1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIGUEL GRADO, Case Nos.: 20-cv-1442-GPC; 12-cr-0236-GPC 12 Petitioner,
13 v. JUDGMENT AND ORDER DENYING DEFENDANT’S MOTION 14 UNITED STATES OF AMERICA, TO VACATE, SET ASIDE, OR 15 Respondent. CORRECT SENTENCE
16 [ECF No. 1] 17 18 INTRODUCTION 19 On July 8, 2020, Petitioner Miguel Grado, proceeding pro se, filed a second 20 petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 21 (“Petition”). Petition, ECF No. 1. According to Petitioner, his conviction and sentence 22 are now invalid based on a recent Supreme Court decision that ruled the statute 23 underlying Petitioner’s conviction and sentence to be unconstitutionally void for 24 vagueness. United States v. Davis, 139 S. Ct. 2319, 2335–36 (2019). On September 19, 25 2020, the Government filed a Response claiming the Petition should be denied because 26 (1) Petitioner’s conviction is not affected by Davis, and (2) Petitioner “failed to apply for, 27 1 and receive, authorization from the Ninth Circuit Court of Appeals to file a second or 2 successive petition as required by § 2255(h).” Response, United States v. Grado, No. 12- 3 CR-0236-GPC-4 (S.D. Cal. Sept. 16, 2020), Dkt. No. 2297 at 2. Petitioner did not file a 4 Reply. For the reasons discussed below, this Court DENIES the Petition. 5 BACKGROUND 6 On October 28, 2013, Petitioner pled guilty to: Conspiracy to Conduct Enterprise 7 Affairs Through a Pattern of Racketeering Activity, in violation of 18 U.S.C. § 1962(d) 8 (count 1); Conspiracy to Distribute Methamphetamine and Cocaine, in violation of 21 9 U.S.C. §§ 841 and 846 (count 2); Distribution of Methamphetamine, in violation of 21 10 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count 8); and Discharge of a Firearm During and 11 in Relation to a Crime of Violence and a Drug Trafficking Crime, in violation of 18 12 U.S.C. § 924(c)(1)(A) (count 11). Judgment, Grado, No. 12-CR-0236-GPC-4 (S.D. Cal. 13 Oct. 28, 2013), Dkt. No. 1585 at 1. Petitioner was sentenced to be imprisoned for 175 14 months as to counts 1, 2, and 8 to run concurrently and 120 months as to count 11 to run 15 consecutive to all other counts for a total of 295 months. Id. 16 On June 8, 2016, Petitioner filed a petition to vacate, set aside, or correct his 17 sentence pursuant to Johnson v. United States, 576 U.S. 591 (2015). Am. Mot. to Vacate, 18 Grado, No. 12-CR-0236-GPC-4 (S.D. Cal. June 8, 2016), Dkt. No. 1970. The Court 19 denied the petition, concluding that Petitioner was not entitled to relief under Johnson. 20 Order, Grado, No. 12-CR-0236-GPC-4 (S.D. Cal. May 3, 2017), Dkt. No. 2055. 21 Petitioner appealed, and the U.S. Court of Appeals for the Ninth Circuit affirmed the 22 Court’s decision. United States v. Espudo, 768 F. App’x 623 (9th Cir. 2019), cert. 23 denied, 140 S. Ct. 282 (2019), and cert. denied sub nom. Grado v. United States, 140 S. 24 Ct. 331 (2019). 25 On July 8, 2020, Petitioner filed the instant Petition, arguing that his offenses are 26 not “crimes of violence” under Johnson and the newly decided United States v. Davis, 27 1 139 S. Ct. 2319 (2019). ECF No. 1 at 3, 4. Specifically, Petitioner alleges that he was 2 convicted under the “conduct-based approach” of 18 U.S.C. § 924(c)(1)(A) and that this 3 has since been deemed unconstitutional and void for vagueness. Id. at 4. Petitioner 4 further claims his sentence predicated on this conviction should be vacated, set aside, or 5 corrected pursuant to 28 U.S.C. § 2255. Id. 6 The United States contends that Petitioner’s convictions were based on provisions 7 unaffected by the Supreme Court decisions. Response, Grado, No. 12-CR-0236-GPC-4 8 (S.D. Cal. Sept. 16, 2020), Dkt. No. 2297 at 2. The United States also claimed that 9 Petitioner failed to “apply for, and receive, authorization from the Ninth Circuit Court of 10 Appeals to file” the instant Petition. Id. According to the United States, such 11 authorization would be inappropriate anyways because this Petition is not based on new 12 factual discoveries or constitutional law that were previously unavailable. Id. Petitioner 13 did not file a Reply to the United States’ Response. 