Alejandro Mendoza-Angiano v. United States of America

• Court: District Court, D. Arizona
• Decided: March 30, 2018
• Docket: 2:16-cv-04595
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alejandro Mendoza-Angiano, ) No. CV 16-04595-PHX-NVW (MHB) ) CR 06-00993-1-PHX-NVW 10 Movant/Defendant, ) ) 11 vs. ) AMENDED REPORT AND ) RECOMMENDATION 12 United States of America, ) ) 13 Respondent/Plaintiff. ) ) 14 ) 15 TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE: 16 On March 17, 2017, the Ninth Circuit Court of Appeals granted Movant the right to 17 file a second or successive § 2255 Motion to Vacate, Set Aside, or Correct Sentence by a 18 Person in Federal Custody (“2255 motion”), and the matter was remanded to this Court. 19 (CVDocs. 4, 5.)1 Thereafter, the Court appointed counsel to represent Movant, and granted 20 counsel leave to file an amended 2255 motion. (CVDoc. 9.) On May 24, 2017, Movant, 21 through counsel, filed an Amended 2255 motion. (CVDoc. 12.) The Government 22 subsequently filed a Response (Doc. 14), and Movant filed a Reply (Doc. 15). 23 BACKGROUND 24 On November 8, 2006, Movant was indicted on six felony counts, to include count 25 2, cultivation of more than 1000 marijuana plats, in violation of 21 U.S.C. §§ 841(a)(1) and 26 27 1Hereinafter “CVDoc.” will refer to docket entries in CV 16-04595, and “CRDoc.” 28 1 841(b)(1)(A), and count 5, possession of a firearm during and in relation to a crime of 2 violence, that being felony assault on a federal officer, in violation of 18 U.S.C. § 924(c)(1). 3 (CRDoc. 14.) Movant subsequently pled guilty to counts 2 and 5 pursuant to a plea 4 agreement. (CRDoc. 32.) A stipulation in the plea agreement provided that Movant would 5 be sentenced 17 years in prison, the minimum sentence provided by law for the offenses. 6 (CRDoc. 40.) The factual basis for his guilty plea was as follows: 7 On and before October 22nd, 2006, I was working in a marijuana “garden” near Maple Springs Draw, within the Tonto National Forest, in the 8 District of Arizona. I assisted in the harvesting of the “buds” of some of the plants, as directed, when they were ready. I lived in the “garden” while I 9 conducted my cultivation responsibilities. There were far in excess of 1,000 marijuana plants in the “garden” that I was responsible to harvest. I am 10 familiar with what marijuana plants look and smell like. I was fully aware that the plants I was harvesting were marijuana plants. I agree that my activities 11 constitute cultivation of over 1,000 marijuana plants. 12 On October 22nd, 2006, while I was working in the marijuana “garden” I noticed footprints that I did not recognize. I had been warned by the people 13 who brought me there that thieves may come to steal the marijuana and assault or kill me. I was given a mini 14 assault rifle to protect the marijuana plants 14 and myself. I followed the foot prints up a trail until I came upon a man who pointed a handgun at me and yelled, “Police, Policia”. When he did this I 15 brought the mini 14 up to my shoulder, aimed it toward the man, and prepared to shoot. The man shot me first and I fell to the ground. It was not until I was 16 on the ground that it registered in my mind that the man was a federal law enforcement agent. 17 (CRDoc. 40 at 7.) 18 The plea agreement also contained a waiver of defenses and appeal paragraph, which 19 provided: 20 The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the 21 indictment or information or to the Court’s entry of judgment against the defendant and imposition of sentence upon the defendant, providing the 22 sentence is consistent with this agreement. The defendant further waves: (1) any right to appeal the Court’s entry of judgment against defendant; (2) any 23 right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to 24 collaterally attack defendant’s conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. The defendant 25 acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or 26 sentence in this case. (CRDoc. 40 at 4.) 27 28 1 Movant was sentenced on June 25, 2007, to the stipulated sentence of 17 years (204 2 months) in prison. (CRDoc. 41.) On July 16, 2007, Movant filed pro se a Motion to Vacate, 3 Set Aside, or Correct Sentence under 28 U.S.C. § 2255, asserting that his counsel was 4 ineffective in that Movant felt pressure to take the plea bargain because he was afraid of 5 receiving a life sentence if he went to trial. (CRDoc. 44 at 4.) The Court summarily denied 6 relief on August 10, 2007. (CRDoc. 46.) 7 On October 13, 2015, Movant filed a Motion to Reduce Sentence Pursuant to 8 Retroactive Amendment 782 for Drugs Quantity Table Effective November 1, 2015. 9 (CRDoc. 