42 at 11.) The Supreme Court’s decision in Teague v. Lane, 489 17 U.S. 288, 301 (1989) established the framework to determine whether a new rule applies 18 to cases on collateral review. Teague’s progeny clarify that “new substantive rules 19 generally apply retroactively,” whereas only “watershed” procedural rules will apply 20 retroactively. Schriro v. Summerlin, 542 U.S. 348, 351, (2004); Teague, 489 U.S. at 311. 21 A rule is “substantive” when it “alters the range of conduct or the class of persons that the 22 law punishes.” Welch v. U.S., 136 S. Ct. 1257, 1264-65 (2016). 23

24 4The four time triggers are: “(1) The date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by 25 governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental 26 action; (3) the date on which the right asserted was initially recognized by the Supreme 27 Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts 28 supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255. 2 Court’s decision in Bousley v. U.S. to argue that changes to elements of federal statutes 3 are substantive. (ECF No. 42 at 11 (making the argument).) See also 523 U.S. 614, 620- 4 21 (1998) (resolving a circuit split over conduct required for a conviction under a particular 5 statute through interpretation of a criminal offense and revision of its elements.) The Ninth 6 Circuit has yet to opine on the retroactivity of Rehaif. As the government does not dispute 7 retroactivity,5 the Court assumes without deciding that Rehaif applies retroactively to 8 Abundis’ § 2255 claims. 9 C. Required Proof 10 Abundis further argues that the plain language of Rehaif requires the government 11 not only demonstrate he knew of his prohibited status—as previously convicted of a crime 12 punishable by more than one year—but knew that this status barred him from possessing 13 a firearm. (ECF No. 42 at 7-9.) Specifically, Abundis points to language in Rehaif requiring 14 knowledge of “the relevant status.” 139 S. Ct. at 2194. He argues that “status” 15 incorporates “the sum total of a person’s legal rights, duties, liabilities . . . .” (ECF No. 42 16 at 8 (quoting Black’s Law Dictionary (11th ed. 2019)).)6 17 The government counters, and the Court agrees, that Rehaif only requires the 18 government prove the defendant knew of their alleged status. This interpretation is 19 supported by the Ninth Circuit Court of Appeals’ recent holding in U.S. v. Singh, 979 F.3d 20 697, 727 (9th Cir. 2020). There, the Ninth Circuit held that the government is not required 21 to prove a defendant knew their status prohibited them from owning a firearm because 22 that interpretation is “not supported by Rehaif,” and goes against the “plain language of 23

24 5The government only cursorily addresses retroactivity and at no point refutes Abundis’ argument that Rehaif applies retroactively. (ECF No. 46 at 5 (“Just as Abundis 25 argues with respect to the retroactivity analysis, see ECF No. 42, at 11, the government believes that Bailey v. United States, 516 U.S. 137 (1995) provides an ‘excellent parallel’ 26 for the procedural default analysis.”).)

27 6Abundis also relies on the Court’s discussion of “vicious will” and its emphasis on “separat[ing] those who understand the wrongful nature of their act from those who do 28 not” to argue that Rehaif requires more than just knowledge of one’s prohibited status, but the implications of that status. Rehaif, 139 S. Ct. at 2196. 2 goes on to explain that “unless the text of the statute dictates a different result, the term 3 ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.’” 4 Id. (citing Bryan v. U.S., 524 U.S. 184, 193 (1998)). And here, the Court concludes that 5 the statute at issue in Rehaif does not “dictate a different result.” Id. Thus, the Court finds 6 that the government was only required to prove that Abundis knew of his prohibited status, 7 not that Abundis knew his status barred him from possessing a firearm. 8 D. Subject Matter Jurisdiction 9 Next, Abundis argues that because the indictment did not describe each element 10 of the offense he was charged with, it failed to make out a federal offense, depriving the 11 Court of jurisdiction under 18 U.S.C. § 3231—a defect constituting structural error. See 12 U.S. v. Ratigan, 351 F.3d 957, 962-63 (9th Cir. 2003). The government responds that 13 under the Supreme Court’s decision in U.S. v. Cotton, 535 U.S. 625, 630 (2002), and the 14 Ninth Circuit’s subsequent decision in U.S. v. Velasco-Medina, 305 F.3d 839, 845 (9th 15 Cir. 2002), omission of a mens rea element does not deprive a court of jurisdiction. 