14 DISCUSSION 15 I. Habeas Relief Under Section 2255 16 The Court may “vacate, set aside, or correct the sentence” of a federal prisoner on 17 “the ground that the sentence was imposed in violation of the Constitution or laws of the 18 United States, or that the court was without jurisdiction to impose such sentence, or that 19 the sentence was in excess of the maximum authorized by law, or is otherwise subject to 20 collateral attack.” 28 U.S.C. § 2255(a). To warrant relief under Section 2255, a 21 petitioner must allege a constitutional or jurisdictional error, or a “fundamental defect 22 which inherently results in a complete miscarriage of justice [or] an omission inconsistent 23 with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 24 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). 25 In addition, a second or successive habeas petition must be certified as provided in 26 Section 2244 by the appropriate court of appeals to contain new factual discoveries or 27 1 new and retroactively applicable constitutional law that would be dispositive to the case. 2 See 28 U.S.C. § 2255(h). In pertinent part, Section 2244 states that the petitioner must 3 file the motion for the court of appeals to authorize the second or successive habeas 4 petition, in which the court’s decision on the authorization itself is not appealable. See 28 5 U.S.C. § 2244(b)(3). 6 II. Application 7 Petitioner claims he is entitled to relief based on two Supreme Court cases, 8 Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 9 2319 (2019). Johnson held that the residual clause in 18 U.S.C. § 924(e)(2)(B) (defining 10 “violent felony”) is unconstitutionally vague, 576 U.S. at 597, which was later held to be 11 a substantive rule that has retroactive effect on cases on collateral review, Welch v. 12 United States, 136 S. Ct. 1257, 1265 (2016). Davis held that the residual clause in 18 13 U.S.C. § 924(c)(3)(B) (defining “crime of violence”) is unconstitutionally vague. 139 14 S.Ct. at 2336. Hence, the Petition is predicated on the assertion that, because 18 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIGUEL GRADO, Case Nos.: 20-cv-1442-GPC; 12-cr-0236-GPC 12 Petitioner,
13 v. JUDGMENT AND ORDER DENYING DEFENDANT’S MOTION 14 UNITED STATES OF AMERICA, TO VACATE, SET ASIDE, OR 15 Respondent. CORRECT SENTENCE
16 [ECF No. 1] 17 18 INTRODUCTION 19 On July 8, 2020, Petitioner Miguel Grado, proceeding pro se, filed a second 20 petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 21 (“Petition”). Petition, ECF No. 1. According to Petitioner, his conviction and sentence 22 are now invalid based on a recent Supreme Court decision that ruled the statute 23 underlying Petitioner’s conviction and sentence to be unconstitutionally void for 24 vagueness. United States v. Davis, 139 S. Ct. 2319, 2335–36 (2019). On September 19, 25 2020, the Government filed a Response claiming the Petition should be denied because 26 (1) Petitioner’s conviction is not affected by Davis, and (2) Petitioner “failed to apply for, 27 1 and receive, authorization from the Ninth Circuit Court of Appeals to file a second or 2 successive petition as required by § 2255(h).” Response, United States v. Grado, No. 12- 3 CR-0236-GPC-4 (S.D. Cal. Sept. 16, 2020), Dkt. No. 2297 at 2. Petitioner did not file a 4 Reply. For the reasons discussed below, this Court DENIES the Petition. 