Opinion
CV-21-00270-TUC-RCC (LAB)
02-11-2022
Raul Tovar, Petitioner, v. C. Howard, Respondent.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE
On July 9, 2021, the petitioner, an inmate confined in the U.S. Penitentiary in Tucson, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1) The petitioner, Raul Tovar, claims that he is “actually innocent” of his enhanced sentence in light of the recent Supreme Court decision in Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243 (2016). (Doc. 1, p. 4) Specifically, he argues that neither of his two state court convictions for possession of drug paraphernalia should have qualified as a “prior conviction for a felony drug offense” for the purpose of the enhancement, 21 U.S.C. § 841(b)(1)(A). (Doc. 1, p. 4); (Doc. 17, pp. 2-3)
Pursuant to the Rules of Practice of this Court, this matter was referred to the Magistrate Judge for Report and Recommendation. (Doc. 8)
The petition should be denied. Tovar would have received an enhanced sentence even if his two convictions for possession of drug paraphernalia were not qualifying offenses. Moreover, Tovar cannot bring a challenge to his sentence via a section 2241 petition.
Background
Tovar was convicted after a jury trial in the United States District Court for the District of North Dakota of conspiracy to distribute methamphetamine on May 2, 2013. (Doc. 17, p. 2) The applicable sentencing statute required a sentence of life imprisonment for a person with “two or more prior convictions for a felony drug offense. . . .” (Doc. 17, p. 2) (citing 21 U.S.C. § 841(b)(1)(A)) (effective August 3, 2010 through December 21, 2018); see also United States v. Tovar, 2020 WL 3578579, at *3 (D.N.D., 2020). The government alleged, in accordance with 21 U.S.C. § 851, that Tovar had five such convictions:
A North Dakota state conviction for possession of a controlled substance (methamphetamine) in violation of N.D. Cent. Code §§ 19-03.1-23(6) and 19.03.107. (5)(b)
A North Dakota state conviction for possession of a controlled substance with intent to deliver (marijuana) in violation of N.D. Cent. Code §§ 19-03. 1-23(1)(a) and 19-03. 1-05(5)(t)
A North Dakota state conviction for possession of a controlled substance (cocaine) in violation of N.D. Cent. Code §§ 19-03. 1-23(b) and 19-03. 1-07(3)(d)
Two North Dakota state convictions for possession of drug paraphernalia in violation of N.D. Cent. Code § 19-03.4-03(Doc. 17, pp. 2-3); but see United States v. Tovar, 2020 WL 3578579, at *1 (D.N.D., 2020) (listing six predicate convictions). Accordingly, Tovar received a sentence of life imprisonment. (Doc. 17, p. 3)
On direct appeal, Tovar argued that the district court erred when giving jury instructions. United States v. Tovar, 569 Fed.Appx. 478 (8th Cir. 2014). His conviction was affirmed on July 11, 2014. Id. On August 10, 2015, Tovar filed a habeas petition pursuant to 28 U.S.C. § 2255 arguing that “the jury verdict form failed to require the jury to find a drug quantity specific to Tovar.” United States v. Tovar, 2016 WL 11707373, at *2 (D.ND., 2016); (Doc. 1, p. 2) His petition was denied on June 3, 2016. Id., p. 1.
In the pending petition, Tovar argues that his two state court convictions for possession of drug paraphernalia should not have counted as predicate felony drug offenses for the purposes of the sentencing statute. He asserts that he is “innocent of the 851 enhancement” and is “serving an illegal sentence.” (Doc. 1, p. 4) He maintains that his argument is based on the Supreme Court decision in Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243 (2016). Id.
The respondent argues as a preliminary matter that this court lacks jurisdiction over this section 2241 petition. (Doc. 17) Ordinarily, a Federal prisoner seeking to challenge an illegal sentence after the conclusion of direct review must file a section 2255 petition. Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012). A petition pursuant to section 2241 cannot be used to challenge an improper sentence absent what is called the “escape hatch” exception. Id. Under that exception, a prisoner may challenge his sentence in a section 2241 petition if a section 2255 petition would be “inadequate or ineffective to test the legality of his detention.” Id. A section 2255 petition is “inadequate or ineffective” only “when a petitioner (1) makes a claim of actual innocence and (2) has not had an unobstructed procedural shot at presenting that claim.” Muth, 676 F.3d at 819 (punctuation modified).
“In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, we ask whether petitioner's claim did not become available until after a federal court decision.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (punctuation modified). “In other words, we consider: (1) whether the legal basis for petitioner's claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner's claim after that first § 2255 motion.” Id. Where the petitioner relies on an intervening court decision to show that he did not have an unobstructed procedural shot at bringing his claim earlier, that decision “must effect a material change in the applicable law.” Alaimalo v. United States, 645 F.3d 1042, 1047-48 (9th Cir. 2011) (punctuation modified). “In contrast, a decision that simply provides further clarification” does not qualify. Id.
This court, however, need not decide whether Tovar is permitted to challenge his sentence via a section 2241 proceeding. Assuming, without deciding, that he can, his petition should still be denied.
