Opinion
CV-19-8017-PCT-SPL (JFM) CR-15-8236-PCT-SPL
05-11-2020
Kristopher Andrew Jaramillo, Movant/Defendant v. United States of America, Respondent/Plaintiff.
Report & Recommendation on Motion to Vacate, Set Aside or Correct Sentence
I. MATTER UNDER CONSIDERATION
Motion - Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Movant alleges:
(1) that his counsel was ineffective for failing to argue that the offense for which Movant was convicted - "unarmed" bank robbery - was not a crime of violence because it did not qualify under the elements clause of U.S.S.G. § 4B1.2(a), and the residual clause is void for vagueness;
(2) his prior, New Mexico state conviction for unarmed robbery similarly does not qualify as a crime of violence under the elements clause;
(3) his current "unarmed" bank robbery conviction did not involve conduct that was knowingly intimidating; and
(4) because only one of his convictions qualified as a crime of violence, he did not qualify for sentencing as a career offender under 28 U.S.C. § 994(h).
Order to Show Cause - The Court initially ordered Movant to show cause why his Motion should not be dismissed as untimely (Order 2/22/19, Doc. 3), but vacated the order and directed a response to the Motion to Vacate. (Order 3/18/19, Doc. 5.) In the meantime, Movant filed a Response (Doc. 6), acknowledging his motion was untimely, but requesting equitable tolling.
Response - On July 15, 2019 Respondent responded (Doc. 9) to the Motion to Vacate, arguing:
(a) Movant waived his right to collaterally attack his conviction and sentence as part of his plea agreement;
(b) Movant's motion is fatally untimely, and he failed to provide a sufficient showing of equitable tolling;
(c) Movant has procedurally defaulted on his claims;
(d) Movant was provided effective counsel; and
(e) Movant's claims are meritless because counsel's actions were reasonable, bank robbery is a crime of violence under the elements clause, the residual clause was not void and was not applied, the New Mexico prior is a crime of violence under the elements clause, and intimidation was shown.
Reply - On October 18, 2019, Movant filed his Reply (Doc. 13), arguing:
(a) his waiver cannot extend to his sentencing claim, nor to deny due process;Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
(b) his claims are based on a newly recognized right under 2255(f)(3);
(c) ineffective assistance of counsel excuses his procedural default;
(d) his counsel was ineffective; and
(e) any lack of merits does not justify a dismissal.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. PROCEEDINGS AT TRIAL
Movant was indicted on a single charge of bank robbery in violation of 18 U.S.C. § 2113(a). (CR Doc. 9, Indictment.) With advice of counsel, he eventually entered into a written Plea Agreement (CR Doc. 24) wherein he agreed to plead guilty to the charge in exchange for a term of imprisonment not to exceed the low end of the applicable guidelines range, as determined by the Court at the time of sentencing. That plea agreement included a waiver of collateral attack rights on any sentence consistent with the agreement.
Items filed in the underlying criminal case, CR-15-8136-PCT-SPL, are referenced herein as "CR Doc. ___."
The Plea Agreement was subsequently amended to delete page 7, line 22 through page 8, line 5 (provisions relating to sex offender registration). (CR Doc. 25, Joint Motion; CR Doc. 35, M.E. 5/16/16.)
The defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the superseding indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under Title 18, U.S.C., § 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of "prosecutorial misconduct" (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015).(Id. at 4-5, ¶ 6.) The Plea Agreement included the following statement of the elements of the offense:
On or about October 26, 2015, in the District of Arizona:(Id. at 6, ¶ 9.) The Agreement provided the following statement of factual basis:
1. The defendant, through force, violence or intimidation took money, belonging to or in the care, custody, control, management or possession of a financial institution, Wells Fargo Bank; and
2. The deposits of Wells Fargo Bank were then insured by the Federal Deposit Insurance Corporation (FDIC).
a. The defendant admits that the following facts are true and that if this matter were to proceed to trial the United States could prove the following facts beyond a reasonable doubt:
On or about October 26, 2015, the defendant, Kristopher Andrew Jaramillo, entered Wells Fargo Bank, locate in Chinle
(Id. at 6, ¶ 10.)Arizona, and took $1833 from the victim teller, N.W. by intimidation. The money was federally insured by the Federal Deposit Insurance Corporation. Specifically, Jaramillo entered the Wells Fargo Bank holding a green bag. Jaramillo stood in-line and approached N.W. s teller window. Jaramillo gave N.W. a demand note written on pink paper. The note demanded money and instructed N.W. to not hit any alarms, alerts or police. N.W. complied and put money from her drawer into the green bag that Jaramillo held open. Jaramillo exited the bank and got into a red SUV.
Movant entered his plea on March 1, 2016, which was accepted. (CR Doc. 23, M.E. 3/1/16.) In the course of the plea proceeding, Movant protested that he did not believe his conduct amounted to intimidation, but did not oppose the factual background, including the assertion that "[t]he note says, I need for you to do this for me. Please put your cash in the bag, no police alerts, alarms, or police." (CRDoc. 47, R.T. 3/1/16 at 16-17.)
A Presentence Investigation Report (CR Doc. 40) calculated a Total Offense Level of 29 (id. at 6) and an initial Criminal History Category III, increased to Category VI on a career offender finding (id. at 9-10, ¶¶ 35-37), with a resulting range of 151 to 188 months (id. at 17, ¶ 75). The report recommended a sentence of 151 months. (Id. at 19, ¶ 89.) Movant sought a downward variance to offset a career offender enhancement (CR Doc. 27, Motion), and challenged the enhancements based on prior robbery and attempted robbery convictions from New Mexico on the basis they did not qualify as crimes of violence (CR Doc. 28, Objection). The trial court rejected the arguments and on June 28, 2016 sentenced Movant to 151 months in prison, after applying the career offender enhancement which increased Movant's total offense level from 19 to 29 and his minimum guidelines sentence from 63 months to 151 months. (CR Doc. 41, M.E. 6/28/16; CR Doc. 42, Judgment.) B. PROCEEDINGS ON DIRECT APPEAL
Movant did not file a direct appeal. / /
III. APPLICATION OF LAW TO FACTS
A. TIMELINESS
Respondent argues Movant's claims are barred by the applicable statute of limitations in 28 U.S.C. § 2255(f). Respondent argues Movant's one year expired on July 13, 2017, and his January 2, 2019 motion is some 18 months too late. 1. Statute of Limitations Not Discretionary
In his Motion, citing Day v McDonough, 547 U.S. 198, 209-10 (2006), Movant appears to argue that this Court retains jurisdiction to address his motion on the merits despite the statute of limitations. (Doc. 1 at 21.) To the contrary, Day only recognized that where the respondent fails to argue a violation of an applicable statute of limitations, the habeas court has discretion to either proceed to address the habeas petition on the merits, or to raise the statute of limitations sua sponte. Day gives habeas courts the discretion to raise an ignored limitations defense, it does not give discretion to ignore a raised limitations defense. Here, Respondent has raised its limitations defense. 2. Motion Untimely
The statute of limitations applicable to habeas proceedings by federal prisoners has been codified at 28 U.S.C. § 2255(f), which generally provides that motions to vacate filed beyond the one year limitations period are barred and must be dismissed.
a. Finality of Conviction
A federal habeas petitioner's time to file under 28 U.S.C. §2255 generally begins to run on "the day on which the judgment of conviction becomes final." 28 U.S.C. §2255(f). Although §2255 does not define "final", the Supreme Court has applied its ordinary standard of finality, i.e. the completion of direct review (including certiorari review by the Supreme Court), or the expiration of time for such review. Clay v. United States, 537 U.S. 522, 527 (2003).