52.) In his motion he challenged his sentence after the United States Sentencing 10 Guidelines were amended to reduce certain drug-crime sentences by 2 guideline levels. (Id.) 11 The Court summarily denied the motion on October 21, 2015. (CRDoc. 56.) Movant 12 appealed the ruling, and on June 9, 2015, the Ninth Circuit Court of Appeals summarily 13 affirmed. (CRDocs. 58, 63-1.) 14 On June 14, 2016, Movant submitted a letter to the Court asserting that he is entitled 15 to a sentence reduction pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) (decided 16 June 26, 2015). (CRDoc. 61.) The Clerk of Court treated Movant’s letter as a pro se Motion 17 Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal 18 Custody (“2255 motion”). On June 16, 2016, the Court denied the 2255 motion as 19 successive, requiring approval from the Ninth Circuit, pursuant to 28 U.S.C. §§ 2255(h) and 20 2244. (CRDoc. 62.) The Court dismissed the motion without prejudice, and directed the 21 Clerk of Court to refer the motion to the Ninth Circuit Court of Appeals. (Id.) The Ninth 22 Circuit treated the transfer of Movant’s filing as an application for authorization to file a 23 second or successive section 2255 motion, and found that Movant had made a prima facie 24 showing under Johnson, thus authorizing the filing of a successive 2255 motion and deeming 25 it filed on June 14, 2016. (CRDoc. 66-2 at 1-2.) 26 Counsel was thereafter appointed to represent Movant, and on May 24, 2017, filed the 27 instant Amended 2255 motion. (CVDoc. 12.) In his 2255 motion, Movant raises the 28 following claims: (1) Movant’s conviction for brandishing a firearm is invalid because 18 1 U.S.C. 924(c)(3)(B) suffers from the same constitutional infirmity as 18 U.S.C. § 2 924(e)(2)(B), the residual clause of the Armed Career Criminal Act, found invalid by the 3 Court in Johnson; and, (2) that the “elements clause,” 18 U.S.C. § 924(c)(3)(A), is 4 inapplicable as Movant’s underlying assault conviction does not categorically involve the 5 requisite degree of force. 6 The Government in its response asserts that Movant’s 2255 motion should be denied 7 as (1) it is barred by the appeal waiver in Movant’s plea agreement; (2) it is untimely and 8 procedurally barred; and (3) Movant’s assault conviction qualifies under the elements clause 9 of 18 U.S.C. § 924(c)(3), and thus, the holding in Johnson does not apply, and in any event, 10 neither the Supreme Court nor the Ninth Circuit has held that the “residual clause” is 11 constitutionally infirm. 12 PLEA WAIVER 13 Movant’s plea agreement contained a plea waiver provision, that provided in pertinent 14 part: “defendant further waives: . . . any right to collaterally attack defendant’s conviction 15 and sentence under Title 28 United States Code, Section 2255, or any other collateral attack. 16 The defendant acknowledges that this waiver shall result in the dismissal of any appeal or 17 collateral attack the defendant might file challenging his conviction or sentence in this case.” 18 (CRDoc. 40 at 4.) A defendant may waive his right to appeal and collaterally attack a 19 conviction and sentence. See United States v. Leniear, 574 F.3d 668, 672 & n.3 (9th Cir. 20 2009); see also United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). A waiver, 21 pursuant to a plea agreement, is enforceable if “(1) the language of the waiver encompasses 22 the basis of the challenge, and (2) the waiver was knowingly and voluntarily made.” United 23 States v. Medina Carrasco, 815 F.3d 457, 461 (9th Cir. 2015) (citation omitted). An 24 exception to the enforceability of a plea waiver, however, is where “the sentence violates the 25 law.” United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007); United States v. Torres, 26 828 F.3d 1113, 1125 (9th Cir. 2016) (plea waiver not enforced against defendant sentenced 27 under unconstitutional U.S.S.G. Sentencing Guideline). 28 1 Movant does not dispute that he was a party to the plea agreement that contained an 2 appeal waiver, and that his waiver was knowingly and voluntarily made. He asserts however, 3 that his sentence violates the law. An analysis of the lawfulness of Movant’s sentence is 4 undertaken in the merits analysis, infra. 5 TIMELINESS 6 The Government asserts that Movant’s 2255 motion should be dismissed because it 7 was filed on June 14, 2016, more than one year after his conviction became final on April 8 17, 2006. Movant does not dispute that his motion was filed more than one year after his 9 conviction became final, but argues that, in his case, the statute of limitations runs from the 10 date Johnson was decided June 26, 2015. A 2255 motion may be brought within one year 11 of “the date on which the right asserted was initially recognized by the Supreme Court, if that 12 right has been newly recognized by the Supreme Court and made retroactively applicable to 13 cases on collateral review.” 