Rodriguez v. USA, No. 3:2016cv01652 - Document 2 (S.D. Cal. 2016)
Court Description: ORDER Denying Motion Brought Pursuant to 28 USC § 2255. Signed by Judge Jeffrey T. Miller on 10/20/2016.(rlu)
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Rodriguez v. USA Doc. 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JOSE GUADALUP RODRIGUEZ, 11 v. 12 13 Petitioner, UNITED STATES OF AMERICA, ORDER GRANTING MOTION TO ENLARGE TIME; DENYING MOTION BROUGHT PURSUANT TO 28 U.S.C. § 2255 Respondent. 14 15 CASE NO. 16cv1652 JM 15cr1292 JM Petitioner Jose Guadalup Rodriguez moves for a reduction of sentence pursuant 16 to 28 U.S.C. §2255 (the “Motion”). The Government opposes the Motion. Pursuant 17 to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for resolution 18 without oral argument. For the reasons set forth below, the court grants the 19 Government’s motion to enlarge time and denies Petitioner’s Motion. 20 21 BACKGROUND Pursuant to the Plea Agreement, on October 23, 2015, Petitioner pleaded guilty 22 to being a Removed Alien Found in the United States in violation of 8 U.S.C. §1326(a) 23 and (b) and was sentenced to a custodial term of 30 months. Under USSG §2L1.2, 24 Petitioner received a 16-level adjustment based upon his state court convictions for 25 assault with a firearm, assault by means likely to produce great bodily injury and 26 mayhem in violation of Cal. Penal Code §§245(A)(2), 245(a)(1), and 203, respectively. 27 The prior felony conviction for violation of CPC §245(a)(1) categorically qualified as 28 / / / -1- 16CV1652/15CR1292 Dockets.Justia.com 1 a crime of violence pursuant to United States v. Jimenez-Azarte, 781 F.3d 1062 (9th 2 Cir. 2015). 3 4 DISCUSSION Petitioner moves for relief based upon the issuance by the Supreme Court of its 5 June 26, 2015 decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Under 6 Johnson, Petitioner broadly contends that his state conviction for violation of CPC 7 §245(a)(1) is no longer considered a “crime of violence” under USSG §2L.1.2 and, 8 therefore, the 16-level enhancement was wrongfully imposed. This argument is not 9 persuasive for several reasons.1 10 28 U.S.C. § 2255 Review 11 Claims for relief under 28 U.S.C. § 2255 must be based on a constitutional error, 12 a jurisdictional error, a defect resulting in a miscarriage of justice, or an unfair 13 procedure. 28 U.S.C. § 2255(a); United States v. Timmreck, 441 U.S. 780, 783-84 14 (1979). Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, “[i]f it 15 plainly appears from the motion, any attached exhibits, and the record of prior 16 proceedings that the moving party is not entitled to relief, the judge must dismiss the 17 motion and direct the clerk to notify the moving party.” The court does not need to hold 18 an evidentiary hearing or obtain a response from the government. See 28 U.S.C. § 2255; 19 United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). 20 Waiver 21 The Court concludes that Petitioner waived his right to collaterally attack his 22 sentence. In the Plea Agreement, Petitioner specifically waived his right to appeal or 23 to collaterally attack his conviction and sentence unless the court imposed a custodial 24 sentence greater than the high end of the guideline range recommended by the 25 government, except that Petitioner could bring “a post-conviction collateral attack based 26 27 1 The court finds good cause to grant the Government’s motion to enlarge time to file a response to the Motion. The Government represents that it was unable to 28 timely respond to the Motion “due to press of business.” (Ct. Dkt. 30). Here, Petitioner cannot show any prejudice by the Government’s late filing. -2- 16CV1652/15CR1292 1 on ineffective assistance of counsel.” This waiver provision is enforceable to bar 2 Petitioner from seeking collateral relief because he was sentenced within the guideline 3 range. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 4 U.S. 979 (1993). The Plea Agreement’s language clearly embraces a waiver of any 5 collateral attack on Defendant’s sentence, including a § 2255 motion. See United States 6 v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (per curiam) (finding that defendant 7 waived his right to appeal an incorrect application of the Sentencing Guidelines even 8 though the plea agreement did not specifically mention this right; to find otherwise 9 “would render the waiver meaningless”). Furthermore, Petitioner does not challenge 10 the voluntariness of his waiver or otherwise inform the court of any other basis to 11 invalidate his waiver. The record reflects that Petitioner’s waiver was knowing and 12 voluntary. 13 In sum, the court concludes that Petitioner validly waived his right to collaterally 14 attack his sentence and dismisses the Motion. 15 Procedural Bar 16 Even if Petitioner had not waived his rights to raise the claims in a § 2255 17 proceeding, the alleged claims are procedurally defaulted. Claims that could have been 18 raised on appeal, but were not, are procedurally defaulted. See Bousley v. United States, 19 523 U.S. 614, 621-22 (1998) (habeas review is an extraordinary remedy and will not 20 be allowed to substitute for an appeal). A review of the record reveals that Petitioner did 21 not file a direct appeal and, therefore, he did not raise the claim on direct appeal. 22 Petitioner’s entire argument is that the Supreme Court’s June 26, 2015 Johnson decision 23 compels the conclusion that the 16-level enhancement is unconstitutional. This, and 24 related, arguments could have been raised at any time prior to the October 23, 2015, 25 sentencing, but were not. Petitioner does not sufficiently allege any basis for finding 26 that cause and prejudice exists to excuse the procedural default, nor does he allege that 27 he is actually innocent. See Murray v. Carrier, 477 U.S. 478, 485 (1986). Accordingly, 28 his failure to raise these claims on direct review results in the procedural default of -3- 16CV1652/15CR1292 1 these claims. Id. The Motion is dismissed. 