Later commencement times can also result from an impediment, newly recognized rights made retroactive, and newly discovered factual predicates for claims. See 28 U.S.C. § 2255(2), (3) and (4). Except as discussed hereinafter, Movant does not assert these apply.
Here, Movant did not seek any direct review, and his time for doing so expired on Tuesday, July 12, 2016, 14 days after his June 28, 2016 sentencing. See Fed. R. App. P. 4(b)(1)(A) (14 days after entry of the judgment). His limitations period began running thereafter, and expired one year later, on Wednesday, July 12, 2017.
Respondent calculates the finality date as July 13, 2016, the day after the last day to file a notice of appeal. For purposes of counting time, the last day ends at midnight for efiling, or when the clerk's office is closed. See Fed. R. Crim. Proc. 45 (2009). "[A] judgment of conviction becomes final when the time expires for filing," Clay, 537 U.S. 522, 525 (2003), not the day after. But see United States v. Gibson, 2019 WL 5213838, at *2 (D. Haw. Oct. 16, 2019) (using day after last day). Nothing in United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000), relied on in the district court's decision in Gibson requires a contrary conclusion. See Colvin, 204 F.3d at 1244 ("a judgment cannot be considered final as long as a defendant may appeal either the conviction or sentence"). A contrary holding would separate finality from the expiration which occurs on the last day (albeit at the very last moment of the day), and not after.
See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying "anniversary method" under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997).
b. Impediment
In his Response to the Court's Order to Show Cause, Movant argued that he was entitled to a delayed commencement under 28 U.S.C. § 2255(f)(2). (OSC Resp., Doc. 6 at 4-5.) That statute provides for a later commencement date of "the date on which the impediment to making a motion created by 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 action."
Movant has not repeated that argument in his Reply, and the undersigned considers it waived.
Moreover, in his OSC Response Movant did not indicate the impediment to which he refers. Conclusory arguments are not sufficient to support a motion to vacate. See James v. Borg, 24 F.3d 20, 26 (9th Cir.1994).
Earlier in his OSC Response, Movant had argued that confusing language in the waiver provisions of his Plea Agreement and bad advice from counsel qualified as grounds for equitable tolling. (OSC Resp., Doc. 6 at 2-4.) Even if it were assumed that these were the impediments relied on for applying § 2255(f)(2), neither of those circumstances trigger § 2255(f)(2).
To qualify under § 2255(f)(2), an impediment must be in violation of law. Movant offers nothing to suggest that a confusing plea agreement is, of itself, a violation of the Constitution or federal law. While the plea agreement may be rendered unenforceable as a result of confusing provisions and their impact on various Constitutional rights, merely making a confusing plea agreement is not.
Moreover, the impediment must have been created by "governmental action." Defense counsel, regardless if employed or paid by the government, is the defendant's agent, not the Government's. Such incompetence, assuming it occurred, is not the type of governmental impediment envisioned § 2255(f)(2). See Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), affirmed on other grounds 549 U.S. 317 (2007) (applying comparable provision in habeas statute, 28 U.S.C. § 2244, to find no impediment for defendant's ineffective counsel).
Finally, the impediment must have prevented Movant from making a timely motion. Whatever confusion or bad advice Movant suffered, Movant fails to show that it prevented him from making a timely motion. Indeed, Movant offers nothing to connect these things to his delay in filing, or to show how they could not been overcome sooner.
c. Newly Acquired Right
Relying on the decision in Garza v. Idaho, 139 S.Ct. 738 (February 27, 2019), Movant argues that his Motion must be deemed timely under 28 U.S.C. § 2255(f)(3). That portion of the statute provides a delayed commencement from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3).
Section 2255(f)(3) has three requirements: (1) the claim must be based on a new "right"; (2) the right must have been newly recognized by the Supreme Court; and (3) it must have been made retroactive.
No Claim Based on Garza - In Garza, the Supreme Court reversed various circuit precedent and held that "'when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,' with no need for a 'further showing' of his claims' merit, regardless of whether the defendant has signed an appeal waiver." Garza, 139 S.Ct. at 747 (citations omitted) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). Here, Movant has not asserted an ineffective assistance claim based on the failure of counsel to file a notice of appeal, but rather "due to his failure to argue that Petitioner's current offense of conviction was not a crime of violence." (Motion, Doc. 1 at 1. See also id. at 15 ("counsel failed to argue that his current offense of conviction was not a crime").) At most, Movant argues that trial counsel "was ineffective when he failed to file a direct appeal or encourage Jaramillo to file a 2255," and only does so as a basis to avoid the statute of limitations. (Id. at 21.)
Moreover, Garza was premised on counsel's failure to file a notice of appeal after having been asked to do so by the defendant. Indeed, Garza was merely an extension of the holding in Flores-Ortega that found no need for a showing of prejudice where the defendant had asked an appeal be filed. Movant makes no allegation that he asked counsel to file a notice of appeal.
Movant's argument under Garza appears to be that prejudice is presumed any time an appeal is not filed. Flores-Ortega rejected such an approach, finding that counsel was deficient in failing to appeal only when instructed to do so by the defendant, or when counsel had reason to be believe a rational defendant would want to appeal (because of nonfrivolous grounds for appeal) or interest from the defendant in appealing. Flores-Ortega, 428 U.S. at 480. Nothing in Garza altered that limitation. See United States v. Fabian-Baltazar, 931 F.3d 1216, 1217 (9th Cir. 2019) (noting Garza did not address circumstances where no request for notice of appeal was made). Garza merely applied the presumption of prejudice where here was an appeals waiver.
To the extent that Movant simply relies on the holding of Flores-Ortega that counsel could be ineffective for failing to pursue an appeal without a showing of meritorious claims, that ruling was issued in 2000, and thus would not delay the commencement of Movant's limitations period.
No New Rule Made Retroactive - Moreover, the rule relied on must be a new rule and must have been made retroactive.
A preliminary consideration is whether this district court can make the retroactivity determination. In the context of applying § 2244(b)(2)(A) on second and successive petitions, the Supreme Court has held that "a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." Tyler v. Cain, 533 U.S. 656, 663 (2001). But the second and successive application provision of § 2244(b)(2)(A) has language different from the statute of limitations language in § 2255(f)(2) and its habeas petition counterpart in § 2244(d)(1)(C). In applying the statute of limitations provisions, other courts have generally held that the lower courts are competent to resolve whether a case should be made retroactively applicable. See Brian R. Means, Made retroactively applicable to cases on collateral review, Federal Habeas Manual § 9A:30 (May 2019) (detailing cases). But see Dodd v. U.S. 545 U.S. 353, 365, n.4 (2005) (Stevens, J., dissenting) (arguing that difference in language was irrelevant and only Supreme Court could make retroactivity determination under 2244(d)(1)(C)). The Ninth Circuit has apparently not addressed this issue. The undersigned assumes arguendo that the Ninth Circuit would follow the other circuits and that a decision on retroactivity by the Supreme Court (or a circuit court) is not required.
Under Teague, a new rule will be applied retroactively only if it (1) is substantive in that it alters the range of conduct or class of people that the law punishes or (2) it is a watershed rule of criminal procedure. Teague v. Lane, 489 U.S. 288, 307 (1989).
Garza is plainly not substantive, but is instead a rule of criminal procedure.
The question then is whether it was a watershed rule, or even a new rule. To qualify as a watershed rule, "a new rule must meet two requirements: Infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction, and the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Tyler v. Cain, 533 U.S. 656, 665 (2001) (citations and quotations omitted).