Even if Tovar's two prior convictions for possession of drug paraphernalia should not have counted as predicate felony drug offenses for the purposes of the sentencing statute, his sentence was still correct. He still had three other prior felony drug convictions and his sentence , f life imprisonment was still authorized by the applicable sentencing statute. See 21 U.S.C. § 841(b)(1)(A) (effective August 3, 2010 through December 21, 2018). His habeas petition should be denied.
In the alternative, the court should find that Tovar may not bring his sentencing claim n a section 2241 petition. Assuming, without deciding, that he makes a claim of actual innocence, he cannot show that he did not have an unobstructed procedural shot at bringing this claim earlier. He therefore does not qualify for the “escape hatch” exception, and this court is without jurisdiction. See Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012).
Tovar asserts that neither of his two state court convictions for possession of drug paraphernalia should have qualified as a “prior conviction for a felony drug offense” for the purposes of the enhancement. (Doc. 1); (Doc. 17, pp. 2-3) Specifically, he argues that the paraphernalia statute, “State Code 19-03.4-03 as applied to 851 is overly broad and reaches conduct beyond the generic version of similar Federal Statutes.” (Doc. 1, p. 4) He argues apparently that he did not have an unobstructed procedural shot because his claim is based on he Supreme Court decision in Mathis v. United States, which was decided after he filed his first section 2255 petition. Id.
Tovar also asserts that his petition is based on the Supreme Court decision in Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276 (2013). (Doc. 1, p. 4) This case, however, was decided before Tovar filed his § 2255 action. It therefore does not help Tovar's argument.
In Mathis, the Supreme Court analyzed predicate felonies under the Armed Career Criminal Act (ACCA), 18 U.S.CA. § 924(e)(1). Mathis v. United States, 579 U.S. 500, __, 136 S.Ct. 2243, 2248 (2016). The ACCA “prescribes a 15-year mandatory minimum sentence if a defendant is convicted of being a felon in possession of a firearm following three prior convictions for a ‘violent felony.'” Id. The “ACCA defines the term ‘violent felony' to include any felony, whether state or federal, that ‘is burglary, arson, or extortion.'” Id. At issue in the case was the correct method for determining when a predicate state court conviction for burglary, arson, or extortion constitutes a generic form of the offense for the purposes of the ACCA. Id. The general rule was that a sentencing court should find “that the prior [state court] crime qualifies as an ACCA predicate if, but only if, its elements are the same as or narrower than, those of a generic offense.” Id. at 2247. In Mathis, the Court had to decide “whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements.” Id. at 2248. The Court did not “find such an exception.” Id. Mathis, however, has no application to the pending petition because the language in the enhancement at issue here is different from the language in the ACCA.
In this case, the issue is whether Tovar's prior convictions for possession of drug paraphernalia should have qualified as “prior convictions] for a felony drug offense” for the purposes of the sentencing enhancement, 21 U.S.C. § 841(b)(1)(A). (Doc. 1); (Doc. 17, pp. 2-3) Section 841(b)(1)(A), however, did not refer to a “felony drug offense” in generic terms. The term “felony drug offense” was explicitly defined as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or Foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” Bell v. United States, 2018 WL 11241066, at *3 (D.N.D. 2018) (citing 21 U.S.C. § 802(44)); see also United States v. Tovar, 2020 WL 3578579, at *3 (D.N.D. 2020) (The enhancement now requires “two or more convictions for a ‘serious drug felony.'”). Therefore, the analysis of whether a prior offense qualified as a predicate felony for the purposes of section 841(b)(1)(A) is completely different from the analysis of whether a prior offense of burglary, arson, or extortion constituted a “violent felony” for the purposes of the ACCA. Tovar's claim is not based on Mathis. He did not need to wait for Mathis to be decided before raising his claim. See, e.g., Roberson v. Warden, USP Tucson, 2019 WL 1793004, at *5 (D. Ariz. 2019) (“[B]ecause Petitioner was not sentenced as a Career Offender under the Sentencing Guidelines and was not sentenced pursuant to the ACCA, neither Mathis nor Hinkle is applicable to either the facts or the law pertinent to Petitioner's [sentence].), report and recommendation adopted, 2019 WL 1821459 (D. Ariz. 2019).
Tovar has not shown that he could not raise his issue prior to the Supreme Court's decision in Mathis. He cannot show that he did not have an unobstructed procedural shot at pursuing his claim earlier. See Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008). He does not qualify for the “escape hatch” exception and cannot bring this claim via a section 2241 petition.
In his reply brief, Tovar argues in the alternative that he is entitled to relief because his five prior convictions should count as only one conviction for the purposes of the sentencing statute because they “were contained in the same indictment or information, ” “are closely interrelated, ” and “occurred on the same day.” (Doc. 22, p. 2) The court does not, however, consider claims raised for the first time in a reply brief. United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992); see also United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006) “[A]rguments not raised by a party in its opening brief are deemed waived.”).
In the alternative, the court should find that Tovar's new argument, that his five prior convictions should count as only one conviction, could have been brought in his first section 2255 petition. His new argument has nothing to do with Mathis. Accordingly, Tovar does not qualify for the “escape hatch” exception, and he cannot bring his new issue via a section 2241 petition.
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. (Doc. 1)
Pursuant to 28 U.S .C. §636(b), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without the express permission of the District Court.