18 U.S.C. § 2255(f)(3). Movant argues that the ruling in 14 Johnson was made retroactive to cases that are final on direct review in Welch v. United 15 States, 136 S. Ct. 1257 (2016). 16 The Government asserts that the right recognized by Johnson is not the same right that 17 Movant asserts in his 2255 motion. In Johnson, the Supreme Court found that a provision 18 under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(3)(B) is unconstitutional, and 19 Movant challenges the constitutionality of a different statutory provision, 18 U.S.C. § 20 924(c)(3)(B). In fact, the Government asserts, the Supreme Court specifically disavowed the 21 application of its ruling to other statutes. 22 The Government and the dissent next point out that dozens of federal and state criminal laws use terms like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable 23 risk,’ suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt. [] Not at all. 24 Johnson, 135 S.Ct. at 2561; see also In re Fields, 826 F.3d 785, 787 (5th Cir. 2016) (per 25 curiam) (“[T]he Supreme Court has not taken a position on whether Johnson applies to 26 section 924(c)(3)(B).”). Also, the Supreme Court currently has pending before it re- 27 argument in Sessions v. Dimaya, No. 15-1498, a case in which there is a constitutional 28 1 challenge to 18 U.S.C. § 16(b), a statutory provision nearly identical to § 924(c). Thus, the 2 Government argues, the Supreme Court has not recognized that the residual clause of § 3 924(c)(3) as unconstitutionally vague as Movant asserts, and therefore his 2255 motion is 4 untimely. See also, United States v. Taylor, 206 F.Supp.3d 1148, 1156-57 (E.D. Va. 2016) 5 (“the right at issue in Johnson was not a new right, but was instead the well-settled 6 prohibition against unconstitutional vagueness in criminal statutes,” . . . the “newly 7 recognized rule” was that the residual clause of the ACCA is unconstitutionally vague). 8 The Government also references a split among the circuits that have considered the 9 constitutionality of § 924(c)(3)(B) under Johnson, thus further demonstrating that Movant’s 10 right has not been clearly recognized by the Supreme Court. Compare, United States v. 11 Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (holding the 924(c) residual clause to be 12 unconstitutionally vague) with United States v. Prickett, 839 F.3d 697, 699 (8th Cir. 2016) 13 (holding the 924(c) residual clause not unconstitutionally vague); United States v. Taylor, 14 814 F. 3d 340, 375-76 (6th Cir. 2016) (same); and United States v. Hill, 832 F.3d 135, 145 15 (2d Cir. 2016) (same). And, the Fourth Circuit sitting en banc recently noted a claim that § 16 924(c)(3)(B) is invalid would not survive plain error review as its sister circuits were divided 17 on the issue. United States v. Graham, 824 F.3d 421, 424 n. 1 (4th Cir. 2016) (en banc). 18 Movant does not respond to the Government’s arguments in his Reply, but notes that 19 pro se filings may be treated more leniently than filings by attorneys, citing Haines v. Kerner, 20 404 U.S. 519 (1972), and that the Ninth Circuit, in permitting a successive petition, found 21 that Movant had made out a prima facie case under Johnson. Haines does not apply, because 22 Movant is represented in this proceeding. And, Movant does not cite authority to support his 23 argument that the Ninth Circuit’s finding of a prima facie case is a substantive finding that 24 the rule announced in Johnson applies to Movant’s case. 25 The Government also asserts that, even if Johnson applies to § 924(c)(3), Movant can 26 not rely on Johnson, because Movant was sentenced under the elements clause of the 27 statutory provision, which was not invalidated in Johnson. In United States v. Geozos, the 28 Ninth Circuit addressed the “threshold question” of whether or not a defendant’s claim relied 1 on the rule announced in Johnson, “such that he may bring that claim in a second or 2 successive § 2255 motion.” 870 F.3d 890, 894 (9th Cir. 2017). Defendant in that case was 3 sentenced under the ACCA, and raised a claim pursuant to Johnson that his sentence was 4 unconstitutional. The Court found that, if defendant’s claim relied on the theory that he was 5 sentenced as a violent offender pursuant to the residual clause of the ACCA, then his 2255 6 claim “relie[d] on” Johnson. Geozos, 870 F.3d at 895. Alternatively, if the defendant’s 7 claim relied upon the theory that he was sentenced improperly under the force clause of the 8 ACCA, his claim would not rely upon Johnson, and would be untimely. Id. 9 A discussion of whether or not Movant was sentenced properly under the elements 10 clause of § 924(c)(3) is undertaken under the merits analysis, infra. 