Both Garza and Flores-Ortega demonstrate Garza was neither a new rule nor a watershed new rule. The Garza opinion itself recognized that the "holding, principles, and facts of Flores-Ortega" dictated that the presumption of prejudice adopted in that case applied even in the face of a waiver of appellate rights. 139 S. Ct. at 747. The Garza Court opined: "a direct application of Flores-Ortega's language resolves this case." In turn, Flores-Ortega broke no new ground, but instead simply applied the principles in pre-existing precedent, "Cronic, Penson, and Robbins," "that the complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because 'the adversary process itself has been rendered 'presumptively unreliable.'" Flores-Ortega, 528 U.S. at 483 (citing U.S. v. Cronic, 466 U.S. 648 (1984), Penson v. Ohio, 488 U.S. 75 (1988), and Smith v. Robbins, 528 U.S. 259 (2000)).
In Tanner v. McDaniel, 493 F.3d 1135, 1143 (9th Cir. 2007) the Ninth Circuit found that the standard for deficient performance in Flores-Ortega was merely "an application of Strickland [v. Washington, 466 U.S. 668 (1984)]", and thus did not qualify as a new rule. Of course, Movant does not hang his hat on the issue of deficient performance, but on the prejudice prong with which Garza was concerned.
Indeed, the Ninth Circuit applied the principles in Garza long before that decision was issued. See U.S. v. Sandoval-Lopez, 409 F.3d 1193, 1196 (9th Cir. 2005) (applying Flores-Ortega to find a presumption of prejudice from failure to comply with defendant's request to appeal even in the face of a waiver of appeal rights).
Accordingly, Garza is not retroactively applicable.
Conclusion re 2255(f)(3) - Therefore, Movant fails to show that he is entitled to a delayed commencement under § 2255(f)(3), and the finality of his conviction marks the commencement of his limitations period.
d. Filing Untimely
Movant's Motion was not filed until January 17, 2019, over 18 months after his one year expired. However, Respondent concedes (Response, Doc. 9 at 10, n. 5) that because Movant delivered his Motion to prison officials for mailing on January 2, 2019 (see Motion, Doc. 1 at 11), it must be deemed filed as of that date. The undersigned agrees. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (applying prison mailbox rule to pro se habeas petition).
Nonetheless, the Motion remains almost 18 months delinquent, and thus absent a showing of equitable tolling or actual innocence, is barred by the habeas statute of limitations. 3. Equitable Tolling
In his Motion, Movant argues his motion is untimely because counsel failed to encourage Movant to appeal his sentence. (Motion, Doc. 1 at 22.) In his OSC Response, Movant argued he is entitled to equitable tolling "because his plea agreement contained very confusing contradictory language" (Doc. 6 at 2), and because defense counsel "told him he could not appeal his sentence or file a 2255 motion" (id. at 4).
In U.S. v. Battles, 362 F.3d 1195 (9th Cir. 2004), the Ninth Circuit held the statute of limitations under 28 U.S.C. § 2255 may be equitably tolled.
A § 2255 movant is entitled to equitable tolling "only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." The movant must show that the extraordinary circumstances " 'were the cause of his untimeliness.' "United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (citations omitted). Movant bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Respondent argues that Movant fails to show extraordinary circumstances because the record reflects Movant's understanding of the waiver, and the waiver is clear. (Response, Doc. 9 at 10-12.) Respondent further argues that Movant files to show he was diligent in the face of such circumstances, citing the ability to appeal or file a 2255 motion to seek clarification, and the amount of time expired. (Id. at 12.) Petitioner does not reply.
Confusion on Waiver - With regard to the Plea Agreement, Movant expresses his confusion between the blanket waiver language and the following phrase:
This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of "prosecutorial misconduct" (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015).(Id. at 4-5, ¶ 6.) But any confusion Movant may have had would have arisen from his failure to understand the law on what issues came within the exception to the waiver (a matter at least partially explained in detail in the referenced ethics opinion). Movant's failure to comprehend his ability to file a 2255 motion is not grounds for equitable tolling. "[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling." Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). "[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.1999). Rather, to qualify for equitable tolling, "an external force must cause the untimeliness, rather than...merely oversight, miscalculation or negligence on the petitioner's part." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (citations, quotations and alterations omitted).
That opinion concludes: "The conflict-of-interest rules prohibit a defense attorney from advising a criminal defendant to waive the defendant's right to raise that attorney's ineffective assistance of counsel. The ethical rules also prohibit a prosecutor from insisting that a defendant waive the right to raise ineffective assistance of counsel and prosecutorial misconduct claims." Ariz. Ethics Opinion 15-01, available at https://www2.azbar.org/Ethics/EthicsOpinions/ViewEthicsOpinion?id=724, last accessed 4/29/20. Moreover, it has long been held that the validity of counseled waivers in plea agreements, like the plea agreements themselves, depends upon the effective assistance of counsel in advising on the waiver and plea. See e.g. United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994); and Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Further, even if not waived by plea agreement, claims of ineffective assistance occurring outside or prior to the plea process are waived by the simple act of pleading guilty. See United States v. Broce, 488 U.S. 563, 573-74 (1989).
Failure to File Notice of Appeal - Moreover, counsel's failure to file an appeal might explain a procedural default, but it does not explain Movant's failure in the ensuing year to file a motion to vacate.
Bad Advice from Trial Counsel - Nor is equitable tolling justified by trial counsel's purported advice that a 2255 could not be pursued (or that it would be fruitless). Although an attorney's behavior can establish the extraordinary circumstances required for equitable tolling, mere negligence or professional malpractice is insufficient. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001). A "garden variety claim of excusable neglect,' such as a simple 'miscalculation' that leads a lawyer to miss a filing deadline does not warrant equitable tolling.' " Holland v. Florida, 560 U.S. 631, 651-652 (2010).
Moreover, because Movant had no right to the assistance of counsel in his motion to vacate proceeding, see Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987), he had no right to effective assistance, and thus any bad advice trial counsel may have offered with regard to Movant's motion to vacate would not establish a basis for equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002) (finding no equitable tolling "because Miranda had no right to the assistance of his appointed appellate counsel regarding post-conviction relief, it follows that he did not have the right to that attorney's ' effective' assistance, either").
No Diligence - Finally, Movant offers nothing to show that he was diligent in the face of the purported misunderstanding and advice.
In the recent en banc decision in Smith v. Davis, 2020 WL 1316832, at *3 (9th Cir. Mar. 20, 2020), the Ninth Circuit resolved a discrepancy between prior decisions and eschewed the "stop-clock" method of applying equitable tolling (that requires diligence only during the course of the extraordinary circumstance, and not thereafter, resulting in a day-for-day pause of the running of the limitations clock). Instead, the Court adopted a rule which conditions equitable tolling on a question of causation. "As we have previously described it, whether an impediment caused by extraordinary circumstances prevented timely filing is a "causation question" that requires courts to evaluate a petitioner's diligence in all time periods—before, during, and after the existence of an "extraordinary circumstance"—to determine whether the extraordinary circumstance actually did prevent timely filing." Id. at *9.
Here, for example, Movant does not show that he promptly and diligently sought to review Arizona Ethics Opinion 15-01 or otherwise conducted research on avoidance of waivers, etc., but was somehow stymied in doing so by an external force, i.e. something beyond his own limitations or failings. Nor does he show that he remained diligent in the face of such external force. Nor does he show that, once he overcame those limitations, he was diligent in promptly filing his motion to vacate.
