Garibo-Carmona v. United States

• Decision Date: 28 October 2016
• Docket Number: CIVIL ACTION NO. 1:16–CV–2073–SCJ,CRIMINAL CASE NO. 1:11–CR–302–SCJ
• Citation: 216 F.Supp.3d 1373
• Parties: Eduardo GARIBO–CARMONA, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Georgia

216 F.Supp.3d 1373

Eduardo GARIBO–CARMONA, Movant,

v.UNITED STATES of America, Respondent.

CRIMINAL CASE NO. 1:11–CR–302–SCJ

CIVIL ACTION NO. 1:16–CV–2073–SCJ

United States District Court, N.D. Georgia, Atlanta Division.

Signed October 28, 2016

Eduardo Garibo, Coleman, FL, pro se.

MOTION TO VACATE 28 U.S.C § 2255

ORDER

HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE

After pleading guilty to conspiracy to commit racketeering (see doc. 155),¹ Eduardo Garibo moves under 28 U.S.C. § 2255 to vacate his conviction and sentence. Doc. 184. Review of the parties' briefing shows that his motion must be denied.

I. BACKGROUND

After the Court sentenced him to 276 months' imprisonment, Garibo never appealed, likely because his plea agreement contained a waiver of his direct appeal and collateral attack rights. See doc. 121–1 at 12.² Garibo filed the instant § 2255 motion over four years later. Doc. 184 at 13 (signature-filed³ July 13, 2016). In it he argues that Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), voids his conspiracy conviction. Doc. 184 at 4. Garibo premises his motion's timeliness on Johnson retroactively applying to his case. See doc. 184 at 12; 28 U.S.C. § 2255(f)(3) ; Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016) (Johnson is a new substantive rule and thus applies retroactively to cases on collateral review).

The Government opposes, arguing that Garibo procedurally defaulted his claims; waived his right to collaterally attack his sentence; untimely sought relief; and, regardless of procedural bars, that Johnson has no application to a racketeering conspiracy conviction. Doc. 62 at 24–25.

II. ANALYSIS

A. Procedural Default

The Government contends that the Court should not reach the merits of Garibo's claim because he waived his Johnson argument by not raising it on direct appeal. Doc. 190 at 10–12. As the Government correctly notes, a § 2255 motion may not be used as a surrogate for appellate review. Lynn v. United States , 365 F.3d 1225, 1232 (11th Cir. 2004) ; see Stone v. Powell , 428 U.S. 465, 478 n.10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (28 U.S.C. § 2255 will not be allowed to do service for an appeal). "Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding." McKay v. United States , 657 F.3d 1190, 1196 (11th Cir. 2011) (footnote added). Defaults may be overcome if (1) the movant can show "cause excusing his failure to raise the issue previously and prejudice from the alleged error," United States v. Nyhuis , 211 F.3d 1340, 1343 (11th Cir. 2000) ; or (2) "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Lynn , 365 F.3d at 1234.

1. Cause

"To show cause, the petitioner must demonstrate 'some objective factor external to the defense' that impeded his effort to raise the claim properly in state court." Ward v. Hall , 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting Murray v. Carrier , 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ). "[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel" cause exists. Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). "In order to establish the novelty of a constitutional claim sufficient to provide cause, a defendant must initially demonstrate that his situation is one where a court has 'articulated a constitutional principle that has not been previously recognized but which has been held to have retroactive application.' " Hargrave v. Dugger , 832 F.2d 1528, 1530–31 (11th Cir. 1987) (quoting Reed , 468 U.S. at 17, 104 S.Ct. 2901 ); see also Howard v. United States , 374 F.3d 1068, 1072 (11th Cir. 2004). "A new retroactive decision," however, "must be a sufficiently 'clear break with the past,' so that an attorney representing the defendant would not reasonably have had the tools for presenting the claim." Hargrave , 832 F.2d at 1531. Claim futility, by contrast, "cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.' " Bousley v. United States , 523 U.S. 614, 624, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Engle v. Isaac , 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) ).

The defendant in Hargrave , for example, "was sentenced to death in 1975." 832 F.2d at 1531. "Two years later, the Supreme Court held that" juries may consider, "as a mitigating factor," any circumstance of the offense or anything the defendant proferred "as a basis for a sentence less than death." Id. (quoting Lockett v. Ohio , 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). That "constitutional principle ... had not been previously recognized," and later was "retroactively applied." Hargrave , 832 F.2d at 1531 (citing Songer v. Wainwright , 769 F.2d 1488, 1489 (11th Cir. 1985) ).

