Opinion
6:19-CR-6070 EAW 6:20-CV-6573 EAW
2023-01-27
Gabriel MURILLO, Petitioner, v. UNITED STATES, Respondent.
Kyle P. Rossi, Government Attorney, U.S. Attorney's Office, Rochester, NY, for Respondent. Gabriel Murillo, Tucson, AZ, Pro Se.
Kyle P. Rossi, Government Attorney, U.S. Attorney's Office, Rochester, NY, for Respondent. Gabriel Murillo, Tucson, AZ, Pro Se.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Pro se petitioner Gabriel Murillo ("Petitioner") has moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that his conviction in this Court was unconstitutionally or unlawfully obtained. (Dkt. 26; Dkt. 30). Presently before the Court is the government's motion to dismiss Petitioner's motion to vacate his sentence. (Dkt. 28). For the following reasons, the government's motion is granted, Petitioner's motion to vacate is denied, and the Petition is dismissed.
All docket references are to the criminal docket (case no. 6:19-CR-6070 EAW).
BACKGROUND
On or about February 17, 2019, Petitioner was charged by way of criminal complaint with using a facility or means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). (Dkt. 1). On May 10, 2019, Petitioner waived his right to prosecution by indictment and pleaded guilty to a one-count information charging him with attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b). (Dkt. 12; Dkt. 13; Dkt. 14; Dkt. 15). At the plea hearing, the Court reviewed the salient terms of the plea agreement with Petitioner, confirmed that he reviewed and discussed the plea agreement with his attorney, and that he believed pleading guilty was in his best interest. (Dkt. 28-1 at 15-43). The Court concluded that Petitioner was entering into the plea agreement in a knowing, voluntary, and intelligent manner, and that there was a sufficient factual basis for the plea. (Id.). On August 9, 2019, Petitioner was sentenced to 10 years in prison (the minimum penalty provided by statute, see 18 U.S.C. § 2422(b)), followed by 10 years of supervised release (Dkt. 23; Dkt. 24). The sentence imposed by the Court represented a sentence at the low end of the sentencing guideline range, which provided for 120 to 125 months in prison. (See Dkt. 28-1 at 55; see also Dkt. 19 at ¶ 90).
PROCEDURAL HISTORY
Petitioner filed his motion to vacate, set aside, or correct his sentence on August 3, 2020, citing to Rule 60(b) and arguing that the indictment returned against him was unconstitutional, the Court lacked subject matter jurisdiction over his case, and therefore the Court's actions "in trying, convicting, and sentencing" him were "ultra vires" and are therefore "void," and he is being illegally held in custody. (See Dkt. 26 at 1). Thereafter, on October 1, 2020, the government filed a motion to dismiss the Petition. (Dkt. 28). The Court issued a scheduling order on the motion to dismiss, which was mailed to Petitioner and provided for a response date of November 2, 2020. (Dkt. 29).
Although Petitioner cited to Rule 60(b) in his motion papers, the Court has construed his petition as one brought pursuant to 28 U.S.C. § 2255. (See Dkt. 27); see also Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) ("It is routine for courts to construe prisoner petitions without regard to labeling in determining what, if any, relief the particular petitioner is entitled to.").
Although Petitioner refers to the "unconstitutional indictment" allegedly returned against him, as explained above, a grand jury never returned an indictment against Petitioner. Rather, Petitioner was initially charged by way of criminal complaint, and he subsequently waived indictment and pleaded guilty to a one-count information. (Dkt. 1; see also Dkt. 12; Dkt. 13; Dkt. 14; Dkt. 15).
On October 19, 2020, Petitioner filed an "amended motion to vacate," which is virtually identical to his original motion—again raising the same subject matter jurisdiction issue—with the exception that the amended filing includes some attachments. (See Dkt. 30). On October 27, 2020, the Court issued a text order, stating that it had reviewed the motion to vacate and found it to be substantially similar to the original motion, and therefore, rather than denying the motion to dismiss as moot, it would consider the pending motion to dismiss in light of the allegations contained in Petitioner's amended motion to vacate. (See Dkt. 31; see also Pettaway v. Nat'l Recovery Sols., LLC, 955 F.3d 299, 303-04 (2d Cir. 2020) ("[W]hen a plaintiff properly amends h[is] complaint after a defendant has filed a motion to dismiss that is still pending, the district court has the option of either denying the pending motion as moot or evaluating the motion in light of the facts alleged in the amended complaint.")). Petitioner did not respond to the motion to dismiss, nor did he seek an extension to file a response.