16 In Cotton, the Supreme Court overturned a Fourth Circuit decision finding a 17 “jurisdictional defect” for failure to include drug quantities in an indictment where threshold 18 levels of drugs lead to an enhanced penalty. 535 U.S. at 628. Rather, the Court found 19 that “defects in an indictment do not deprive a court of its power to adjudicate a case” 20 because the Court had “departed from [the] view that indictment defects are 21 ‘jurisdictional.’” Id. at 630-31. Similarly, in Velasco-Medina, the Ninth Circuit found an 22 indictment that failed to allege the requisite specific intent required under the statute did 23 not deprive the Court of jurisdiction. See 305 F.3d at 845. 24 Abundis argues neither of the holdings in either case sweep as broadly as the 25 government claims and attempts to distinguish his case from Cotton and Velasco-Medina. 26 (ECF No. 42 at 14.) But while Abundis is correct that an indictment that fails to allege an 27 offense would affect the Court’s jurisdiction over the case in which that indictment issued, 28 the omission of an element in an indictment does not necessarily deprive a court of 2 Rehaif and found that an “indictment’s omission of the knowledge of status requirement 3 did not deprive the district court of jurisdiction.” U.S. v. Espinoza, 816 Fed. Appx. 82, 84 4 (9th Cir. 2020) (first citing Cotton, 535 U.S. at 630, and then citing Velasco-Medina, 305 5 F.3d at 845-46); see also U.S. v. Burleson, 820 Fed. Appx. 567, 569 (9th Cir. 2020) (citing 6 Cotton, 535 U.S. at 630). 7 Thus, to the extent the indictment was defective for failing to allege the mens rea 8 element under Rehaif, it did not deprive this Court of subject matter jurisdiction. 9 E. Procedural Default 10 The government also argues that Abundis’ claims are procedurally defaulted. (ECF 11 No. 46 at 5.) While a defendant is permitted to attack the legality of his sentence or 12 conviction, a defendant who fails to raise the claim on direct appeal is procedurally 13 defaulted unless the defendant can demonstrate: (1) cause and prejudice; or (2) actual 14 innocence. See Bousley 523 U.S. at 622 (citations omitted); U.S. v. Frady, 456 U.S. 152, 15 167-168 (1982). 16 Abundis does not contest that he did not raise the claim in the Motion during his 17 direct appeal, but Abundis responds he can overcome his procedural default because the 18 errors in his indictment are structural, requiring only a showing of cause to set it aside. 19 (ECF No. 42 at 13-14, 16-19, 21.) Alternatively, Abundis argues that he can overcome 20 procedural default because he has sufficiently demonstrated both: (1) cause and 21 prejudice; and (2) actual innocence. (ECF No. 49 at 12-17.) The Court finds that Abundis 22 demonstrates cause and prejudice to overcome the procedural bar, therefore declines to 23 address actual innocence and structural error. 24 1. Cause 25 A defendant has cause to overcome procedural default when the “constitutional 26 claim is so novel that its legal basis is not reasonably available to counsel.” Reed v. Ross, 27 468 U.S. 1, 16 (1984). A claim is not reasonably available if it “overturn[s] a longstanding 28 2 body of lower court authority has expressly approved.” Id. at 17 (quotation omitted). 3 The Court finds Abundis satisfies the cause prong of the procedural default 4 analysis. The government argues that the claim Abundis raises is not novel because it 5 “has been advanced by advocates, and endorsed by several federal judges, for well over 6 two decades.” (ECF No. 46 at 7.) But the Court finds this argument unpersuasive. Prior 7 to Rehaif, every circuit that addressed the knowledge-of-status element found it did not 8 apply.7 Furthermore, the Rehaif Court itself acknowledged that it was overruling 9 longstanding lower court authority. In his dissent, Justice Alito states that the “Court 10 casually overturns the long-established interpretation of an important criminal statute . . . 