11 PROCEDURAL DEFAULT 12 The Government asserts alternatively that Movant’s claim is procedurally defaulted. 13 Movant does not dispute that he did not raise his claim on appeal, but asserts that the remedy 14 of Johnson was not available to him at the time he filed his direct appeal. However, “futility 15 cannot constitute cause if it means simply that a claim was unacceptable to that particular 16 court at that particular time.” Bousley v. United States, 523 U.S. 623 (1998) (citation and 17 internal quotations omitted). In fact, in his 2255 motion, Movant relies on cases decided 18 earlier than Johnson, to support his substantive argument that the crime of assault on a 19 federal officer does not carry the necessary mens rea to categorically meet the elements 20 clause of 924(c)(3). See Dominguez v. Maroyoqui, 748 F.3d 918 (9th Cir. 2014); United 21 States v. Feola, 420 U.S. 671 (1975); Johnson v. United States, 559 U.S. 133 (2010) 22 (“Johnson I”) (the term “violent felony” means violent force). 23 Alternatively, the Government asserts that, even if Movant can demonstrate cause for 24 not raising his claim on appeal, he can not demonstrate prejudice because assault on a federal 25 officer remains a crime of violence post-Johnson, which is essentially a merits argument. 26 The Court will thus address the merits of Movant’s claim as a prejudice analysis, but also as 27 an alternative merits analysis should Movant’s claim be determined to be timely, or to 28 determine the enforceability of Movant’s plea waiver. 1 MERITS 2 Movant was charged in count 4 of the indictment with assault on a federal officer with 3 a deadly weapon, and this charge was the predicate offense to Movant’s § 924(c) conviction. 4 Although count 4 references 18 U.S.C. § 111 without indicating subsection (a) or (b), the 5 language of the indictment made clear that Movant was charged pursuant to § 111(b). 6 Compare Indictment (CRDoc. 14 at 3) (“[Movant] knowingly and by means and use of a 7 dangerous weapon, that is a Ruger Mini-14 .223 caliber assault rifle, did forcibly assault, 8 resist, oppose, impede, intimidate, and interfere with [], a United States Forestry Service 9 Officer, while he was engaged in his official duties”), with 18 U.S.C. § 111(b) (using a 10 deadly or dangerous weapon, or inflicting bodily injury during the commission of the crime 11 of forcibly assaulting, resisting, opposing, impeding, intimidating or interfering with a federal 12 officer while engaged in or on account of the performance of official duties). 13 Movant first asserts that, because he was not convicted of the predicate offense, it 14 could not have served as a basis for a finding that it was a crime of violence pursuant to 15 §924(c)(3), citing Santobello v. New York, 404 U.S. 257 (1971). This argument fails, as it 16 is not dependent upon the ruling in Johnson, and therefore could have been raised on appeal, 17 and is thus untimely raised. Alternatively, Movant argues that the predicate offense does not 18 meet the elements clause of § 924(c)(3), and thus falls under the residual clause, rendering 19 his sentence unconstitutional as the residual clause is nearly identical to the residual clause 20 found unconstitutional in Johnson. The Government asserts that the predicate offense is a 21 crime of violence under the elements clause of § 924(c)(3). 22 The elements clause of § 924(c)(3) reads as follows: 23 Crime of violence means an offense that is a felony and (A) has as an element the use, attempted use, or threatened us of physical force against the 24 person or property of another. (emphasis added). 25 Movant pled guilty to count 5 of the indictment charging him with Possessing and 26 Brandishing a Firearm During and in Relation to a Crime of Violence. (CRDoc. 14 at 3.) 27 The Government asserts that the Ninth Circuit has already determined that assault on a 28 1 federal officer with a deadly weapon is categorically a crime of violence pursuant to 18 2 U.S.C. § 16(a) (the “elements clause”). See United States v. Juvenile Female, 566 F.3d 943, 3 947 (9th Cir. 2009) (“assault involving a deadly or dangerous weapon or resulting in bodily 4 injury under 18 U.S.C. § 111 is categorically a crime of violence”). The elements clause of 5 18 U.S.C. § 16 is identical to the elements clause of § 923(c)(3). See also United States v. 6 Taylor, 848 F.3d 476, 494 (9th Cir. 2017) (assault under 18 U.S.C. § 111(b) requires violent 7 force and is therefore a crime of violence under the elements clause of §924(c)); United 8 States v. Rafidi, 829 F.3d 437, 445 (6th Cir. 2016) (holding that § 111(b) has as an element 9 the use or attempted use of “‘violent force’ - that is, force capable of causing physical pain 10 or injury to another person,” citing Johnson I, 130 S.Ct. 1265 (2010)) . 