Gonzalez v. United States, Case No. 8:07-cr-134-T-17EAJ
| Decision Date | 31 January 2012 |
| Docket Number | Case No. 8:11-cv-1474-T-17EAJ,Case No. 8:07-cr-134-T-17EAJ |
| Parties | EDUARDO GONZALEZ, v. UNITED STATES OF AMERICA. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Defendant's motion to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255 (). (Doc. cv-1; cr-71). A review of the record demonstrates that the motion to vacate must be denied.
Gonzalez pled guilty to count one of the indictment charging him with possessing with the intent to distribute 500 grams or more of cocaine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(ii). D-35, D-63. Gonzalez pled without the benefit of a plea agreement. During his change of plea hearing, the Court advised Gonzalez he was subject to a minimum mandatory term of imprisonment of five years and maximum term of 40 years' imprisonment. D-63 at 7.
An Addendum to the Presentence Investigation Report (PSR) dated December 18, 2007, was prepared as required by Middle District of Florida Local Rule 4.12. The PSR calculated Gonzalez's total offense level under USSG §2D1.1 as 29, including a three level reduction for acceptance of responsibility. Gonzalez was found to be a career offender under USSG §4B1.1 due to having at least two prior State of Florida felony convictions ofeither a crime of violence or a controlled substance offense, delineated in the PSR as follows:
PSR ¶¶ 23, 30, 32. Based on Gonzalez having at least two qualifying prior convictions, Gonzalez met the requirements of a career offender as defined in USSG §4B1.1. As a career offender, the Probation Office calculated Gonzalez's total offense level at 31, with a criminal history category VI, resulting in a guidelines range of 188 to 235 months' imprisonment. PSR ¶ 81.
The PSR reflects Gonzalez's objections to his career offender designation based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Shepard v. United States, 544 U.S. 13 (2005). PSR at 1-2. At the December 19, 2007 sentencing, Gonzalez did not object to the factual accuracy of the PSR, or to the application of the guidelines as set forth in the PSR. D-45, D-46, D-60 at 4. Gonzalez maintained his objection to his designation as a career offender and this Court overruled his objections. D-60 at 7-13. This Court adopted the facts and guideline calculations in the PSR and sentenced Gonzalez to 188 months' imprisonment to be followed by five years' supervised release. Id. at 13, 23-24.
Gonzalez appealed his conviction and sentence. D-47. On October 17, 2008, theEleventh Circuit affirmed Gonzalez's conviction and sentence and rejected Gonzalez's Apprendi challenge to his career offender designation. See United States v. Gonzalez, 296 Fed. App'x 799 (11th Cir. 2008). D-69. Gonzalez applied for certiorari to the United States Supreme Court, No. 08-7212, on November 5, 2008. Certiorari was denied on December 8, 2008. 129 S. Ct. 750.
On July 5, 2011, Gonzalez filed the instant § 2255 motion. D-cv-1. In his motion, Gonzalez claims that the decision in Johnson v. United States, 130 S. Ct. 1265 (2010)1 renders him "actually innocent" because he cannot be designated a career offender since the offenses of aggravated assault and battery on a law enforcement officer are not crimes of violence as defined in USSG §4B1.2. Gonzalez is not entitled to relief because his claim is untimely, procedurally barred, not cognizable, and otherwise without merit. His motion must be dismissed for the reasons set forth below.
A. THE MOTION TO VACATE IS UNTIMELY
1) Because Gonzalez did not File His Section 2255 Motion Within One Year of December 8, 2008, His Motion is not Timely.
Gonzalez's conviction became final on December 8, 2008, when his petition for certiorari review was denied, therefore, he had until December 8, 2009, to file his section 2255 motion. D-70, Exhibit C; see Washington v. United States, 243 F.3d 1299, 1300 (11th Cir. 2001) (). By filing his section 2255 motion on June 29, 2011, Gonzalez's motion is untimely. See 28 U.S.C. § 2255 ¶ 6(1).