Conclusion - Movant fails to show extraordinary circumstances that precluded a timely filing or diligence in the face of such circumstances. Thus, he is not entitled to equitable tolling. 4. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude "a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence." McQuiggin v. Perkins, 569 U.S. 383, 398 (2013). The Ninth Circuit has applied this principle to motions to vacate under § 2255. United States v. Kimber, 591 F. App'x 578 (9th Cir. 2015) (unpublished). See also Phillips v. United States, 734 F.3d 573, 575 (6th Cir. 2013) (applying McQuiggins in § 2255 case).
For the reasons discussed hereinafter in Section III(C) (Actual Innocence), the undersigned concludes that Movant has failed to establish a cognizable claim of actual innocence. 5. Conclusion re Timeliness
Based on the foregoing, the undersigned concludes that Movant's Motion to Vacate was untimely filed, and neither equitable tolling nor actual innocence have been shown to save his untimely filing. Accordingly, the Motion to Vacate must be dismissed as untimely. B. PROCEDURAL DEFAULT
Respondent also argues Movant has procedurally defaulted on his claims. Movant replies that any failure to exhaust was the result of ineffective assistance of trial counsel in failing to advise him on his claims. (Reply, Doc. 13 at 5.) 1. Grounds 2 thru 4 Procedurally Defaulted
The general rule is "that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. U.S., 538 U.S. 500, 504 (2003). Thus, a Section 2255 movant raising a claim for the first time in post-conviction proceedings is in procedural default, and is precluded from asserting the claim. Bousley v. U.S., 523 U.S. 614, 621 (1998) (finding default where petitioner challenging his guilty plea did not raise claim in direct appeal); United States v. Frady, 456 U.S. 152, 165 (1982) (noting that a motion to vacate or modify a sentence under 28 U.S.C. § 2255 cannot be used as a substitute for a direct appeal).
However, in a federal prosecution, claims of ineffective assistance of counsel need not be exhausted on direct appeal, but are properly brought in the first instance in a Motion pursuant to 28 U.S.C. sec. 2255. "We do hold that failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Massaro v. United States, 538 U.S. 500, 509 (2003).
Here, Movant did not file a direct appeal. Accordingly, with the exception of his claim in Ground 1 that trial counsel was ineffective in failing to argue the instant offense was not a crime of violence, his claims are procedurally defaulted. / / 2. Cause and Prejudice
"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice,' or that he is 'actually innocent'." Bousley, 523 U.S at 622 (citations omitted). Although both "cause" and "prejudice" must be shown to excuse a procedural default, a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991).
No Cause Shown - Movant asserts ineffective assistance of trial counsel in failing to advise him of the deficiencies raised in his Motion establishes cause to excuse his procedural default. "Constitutionally ineffective assistance of counsel constitutes cause sufficient to excuse a procedural default. In order to excuse his procedural default, [the movant] must show 'that counsel's performance was deficient' and 'that the deficient performance prejudiced the defense.' " United States v. Ratigan, 351 F.3d 957, 964-65 (9th Cir. 2003) (citations omitted, quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
However, as discussed hereinafter, Movant's substantive claims are without merit. His claim in Ground 2 about the New Mexico robbery priors not qualifying is without merit because N.M. Stat. § 30-16-2 defines a crime of violence within the meaning of the elements clause of Guidelines § 4B1.2. (See infra Section III(C)(2)(b), New Mexico Prior.) His claim in Ground 3 about the lack of evidence of knowledge of intimidation is without merit because the admitted facts were sufficient to establish such knowledge. (See infra Section III(C)(4)(a) (Knowledge of Intimidation).) Similarly, his claim in Ground 3 about the lack of evidence of intimidation is without merit because a reasonable teller would have been intimidated by Movant's actions. (See infra Section III(C)(4)(b) (Evidence of Intimidation).) His claim in Ground 4 about the failure to meet the three convictions requirement in 28 U.S.C. § 994(h) is without merit because that section relates only to directions to the Sentencing Commission, and in any event was met because Movant's instant conviction, prior New Mexico robbery convictions, as well as his unassailed prior New Mexico bank robbery conviction all qualified as crimes of violence. (See infra Section III(C)(3) (§ 994(h) - No Showing of Innocence of Statutory Sentence.)
"The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
Further, trial counsel did raise the claim in Ground 2 regarding the New Mexico robbery convictions. Movant proffers nothing to show that counsel's manner of doing so was deficient. Even now, Movant has been unable to convince the Court of the merits of his claim in Ground 2.
Respondent argues that counsel was not deficient for making the tactical decision to pursue the claim in Ground 2 (New Mexico robbery priors) over that in Ground 1 (instant bank robbery). "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that [they] did so for tactical reasons." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). See also Djerf v. Ryan, 931 F.3d 870, 883 (9th Cir. 2019) (quoting Yarborough). "Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation." Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). Given the weight of then existing authority finding bank robbery to be a crime of violence (see infra Section III(C)(2)(a) (Instant Offense)), a tactical decision to forego such an argument in favor of the less settled issue of New Mexico's robbery statute was a reasonable tactic.
Moreover, Movant does not raise as a ground for relief the substantive claim underlying his ineffective assistance claim in Ground 1. However, even if Movant's Motion could be read to raise the underlying substantive claim regarding § 4B1.2 and the instant bank robbery conviction, for the reasons discussed hereinafter, that claim is also without merit. (See infra Section III(C)(2)(a) (Instant Offense)),
Accordingly, Movant has failed to show deficient performance by counsel.
To establish prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Similarly, because Movant fails to show that his substantive claims in Grounds 1 through 4 have merit, the Court could not find prejudice.
Therefore, Movant fails to show ineffective assistance of counsel as cause to excuse his procedural default.
No Prejudice Shown - "Prejudice" under the cause and prejudice standard, is actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). Establishing prejudice requires showing "not merely that the errors of [petitioner's] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." U.S. v. Frady, 456 U.S. 152, 170 (1982).
As with prejudice under the ineffective assistance standard, because the undersigned determines hereinafter that Movant's claims are without merit and no error occurred, the Court cannot find prejudice to excuse the procedural default. C. ACTUAL INNOCENCE
Movant has relied on actual innocence to avoid the statute of limitations and procedural default defenses. Movant primarily asserts that he was "innocent" of Guidelines factors relied on at sentencing, namely the Career Offender enhancement under U.S.S.G. § 4B1.2, and the related statute, 28 U.S.C. § 994(h). He also asserts his innocence of the armed robbery of which he was convicted.
Respondent does not address this actual innocence with regard to the statute of limitations. With regard to procedural default, Respondent argues that innocence of a Guidelines enhancement does not meet the standard for factual innocence, and simply asserts legal innocence, he cannot be innocent of his sentence so long as he was sentenced within the statutory maximum, and he has not shown actual innocence of the instant offense. 1. Advisory Guidelines Error Does Not Qualify as Actual Innocence
In Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) (decided after Respondent's Response in this case), the Ninth Circuit addressed an issue it had previously left open and concluded that if a federal prisoner shows that (under a retroactively applicable change in the law) a predicate conviction for career offender status under the mandatory Guidelines no longer qualified as such, then the factual predicate for his mandatory sentencing enhancement did not exist, he is actually innocent of the enhancement, and may file qualify for escape hatch jurisdiction under 28 U.S.C. § 2255(e). The undersigned assumes arguendo that the same analysis would apply to an actual innocence exception to the statute of limitations or procedural default.