11 an interpretation that has been adopted by every single Court of Appeals to address the 12 question.” Rehaif, 139 S. Ct. at 2210-11 (J. Alito, dissenting). The Court therefore finds 13 Abundis has cause because Rehaif overturned longstanding practice approved by a near 14 unanimous body of lower courts, making Abundis’ claim based on Rehaif “novel.” 15 2. Prejudice 16 The actual prejudice prong of the procedural default analysis requires a defendant 17 show “not merely that the errors created a possibility of prejudice, but that they worked to 18 his actual and substantial disadvantage, infecting his entire proceedings with error of 19 constitutional dimensions.” Murray v. Carrier, 477 US at 478, 488 (1986). For defective 20 indictments, the question is “whether an error or omission in an indictment worked to the 21 prejudice of the accused.” U.S. v. James, 980 F.2d 1314, 1316 (9th Cir. 1992). More 22 23 24 25

26 7See U.S. v. Smith, 940 F.2d 710, 713 (1st Cir. 1991); U.S. v. Huet, 665 F.3d 588, 596 (3d Cir. 2012); U.S. v. Langley, 62 F. 3d 602, 604-08 (4th Cir. 1995) (en banc); U.S. 27 v. Rose, 587 F.3d 695, 705-06 (5th Cir. 2009); U.S. v. Lane, 267 F.3d 715, 720 (7th Cir. 2001); U.S. v. Thomas, 615 F.3d 895, 899 (8th Cir. 2010); U.S. v. Enslin, 237 F.3d 788, 28 798 (9th Cir. 2003); U.S. v. Games-Perez, 667 F.3d 1136, 1142 (10th Cir. 2012); U.S. v. Jackson, 120, F.3d 1226, 1229 (11th Cir. 1997) (per curiam). 2 of the missing element[] in order to satisfy the due process requirement.” Id. at 1318. 3 Abundis argues that without adequate knowledge of the missing element, due 4 process was not satisfied because he was not given notice to put on a thorough defense, 5 allow counsel to properly advise him, and “fill the record with potentially exculpatory 6 evidence.” (ECF No 49 at 28.) The government relies on the Ninth Circuit’s decision in 7 U.S. v. Benamor, 937 F.3d 1182, 1186 (9th Cir. 2019), to argue in response that, given 8 his criminal history, no reasonable possibility exists that Abundis did not know he had 9 been convicted of a crime for which he could be sentenced to more than a year 10 imprisonment. (ECF No. 46 at 15-16.) 11 In Benamor, the defendant filed a petition for rehearing following Rehaif, arguing 12 that the evidence was insufficient because the government failed to prove he knew he 13 was a felon. See 937 F.3d at 1188. The Ninth Circuit pointed to the defendant’s stipulation 14 that he had been convicted of a crime punishable by more than one year to relieve the 15 government’s burden. See id. But the Ninth Circuit also acknowledged that if “the 16 stipulation does not end the discussion as to Defendant’s knowledge of his status” his 17 nine years in prison for various felony convictions conclusively indicated there was no 18 error in not instructing the jury to find knowledge of prohibited status. Id. And although, 19 as Abundis points out, the plain error standard does not apply here,8 Benamor is 20 instructive. There, the Ninth Circuit did not exclusively rely upon the applicable stipulation 21 to resolve its analysis but focused primarily on the nine years in prison. Many courts 22 determining prejudice have similarly relied predominantly on a defendant’s criminal 23 history to find it is implausible that the defendant did not know they had been convicted 24 of a crime punishable by imprisonment for a term exceeding one year.9 25 8“The government does not cite to, nor can undersigned counsel find, any case 26 applying the plain error standard to habeas petitions. ‘[T]he proper standard for review of [Mr. Abundis’] motion is the ‘cause and actual prejudice standard.’ In fact, ‘use of the ‘plain 27 error’ standard to review [a] § 2255 motion [is] contrary to long-established law.’” (ECF No. 49 at 26 (citing Frady, 456 U.S. at 167).) 28 2 at least two reasons. First, unlike in other cases cited above, and contrary to the 3 government’s argument here (ECF No. 46 at 15-16), Abundis did not serve more than 4 one year in prison. Before this offense, Abundis was convicted of Assault by Means Likely 5 to Inflict Great Bodily Injury on October 7, 2014. (ECF No. 49 at 9.) The offense was one 6 that could be charged and sentenced either as a felony or a misdemeanor (“a wobbler”), 7 and he was sentenced to a term of three years probation and one year imprisonment, but 8 his sentence was suspended. (ECF No. 49 at 10.) Therefore, contrary to the 9 government’s representations (ECF No. 46 at 15-16), Abundis did not serve more than a 10 year in prison. Rather, he only served a maximum of 302 days on probation violations. 11 (ECF No. 49 at 10.)10 12

