Gonzalez v. United States

• Decision Date: 17 March 2022
• Docket Number: No. 20-71709,20-71709
• Citation: 28 F.4th 973
• Parties: Cesar MUÑOZ Gonzalez, aka Blanco, aka Cesar Gonzales, aka Ricardo Martines, aka Ricardo O. Martinez, aka Ricardo Martinez-Osorio, aka Osorio Ricardo, Applicant, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

28 F.4th 973

Cesar MUÑOZ Gonzalez, aka Blanco, aka Cesar Gonzales, aka Ricardo Martines, aka Ricardo O. Martinez, aka Ricardo Martinez-Osorio, aka Osorio Ricardo, Applicant,

v.UNITED STATES of America, Respondent.

No. 20-71709

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 2021 Pasadena, California

Filed March 17, 2022

Brianna Mircheff (argued) and Deborah E. Gonzalez, Deputy Federal Public Defenders; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defenders Office, Los Angeles, California; for Applicant.

Bram M. Alden (argued), Assistant United States Attorney, Acting Chief, Criminal Appeals Section; Brandon D. Fox, Assistant United States Attorney, Chief, Criminal Division; Nicola T. Hanna, United States Attorney; Office of the United States Attorney, Los Angeles, California; for Respondent.

Before: Consuelo M. Callahan and Danielle J. Forrest, Circuit Judges, and Richard Seeborg,^* District Judge.

FORREST, Circuit Judge:

Applicant Cesar Muñoz Gonzalez (Muñoz) seeks leave to file a second or successive motion for habeas relief under 28 U.S.C. § 2255. Muñoz asserts 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 , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019).¹ Whether Muñoz is entitled to file a second or successive motion depends on whether his Davis argument was "previously unavailable" to him. 28 U.S.C. § 2255(h)(2). Adopting a pragmatic approach, we conclude that this argument was available to Muñoz when his first habeas motion was still pending, and we deny him leave to file a second or successive motion.

I. BACKGROUND

Muñoz was convicted and sentenced for racketeering, drug trafficking conspiracy, and related offenses. Of particular importance here is his conviction for possession of a firearm in furtherance of a crime of violence or drug trafficking under 18 U.S.C. § 924(c). United States v. Torres , 869 F.3d 1089, 1092–94 (9th Cir. 2017) ; Muñoz received a mandatory sentence of five years on this conviction, to run consecutively to the sentences imposed on his other convictions.

After an unsuccessful direct appeal² , Muñoz filed a pro se § 2255 motion challenging his convictions. He raised five separate claims, none of which challenged his § 924(c) conviction. Three months after Muñoz filed his § 2255 motion, the Supreme Court decided Davis . 139 S. Ct. 2319. Ten days later, Muñoz filed his reply in support of his motion. At the suggestion of "another [inmate] in the law library," Muñoz argued in reply that the definition of "felony drug offense" was unconstitutionally vague based on the "very recent U.S. v. Davis . " Muñoz did not understand his Davis argument but included it "in case" it might help him. He did not make a Davis argument related to his § 924(c) conviction.

The district court denied Muñoz's § 2255 motion three months later, and Muñoz filed a notice of appeal. After the district court denied a certificate of appealability (COA) on limited remand, this court also denied a COA.

Eight months after the district court denied Muñoz's first § 2255 motion, he filed the subject motion, seeking leave from this court to file a second § 2255 motion in the district court to assert a new argument based on Davis that his § 924(c) conviction was invalid because his predicate racketeering conviction is no longer a categorical crime of violence. Muñoz contends that his § 924(c) conviction should be vacated and that he should be resentenced without the mandatory five-year consecutive sentence imposed for this conviction.

II. DISCUSSION

The court of appeals must grant leave for a federal prisoner to file a "second or successive" § 2255 motion in district court. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h) ; United States v. Buenrostro , 638 F.3d 720, 723 (9th Cir. 2011) (per curiam). Where the prisoner's proposed claim is based on a new constitutional rule, leave is given only if the prisoner makes a prima facie showing that the new rule was "made retroactive to cases on collateral review by the Supreme Court" and was "previously unavailable. " 28 U.S.C. § 2255(h)(2) (emphasis added); Tate v. United States , 982 F.3d 1226, 1227 (9th Cir. 2020) (per curiam). For purposes of this application, the government does not dispute that Davis announced a new constitutional rule that applies retroactively. Thus, the only issue is whether Muñoz has shown that his new Davis argument related to his § 924(c) conviction was "unavailable" during his first habeas proceeding.