5 BACKGROUND 6 On October 28, 2013, Petitioner pled guilty to: Conspiracy to Conduct Enterprise 7 Affairs Through a Pattern of Racketeering Activity, in violation of 18 U.S.C. § 1962(d) 8 (count 1); Conspiracy to Distribute Methamphetamine and Cocaine, in violation of 21 9 U.S.C. §§ 841 and 846 (count 2); Distribution of Methamphetamine, in violation of 21 10 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count 8); and Discharge of a Firearm During and 11 in Relation to a Crime of Violence and a Drug Trafficking Crime, in violation of 18 12 U.S.C. § 924(c)(1)(A) (count 11). Judgment, Grado, No. 12-CR-0236-GPC-4 (S.D. Cal. 13 Oct. 28, 2013), Dkt. No. 1585 at 1. Petitioner was sentenced to be imprisoned for 175 14 months as to counts 1, 2, and 8 to run concurrently and 120 months as to count 11 to run 15 consecutive to all other counts for a total of 295 months. Id. 16 On June 8, 2016, Petitioner filed a petition to vacate, set aside, or correct his 17 sentence pursuant to Johnson v. United States, 576 U.S. 591 (2015). Am. Mot. to Vacate, 18 Grado, No. 12-CR-0236-GPC-4 (S.D. Cal. June 8, 2016), Dkt. No. 1970. The Court 19 denied the petition, concluding that Petitioner was not entitled to relief under Johnson. 20 Order, Grado, No. 12-CR-0236-GPC-4 (S.D. Cal. May 3, 2017), Dkt. No. 2055. 21 Petitioner appealed, and the U.S. Court of Appeals for the Ninth Circuit affirmed the 22 Court’s decision. United States v. Espudo, 768 F. App’x 623 (9th Cir. 2019), cert. 23 denied, 140 S. Ct. 282 (2019), and cert. denied sub nom. Grado v. United States, 140 S. 24 Ct. 331 (2019). 25 On July 8, 2020, Petitioner filed the instant Petition, arguing that his offenses are 26 not “crimes of violence” under Johnson and the newly decided United States v. Davis, 27 1 139 S. Ct. 2319 (2019). ECF No. 1 at 3, 4. Specifically, Petitioner alleges that he was 2 convicted under the “conduct-based approach” of 18 U.S.C. § 924(c)(1)(A) and that this 3 has since been deemed unconstitutional and void for vagueness. Id. at 4. Petitioner 4 further claims his sentence predicated on this conviction should be vacated, set aside, or 5 corrected pursuant to 28 U.S.C. § 2255. Id. 6 The United States contends that Petitioner’s convictions were based on provisions 7 unaffected by the Supreme Court decisions. Response, Grado, No. 12-CR-0236-GPC-4 8 (S.D. Cal. Sept. 16, 2020), Dkt. No. 2297 at 2. The United States also claimed that 9 Petitioner failed to “apply for, and receive, authorization from the Ninth Circuit Court of 10 Appeals to file” the instant Petition. Id. According to the United States, such 11 authorization would be inappropriate anyways because this Petition is not based on new 12 factual discoveries or constitutional law that were previously unavailable. Id. Petitioner 13 did not file a Reply to the United States’ Response. 14 DISCUSSION 15 I. Habeas Relief Under Section 2255 16 The Court may “vacate, set aside, or correct the sentence” of a federal prisoner on 17 “the ground that the sentence was imposed in violation of the Constitution or laws of the 18 United States, or that the court was without jurisdiction to impose such sentence, or that 19 the sentence was in excess of the maximum authorized by law, or is otherwise subject to 20 collateral attack.” 28 U.S.C. § 2255(a). To warrant relief under Section 2255, a 21 petitioner must allege a constitutional or jurisdictional error, or a “fundamental defect 22 which inherently results in a complete miscarriage of justice [or] an omission inconsistent 23 with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 24 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). 