11 Movant cites Dominguez-Maroyoqui as authority for his assertion that Movant’s 12 predicate offense does not qualify under the elements clause. Dominguez is distinguishable, 13 however, as the statutory provision at issue in Dominguez, 18 U.S.C. § 111(a), is 14 inapplicable here. Dominguez-Maroyoqui, 748 F. 3d at 920. In the instant case, like the 15 defendant in Juvenile Female, Movant’s offense involved a deadly or dangerous weapon 16 under §111(b). “A defendant charged with [] assault with a deadly or dangerous weapon, 17 must have always threatened [the] use of physical force.” Juvenile Female, 566 F.3d at 948. 18 Movant also asserts in his Reply that, since there were insufficient findings that he 19 committed the offense charged in count 4 (assault on a federal officer with a deadly weapon), 20 that crime can not serve to enhance his sentence as a crime of violence. It is clear however, 21 as noted above, that Movant’s predicate offense was the crime charged in count 4, and that 22 the conduct stated a violation of 18 U.S.C. § 111(b). Movant’s plea agreement makes clear 23 that Movant’s conviction for Possessing and Brandishing a Firearm During and in Relation 24 to a Crime of Violence required a finding that the predicate offense was committed. Movant 25 admitted in his agreement that the government could prove beyond a reasonable doubt that: 26 [o]n or about October 22nd, 2006, in the District of Arizona, the 27 defendant committed the crime of Assault on a Federal Officer with a 28 Deadly Weapon[.] 1 Assault on a Federal Officer with a Deadly Weapon requires proof of 2 the following elements: 3 1. The defendant intentionally used force in assaulting a Federal Officer 4 2. The defendant did so while the Federal Officer was engaged in official 5 duties; 6 3. and the defendant used a firearm. 7 The defendant knowingly brandished a firearm; and 8 The defendant brandished the firearm in relation to the crime of Assault on 9 a Federal Officer With a Deadly Weapon. 10 (CRDoc. 40 at 6) (emphasis, on elements of predicate offense, in original). 11 Because Movant’s predicate offense qualifies as a crime of violence under the 12 elements clause of § 924(c)(3), see Juvenile Female, 566 F.3d at 947, even if the residual 13 clause is unconstitutionally vague under Johnson, he would not be entitled to relief. 14 CONCLUSION 15 For various reasons, Movant’s 2255 motion should be denied and dismissed with 16 prejudice. Movant’s claim is barred by a valid appeal waiver, his 2255 motion is untimely, 17 and procedurally defaulted, and Movant does not demonstrate cause and prejudice. 18 Additionally, as set forth above, Movant’s 2255 motion fails on the merits. 19 IT IS THEREFORE RECOMMENDED that Movant’s Amended 2255 Motion to 20 Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §2255, (CVDoc. 12), be denied and 21 dismissed with prejudice. 22 IT IS FURTHER RECOMMENDED that the Court deny a Certificate of 23 Appealability and leave to proceed in forma pauperis on appeal because Movant has not 24 made a substantial showing of the denial of a constitutional right, and dismissal of the habeas 25 petition is justified by a plain procedural bar and jurists of reason would not find the 26 procedural ruling debatable. 27 \\\ 28 \\\ 1 This recommendation is not an order that is immediately appealable to the Ninth 2 || Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 3 | Appellate Procedure, should not be filed until entry of the district court’s judgment. The 4 || parties shall have fourteen days from the date of service of a copy of this recommendation 5 | within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); 6 || Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen 7 | days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of 8 || Civil Procedure for the United States District Court for the District of Arizona, objections 9 || to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure 10 |] timely to file objections to the Magistrate Judge’s Report and Recommendation may result 11 □□ in the acceptance of the Report and Recommendation by the district court without further 12 || review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9" Cir. 2003). Failure 13 || timely to file objections to any factual determinations of the Magistrate Judge will be 14 |] considered a waiver of a party’s right to appellate review of the findings of fact in an order 15 || or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 72, 16 || Federal Rules of Civil Procedure. 17 DATED this 30th day of March, 2018. 18 . 19 edt th Burnes Michelle H. Burns 20 United States Magistrate Judge 21 22 23 24 25 26 27 28 -ll-