A. The "Previously Unavailable" Requirement

Neither we nor the Supreme Court has interpreted § 2255(h)(2)'s "previously unavailable" requirement, nor did Congress define this term. However, the Supreme Court has interpreted what "available" means in the context of the Prison Litigation Reform Act's (PLRA) requirement that prisoners exhaust the "administrative remedies as are available" before filing a lawsuit to challenge a prison condition. Ross v. Blake , 578 U.S. 632, 635, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016). In that context, the Supreme Court explained that "the ordinary meaning of the word ‘available’ is ‘capable of use for the accomplishment of a purpose,’ and that which ‘is accessible or may be obtained.’ " Id. at 642, 136 S.Ct. 1850 (quoting Booth v. Churner , 532 U.S. 731, 737–38, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) ). The Court further explained that this is a pragmatic analysis: "courts in this and other cases must apply [the availability standard] to the real-world workings of prison grievance systems." Id. at 643, 136 S.Ct. 1850. For example, when a prison's administrative grievance system is "so opaque that it becomes, practically speaking, incapable of use" because "no ordinary prisoner can discern or navigate it," administrative remedies are not "available." Id. at 643–44, 136 S.Ct. 1850. Likewise, the Court instructed that administrative remedies are not available when a prisoner is "thwart[ed] ... from taking advantage of a grievance process through machinations, misrepresentation, or intimidation." Id. at 644, 136 S.Ct. 1850.

Although Ross addressed a different statute, the Supreme Court's analysis is persuasive here. If the PLRA's availability-of-administrative-remedies standard is measured against "the real-world" practicalities that prisoners face, id. at 643, 136 S.Ct. 1850, we see no reason why the Antiterrorism and Effective Death Penalty Act of 1996's (AEDPA) previously-unavailable-claim standard, which uses similar language, should not be interpreted to account for whether a prisoner seeking to raise a claim based on a new constitutional rule in a second or successive habeas proceeding could have, as a practical matter, raised that claim at an earlier time. See 28 U.S.C. § 2244(b)(2)(A).

Several of our sister circuits have adopted a pragmatic approach when interpreting AEDPA's "previously unavailable" requirement.³ For example, in In re Cathey , the Fifth Circuit refused to adopt a "strict rule" that a claim based on a new constitutional rule is available anytime the Supreme Court announces the rule before the inmate's initial habeas proceeding is concluded. 857 F.3d 221, 229–30 (5th Cir. 2017). Rather, that court recognized that there is "a gray area of previous unavailability [of a new constitutional rule] despite technical availability," and it adopted a "rebuttable presumption that a new rule of constitutional law was previously available if published by the time a district court ruled on a petitioner's initial habeas petition," which can be overcome by presenting "cogent arguments that [the claim] was previously unavailable" during the initial habeas proceedings. Id. at 229–30 (internal quotation marks and citation omitted).

Applying this pragmatic standard, the Fifth Circuit concluded that Cathey sufficiently established that his proposed claim was "previously unavailable" even though it was based on a constitutional rule that was announced well before his initial habeas proceedings were concluded—in fact, before he even filed his initial habeas petition. Cathey sought to bring a claim under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that imposing capital sentences against intellectually disabled prisoners violates the Eighth Amendment. In re Cathey , 857 F.3d at 223. Even though Atkins had already been decided, throughout his initial habeas proceedings, Cathey, who was represented by counsel, believed that his IQ was "outside of the range that was then understood to satisfy the subaverage intellectual functioning prong of an Atkins claim." Id. at 230. Only after the state disclosed evidence that his IQ was lower than he had understood and that new science showed prior IQ tests could be inflated did he realize that he had a valid Atkins claim. Id. at 230–33. And those disclosures were both made after Cathey's first habeas petition was decided. Id. Under these circumstances, the Fifth Circuit found that Cathey made a sufficient showing that his Atkins claim was "previously unavailable" to warrant allowing him to present his second or successive petition to the district court. Id. at 233.

Similarly, in In re Hill , the Eleventh Circuit rejected a "mechanistic test" for assessing whether a claim based on a new rule of constitutional law was previously available. 113 F.3d 181, 183 (11th Cir. 1997) (per curiam). As an initial matter, the Eleventh Circuit assessed the previously unavailable requirement "with reference to the availability of the claim at the time the first federal habeas application was filed." Id. at 182. But it also required an inmate to "demonstrate the infeasibility of amending" his request for habeas relief if it is still pending when a new rule that applies...