DISCUSSION
A prisoner in federal custody may challenge the validity of his sentence by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2255(a). "Section 2255 provides relief in cases where the sentence: (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack." Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004) (citing 28 U.S.C. § 2255). "[T]he scope of review on a § 2255 motion should be 'narrowly limited' in order to preserve the finality of criminal sentences and to effect the efficient allocation of judicial resources." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (citation omitted). "In reviewing a pro se petition for habeas corpus, the Court must be mindful that '[a] document filed pro se is to be liberally construed, and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' " Harris v. United States, No. 6:14-CR-6149 EAW, 2020 WL 4059198, at *2-3 (W.D.N.Y. July 20, 2020) (alterations in original) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)).
Construed broadly, Petitioner challenges the legality of 18 U.S.C. § 3231, which provides that "the district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." Petitioner argues that the passage of Public Law 80-772, which codified 18 U.S.C. § 3231, violated the Quorum Clause of the United States Constitution, because Public Law 80-772 was not passed or signed in the presence of a quorum, nor was it properly enacted into law by both houses of Congress. (See Dkt. 30 at 1-18). Petitioner concludes that because Public Law 80-772 is invalid, the Court lacked subject matter jurisdiction to preside over his criminal case. (Id.). In response to this argument, the government contends: (1) the motion is facially deficient, since Petitioner has failed to establish grounds to warrant relief pursuant to 28 U.S.C. § 2255; (2) Petitioner procedurally defaulted on his subject matter jurisdiction claim because he did not raise it on direct appeal; and (3) even if Petitioner had raised the jurisdiction issue on direct appeal, any such claim is without merit. (See Dkt. 28 at 5-14).
With respect to the government's first argument, Petitioner's motion to vacate arguably raises issues pertaining to the first two grounds under § 2255 to challenge the validity of a sentence; namely, that Petitioner's sentence (1) was imposed in violation of the U.S. Constitution or the laws of the United States, or (2) was entered by a court without jurisdiction to impose the sentence. However, the Court agrees with the government that the Petition does not warrant the Court holding a hearing. "In ruling on a motion under § 2255, the district court is required to hold a hearing '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' " Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (alteration in original) (quoting 28 U.S.C. § 2255). "To warrant a hearing, the motion must set forth specific facts supported by competent evidence, raising detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief." Id. at 131. Section 2255 does not automatically require hearing where the movant's allegations are "vague, conclusory, or palpably incredible." Id. at 130 (citation omitted). As more fully explained below, the materials presently before the Court conclusively demonstrate that Petitioner is not entitled to habeas relief, and therefore a hearing is not necessary to evaluate his claim.
Petitioner would not be successful in bringing any such motion based on the latter two grounds—that his sentence exceeds the maximum detention authorized by law or is otherwise subject to collateral attack. The sentence imposed by the Court is a mandatory minimum sentence under the law and therefore does not exceed the maximum detention authorized by law. See 18 U.S.C. § 2422(b) (providing that person convicted under this subsection "shall be fined . . . and imprisoned not less than 10 years or for life"). Further, as part of his plea agreement, Petitioner waived "the right to appeal and collaterally attack any component of a sentence imposed by the Court, which falls within or is less than the sentencing range for imprisonment, a fine, and supervised release period . . . notwithstanding the manner in which the Court determines the sentence." (See Dkt. 14 at ¶ 20; see also id. at ¶ 21 ("The defendant understands that by agreeing not to collaterally attack the sentence, the defendant is waiving the right to challenge the sentence in the event that in the future the defendant becomes aware of previously unknown facts or a change in the law which the defendant believes would justify a decrease in the defendant's sentence.")). Petitioner has not identified as the basis for his Petition any grounds for collateral attack not waived by the plea agreement.