25 In addition, a second or successive habeas petition must be certified as provided in 26 Section 2244 by the appropriate court of appeals to contain new factual discoveries or 27 1 new and retroactively applicable constitutional law that would be dispositive to the case. 2 See 28 U.S.C. § 2255(h). In pertinent part, Section 2244 states that the petitioner must 3 file the motion for the court of appeals to authorize the second or successive habeas 4 petition, in which the court’s decision on the authorization itself is not appealable. See 28 5 U.S.C. § 2244(b)(3). 6 II. Application 7 Petitioner claims he is entitled to relief based on two Supreme Court cases, 8 Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 9 2319 (2019). Johnson held that the residual clause in 18 U.S.C. § 924(e)(2)(B) (defining 10 “violent felony”) is unconstitutionally vague, 576 U.S. at 597, which was later held to be 11 a substantive rule that has retroactive effect on cases on collateral review, Welch v. 12 United States, 136 S. Ct. 1257, 1265 (2016). Davis held that the residual clause in 18 13 U.S.C. § 924(c)(3)(B) (defining “crime of violence”) is unconstitutionally vague. 139 14 S.Ct. at 2336. Hence, the Petition is predicated on the assertion that, because 18 U.S.C. § 15 924(c) has been invalidated under Davis and Johnson, Petitioner’s sentence should be 16 vacated on all counts. See id. (“[W]hen a defendant’s § 924(c) conviction is invalidated, 17 courts of appeals routinely vacate the defendant’s entire sentence on all counts so that the 18 district court may increase the sentences for any remaining counts if such an increase is 19 warranted.” (quotation omitted)). 20 Despite these two Supreme Court cases, the Court agrees with the United States 21 and concludes that Petitioner is not entitled to habeas relief under Section 2255 because 22 the conviction was predicated on a different part of the statute (the part unaffected by 23 Johnson or Davis) and the Petition is procedurally barred.1 24 25 1 In addition, the Court notes that the Petition would be barred by the one-year statute of limitations, since Petitioner filed the instant Petition more than a year after Davis was 26 decided on June 24, 2019. See 28 U.S.C. § 2255(f)(3). Even if equitable tolling is 27 possible, this Petition does not meet the requirements for it because no part of the Petition 1 A. Basis for Conviction 2 Petitioner is not entitled to relief because his conviction remains valid even after 3 Johnson and Davis. Johnson only invalidated the residual clause defining “violent 4 felony” in 18 U.S.C. § 924(e). 576 U.S. at 594. In denying Petitioner’s first habeas 5 petition, the Court discussed how Petitioner was convicted of 18 U.S.C. § 924(c) based 6 on not just the “crime of violence” prong (which its residual clause could get implicated 7 by Johnson) but the “drug trafficking crime” prong as well. Order, Grado, No. 12-CR- 8 0236-GPC-4 (S.D. Cal. May 3, 2017), Dkt. No. 2055. Thus, regardless of whether the 9 residual clause is now unconstitutional, the provision untouched by the Supreme Court 10 remains a valid basis for Petitioner’s conviction and sentencing. 11 The Ninth Circuit affirmed the Court’s decision and rationale. United States v. 12 Espudo, 768 F. App’x 623 (9th Cir. 2019), cert. denied, 140 S. Ct. 282 (2019), and cert. 13 denied sub nom. Grado v. United States, 140 S. Ct. 331 (2019). Specifically, Espudo 14 denied Petitioner’s request for habeas relief grounded in Johnson, claiming in part, that 15 his § 924 conviction was “predicated on both a RICO conspiracy and a conspiracy to 16 distribute controlled substances.” Id. at 625. The Ninth Circuit noted that Petitioner 17 admitted he was a member of the “Diablos Gang,” distributed and possessed 18 methamphetamine, and “either shot [another drug dealer] or aided and abetted his 19 coconspirator in shooting [the other drug dealer].” Id. at 625–26. Petitioner’s “§ 924 20 conviction was therefore . . . based on both a crime of violence and a drug trafficking 21 crime.” Id. at 626. Petitioner’s conviction did not implicate the residual clause of § 924 22 (unconstitutional by Johnson) and therefore the conviction was “legally permissible.” Id. 23 Petitioner invokes Davis as “new” grounds for invalidating his conviction, but 24 Davis does not change the fact that Petitioner was convicted in part based on the “drug 25
