Ramirez v. United States

• Decision Date: 25 August 2015
• Docket Number: No. 13–3889.,13–3889.
• Citation: 799 F.3d 845
• Parties: Israel C. RAMIREZ, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

799 F.3d 845

Israel C. RAMIREZ, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 13–3889.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 5, 2015.

Decided Aug. 25, 2015.

Yelena Shagall, Attorney, Katten Muchin Rosenman LLP, Chicago, IL, for Petitioner–Appellant.

Stephen B. Clark, Attorney, Office of the United States Attorney, Fairview Heights, IL, for Respondent–Appellee.

Before WOOD, Chief Judge, and BAUER and MANION, Circuit Judges.

Opinion

WOOD, Chief Judge.

In 2008 Israel Ramirez pleaded guilty to possessing marijuana with intent to distribute. His presentence investigation report classified him as a career offender based on two earlier state convictions for assault. Despite the fact that his convictions were for “intentional, knowing, or reckless” assault, counsel did not object to the PSR's characterization, and the district court sentenced Ramirez as a career offender. In so doing, the court treated the Texas convictions as crimes of violence under U.S.S.G. § 4B1.2(a)(2)'s residual clause, which defines as a “crime of violence” for purposes of career-offender status at sentencing any federal or state offense punishable by imprisonment of more than one year “that otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Ramirez retained new counsel and moved to vacate his sentence under 28 U.S.C. § 2255, arguing that sentencing counsel was ineffective for failing to object to the career-offender designation. The district judge denied the motion and, because postconviction counsel failed to keep Ramirez informed about the postconviction proceedings, Ramirez did not submit a timely request for a certificate of appealability.

He tried filing a late request, but when it was dismissed for lack of jurisdiction, he moved under Federal Rule of Civil Procedure 60(b)(6) for relief from the judgment. He argued that postconviction counsel was ineffective for causing him to miss the appeal deadline (among other reasons). The district judge denied the motion, on the belief that there is a rigid rule under which there is no right to counsel on collateral review. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This would have been correct before the Supreme Court's decisions in Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). In those two decisions, however, the Court significantly changed its approach to claims of ineffective assistance of counsel at initial-review collateral proceedings. We conclude that the argument Ramirez raises is cognizable under Rule 60(b), see Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), and thus that a remand is required so that the district court may consider the merits of his contentions.

I

This appeal arises out of a series of events that began with Ramirez's two convictions in Texas. According to an offense report tendered by the prosecution at Ramirez's first Texas plea hearing, Ramirez had run in front of his wife's moving car, opened the passenger door, and gotten into the car. When his wife stopped to wave down a police officer, he grabbed her by her hair and punched her in the mouth. According to the offense report prepared for the second Texas prosecution, Ramirez went to his wife's house and banged on her door. When she refused to let him in, he broke the house windows and her car windshield, and then kicked in the front door, pulled her hair, and knocked her to the floor. He grabbed her arm and started to drag her away. These incidents led to two separate indictments for “intentionally, knowingly, or recklessly” causing “bodily injury” to his wife by “striking her with his hand”; Ramirez pleaded guilty in both cases. See Tex. Penal Code § 22.01(a)(1) (1999).

In 2008 Ramirez pleaded guilty to the conviction that gives rise to this proceeding—possessing marijuana with intent to distribute. See 21 U.S.C. § 841(a)(1). Ramirez's presentence investigation report listed, among other convictions, the two incidents in which he had assaulted his wife; it specified that he had been charged with assault to a family member for striking his wife with his hand. The probation officer concluded that these two “crimes of violence” rendered Ramirez a career offender. See U.S.S.G. §§ 4B1.1(a) ; 4B1.2(a). Ramirez's lawyer did not contest the probation officer's conclusion.

In the course of determining Ramirez's advisory sentencing range, the district court agreed with that assessment. The career-offender designation resulted in a guidelines imprisonment range of 262 to 327 months. (Without career-offender status, the range would have been 151 to 188 months. See U.S.S.G. Sent. Table (2008).) The court sentenced Ramirez to a within-guidelines term of 300 months' imprisonment.