The Allen court noted, however, that the petitioner in that case was sentenced under the Guidelines when they were mandatory, and other courts had questioned whether actual innocence of an enhancement under the now advisory Guidelines would suffice. Allen, 950 F.3d at 1189 (citing Gibbs v. United States, 655 F.3d 473, 479 (6th Cir. 2011)).
In Gibbs, the Sixth Circuit opined:
In federal sentencing cases, federal law authorizes an imprisonment range. While the sentencing guidelines are used as a starting point for determining where within the statutorily-set range a prisoner's sentence should fall, the guidelines themselves are advisory. A challenge to the sentencing court's guidelines calculation, therefore, only challenges the legal process used to sentence a defendant and does not raise an argument that the defendant is ineligible for the sentence she received. The Supreme Court did not intend the "actual innocence" exception to save such procedural claims.655 F.3d at 479 (citations omitted). More recently than Gibbs, in Spencer v. U.S., 773 F.3d 1132 (11th Cir. 2014), the Eleventh Circuit found no basis for a finding of actual innocence of an advisory Guideline. "When a federal prisoner, sentenced below the statutory maximum, complains of a sentencing error and does not prove either actual innocence of his crime or the vacatur of a prior conviction, the prisoner cannot satisfy the demanding standard that a sentencing error resulted in a complete miscarriage of justice." Id. at 1138.
Spencer does not allege that he is actually innocent of the crime for which he was indicted, nor that any of his prior convictions have been vacated. Instead, he contends only that the district court erroneously classified him as a career offender under the advisory guidelines. But any miscalculation of the guideline range cannot be a complete miscarriage of justice because the guidelines are advisory. If the district court were to resentence Spencer, the district court could impose the same sentence again.Id. at 1140. See also Bullard v. United States, 937 F.3d 654, 659 (6th Cir. 2019) (same); United States v. Folk, 954 F.3d 597, 604 n. 7 (3rd Cir. 2020) (detailing cases).
Here, Movant was sentenced in 2016, long after the Sentencing Guidelines were rendered advisory by the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 245 (2005). Because any error in calculating the advisory Guidelines range could not alter that the sentence for which he was statutorily eligible, it did not qualify as a showing of actual innocence. See Gibbs, 655 F.3d 478-79 (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)) (" '[T]o show 'actual innocence' ' in the sentencing context, the petitioner 'must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the ... penalty under the applicable ... law.' "). 2. No Guidelines Error Occurred
The undersigned acknowledges that in this case the Guidelines functioned as setting the maximum to which movement could be sentence under the plea agreement. Movant does not argue that this justifies an extension to Allen. The undersigned has not found any authority extending actual innocence to plea agreement maximums. Moreover, the undersigned concludes hereinafter that the Guidelines were properly calculated. Accordingly, the undersigned attempts no analysis on whether Allen could be extended to a plea agreement maximum.
Even if Movant were entitled to rely on Guidelines error to establish actual innocence, he fails to show that such error occurred.
Movant asserts that the instant conviction for unarmed bank robbery and his New Mexico prior for unarmed robbery did not qualify as crimes of violence, and thus he did not qualify for the career offender enhancement under U.S.S.G. § 4B1.1.
Under the Guidelines applicable in 2016, a "career offender" is subjected to enhanced offense levels (based on the statutory maximum sentence), and his Guideline sentence must always be calculated based on a Category VI criminal history. U.S.S.G. § 4B1.1(b). Movant's bank robbery conviction had a statutory maximum sentence of 20 years. 18 U.S.C. § 2113(a). Thus, if Movant qualified as career offender, his offense level was increased by 10 points. U.S.S.G. § 4B1.1.(b)(3). Indeed, based on a career offender finding, Movant's total offense level was increased from 19 to 29. (CRDoc. 40, PSR at 5-6.)
To qualify a defendant as a career offender, three criteria must be met: "(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Movant contends that neither the second nor third criteria existed.
With regard to the second requirement, Movant argues the instant "unarmed" bank robbery did not qualify as a crime of violence. Similarly, with regard to the third criteria, Movant argues his New Mexico robbery convictions were not crimes of violence. (There is no suggestion either was a controlled substance offense.)
At the time of sentencing, the Guidelines defined "crime of violence" as follows:
(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--U.S.S.G. § 4B1.2(a) (eff. thru 8/1/2016) emphasis added. The first definition is generally referred to as the "elements" or "force" clause. The two parts of the second definition are generally referred to as the "enumerated offenses" clause (burglary, arson, extortion, explosives) and the highlighted portion is referred to as the "residual" clause (otherwise involves conduct with risk of injury). / /
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
a. Instant Offense
Movant argues his conviction in the instant case, unarmed bank robbery, was not a crime of violence.
Unarmed - Movant makes much of the fact that he was unarmed. That argument is foreclosed by Selfa. "Selfa argues that since he was unarmed in the two prior robberies, they were not crimes of violence. Section 4B1.2, however, does not define a crime of violence as requiring use of a weapon." Selfa, 918 F.2d at 751.
Residual Clause/Risk of Harm - Movant insists the trial court must have relied on the residual clause, which he contends was void for vagueness. Movant makes no argument that his instant bank robbery offense would not qualify under the residual clause.
Presumed Applied - Here, the trial court did not specify the basis on which it concluded the bank robbery charge qualified as a crime of violence. The Presentence Report offered no explanation, and the parties did not litigate the issue. (CRDoc. 40.) Here, it seems unlikely given the clear authority qualifying bank robbery under the elements clause that the court relied on the residual clause. Nonetheless, the undersigned assumes arguendo that the trial court's silence means the Court must now presume the residual clause was relied on, and such reliance cannot be deemed harmless by showing the instant offense qualified under the elements or enumerated offenses clauses. Cf. U.S. v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017) ("We therefore hold that, when it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant's § 2255 claim 'relies on' the constitutional rule announced in Johnson II.")
Movant bases his argument on his assertion that the instant offense did not qualify under the elements clause. The undersigned rejects that contention hereinafter, but nonetheless, for purposes of analyzing the residual clause, assumes arguendo that residual clause was applied.
Not Void for Vagueness - However, Movant's argument that the residual clause is void for vagueness is foreclosed by Beckles v. U.S., 137 S. Ct. 886 (2017). The Guidelines definition for "crime of violence" mirrored the definition for "violent felony" in the Armed Career Criminal Act ("ACCA") in 18 U.S.C. § 924(e)(2)(B), which included a similar elements or force clause, enumerated offenses clause, and residual clause. In Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015), the Supreme Court held that the residual clause in the ACCA definition was constitutionally void for vagueness, leaving judges to envision the risk of an "ordinary case" of a particular crime, and offered no guidance on the degree of risk of injury required. The Supreme Court has applied the same analysis to similar residual clauses in other statutes. See e.g. Sessions v. Dimaya, 138 S.Ct. 1204, 200 (2018) (addressing 18 U.S.C. § 16); and U.S. v. Davis, 139 S. Ct. 2319, 2326 (2019) (addressing 18 U.S.C. § 924(c)). However, in Beckles v. U.S., 137 S. Ct. 886 (2017) the Supreme Court found the reasoning of Johnson inapplicable to the career offender provisions under the advisory Guidelines. "Because the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)'s residual clause is not void for vagueness." Id. at 897.
