James Antonio v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2023
• Docket: 22-16431
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES PAUL ANTONIO, No. 22-16431

Petitioner-Appellant, D.C. Nos. 4:16-cv-00341-CKJ 4:06-cr-02089-CKJ- v. BPV-1

UNITED STATES OF AMERICA, MEMORANDUM* Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted December 14, 2023 San Francisco, California

Before: KOH, H.A. THOMAS, and DESAI, Circuit Judges.

James Paul Antonio (“Antonio”) appeals the district court’s order denying

his 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. The

district court concluded that Antonio’s § 2255 motion was procedurally barred

because Antonio failed to show that the alleged instructional error caused actual

prejudice or that he was actually innocent. We have jurisdiction pursuant to 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. U.S.C. § 1291, and we affirm.

1. We review a district court’s denial of a § 2255 motion de novo. United

States v. Seng Chen Yong, 926 F.3d 582, 589 (9th Cir. 2019). Where a petitioner

has procedurally defaulted on a claim by failing to raise it on direct review, the

claim may be raised in a § 2255 motion only if the petitioner can first demonstrate

cause and actual prejudice. United States v. Braswell, 501 F.3d 1147, 1149 (9th

Cir. 2007). A petitioner who fails to show either cause or actual prejudice can still

obtain review of a claim on collateral attack by demonstrating his or her actual

innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). The petitioner

bears the burden of overcoming a procedural default. See Ellis v. Armenakis, 222

F.3d 627, 632 (9th Cir. 2000).

2. Antonio was indicted and convicted on three relevant counts: assault with

a machine gun resulting in serious bodily injury, in violation of 18 U.S.C.

§ 113(a)(6) (Count 1); assault with a dangerous weapon, in violation of 18 U.S.C.

§ 113(a)(3) (Count 2); and possession and use of a deadly weapon during a crime

of violence, in violation of 18 U.S.C. § 924(c) (Count 3). After Antonio’s

conviction became final, the Supreme Court struck down or limited certain statutes

that defined crimes of violence in different contexts. See United States v. Davis,

139 S. Ct. 2319 (2019); Borden v. United States, 141 S. Ct. 1817 (2021). In light of

these cases, the parties here agree that Antonio’s Count 1 offense is no longer a

2 valid predicate for his Count 3 conviction, but that the Count 2 predicate offense

remains valid. Antonio’s § 2255 motion argues that, because Count 1 is no longer a

valid predicate, the trial court erred in instructing the jury that both Counts 1 and 2

served as valid predicate crimes of violence for Antonio’s Count 3 conviction. For

the reasons stated below, the district court did not err in finding that Antonio’s

§ 2255 motion was procedurally barred because Antonio cannot show actual

prejudice from the alleged instructional error.1

To show actual prejudice, a petitioner bears the burden of showing not

merely that the alleged error created a possibility of actual prejudice, but that the

alleged error worked to his actual and substantial disadvantage. See Murray v.

Carrier, 477 U.S. 478, 494 (1986) (quoting United States v. Frady, 456 U.S. 152,

170 (1982); Bradford v. Davis, 923 F.3d 599, 613 (9th Cir. 2019) (quoting Murray,

477 U.S. at 494). An instructional error “is prejudicial (and thus § 2255 relief

appropriate) if the error had substantial and injurious effect or influence in

determining the jury’s verdict.” United States v. Reed, 48 F.4th 1082, 1088 (9th

Cir. 2022), cert. denied, 143 S. Ct. 1044 (2023). “[T]he judge asks as a matter of

law whether there is grave doubt about whether an instruction on an invalid

predicate substantially influenced what the jury already found beyond a reasonable

1 The district court found that Antonio showed cause, which prevented Antonio from raising his claim on direct appeal. In this appeal, the government does not dispute that there was cause to excuse Antonio’s default.

3 doubt.” Id. at 1089 (emphasis removed). This standard is the same standard that a

prisoner must meet on collateral attack to show that an error was not harmless.

Sifuentes v. Brazelton, 825 F.3d 506, 534 (9th Cir. 2016) (citing Brecht v.

Abrahamson, 507 U.S. 619, 638 (1993)).

In particular, jury instruction errors involving valid and invalid predicate

offenses are harmless if the predicate offenses are “inextricably intertwined.” Reed,

48 F.4th at 1090–91. Offenses are inextricably intertwined when one offense is so

closely tied to another offense that the conduct cannot be meaningfully separated

or disentangled from each other. See id. at 1091. For a § 924(c) conviction,

predicate offenses are inextricably intertwined if no rational juror could find that

the defendant carried or used a firearm in relation to one predicate but not the

other. Id. at 1090 (citing United States v. Cannon, 987 F.3d 924, 948 (11th Cir.

2021)).