Gonzalez admits he failed to meet the one-year statute of limitations filing period under the AEDPA, however, he contends "actual innocence" and "manifest injustice" make his claim timely. D-cv-1 at 12, 18-20. Gonzalez relies on the Supreme Court's decision in Johnson. Id. at 21-23. In order to make a claim for a retroactive application on collateral review based on Johnson, such claim would be timely only if made within one year of Johnson's being decided.2 See 28 U.S.C. § 2255(f)(3). Because Johnson was decided on March 2, 2010, Gonzalez would have needed to file his section 2255 motion by March 2, 2011. By filing his motion on June 29, 2011, Gonzalez's filing is several months past the one-year deadline. D-cv-1.
1) Because Gonzalez did not Challenge His Sentence on Direct Appeal, Gonzalez is Procedurally Barred from Challenging His Sentence in this Section 2255 Proceeding.
When a petitioner raises a constitutional claim on collateral review that he failed toraise in the trial proceedings or on direct appeal, he bears the burden of establishing cause and actual prejudice resulting from the error or actual innocence to excuse the defaults. McCoy v. United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001). To show cause for failing to raise a claim in an earlier proceeding, a petitioner must show "some external impediment preventing counsel from constructing or raising the claim." See McCleskey v. Zant, 499 U.S. 467, 497 (1991) (emphasis removed). To establish prejudice, the petitioner must prove that "the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness." See Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal quotations omitted). This is a heavier burden than the burden of establishing plain error on appeal. See United States v. Frady, 456 U.S. 152, 164-65 (1982).
The Supreme Court has established that futility of raising a particular claim does not constitute "cause" excusing a defendant's procedural default. See Bousley v. United States, 523 U.S. 614, 623 (1998) (); Jones v. United States, 153 F.3d 1305, 1307-08 (11th Cir. 1998); accord Page, 2011 WL 3925373 at *1. A defendant's waiver of his right to appeal also does not constitute "cause" for failing to appeal. See United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995); Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001). In Pipitone, the United States Court of Appeals for the Second Circuit ruled that considering an appeal waiver to be "cause" for failing to appeal 67 F.3d at 39.
Nonetheless, Gonzalez could avoid the procedural bar if he could show, by clear and convincing evidence, that this Court's alleged error in applying the career-offender guidelines "has probably resulted in the conviction of one who is actually innocent." See Bousley, 523 U.S. at 623-24. Although Gonzalez contends that he is "actually innocent" of being a career offender, D-cv-1 at 4,18, 21-22, the Eleventh Circuit in Gilbert v. United States, 640 F.3d 1293, 1320 (11th Cir. 2011) rejected the notion that "actual innocence" can apply to a guidelines enhancement. The Gilbert Court explained:
Put in its best light, Gilbert's argument assumes that he was convicted of the nonexistent offense of being a career offender with only one qualifying predicate offense. But he wasn't. As the indictment and the judgment in this case show, Gilbert was not charged with, nor was he convicted of, being a career offender. A defendant who is convicted and then has the § 4B1.1 career offender enhancement, or any other guidelines enhancement, applied in the calculation of his sentence has not been convicted of being guilty of the enhancement. If guidelines enhancements were crimes, they would have to be charged in the indictment and proven to the jury beyond a reasonable doubt. . . .Gilbert's position turns on treating sentences as convictions, and an argument that depends on calling a duck a donkey is not much of an argument.
Id. (citation omitted).
As the Eleventh Circuit confirmed in Bido v. United States, No. 09-16394, 2011 WL 2899606 (11th Cir. July 20, 2011), the "recent en banc decision in Gilbert II forecloses the argument" that a defendant may be "actually innocent" of being a career offender, because Gilbert "categorically rejected that claim, explaining that Gilbert was neither charged with, nor convicted of, being a career offender." Id. at *2. "[I]n order to invoke the actual innocence exception to the procedural default rule, a petitioner must show that his conviction...
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