Michael Torres v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 20-71724
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL ANTHONY TORRES, AKA No. 20-71724 Mikey,

Applicant, MEMORANDUM* v.

UNITED STATES OF AMERICA,

Respondent.

Application to File Second or Successive Petition Under 28 U.S.C. § 2255

Argued and Submitted June 11, 2021 Pasadena, California

Before: CALLAHAN and FORREST, Circuit Judges, and SEEBORG,** District Judge.

Applicant Michael Anthony Torres seeks leave to file a second or successive

motion for habeas relief under 28 U.S.C. § 2255. He argues that his conviction for

possession of a firearm in furtherance of a crime of violence or drug trafficking

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. offense under 18 U.S.C. § 924(c) is invalid because his predicate crime—

racketeering—is no longer a categorical “crime of violence” under a new rule of

constitutional law announced in United States v. Davis, 139 S. Ct. 2319 (2019).1 We

have jurisdiction under 28 U.S.C. § 2255, and we grant Torres’s request for leave to

file a second or successive § 2255 habeas motion.

In our concurrently filed opinion, Muñoz Gonzalez v. United States, __F.4th__

(9th Cir. 2022), we adopted a pragmatic approach for determining whether a new

rule of constitutional law was “previously unavailable” within the meaning of

§ 2255(h)(2) that focuses on systemic barriers, including timing and accessible

procedural means for presenting a claim. Applying this approach here, we conclude

that an argument based on the new rule announced in Davis was not available to

Torres while his first habeas motion was still pending. The district court rejected

Torres’s initial habeas motion less than two months after the Supreme Court issued

Davis. Torres faced multiple institutional hurdles in accessing legal resources and

preparing and filing legal documents and, unlike in Muñoz Gonzalez, there is no

1 The verdict form did not require the jury to specify which conviction— racketeering or Torres’s two drug offenses—served as the predicate offense for his § 924(c) conviction. The government concedes that, despite the uncertainty about which offense was the predicate for his § 924(c) conviction, Torres can establish that Davis at least advances his claim. See Henry v. Spearman, 899 F.3d 703, 706 (9th Cir. 2018) (petitioner need only show “possible merit to warrant a fuller exploration by the district court”) (citation omitted).

2 indication that Torres knew about Davis during the very short window of time before

his initial habeas motion was denied. Given these restraints, we find that the real-

world circumstances that Torres faced rendered his Davis claim previously

unavailable to him.

The request for leave to file a second or successive habeas motion is

GRANTED.