Here, the indictment and jury instructions make clear that the Count 1

predicate was inextricably intertwined with the Count 2 predicate. The indictment

limits Count 1 and Count 2 to Antonio’s shooting of Karenina Ignacio on

November 12, 2006, a point Antonio concedes. The jury instructions for Count 3

required the jury to find that Antonio “committed the crime of assault as charged in

count one of the indictment or assault . . . as charged in count two of the

indictment.” The jury instructions for each of Count 1 and Count 2 had as an

4 element “[t]he defendant intentionally shot Karenina Ignacio.” In other words, the

jury could not find Antonio guilty of Count 1 and Count 2 without finding beyond

a reasonable doubt that Antonio intentionally shot Karenina Ignacio (“Karenina”),

which Antonio agrees is conduct that can constitute a predicate crime of violence

for a § 924(c) (Count 3) conviction. Together, the indictment and the jury

instructions required the jury to base their verdict as to all three counts on the

intentional shooting of Karenina on November 12, 2006. See United States v.

Reyes, 660 F.3d 454, 468 (9th Cir. 2011) (“Jurors are presumed to follow the

court’s instructions.”).

Moreover, the evidence introduced at trial focused on the Karenina shooting.

Evidence included stipulated physician testimony that Karenina had been hit in the

back by a bullet, which lodged in her liver, resulting in a severe bodily injury. The

evidence also included a group of seven shell casings found in Karenina’s yard.

Antonio’s arrest in Tucson, Arizona a few days later uncovered his possession of a

black backpack containing the weapon (a Sten Mark 3 machine gun) and a

magazine filled with 9mm. ammunition. Ballistic analysis also confirmed (and the

parties stipulated) that the casings recovered from Karenina’s front yard had been

discharged from the same weapon. The evidence thus demonstrates that the

predicate offenses were borne from the same event, the shooting of Karenina with

a machinegun.

5 Lastly, the defense’s closing arguments at trial also show that the jury based

its verdict on Counts 1, 2, and 3 on Antonio’s November 12, 2006 shooting of

Karenina. Specifically, the defense directed the jury’s attention to the shooting and

repeatedly stated that, for Counts 1, 2, and 3, the only issue in dispute was whether

Antonio shot Karenina intentionally. The defense repeatedly categorized the

assault for Counts 1, 2, and 3 as Antonio’s shooting of Karenina, not other non-

shooting assaultive conduct as Antonio now contends on appeal. As to Count 3, the

defense clarified that “in the final element . . . where it says he assaulted, that’s the

same thing as intentionally shot.” Therefore, based on the defense’s closing

arguments the jury understood that the assault at issue for Counts 1, 2, and 3 was

Antonio’s shooting of Karenina, and the only issue in dispute was whether he did

so intentionally.

Now on appeal, Antonio argues that the jury could have based its Count 3

conviction on other non-shooting assaultive conduct. Antonio argues that the jury

could have convicted him of Count 3 based on Antonio allegedly placing a gun in

Phyllisa Antonio’s (“Phyllisa”) mouth daily, which the government referenced in

its opening statement. However, Antonio ultimately concedes that the trial court

prohibited, and the jury never heard, testimony from Phyllisa that Antonio placed a

gun in her mouth. The trial court instructed the jury to not consider the attorneys’

statements and arguments as evidence in deciding the facts of the case, and jurors

6 are presumed to follow the trial court’s instructions. See Reyes, 660 F.3d at 468.

Next, Antonio argues that the jury could have convicted him based on a

threatening letter Phyllisa received from Antonio on April 25, 2007, six months

after the shooting took place and five months after Phyllisa spoke to police.

Antonio also argues that Karenina’s testimony that she was scared and

apprehensive shortly before the shooting may have led the jury to base Count 2 or

Count 3 on Karenina’s apprehension of harm from a dangerous weapon and not the

shooting itself. However, Antonio’s assertions are belied by the record for the

reasons discussed above.

Thus, there is no “grave doubt” that the jury based its verdict on anything

other than Antonio’s shooting of Karenina on November 12, 2006. Reed, 48 F.4th

at 1089. Any error in instructing the jury as to one valid and one invalid predicate

did not cause actual prejudice. Even if the alleged instructions were, in fact,

erroneous, any such error was harmless for the same reasons that the error was not

prejudicial. See Sifuentes, 825 F.3d at 534 (explaining that the actual prejudice

standard is the same standard that a prisoner must meet on collateral attack to show

that an error was not harmless).

3. Antonio concedes that our case law forecloses his argument that he is

actually innocent. This court in United States v. Gobert held that § 113(a)(3),

assault with a dangerous weapon with intent to do bodily harm, “is a crime of

7 violence under 18 U.S.C. § 924(c)(3)(A)” because it cannot be committed

recklessly or negligently. 943 F.3d 878, 879 (9th Cir. 2019). The district court

therefore correctly found Antonio’s § 2255 motion to be procedurally barred

because Ninth Circuit precedent precludes Antonio’s actual innocence argument.

See Balla v. Idaho, 29 F.4th 1019, 1028 (9th Cir. 2022) (“We are bound by the law

of our circuit, and only an en banc court or the U.S. Supreme Court can overrule a

prior panel decision.”).

AFFIRMED.