9See e.g., U.S. v. Reynolds, Case No. 2:16-cr-00296-JAD-PAL-3, 2020 WL 13 5235316, at *4 (D. Nev., Sept. 2, 2020) (finding that 13 total years in prison on five felony 14 convictions “renders it implausible that Reynolds did not know at the time of this offense that he had been convicted of a crime punishable by imprisonment for a term exceeding 15 one year and forecloses his actual-prejudice arguments.”); U.S. v. Lowe, Case No. 2:14- cr-00004-JAD-VCF, 2020 WL 2200852, at *2 (D. Nev. May 6, 2020) (finding that evidence 16 of serving five years in prison “proves beyond a reasonable doubt that Lowe well knew at the time of the offense that he had been convicted of ‘a crime punishable by imprisonment 17 for a term exceeding one year.’”); Whitley v. U.S., Case No. 04 Cr. 1381 (NRB), 2020 WL 18 1940897, at *2 (S.D.N.Y. Apr. 22, 2020) (finding that “any argument that Whitley was prejudiced therefrom is belied by the sheer implausibility that, after having been convicted 19 of multiple prior felony convictions for which sentences exceeding a year had been imposed, and having in fact served more than a year in prison in connection therewith, 20 Whitley nevertheless lacked the requisite awareness of his restricted status.”); MacArthur v. U.S., Case No. 1:12-cr-00084-JAW, 2020 WL 1670369, at *10 (D. Me. Apr. 3, 2020) 21 (“The record, including the presentence investigation report, shows that Petitioner had 22 numerous prior felony convictions over many years before the § 922(g) conviction at issue…[thus] the Government would have been able to prove beyond a reasonable doubt 23 that Petitioner knew of his prohibited status at the time he possessed the firearm.”); Floyd v. U.S., Case No. 19 C 6578, 2020 WL 374695, at *3 (N.D. Ill. Jan. 23, 2020) (“His plea 24 agreement stated that he had previously been convicted of a crime (heroin manufacturing/delivery) for which he was sentenced to four years in prison, and he 25 admitted at his plea hearing that he ‘had been convicted of at least one crime punishable 26 by imprisonment for a term exceeding one year. It is inconceivable that Floyd would have declined to plead guilty…’”) (citations omitted). 27 10Abundis calculates the time served on the underlying offense, totaling a 28 maximum of 302 days, which is less than the 400 days indicated by the government. (ECF 2 because “if the provisions before us were construed to require no knowledge of status . . 3 . [the] provisions might apply to a person who was convicted of a prior crime but 4 sentenced only to probation, who does not know that the crime is ‘punishable by 5 imprisonment for a term exceeding one year.” Rehaif, 139 S. Ct. at 2197-98. And this 6 hypothetical appears to describe this case. Abundis was sentenced only to probation, so 7 he would not necessarily have known he was sentenced to a crime punishable by 8 imprisonment for a term exceeding a year. See id. 9 Indeed, the Court cannot foresee a case where a defendant is more likely to 10 demonstrate prejudice than here. Although the government acknowledges Abundis’ 11 admission at the change-of-plea hearing, its argument that he lacks prejudice is centered 12 on the mistaken belief that he served over a year in prison. Similarly, the Court in 13 Benamore acknowledged a stipulation but ultimately relied on the amount of time in 14 custody.11 Moreover, as discussed above, subsequent cases have built the prejudice 15 analysis around the amount of time in custody.12 That suggests that the Court should look 16 at the amount of time Abundis was actually in custody. Thus, the Court finds that here the 17 stipulation alone is not enough to demonstrate knowledge. Without serving at least a year 18 in prison, it is probable that Abundis could have argued lack of knowledge as to his 19 prohibited status, thereby infecting his proceedings with prejudice. Abundis can show 20 prejudice. 21

22 No. 49 at 9-11.) Abundis further points out that the time he served on probation violations was similar in length to time served on prior misdemeanor convictions. (ECF No. 49 at 23 11.)