26 demonstrates extraordinary circumstances that made it impossible to file a timely habeas 27 petition. See United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004). 1 trafficking crime” provision in § 924(c), which again remains good law. All Davis does 2 is extend Johnson’s rationale and invalidate a similar residual clause in defining “crime 3 of violence” under § 924(c). See 139 S.Ct. at 2336. So long as the Court needed not rely 4 on the “crime of violence” prong of the statute and convicted/sentenced Petitioner based 5 on the “drug trafficking crime” prong, whether the definition of “crime of violence” is 6 now unconstitutional is irrelevant. See Espudo, 768 Fed. App’x. at 625–26. 7 B. Ninth Circuit Authorization 8 Petitioner also has failed to meet the requirements of 28 U.S.C. §§ 2255(h) and 9 2244(b)(3), in which the latter provision states: “Before a second or successive 10 application permitted by this section is filed in the district court, the applicant shall move 11 in the appropriate court of appeals for an order authorizing the district court to consider 12 the application.” 28 U.S.C. § 2244(b)(3)(A). As previously discussed, Petitioner already 13 filed a Section 2255 petition seeking vacatur of his conviction pursuant to Johnson, and 14 the Court denied it. Order, Grado, No. 12-CR-0236-GPC-4 (S.D. Cal. May 3, 2017), 15 Dkt. No. 2055. Petitioner appealed, and the U.S. Court of Appeals for the Ninth Circuit 16 affirmed Petitioner’s convictions. See Espudo, 768 Fed. App’x. 623. 17 Thus, the instant Petition would be a second habeas petition. Yet no part of the 18 record indicates that Petitioner sought authorization to file a second or successive habeas 19 petition, which contravenes the requirements under 28 U.S.C. § 2255(h) or § 2244(b)(3). 20 In such cases, the court must deny the second petition. See, e.g., Martinez-Perez v. 21 United States, No. 3:14-CR-00106-GPC-1, 2017 WL 3896698, at *2 (S.D. Cal. Sept. 6, 22 2017) (citing United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011)). 23 Nor is it likely that Petitioner would be authorized to file a second successive 24 Petition anyway because, as previously mentioned, Petitioner is not entitled to relief 25 under Davis and Petitioner has not argued that a newly discovered evidence would 26 27 1 || change the disposition of his case. See 28 U.S.C. § 2255(h). Accordingly, the Petition is 2 || procedurally barred. 3 CERTIFICATE OF APPEALABILITY 4 A petitioner may not appeal the denial of a Section 2255 habeas relief unless he 5 || first receives a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). “A certificate of 6 || appealability may issue... only if the applicant has made a substantial showing of the 7 || denial of a constitutional right.” Jd. § 2253(c)(2). To satisfy this standard, a petitioner 8 ||must demonstrate that “reasonable jurists would find the district court’s assessment of the 9 || constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 10 || For the reasons discussed above, Petitioner has not made a substantial showing of the 11 denial of a constitutional right. The Court therefore sua sponte DENIES Petitioner a 12 || certificate of appealability. 13 CONCLUSION 14 The Court DENIES Petitioner’s motion to vacate, set aside, or correct his 15 sentence pursuant to 28 U.S.C. §2255. The Court also DENIES a certificate of 16 || appealability. 17 IT IS SO ORDERED. 18 19 || Dated: November 23, 2020 =
21 United States District Judge 22 23 24 25 26 27 28 20-cv-1442-GPC