2 The Merits 3 Petitioner requests that the court vacate his 30-month sentence and to resentence 4 him without applying the 16-Level enhancement provided by USSG §2L1.2. Petitioner 5 contends that USSG §2L1.2 is unconstitutional after Johnson. This argument is not 6 persuasive. 7 The Supreme Court in Johnson held unconstitutionally vague the residual clause 8 of the Armed Career Criminals Act (“ACCA”), which defined a “violent felony” as any 9 felony that “involves conduct that presents a serious potential risk of physical injury to 10 another.” 18 U.S.C. § 924(e)(2)(B). This so-called residual clause "fails to give 11 ordinary people fair notice of the conduct it punishes" and "invites arbitrary 12 enforcement," thereby "violat[ing] the first essential of due process." 135 S. Ct. at 13 2556-57. The requirements of fair notice and enforcement standards "apply not only 14 to statutes defining elements of crimes, but also to statutes fixing sentences." Id. at 15 2557. For these reasons, Johnson held that "increasing a defendant's sentence under the 16 [residual] clause denies due process of law." Id. 17 The court concludes that the ACCA definition of “violent felony” is not 18 sufficiently analogous to the provision in §2L1.2(b)(1)(A) to support a finding that the 19 16-Level enhancement provision is unconstitutionally vague. A “crime of violence” is 20 defined in the commentary section to §2L1.2: 21 22 23 24 25 “Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. 26 USSG §2L1.2, Application Note 1(B)(iii). Unlike the residual clause of the ACCA, this 27 definition does not turn on determining when “a serious potential risk of physical injury 28 to another” occurs. The term “potential risk” sweeps too broadly. As defined in the -4- 16CV1652/15CR1292 1 ACCA, wholly innocent and non-violent conduct may be subject to ACCA’s residual 2 clause. As noted by the Supreme Court, the ACCA provision fails to “give ordinary 3 people fair notice of the conduct it punishes" and "invites arbitrary enforcement," 4 thereby "violat[ing] the first essential of due process." 135 S. Ct. at 2556-57. 5 Here, in contrast to the ACCA, the “crime of violence” provision contained in 6 USSG §2L1.2, Application Note 1(B)(iii), does not suffer from the same vagueness 7 defects. This provision encompasses crimes that include “the use, attempted use, or 8 threatened use of physical force.” This language, routinely applied by courts, provides 9 express notice that the use, attempted use, or threatened use of force subjects an 10 individual to an enhanced sentence. This language provides fair notice and does not 11 invite judges to engage in arbitrary enforcement. As applied, Petitioner’s conviction 12 for assault by means likely to produce great bodily injury in violation of Cal. Penal 13 Code §245(a)(1) is categorically a crime of violence. See Jimenez-Azarte, 781 F.3d 14 1062. Section 2L1.2 simply does not imitate or mimic the language of ACCA’s 15 residual clause, and therefore, does not raise the same vagueness issues as in Johnson. 16 Finally, the court notes that 8 U.S.C. §16(b), but not 8 U.S.C. §16(a), has been 17 declared unconstitutionally vague under the same rational applied in Johnson. See 18 Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015); Shuti v. Lynch, 828 F.3d 440 (6th Cir. 19 2016). In Dimaya, the Ninth Circuit concluded that the “crime of violence” definition 20 contained in 8 U.S.C. §16(b) is unconstitutionally vague for the same reasons that the 21 ACCA residual clause was found to be unconstitutionally vague in Johnson. While 22 §16(a) defines a “crime of violence” as an offense that has the element of “use, 23 attempted use, or threatened use of physical force,” §16(b) defines a “crime of violence” 24 as one involving “a substantial risk that physical force against the person or property 25 of another.” The Ninth Circuit, as well as other circuits, reasoned that the language in 26 §16(b) suffers from the same defect as the ACCA residual clause because the 27 challenged provision “is subject to identical unpredictability and arbitrariness as 28 ACCA’s residual clause.” Id. at 1115. -5- First, the ACCA, like §16(b), creates 16CV1652/15CR1292 1 substantial uncertainty about “what kind of conduct the ‘ordinary case’ of a crime 2 involves.” id. Second, both statutory provisions raise substantial uncertainty in the sense 3 that the provision fails to provide sufficient notice to determine how much risk it takes 4 for a crime to qualify as a violent felony (a “serious potential risk” in an ACCA case 5 and “a substantial risk that physical force” will be involved in a §16(b) case). These 6 uncertainties simply do not exist in assessing a 8 U.S.C. §16(a) or USSG §2L1.2 case. 7 8 In sum, Petitioner cannot prevail on the merits because the “crime of violence” 9 definition contained in USSG §2L1.2, Application Note 1(B)(iii) is not 10 unconstitutionally vague. 11 Certificate of Appealability 12 For the reasons set forth herein, Defendant fails to make a substantial showing 13 of the denial of a constitutional right. Accordingly, the court denies any request for a 14 certificate of appealability. See 28 U.S.C. §2253(c)(2). 15 IT IS SO ORDERED. 16 DATED: October 20, 2016 17 Hon. Jeffrey T. Miller United States District Judge 18 19 cc: All parties 20 21 22 23 24 25 26 27 28 -6- 16CV1652/15CR1292
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