24 11In Benamore, the court found the defendant’s stipulation that he had been convicted of a crime punishable by imprisonment for a term exceeding a year “relieved 25 the government of the burden to prove Defendant’s status as a felon.” 937 F.3d at 1188. But, the court continued to say that “assuming, however, that the stipulation does not end 26 the discussion as to Defendant’s knowledge of his status as a felon, there was no plain error” and proceeded to address the terms of imprisonment. Id. 27 12As discussed above in footnote 9, other courts have predominantly relied on the 28 amount of time in custody to find no prejudice exists. See, e.g., Lowe, 2020 WL 2200852, at *2 n.15 (collecting cases). 2 overcome procedural default. But the Court will nevertheless deny the Motion because 3 Abundis waived his right to challenge his conviction which the Court will address next. 4 F. Claims Waived by Unconditional Guilty Plea 5 The government argues that by pleading guilty unconditionally, Abundis waived 6 his right to make any non-jurisdictional challenges to the indictment under the rule 7 announced in Tollett v. Henderson, 411 U.S. 258, 267 (1973). (ECF No. 46 at 11-12.) 8 Abundis responds that his claims are not barred because they fall under an exception to 9 this rule. (ECF Nos. 42 at 22-23, 49 at 5-7.) The Court agrees with the government 10 because these exceptions do not apply. 11 In Tollett, the Supreme Court held that when a defendant pleads guilty, “he may 12 not thereafter raise independent claims relating to the deprivation of constitutional rights 13 that occurred prior to the entry of the guilty plea. He may only attack the voluntary and 14 intelligent character of the guilty plea . . . .” Id. The Supreme Court has recognized an 15 exception to the Tollett rule: a claim, judged on its face, which the State cannot 16 “constitutionally prosecute.”13 In U.S. v. Chavez-Diaz, 949 F.3d 1202, 1206 (9th Cir. 17 2020), the Ninth Circuit clarified that the exception “allows for constitutionally-based 18 appeals—despite an unconditional guilty plea—where the appeal, if successful, would 19 mean the government cannot prosecute the defendant at all.” See, e.g., Menna v. New 20 York, 423 U.S. 61, 62 (1975) (per curiam) (holding double jeopardy exempted from 21 Tollett); Blackledge v. Perry, 417 U.S. 21 (1974) (holding vindictive prosecution exempted 22 from Tollett); Class v. U.S., 138 S. Ct. 798, 805 (2018) (holding constitutionality of criminal 23 statute exempted from Tollett). 24 Here, Abundis pled guilty (ECF No. 27), and the Court accepted his plea (ECF No. 25 26). As part of that plea, Abundis “knowingly and expressly waive[d] all collateral 26 27 13Referred to as the “Menna-Blackledge exception.” Class v. U.S., 138 S. Ct. 798, 28 805 (2018) (quoting Menna v. New York, 423 U.S. 61, 63 (1975) (per curiam)). 2 seeks to assert constitutional claims arising prior to the entry of plea. 3 The Court is not persuaded. First, Abundis is not attacking the voluntary and 4 intelligent character of his guilty plea. Rather, he explicitly argues that his claim falls within 5 an exception to Tollett. (ECF No. 42 at 22.) Therefore, without attacking the voluntary and 6 intelligent character of his guilty plea, his claims can only be raised if they fall under the 7 exception to Tollett. See 411 U.S. at 267. The Court finds they do not. As clarified in 8 Chavez-Diaz, the exceptions apply only when a successful appeal would mean the 9 government cannot prosecute the defendant at all. See 949 F.3d at 1206. But here, unlike 10 a claim of double jeopardy,14 the claims Abundis raises could have been remedied by a 11 new indictment. Thus, the Court finds Abundis’ claims are barred by his guilty plea. 12 V. CERTIFICATE OF APPEALABILITY 13 Before Abundis can appeal the Court’s decision to deny his Motion, he must obtain 14 a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22; 9th Cir. R. 22- 15 1; U.S. v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). To receive such a certificate, 16 a petitioner must make “‘a substantial showing of the denial of a constitutional right’ as to 17 each issue the petitioner seeks to appeal.” Washington, 653 F.3d at 1059 (quoting 28 18 U.S.C. § 2253(c)(2), (3)). “The petitioner must demonstrate that reasonable jurists would 19 find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 20 v. McDaniel, 529 U.S. 473, 484 (2000). The Court determines that reasonable jurists 21 would not find its reasoning debatable or wrong. Thus, the Court will deny a certificate of 22 appealability. 23 VI. CONCLUSION 24 The Court notes that the parties made several arguments and cited to several 25 cases not discussed above. The Court has reviewed these arguments and cases and 26 determines that they do not warrant discussion as they do not affect the outcome of the 27 motion before the Court. 28 14See Menna, 423 U.S.at 62. 1 It is therefore ordered that Abundis’ motion to vacate, set aside, or correct his 2 || conviction and sentence (ECF No. 42) is denied. 3 It is further ordered that a certificate of appealability is denied. 4 The Clerk is directed to enter judgment in accordance with this order and close this 5 || case. 6 DATED THIS 30" Day of November 2020. 7 -— AL MIRANDA M. DU 9 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14