Ocon v. United States
| Docket Number | EP-21-CV-283-DB |
| Decision Date | 31 March 2022 |
| Parties | IVAN OCON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Texas |
ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND GRANTING PETITIONER'S PETITION FOR A WRIT OF AUDITA QUERELA OR A WRIT OF CORAM NOBIS
The United States of America (the Government) moves to dismiss Ivan Ocon's petition for a writ of audita querela or a writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651. Mot. to Vacate, ECF No. 5. The Government's motion is denied-and Ocon's petition is granted-for the following reasons.
On May 3, 2006, Ocon, a Mexican national, agreed to sell Rene Holguin 100 pounds of marijuana for approximately $25, 000. United States v. Ocon. EP-06-CR-1078-DB-2 (W.D Tex.), Plea Agreement 11-12, ECF No. 212. Ocon did not understand when he entered into the agreement that Holguin had no intention of paying for the marijuana. Id. at 12.
On May 4, 2006, Ocon and several associates went to a home in El Paso, Texas, to deliver the marijuana. Id. at 13. When they realized Holguin was stealing the marijuana, they kidnapped the homeowner's teenage son, took him to Juarez, Mexico, and held him for ransom. Id. at 14. Ocon "brandished a handgun" during the kidnapping. Id.
After several days of negotiations, Holguin agreed to pay $17, 000 for the victim's return. Id. Before Holguin made the payment, Mexican Police discovered the victim waiting at the Paso del Norte International Bridge between the United States and Mexico at El Paso. Id.
Ocon was charged in a second superseding indictment with conspiracy to kidnap, in violation of 18 U.S.C. §§ 1201(a)(1), (c), and (g) (Count One); kidnapping and aiding and abetting a kidnapping in violation of 18 U.S.C. §§ 1201(a)(1), and (g) and 18 U.S.C. § 2 (Count Two); using, carrying and brandishing a firearm during and in relation to, and possessing and brandishing a firearm in furtherance of a crime of violence, namely kidnapping, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), and (ii) (Count Four); interstate communications demanding ransom, in violation of 18 U.S.C. § 875(a) (Count Six); conspiracy to possess with the intent to distribute a quantity of marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count Eight); and possession with the intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Nine). Id., Second Superseding Indictment, ECF No. 272.
Ocon negotiated a plea agreement with a binding sentence pursuant Federal Rule of Criminal Procedurel 1(c)(1)(C) because he "agreed to provide 'substantial assistance' to law enforcement officers in their investigative efforts."[1] Id., Plea Agreement 1, 2, 4, ECF No. 212. Under its terms, Ocon agreed to plead guilty to Counts Two and Four of the superseding indictment. Id. at 1. In exchange, he obtained the Government's agreement that he should be sentenced to 120 months' imprisonment and promise to move to dismiss the remaining counts pending against him. Id. at 1.
At Ocon's sentencing, the Court determined his advisory guideline range for Count Two was 262 to 327 months' imprisonment and Count Four carried "an 84-month mandatory consecutive sentence." Id. Sentencing Tr. 3:2-3:6, ECF No. 391. But it granted the Government's motion for a departure and sentenced Ocon to an aggregate term of 120 months' imprisonment pursuant to the terms of the binding plea agreement. J. Crim. Case 2, ECF No. 318.
"Upon completing his sentence, Mr. Ocon was placed in removal proceedings and deported to Mexico on February 1, 2016." Pet'r's Pet. 6. "He was released from supervised release on April 22, 2019." Mot. to Dismiss 1, ECF No. 5.
Ocon's believed his prior military service in Operation Iraqi Freedom made him eligible for military naturalization. Pet'r's Resp. 5, ECF No. 12 (citing 8 U.S.C. § 1440(a)). He applied in 2015, but his application was denied because his § 924(c) "aggravated felony" conviction made him "permanently ineligible for naturalization." Id. (citing Ex. B, U.S. Citizenship and Immigration Services Decision (CISD)).
Ocon applied for military naturalization again in September 2021. Pet'r's Pet. 2, ECF No. 1. He recognized when he applied the second time that a conviction for a "crime of violence" permanently barred him from naturalization. Id. But he understood the Supreme Court had determined-after he discharged his sentences-that federal kidnapping under 18 U.S.C. § 1201 did not qualify as a crime of violence. Id. at 7 (citing Sessions v. Dimava, 138 S.Ct. 1204, 1223 (2018); United States v. Davis, 139 S.Ct. 2319, 2324 (2019)). Thus, he concluded his conviction for using, carrying, and brandishing a firearm in furtherance of a crime of violence, namely kidnapping, in violation of 18 U.S.C. § 924, was no longer valid. Id- at 8 (). Consequently, he decided to ask the Court to vacate his conviction for brandishing a firearm in furtherance of a crime of violence (Count Four) through a petition for a writ of audita querela or a writ of coram nobis-with a view toward his eventual naturalization. Id. at 9.
