Gonzalez v. United States, No. 20-71709 (9th Cir. 2022)
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The Ninth Circuit denied Munoz-Gonzalez’s application to file a second or successive 28 U.S.C. 2255 motion asserting that his conviction for possession of a firearm in furtherance of a crime of violence (18 U.S.C. 924(c)) was invalid because his predicate crime (racketeering) is no longer a categorical “crime of violence” under a new rule of constitutional law announced by the Supreme Court in “Davis” (2019).
The new “Davis” argument was not “previously unavailable,” as required for authorization of a second or successive 2255 motion. A prisoner must show that real-world circumstances prevented him, as a practical matter, from asserting his "new rule of law" claim in his initial habeas proceeding. While pro se prisoners face unique difficulties and language barriers add to those difficulties, the limited exception to the broad prohibition on successive habeas proceedings should not be applied subjectively. Focusing on external barriers, the court noted “Davis” was issued before Muñoz-Gonzalez filed his reply brief for his initial habeas motion. He had the facts that he needed for his claim; no systemic or external barrier prevented him from presenting his claim; Muñoz-Gonzalez was clearly aware of Davis because he cited it in his reply brief in his initial habeas proceeding.
Court Description: Second or Successive 28 U.S.C. § 2255 Authorization The panel denied Cesar Muñoz Gonzalez’s application to file a second or successive 28 U.S.C. § 2255 motion asserting that his conviction for possession of a firearm in furtherance of a crime of violence or drug trafficking offense under 18 U.S.C. § 924(c) is invalid because his predicate crime—racketeering—is no longer a categorical “crime of violence” under a new rule of constitutional law announced in United States v. Davis, 139 S. Ct. 2319 (2019). For purposes of this application, the only issue was whether Muñoz showed that his new Davis argument was “previously unavailable,” as required by 28 U.S.C. § 2255(h)(2) for authorization of a second or successive § 2255 motion. Based on the weight of authority, including the Supreme Court’s interpretation of similar language in the Prison Litigation Reform Act, the panel adopted a pragmatic approach to determining whether a claim based on a new constitutional rule was “previously unavailable.” Under this approach, the prisoner must show that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding. The panel recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Muñoz cited in his case, add to those difficulties. The panel MUÑOZ GONZALEZ V. UNITED STATES 3 wrote that there is, however, nothing in the text or context of AEDPA's previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively. Applying this pragmatic approach that focuses on external barriers, the panel concluded that Muñoz cannot show that his new Davis argument was unavailable during his initial habeas proceedings, where the Supreme Court issued its decision in Davis shortly before Muñoz filed his reply brief in support of his initial habeas motion and a few months before that motion was decided; Muñoz had the facts that he needed for his claim; no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding; and Muñoz was clearly aware of Davis because he cited it in his reply brief in his initial habeas proceeding.
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