While the Beckles holding was limited to the advisory form of the Guidelines, some courts have found its reasoning applicable to the mandatory, preBooker Guidelines. See e.g. U.S. v. Colasanti, 282 F. Supp. 3d 1213, 1224 (D. Or. 2017), aff'd, 787 Fed. Appx. 973 (9th Cir. 2019) (unpublished) (finding Beckles applies to mandatory Guidelines, and thus no vagueness). Others, including one cited by Movant have found to the contrary. See Long v. U.S., 2017 WL 6886299, 2017 U.S. Dist. LEXIS 215954 (C.D. Cal. Sept. 15, 2017). Here, of course, Movant was sentenced under the advisory, postBooker form of the Guidelines, and Beckles plainly controls.
Nonetheless, effective August 1, 2016, after Movant's sentencing, U.S.S.G. § 4B1.2(a)(2) was amended to eliminate the residual clause and expand the enumerated offenses clause: "(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c)." U.S.S.G. § 4B1.2(a)(2) (eff. 8/1/16).
Elements Clause/Physical Force - Even if this Court could determine that the residual clause was not applied, Movant's bank robbery conviction qualified under the elements clause of § 4B1.2.
Movant pled guilty to violating section (a) of the bank robbery statute, which provides:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or18 U.S.C. § 2113(a) (emphasis added).
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny--
Shall be fined under this title or imprisoned not more than twenty years, or both.
That statute provides at least three alternative means of commission: (1) taking from a bank "by force and violence, or by intimidation"; (3) obtaining from a bank "by extortion"; and (2) entering a bank with the intent to commit "any felony affecting such bank." These various means are divisible, separate offenses. See U.S. v. Watson, 881 F.3d 782, 786 (9th Cir. 2018), cert. denied, 139 S. Ct. 203 (2018).
In U.S. v. Selfa, 918 F.2d 749 (9th Cir. 1990) the Ninth Circuit held that "persons convicted of robbing a bank 'by force and violence' or 'intimidation' under 18 U.S.C. § 2113(a) have been convicted of a 'crime of violence' within the meaning of Guideline Section 4B1.1." Id. at 751. In so holding, Selfa forecloses any argument that a taking by "intimidation" does not qualify as a crime of violence. See also United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) ("Bank robbery by intimidation thus requires at least an implicit threat to use the type of violent physical force necessary to meet the [elements clause] standard.").
At least arguably, the latter two versions, "obtain by extortion," and "entering a bank," do not have an element of force and thus would not qualify under the element clause. Id. at 752, n.2; Watson, 881 F.3d at 786. The question then becomes whether Movant was convicted of the "taking" version of offense under § 2113(a) or the "extortion" or "entering" versions.
To make this type of determination on prior convictions (where some divisible means of commission do not qualify as crimes of violence) courts apply a modified categorical approach under Taylor v. United States, 495 U.S. 575 (1990), which "permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms." Johnson, 559 U.S. at 144. This portion of Movant's argument, however, focuses not on a prior conviction but the instant conviction. Even under the modified categorical approach, however, Movant's current conviction was for a "taking" offense.
Here, the trial court record plainly reflects that Movant was convicted of the "taking" version. The Indictment charged Movant with "tak[ing] by force, violence and intimidation." (CR Doc. 9 at 1.) Movant's Plea Agreement established that the offense to which he was pleading was that he had "through force, violence or intimidation took money, belonging to ... Wells Fargo Bank." (CRDoc. 24 at 6.) The factual basis for his plea was that he "took $1833 from the victim teller, N.W. by intimidation." And, as discussed hereinafter, there was a factual basis sufficient to establish such intimidation.
It is true that at his plea proceeding Movant quibbled over whether intimidation could be proven, but ultimately conceded he had engaged in intimidation:
MS. KELLER: Judge, if the Court's amenable, I'd like the defendant to simply confirm that this robbery was conducted by virtue of his intimidation.
THE COURT: Mr. Jaramillo, you just heard the Government lawyer. One of the elements is you committed this robbery by force, violence or intimidation. Which one applies in your case and why?
THE DEFENDANT: Honestly I don't believe any of them apply, because I didn't -- all I did was walk in, hand a person a note, and walked out. I didn't say anything, and I didn't have any kind of intimidating threats or any kind of violence or any kind of weapon. I mean --
MR. WILLIAMS: Did the note say anything about not calling the police?
THE DEFENDANT: I can't remember exactly what -
* * *
MR. WILLIAMS: The note says, I need for you to do this for me. Please put your cash in the bag, no police alerts, alarms, or police. I think it's that directive that suggests intimidation.
THE COURT: And, Mr. Williams, I certainly appreciate that. But your client -
Mr. Jaramillo, did you intimidate? Did you threaten through force or violence? Which one was it?
THE DEFENDANT: I guess I intimidated her, I guess. I mean, if that's what it -- the definition of that is.(CRDoc. 47, R.T. 3/1/16 at 16-17.)
Conclusion re Instant Offense - If the trial court relied on the residual clause, no error occurred because an advisory sentencing guideline cannot be void for vagueness. If the trial court relied on the elements clause, no error occurred because his conviction for bank robbery by intimidation qualified and was supported by the factual basis. Accordingly, Movant has failed to show that he did not meet the "instant offense" requirement for applying § 4B1.2.
b. New Mexico Prior
Similarly, Movant fails to show that his New Mexico priors did not qualify as a crime of violence, and thus he did not meet the priors requirement for applying the career offender enhancement under § 4B1.2. Movant argues that his New Mexico convictions for unarmed robbery and attempted unarmed robbery under N.M. Stat. § 30-16-2 did not qualify under the purportedly void residual clause or the elements clause.
The Application Notes to the Guidelines direct that "'Crime of violence' and 'controlled substance offense' include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. § 4B1.2, Application Note 1 (emphasis added).
Movant's career offender enhancement was based in part on his prior New Mexico convictions for robbery and attempted robbery.
On May 8, 2009, the defendant was convicted of Count 1: Robbery, a felony, in violation of NM Stat § 30-16-2 in the Superior Court of New Mexico, Bernalillo County, Docket No.: D-202-CR-2008-02984, and Count 1: Attempted Robbery, a felony, in violation of NM Stat § 30-13-2A in the Superior Court of New Mexico, San Bernalillo County, Docket No.: D-202-CR-2008-03683. These are convictions are categorically crimes of violence.(CRDoc. 40, Present. Rep. at 6, ¶ 25.) New Mexico defines robbery as follows:
Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.N.M. Stat. Ann. § 30-16-2.
The reference to § 30-13-2A appears to be a typographical error. N.M. Stat. § 30-13-2 concerns the offense of denial of service by a utility. (There is no separate N.M. Stat. § 30-13-2A. Attempts are addressed by N.M. Stat. § 30-28-1.) The Presentence Report later clarified that the attempted robbery conviction in case D-202-CR-2008-03683 was under "NM Stat § 30-16-2A." (CRDoc. 40 at 8, ¶ 31 and 25.) There is no § 30-16-2A. Thus, this appears to be a reference to an attempted violation of § 30-16-2, which is quoted herein.
Respondent argues that a New Mexico robbery offense requires "use or threatened use of force or violence" (Response, Doc. 9 at 24 (citing N.M. Stat 30-13-2)), and that other courts have recognized they qualify as crimes of violence (id. (citing United States v. Lujan, 9 F.3d 890, 892 (10th Cir. 1993) and United States v. Morales, No. 05-51362, 2007 WL 1847134, at *5 (5th Cir. June 26, 2007) (unpublished)).
Respondent acknowledges Movant's reliance on United States v. King, 248 F. Supp. 3d 1062, 1081 (D.N.M. 2017) (requisite level of physical force not required in New Mexico robbery statute), but argues it has been abrogated by United States v. Garcia, 877 F.3d 944 (10th Cir. 2017). (Response, Doc. 9 at 24-25, n. 21.)