On appeal, Ramirez's trial counsel moved to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We rejected that motion on the ground that a colorable challenge to Ramirez's career-offender classification existed. United States v. Ramirez, No. 09–1815 (7th Cir. Nov. 4, 2009). The government conceded error, admitting that the documents before the district court did not establish that Ramirez had been convicted of crimes of violence. Brief for Appellee at 12, United States v. Ramirez, 606 F.3d 396 (7th Cir.2010) (No. 091815). Rejecting that concession, we affirmed the conviction. We first held that the Texas assault statute was divisible (meaning that there were three ways in which it might be violated—through intentional, knowing, or reckless behavior). On appeal, however, the plain-error standard applied. That left Ramirez with the burden of showing that he had been convicted under the “reckless” branch of the statute. He failed to do so for lack of evidence, and so his sentence for the drug offense stood. United States v. Ramirez, 606 F.3d 396, 398 (7th Cir.2010).

At that point, Ramirez obtained new counsel, who filed a motion under 28 U.S.C. § 2255 asserting, as relevant here, that trial counsel was ineffective at sentencing for failing to object to Ramirez's classification as a career offender. The district judge denied the motion and declined to issue a certificate of appealability because, he wrote, Ramirez (still) had not produced any documents to show that he had been convicted of reckless assault and thus had not shown that he was prejudiced by counsel's omission. The proceeding went awry, however, when postconviction counsel let Ramirez down in three ways: he did not inform Ramirez of the court's decision; he failed to file any postjudgment motions; and he failed to file a notice of appeal.

Once he learned that counsel had deserted him, Ramirez filed an untimely pro se notice of appeal from the section 2255 motion denial; we dismissed for lack of appellate jurisdiction. Ramirez v. United States, No. 13–3511 (7th Cir. Jan. 21, 2014); see 28 U.S.C. § 2107(a) ; Bowles v. Russell, 551 U.S. 205, 210–11, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Ramirez then moved to vacate the district court's judgment under Federal Rule of Civil Procedure 60(b)(6), arguing that the ineffectiveness of his post-conviction counsel—who had failed to request any of the Texas-court documents and worse, had deserted him—constituted an extraordinary circumstance warranting the reopening of the judgment. The district judge denied the Rule 60(b)(6) motion because, he wrote, the right to counsel does not extend to proceedings under section 2255, and because Ramirez still had not shown that he was prejudiced by any of trial counsel's omissions because he never produced any documents showing he had been convicted of nonviolent assault. Ramirez appealed the denial of his Rule 60(b)(6) motion, and this court certified for appeal the question whether trial counsel was ineffective at sentencing. We also instructed the parties to address whether the district court abused its discretion in denying Ramirez's Rule 60(b)(6) motion in light of Trevino and Martinez.

II

Ramirez argues that the district court did commit an abuse of discretion when it denied his Rule 60(b)(6) motion. One way in which a court may take a decision that lies outside the boundaries of its discretion is by basing that decision on a material error of law. Ramirez asserts that the district court incorrectly relied on Coleman 's absolute rule that counsel's performance on a postconviction motion can never justify relief from a judgment, rather than on Trevino and Martinez. Relying on such cases as Nash v. Hepp, 740 F.3d 1075 (7th Cir.2014), the government replies that these new cases at most amount to a mundane change in the law that does not amount to an extraordinary circumstance for purposes of Rule 60(b)(6). It also argues that Trevino, Martinez, and Maples v. Thomas, ––– U.S. ––––, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012) (a third case in the new line), apply only to petitions for relief filed by state prisoners under 28 U.S.C. § 2254, not to motions filed by federal prisoners under 28 U.S.C. § 2255.

A

The first question we must address is whether Ramirez was entitled to use a Rule 60(b) motion, or if he has in reality filed an unauthorized second or successive petition without the necessary permission of this court. See 28 U.S.C. §§ 2244, 2255(h). If this was a proper use of Rule 60(b), the next question is whether Ramirez has shown enough to earn a consideration of his arguments on the merits.

We are satisfied that Ramirez's motion was not a disguised second or successive motion under section 2255, and thus may be evaluated on its own merit. Ramirez is not trying to present a new reason why he should be relieved of either his conviction or his sentence, as provided in 28 U.S.C. § 2255(a). He is instead trying to reopen his existing section 2255 proceeding and overcome a procedural barrier to its adjudication. Recall that on...