The Government now moves to dismiss. Mot. to Dismiss, ECF No. 5. It asserts Ocon "has failed to state a sound reason for his failure to seek relief earlier, he is barred by the doctrine of laches, and he has not shown a continuing civil disability because of his conviction." Id. at 1.
Ocon responds he "moved with diligence" to file his petition in the wake of the Fifth Circuit's decision in United States v. Carreon, 803 Fed.Appx. 790 (5th Cir. 2020), as revised (May 8, 2020). Pet'r's Resp. 2, ECF No. 12. He claims he "overcame extraordinary financial and logistical obstacles to file his petition only sixteen months after the Fifth Circuit addressed the applicability of Davis to kidnapping convictions as predicates for 18 U.S.C. § 924(c), and only twenty-eight months after the Supreme Court entered judgment in Davis." Id. at 12. He provides evidence the Department of Veterans Affairs granted him a 100 percent service-connected disability rating based on a major depressive disorder, chronic fatigue syndrome, lumbosacral strain, right ankle lateral collateral ligament sprain, left waist strain, left index finger strain, left upper extremity carpal tunnel syndrome, right lower extremity radiculopathy, and left lower extremity radiculopathy. Id. at Ex. A. He complains "he cannot seek relief through 28 U.S.C. § 2255 because he is not in custody-and he has well explained his minimal delay." Id. at 12. He contends "[h]is civil disabilities stem from the ongoing immigration consequences he faces as a result of his Section 924(c) conviction." Id. at 17.
The Government replies "ignorance of the law and the petitioner's pro se status are not valid reasons for delay in filing a petition." Gov't's Reply 5, ECF No. 15 (citing Fischer v. Johnston, 174 F.3d 710, 714 (5th Cir. 1999)). It observes "[i]n the context of analyzing whether petitioner's successive § 2255 motion was abuse of the procedure ..., the Court found that the petitioner's pro se status, illiteracy, deafness, and lack of legal training were not external factors that justify the failure to raise the claim in the previous motion." Id. at 5-6 (citing United States v. Flores. 981 F.2d 231, 236 (5th Cir. 1993). It notes "the Ninth Circuit found that the petitioner's delay in filing a petition for a writ of error coram nobis was not sound reason based on her incarceration, deportation to Austria, diminished capacity, or the time it took her 'to find competent counsel willing to review her case and pursue her legal remedies.'" Id. at 6 (quoting United States v. Riedl. 496 F.3d 1003, 1006-08 (9th Cir. 2007)).
The All Writs Act grants a district court the authority to issue extraordinary writs in aid of its jurisdiction. 28 U.S.C § 1651. But it "does not confer an independent basis for subject-matter jurisdiction." Renteria-Gonzalez v. INS, 322 F.3d 804, 811 (5th Cir. 2002) (citing United States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977). It Pennsylvania Bureau of Correction v. U.S. Marshals Serv.. 474 U.S. 34, 43 (1985).
The writ of audita querela is an ancient common-law remedy which permits "a judgment defendant to obtain relief against the consequences of the judgment on the ground that some defense or discharge has arisen since its rendition that could not be taken advantage of otherwise." United States v. Miller. 599 F.3d 484, 487 (5th Cir. 2010) (citing United States v. Reves. 945 F.2d 862, 863 n.l (5th Cir. 1991); Black's Law Dictionary 150 (9th ed. 2009)). It "is directed against the enforcement, or further enforcement, of a judgment which, when rendered, was just and unimpeachable." Id. (citing 7A C.J.S. Audita Querela § 4 (2004)). It "is only available where the legal objection raised cannot be brought pursuant to any other postconviction remedy." Id. at 488 (citing Reves, 945 F.2d at 866). It "allows relief... only where a gap exists in the system of federal post-conviction remedies." Id. (citing United States v. Avala. 894 F.2d 425, 428 (D.C. Cir. 1990)).
Federal Rule of Civil Procedure 60(b) expressly abolished the use of the writ of audita querela to attack a civil judgment. Id. ...
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