The Garcia court was unable to find plain language in the New Mexico statutes or any holding by the New Mexico Courts, and thus looked to dicta and the application of the statues in the New Mexico courts to analyze the force required for robbery.
In sum, we conclude robbery as defined in N.M. Stat. Ann. § 30-16-2, authoritatively discussed in Bernal, and actually applied in the New Mexico courts, categorically matches the definition of "physical force" the Supreme Court assigned in Johnson I. Robbery under this statute has as an element the use or threatened use of physical force against another person. Thus, robbery under § 30-16-2 is a violent felony under the ACCA's Elements Clause in § 924(e)(2)(B)(i), and may be used as the third predicate violent felony conviction to uphold Garcia's enhanced sentence under the ACCA.Garcia, 877 F.3d at 956.
Although Garcia was applying the ACCA's violent felony requirement, the Ninth Circuit has routinely relied on the various uses of the three part formulations (elements/force clause, enumerated offenses clause, residual clause) in the federal statutes defining "violent crime" or "crime of violence", when applying comparable provisions. See United States v. Walton, 881 F.3d 768, 772 n.1 (9th Cir. 2018) (detailing cases and referencing Guidelines § 4B1.2 and 2L1.2, 18 U.S.C. § 16(a), the ACCA, and 18 U.S.C. § 924(c)(3)).
Garcia was questioned by a panel decision in United States v. Ash, 917 F.3d 1238, 1242 n. 5 (10th Cir. 2019) (citing Stokeling v. United States, 139 S. Ct. 544 (2019) (ACCA's Elements Clause "encompasses robbery offenses that require the criminal to overcome the victim's resistance"). However, in United States v. Manzanares, - - - F.3d - - - , No. 18-2010, 2020 WL 1898797, at *3 (10th Cir. Apr. 17, 2020), another panel of the Tenth Circuit clarified that New Mexico's robbery statute met the requisite level of force for a crime of violence under Johnson v. United States, 559 U.S. 133, 140 (2010) (Johnson I), even as clarified by Stokeling.
To be sure, in Ash, we noted that the standard applied in Garcia was "arguably ... different" than the standard applied by the Supreme Court in Stokeling. 917 F.3d at 1242 n.5. That is, rather than determining only whether New Mexico robbery requires force to overcome a victim's resistance, Garcia drew a different line: whether the New Mexico statute requires "the use of any physical force" to overcome the victim's resistance or something "more than minimal actual force." 877 F.3d at 950 (emphasis in original). But Stokeling held that either of these readings of New Mexico law would satisfy Johnson I, concluding that any "force necessary to overcome a victim's physical resistance is inherently 'violent' in the sense contemplated by Johnson." 139 S. Ct. at 553. Thus, Stokeling does not undermine Garcia's result.Manzanares, 2020 WL 1898797, at *3.
Moreover, Manzanares analyzed subsequent state court holdings, and found no reason to retreat from Garcia's holding that New Mexico's robbery statute satisfied the elements clause of a violent crime under the ACCA.
Based on the persuasive reasoning of Garcia and Manzanares, the undersigned concludes that § 30-16-2 defines a crime of violence within the meaning of the elements clause of Guidelines § 4B1.2.
Accordingly, Movant fails to show his actual innocence of the prior convictions prong of the career offender Guideline. 3. § 994(h) - No Showing of Innocence of Statutory Sentence
Referencing a Supreme Court case "LaBonte," Movant argues that the career offender provision in "28 U.S.C. § 944 (h)" was wrongly applied to him, because he had only one conviction qualifying as a crime of violence, i.e. the New Mexico bank robbery prior. (Motion, Doc. 1 at 9-10, 19.) The Court did not recognize this ground for relief in the Service Order (Order 3/18/19, Doc. 5 at 3), and Respondent does not address this argument.
Although the matter is far from settled, the undersigned assumes arguendo that actual innocence of a non-capital sentence is sufficient to establish a miscarriage of justice sufficient to avoid a statute of limitations or procedural default.
See e.g. Allen v. Ives, 950 F.3d 1184, 1190 (9th Cir. 2020) (recognizing for the first time a claim of actual innocence of a non-capital sentencing enhancement in very limited circumstances (based on a prior crime no longer qualifying as predicate crime because of a retroactive change in law), but doing so only in the context of escape hatch jurisdiction under 28 U.S.C. § 2255(h)).
It appears that Movant is referencing United States v. LaBonte, 520 U.S. 751 (1997) which invalidated Amendment 506 to U.S.S.G. § 4B1.1 as inconsistent with the mandate in 28 U.S.C. § 994 (h) that the guidelines specify a prison sentence "at or near the maximum term authorized for categories of adult offenders who commit their third felony drug offense or violent crime. To effectuate § 994(h), § 4B1.1 of the Guidelines was adopted and established a table of enhanced sentences based on the "offense statutory maximum." Responding to various appellate decisions, in 1994 the Sentencing Commission promulgated Amendment 506 which limited the relevant maximum term for the "offense statutory maximum" to the base sentence, excluding sentencing enhancements. The Supreme Court held that § 944(h) required inclusion of sentencing enhancements in the definition of "offense statutory maximum," thus effectively abrogating Amendment 506.
Movant's argument is unconnected to the holding of LaBonte. Rather, he simply argues that he does not meet the third offense requirement of § 994(h) (which has been included in the Guidelines' definition of career offender in § 4B1.1(a)), because the instant offense and his New Mexico unarmed robbery did not qualify as crimes of violence.
The undersigned observes that § 994(h) is not a sentencing statute and Movant was not sentenced pursuant to that statute. Rather, that provision only gives direction to the Sentencing Commission on how to develop Guidelines for sentencing within the otherwise applicable sentencing ranges. Accordingly, under the advisory Guidelines, it does not expand the sentence to which defendants could be sentenced. There is no reason to treat the directions of § 994(h) any differently than the advisory Guidelines which they authorize. Therefore, as with the Guidelines themselves, any defect in the application of this statute would not create a basis for actual innocence. See Gibbs, supra, 655 F.3d 478-79 (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)) (" '[T]o show 'actual innocence' ' in the sentencing context, the petitioner 'must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the ... penalty under the applicable ... law.' ").
Moreover, even if a violation of § 994(h) could be a basis for actual innocence, because the Court must conclude that Movant's offenses (instant and prior) were crimes of violence, as discussed hereinabove, the Court must also conclude that the requirements of § 994(h) have been met. 4. Insufficient Showing of Innocence of Offenses
Movant makes several arguments (intertwined with his sentencing claims) that urge he was not properly convicted of the instant offense of bank robbery, on the basis that: (1) he did not have knowledge his actions were intimidating; and (2) the admitted facts did not show intimidation.