After surveying applicable law available to Hargrave's attorney at the time of his sentencing and appeal, the en banc court concluded that:

Lockett was such a change in the law, and that a successful claim based on exclusion of non-statutory mitigating circumstance was unavailable under federal and Florida law preceding Lockett . While the law was "open" in the sense that no statute or court decision directly foreclosed a Lockett challenge when Hargrave was sentenced and during the pendency of his direct appeal, there is little in the relevant case law to suggest that such a claim would have viability.

Hargrave , 832 F.2d at 1531 ; see also id. at 1532 ("This Court has described Lockett as a 'direct reversal' of Florida mitigating circumstances law...."). "Since Hargrave'lacked the tools to construct [his] constitutional claim,' Engle , 456 U.S. at 133, 102 S.Ct. at 1574, his failure to object to the judge's consideration only of statutory mitigating circumstances at the sentencing hearing and on appeal to the Florida Supreme Court [was] excused. [The court] thus conclude[d] that Hargrave had cause for his default." Id. at 1533.

Garibo's Johnson claim, as discussed below, is facially frivolous. Nevertheless, had he plied a more meritorious argument, it would not qualify as procedurally defaulted. Some Johnson background is necessary to illuminate why.

ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g) and (2) have "three prior convictions ... for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). It defines "violent felony" as, among other things, a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another."⁴ Id. at § 924(e)(2)(B)(i). Johnson found that "residual" clause so vague as to violate due process. See 135 S.Ct. at 2557. Crimes falling under ACCA's other clauses (known as the "elements" and "enumerated crimes" clauses), however, are not affected by Johnson . Id. at 2563.

Before Johnson , the Supreme Court (lower courts, too) struggled to determine the precise contours of ACCA's residual clause. In attempting to "discern its meaning," the Court has

held that the residual clause (1) covers Florida's offense of attempted burglary, James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ; (2) does not cover New Mexico's offense of driving under the influence, Begay v. United States , 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) ; (3) does not cover Illinois' offense of failure to report to a penal institution, Chambers v. United States , 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) ; and (4) does cover Indiana's offense of vehicular flight from a law-enforcement officer, Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011).

Johnson , 135 S.Ct. at 2556. Critically, "[i]n both James and Sykes , the Court rejected suggestions by dissenting Justices that the residual clause violates the Constitution's prohibition of vague criminal laws. Compare James , 550 U.S. at 210, n.6, 127 S.Ct. 1586,⁵ with id. , at 230, 127 S.Ct. 1586 (Scalia, J., dissenting); compare Sykes , 564 U.S. at 13–15, 131 S.Ct. at 2276–2277, with id. , at 31–36, 131 S.Ct. at 2286–2288 (Scalia, J., dissenting)." Johnson , 135 S.Ct. at 2556 (footnote added).

We now know that James and Sykes were wrong. We also know that Johnson applies retroactively to cases on collateral review. See Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). A Johnson claimant therefore can meet his initial burden to show that "his situation is one where a court has 'articulated a constitutional principle that has not been previously recognized but which has been held to have retroactive application.' " Hargrave , 832 F.2d at 1530–31 (quoting Reed , 468 U.S. at 17, 104 S.Ct. 2901 ).

Johnson also is the quintessence of a "sufficiently clear break with the past, [such] that an attorney representing the defendant would not reasonably have had the tools for presenting the claim." Hargrave , 832 F.2d at 1531 (quotation marks omitted). "[N]o statute or court decision directly foreclosed a Lockett challenge" in Hargrave , and practically nothing "in the relevant case law ... suggest[ed] that such a claim would have viability." Hargrave , 832 F.2d at 1531. Before Johnson ,two Supreme Court decisions expressly rejected vagueness challenges to ACCA's residual clause. See James , 550 U.S. at 210, n. 6, 127 S.Ct. 1586 ; Sykes , 131 S.Ct. at 2276–2277. Indeed, the original petition for certiorari in Johnson , recognizing that precedent foreclosed due process challenges, did not assert vagueness; that issue only arose after the Court asked the parties to re-brief. See Pet's Suppl. Br., J ohnson v. United States of America , 2015 WL 721234, at *2 (U.S. Feb. 18, 2015) ("The Court has asked the...