I. Procedural Default
"In general, a defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal." United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011); see also United States v. Gordon, 433 F.2d 313, 314 (2d Cir. 1970) ("A motion under section 2255 may not be used to review grounds which defendant failed timely to raise at trial and on appeal."); Buczek v. Constructive Statutory Trust Depository Trust Corp., No. 10-CV-382 (MAT), 2011 WL 4549206, at *3 (W.D.N.Y. Sept. 29, 2011) ("It is well-settled that habeas corpus review under 28 U.S.C. § 2255 is not a substitute for a direct appeal."). Accordingly, claims that are not raised on direct appeal are deemed "procedurally defaulted." Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). "An exception applies, however, if the defendant establishes (1) cause for the procedural default and ensuing prejudice or (2) actual innocence." Thorn, 659 F.3d at 231; see also Gupta v. United States, 913 F.3d 81, 84 (2d Cir. 2019).
Because Petitioner did not raise on direct appeal his argument that the Court lacked subject jurisdiction over his case, he must demonstrate cause and prejudice, or actual innocence. With respect to cause, "[t]he Supreme Court has stated that 'cause' . . . must be something external to the petitioner, something that cannot be fairly attributed to him." United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) (quotations and citations omitted); see also Gupta, 913 F.3d at 84 ("In order to demonstrate cause, a defendant must show some objective factor external to the defense . . . such that the claim was so novel that its legal basis [was] not reasonably available to counsel" (alteration in original) (quotations and citations omitted)). "The futility test to excuse a default is strict: the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was available at all." Thorn, 659 F.3d at 233 (quotations and citation omitted).
Petitioner has not explained why he failed to raise his subject matter jurisdiction claim on direct appeal, and therefore he has not demonstrated cause and prejudice with respect to that claim. See, e.g., United States v. Bryant, No. 11 CR 765, 2020 WL 353424, at *3 (E.D.N.Y. Jan. 21, 2020) (where petitioner failed to address cause for the default and resulting prejudice, "any attack on the validity of his plea . . . would be procedurally barred"). The documentation Petitioner has submitted in support of his claim is comprised of documents dated between 2006 and 2012 (see Dkt. 30 at 19-27, 46-55), and therefore he presumably could have raised the issue at an earlier date, and prior to his conviction in 2019.
Further, "in order to demonstrate his actual innocence, a defendant must prove his factual innocence, not mere legal insufficiency, and demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Gupta, 913 F.3d at 85 (quotations and citations omitted). Based on the record before the Court, and in light of Petitioner's admissions made as part of the plea agreement and under oath at the plea hearing—namely, that he used his cell phone and the Kik chat application to engage in sexually explicit conversations with an individual who he believed to be a 13 year old child, and then flew from Los Angeles, California, to Rochester, New York, for the purpose of engaging in sexual relations with the child (see Dkt. 14; Dkt. 28-1 at 40-43)—Petitioner cannot demonstrate "actual innocence."
"A plea of guilty is considered voluntary and intelligent if the defendant enters the plea with full awareness of its 'direct consequences.' " Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). The undersigned presided over Petitioner's change of plea hearing, and his guilty plea was knowingly and voluntary. Petitioner was represented by counsel at his plea hearing. He confirmed that he understood what was happening in court, had read and understood the written plea agreement, and discussed it with his attorney. The undersigned also reviewed with Petitioner several of the salient terms of the plea agreement, including the waiver of his trial and appellate rights, and Petitioner stated that he understood them. Petitioner expressly stated that he believed it was in his best interest to plead guilty, that no one had threatened or coerced him into pleading guilty, and he gave the Court no indication that he was not entering into his guilty plea in a knowing and voluntary manner.
Accordingly, because Petitioner is unable to demonstrate cause and prejudice or actual innocence, the Court finds that his subject matter jurisdiction claim is procedurally barred, and therefore he is not entitled to habeas relief on this ground.
II. Public Law 80-772 and the Court's Subject Matter Jurisdiction
Even if Petitioner had raised his subject matter jurisdiction claim on direct appeal and it was not procedurally defaulted, the Court further concludes that this argument patently lacks merit, and therefore the Petition can be denied on that basis as well.