A finding of procedural "actual innocence" is not to be based upon a finding that insufficient evidence to support the charge was presented at trial, but rather upon affirmative evidence of innocence. See U.S. v. Ratigan, 351 F.3d 957 (9th Cir. 2003) (lack of proof of FDIC insurance in a bank robbery case, without evidence that insurance did not exist, not sufficient to establish actual innocence). "It is important to note in this regard that 'actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Thus, it is not sufficient for Movant to simply argue that the prosecution has not adduced sufficient evidence of his guilt. Rather, the burden is on Movant to offer new reliable evidence of his innocence. "To meet this standard, [the Petitioner] must first furnish 'new reliable evidence ... that was not presented at trial.' " Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (quoting Schlup, 513 U.S. at 324). Moreover, a petitioner may not simply allege that such evidence exists, but must present it to the habeas court, through affidavit of the witness, etc. See Weeks v. Bowersox, 119 F.3d 1342, 1352-1353 (8th Cir. 1997). Moreover, that evidence must be reliable, "whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. The habeas court then considers all the evidence, presented and unpresented to make the probabilistic determination on what a reasonable juror could conclude. Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002). Included in the evidence considered are a pleading defendant's admissions made in the course of entering a guilty plea. Doe v. Menefee, 391 F.3d 147, 169 (2d Cir. 2004).
a. Knowledge of Intimidation
Movant argues in Ground 3 that he cannot be guilty of the instant offense (bank robbery by intimidation) because "he 'did not know his actions [or conduct] was intimidating'." (Motion, Doc. 1 at 6-7.) Movant cites as authority for this argument United States v. McNeal, 818 F.3d 141 (4th Cir. 2016). In McNeal, the Fourth Circuit held that "to secure a conviction of bank robbery 'by intimidation,' the government must prove not only that the accused knowingly took property, but also that he knew that his actions were objectively intimidating." Id. at 155.
Movant offers no credible evidence to show that he lacked the requisite knowledge.
Respondent argues that Movant "admitted to this Court at his change of plea hearing that he entered the bank with the intent to take money that did not belong to him" and "handed the teller a note demanding she give him money without alerting the police" and "since his intent was to rob the bank, he intended for his demand note to intimidate the teller into giving him money that did not belong to him." (Response, Doc. 9 at 23.)
Indeed, a reasonable juror could conclude that given the unreasonableness that a mere request (devoid of intimidation) would achieve the result of getting the bank's money, Movant must have known that his note (particularly when considering the reference to the police and alarms) would intimidate a reasonable teller.
For the same reason, any substantive claim based on lack of knowledge of intimidation would be without merit.
b. Evidence of Intimidation
Movant argues that there was no evidence of intimidation. (Motion, Doc. 1 at 8; Reply, Doc. 13 at 9.) This argument fails for three reasons.
First, a mere lack of evidence is not sufficient to establish actual innocence.
Second, Movant's guilty plea explicitly admitted to intimidation. His admission is itself substantial evidence on which a juror could convict. Menefee, 391 F.3d at 169.
Third, intimidation can be established by circumstantial evidence. For example, in United States v. Bingham, 628 F.2d 548 (9th Cir. 1980) the court found intimidation under § 2113(a) where the defendant "told the teller that she had "three seconds" to give him the money in the top drawer, and then repeated this demand while she was taking the money out of the drawer," because "a reasonable person could interpret these statements as implicit threats of harm if the person did not promptly meet Bingham's unequivocal demand." Id. at 549. The court observed: "The fact that in other cases there was more overt evidence of intimidation such as express threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon is unavailing to Bingham, because those factors have never been held to be requirements for a § 2113(a) conviction." Id. See also United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983) ("Give me all your hundreds, fifties and twenties. This is a robbery."); United States v. Korte, 918 F.3d 750, 759 (9th Cir.), cert. denied, 140 S. Ct. 264 (2019) ("demand for money and use of a mask satisfies 'intimidation' under § 2113(a)").
Here, the factual basis for Movant's plea showed that Movant gave the teller a note demanding money and that the police not be notified. That is sufficient to establish intimidation. Cf. United States v. Jennings, 439 F.3d 604, 613 (9th Cir. 2006) (citing United States v. Jones, 83 F.3d 927, 929 (7th Cir.1996) for the proposition that a demand note that stated "give me the money and keep your mouth shut" could support a conviction for bank robbery by intimidation, although it would be insufficient to warrant a special offense characteristic enhancement under U.S.S.G. § 2B3.2(b)(2) for death threats). 5. Conclusion re Actual Innocence
For the same reason, any substantive claim based on lack of evidence of intimidation would be without merit.
Based on the foregoing, the undersigned concludes that innocence of a sentencing guideline does not establish actual innocence, and Movant has failed to establish his actual innocence, whether of the sentencing guideline, § 994(h), or of the offense of bank robbery. D. SUMMARY
Based upon the foregoing, the undersigned concludes that the Motion is untimely, and Movant is not entitled to equitable tolling, the Movant has procedurally defaulted his claims other than ineffective assistance, and Movant has not shown actual innocence to avoid the effects of his untimeliness or procedural default.
Even though Movant's claim of ineffective assistance in Ground 1 is not procedurally defaulted, because the claim is untimely, and the substance of the claim is addressed in the course of discussing actual innocence and cause and prejudice, the undersigned does not separately address the merits of Ground 1.
Moreover, resolution of the enforceability of Movant's waiver of his collateral attack rights may require inquiry into the advice given by counsel in the course of advising Movant to enter into the plea agreement and plead guilty. See United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999) (enforceability of waiver). The record has not been developed on counsel's advice to Movant. Accordingly, Respondent's waiver defense is not reached.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2255 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Motion to Vacate is brought pursuant to 28 U.S.C. § 2255, and challenges Movant's federal criminal judgment or sentence. The recommendations if accepted will result in Movant's Motion being resolved adversely to Movant. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. "If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2255 Cases, Rule 11(a).
Standard Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Except as discussed hereinafter, under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural rulings or whether the Motion states a valid claim of the denial of a constitutional right.
Debatable Procedural Rulings - Given the lack of authority in the Ninth Circuit and the narrowness of the recent decisions in the Ninth Circuit, the undersigned finds debatable the procedural determination whether actual innocence of an advisory guidelines sentencing enhancement is cognizable. See supra Allen, 950 F.3d 1184. (See supra Section III(C)(1).)
The undersigned also finds debatable the issue of the qualification of New Mexico's robbery statute as a crime of violence. Although the Tenth Circuit has held that it is, that authority is not binding in the Ninth Circuit, and the Tenth Circuit was forced to look to applications in particular cases to discern the degree of force required. See supra Garcia, 877 F.3d 944; and Manzanares, 2020 WL 1898797. (See supra Section III(C)(2)(b) (New Mexico Priors). The determination of this issue impacts the procedural rulings on actual innocence and cause and prejudice.
The undersigned also finds, given the dearth of authority on the issue, that 28 U.S.C. § 994(h) could impose a statutory limit on career offender enhancements under the Guidelines. (See supra Section III(C)(3) (§ 994(h) - No Showing of Innocence of Statutory Sentence).)
Debatable Constitutional Claims - The undersigned concludes that even though this is an attack on a federal sentence, the limitation in Slack to viable "constitutional" claims applies, and that purely statutory claims do not suffice. See Slack, 529 U.S. at 483 (making "due note for the substitution of the word 'constitutional'" in AEDPA's modification of the prior "certificate of probable cause" standard under Barefoot v. Estelle, 463 U.S. 880, 893 (1983), which merely required a showing of denial of a "federal right").
Even so, the courts have long recognized a due process right to be sentenced in accordance with applicable statutes. See e.g. Ballard v. Estelle, 937 F.2d 453, 456 (9th Cir. 1991) (finding 14th Amendment Due Process right to be sentenced in accordance with applicable state statutes).
In light of the debatableness of the treatment of New Mexico robbery as a crime of violence, and of the treatment of 28 U.S.C. § 994(h) as not imposing a statutory sentencing standard, the undersigned finds it debatable whether Ground 2 states a valid constitutional claim of a denial of due process based on application of an enhancement directed by § 994(h) without the requisite number of crimes of violence.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be granted.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be GRANTED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages." Dated: May 11, 2020
19-8017r RR 20 04 27 on HC.docx
/s/_________
James F. Metcalf
United States Magistrate Judge