As explained above, Petitioner argues that Public Law 80-772, which codified 18 U.S.C. § 3231, violates the Quorum Clause of the United States Constitution, since it was not passed or signed in the presence of a quorum, nor was it properly enacted into law by both houses of Congress. "Under settled precedent, [Petitioner] has the burden of proving that 18 U.S.C. § 3231 was not constitutionally enacted," see United States v. Levy, 849 F. Supp. 2d 1353, 1354 (S.D. Fla. 2012), and he has failed to carry his burden in this respect.
Several federal courts, including courts from within this Circuit, have considered the argument advanced by Petitioner, as well as variations upon it, and rejected them as frivolous and without merit. See, e.g., Buczek, 2011 WL 4549206, at *4 (finding that "the Quorum Issue, upon which Buczek has expended the bulk of his argument, is patently without merit," and further noting that "[t]his contention, or a variation upon it, has been offered by countless federal prisoners as a basis for § 2255 relief and has been roundly rejected by all the federal courts who have considered such claims"). As explained by one district court:
Public law 80-772 was passed by the House of Representatives in the first session of the 80th Congress. It was then passed by the Senate during the second session of that same Congress. This recess was an inter-session, and not a sine die recess. Bills passed by one house before an inter-session recess and by the other house after the recess are properly passed by Congress. Public law 80-772 was clearly passed by both houses before a sine die recess was called. Therefore, the law was properly enacted and Movant's claim that the Court did not have subject matter jurisdiction must fail.Lister v. United States, No. 3:03-CR-374-N, 2006 WL 3751324, at *2 (N.D. Tex. Dec. 20, 2006) (citations omitted); see also United States v. Penwell, 455 F. App'x 181, 183 (3d Cir. 2011) (finding the defendant's argument that § 3231 is unconstitutional because both houses of Congress did not vote on Public Law 80-772 in the same legislative session to be "frivolous," and noting that "[t]he validity of § 3231 has been affirmed by every court to address it."); see also Colby v. United States, No. 2:15-cr-00182-GZS, 2019 WL 1783052, at *3 (D. Maine Apr. 23, 2019) (rejecting petitioner's claim that Public Law 80-772, codified at 18 U.S.C. § 3231, was not properly enacted by Congress and violates the Quorum Clause, noting that the same argument had been raised and rejected by various federal courts); Levy, 849 F. Supp. 2d at 1357 ("Because there is no factual or legal support for the contention that H.R. 3190 was passed by the House in contravention of the Constitution, or that Public Law 80-772 was otherwise improperly enacted, I conclude that the court has jurisdiction in this criminal case pursuant to § 3231."); United States v. Martinez, No. 99 Cr. 01048 (DC), 2011 WL 6028656, at *3 (S.D.N.Y. Dec. 5, 2011) ("At the center of Martinez's jurisdictional claim is the argument that 18 U.S.C. § 3231 was never properly enacted by Congress. This argument has previously been rejected as 'unbelievably frivolous.' "). The Seventh Circuit has stated that an attorney's raising this very argument amounted to "a profound disservice to his clients" that may justify the imposition of sanctions for professional misconduct. See United States v. Collins, 510 F.3d 697, 698 (7th Cir. 2007). Finally, "[e]ven if the 1948 amendment to § 3231 were somehow defective, this court would retain jurisdiction over this case because the predecessor to § 3231, which Defendant does not challenge, provides for such jurisdiction as well." Buczek, 2011 WL 4549206, at *5 (quoting United States v. Risquet, 426 F. Supp. 2d 310, 312 (E.D. Pa. 2006)).
The Court agrees with the reasoning of the other federal courts to have considered this issue, and concludes that Public Law 80-772 was properly enacted and therefore it had jurisdiction to preside over Petitioner's criminal case. Petitioner has offered no other valid basis calling into question the Court's subject matter jurisdiction. Accordingly, Petitioner's motion to vacate his sentence based on a lack of subject matter jurisdiction is denied.
CONCLUSION
For the foregoing reasons, the government's motion to dismiss (Dkt. 28) is granted, and Petitioner's motion to vacate (Dkt. 26; Dkt. 30) is denied. The Clerk of Court is instructed to close case number 6:20-CV-06573 EAW. Further, because Petitioner has not made "a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability.
SO ORDERED.