United States v. Figueroa
| Decision Date | 09 August 2017 |
| Docket Number | CASE NO. 12cr236-GPC |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JEREMIAH FIGUEROA (32). Defendant. |
| Court | U.S. District Court — Southern District of California |
Petitioner Jeremiah Figueroa ("Petitioner"), proceeding with counsel, filed a motion to vacate, set aside, or correct their sentence pursuant to 28 U.S.C § 2255. (Dkt. No. 1972.) Respondent filed an omnibus response to the petition.1 (Dkt. No. 2016). Petitioner filed his reply. (Dkt. No. 2023.) A hearing was held on January 30, 2017. (Dkt. No. 2042.) Based on the reasoning below, the Court DENIES in part and STAYS in part Petitioner's motion to vacate, set aside or correct his sentence pending the United States Supreme Court's ruling on Sessions v. Lynch, No. 15-1498, cert. grantedsub nom. Lynch v. Dimaya, 137 S. Ct. 31 (Sept. 29, 2016)2 and the Ninth Circuit's decision in United States v. Begay, No. 14-10080, where it is considering the constitutionality of § 924(c)3)(B).3
On January 19, 2012, the Grand Jury returned an Indictment charging 40 defendants with Racketeer Influenced and Corrupt Organizations Act ("RICO") conspiracy in violation of 18 U.S.C. § 1962(d) as well as numerous other counts for their involvement in the Mexican Mafia in the North San Diego County area. (Dkt. No. 1.) A Superseding Information was returned on September 5, 2013 as to counts against Petitioner Figueroa. (Dkt. No. 1325.)
In August 2013, Figueroa went to trial with seven other defendants. On September 5, 2013, before the case was turned over to the jury, he pled guilty pursuant to a written plea agreement to two counts of the Superseding Information. (Dkt. No. 1325). He pleaded guilty to Count 1 for Possession of a Firearm During and In Relation to the Crime of Conspiracy to Conduct Enterprise Affairs Through a Pattern of Racketeering Activity under 18 U.S.C. § 1962(d) to include racketeering acts of robbery and extortion ("RICO Conspiracy"), and Count 2 for Possession of a Firearm During and in Relation to a Crime of Violence in violation of § 924(c)(1)(A) for the crime of interference with commerce by robbery in violation of 18 U.S.C. § 1951 ("Hobbs Act Robbery"). (Dkt. No. 1327.)
According to an agreement made at the sentencing hearing, on October 6, 2014, he was sentenced to 60 months in custody on Count 1 to run concurrent with a corresponding state court case where he had also received a sentence of 25 years, and240 months in custody on Count 2 to run consecutively to Count 1 and concurrent with state court case. (Dkt. Nos. 1774, 1776, 1816.) Figueroa did not appeal his conviction or sentence.
Section 2255 authorizes this Court to "vacate, set aside, or correct the sentence" of a federal prisoner on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255(a). To warrant relief under section 2255, a prisoner must allege a constitutional or jurisdictional error, or a "fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
In Johnson v. United States, the United States Supreme Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act of 1984 ("ACCA") for "any crime punishable by imprisonment for a term exceeding one year . . . that - (ii) otherwise involves conduct that presents a serious potential risk of physical injury to another", 18 U.S.C. § 924(e)(2)(B)(ii), violates the constitutional right to due process. Johnson v. United States, 135 S. Ct. 2551, 2555 (2015). The ACCA "imposes a special mandatory fifteen year prison term upon felons who unlawfully possess a firearm and who also have three or more previous convictions for committing certain drug crimes or 'violent felon[ies].'" Begay v. United States, 128 S.Ct. 1581, 1583 (2008). The ACCA defines a "violent felony" as follows:
In Johnson, the Court held the ACCA's residual clause is void for vagueness and "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process." Johnson, 135 S. Ct. at 2563. The Court explained that "[w]e are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Id. at 2557. The Court expressly stated the decision does not apply to the remainder of the ACCA's definition of violent felony or the four enumerated offenses. Id. Moreover, it rejected the government and dissent's position that "dozens of federal and state criminal laws use terms like 'substantial risk,' 'grave risk,' and 'unreasonable risk,' suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt" by responding, "[n]ot at all." Id. at 2561.
Section 924(c) is a sentencing enhancement provision that provides a series of mandatory consecutive sentences for using or carrying a firearm in furtherance of a "crime of violence or drug trafficking crime." See 18 U.S.C. § 924(c).7 Section924(c)(3) defines the term "crime of violence" as:
The government argues that Petitioner has procedurally defaulted his challenge to § 924(c)(3)(B) by failing to raise this issue on direct appeal. Petitioner disagrees.
"The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred from raising the claim on collateral review." Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). There is, however, "an exception if a defendant can demonstrate both 'cause' for not raising the claim at trial, and 'prejudice' from not having done so." Sanchez-Llamas, 548 U.S. at 351.
"[T]he cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim" on appeal. McCleskey v. Zant, 499 U.S. 467, 493 (1991) (internal quotation marks omitted). Cause can be demonstrated by "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id.; Murray v. Carrier, 477 U.S. 478, 488 (1986). "[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim." Reed v. Ross, 468 U.S. 1, 16 (1984). The Supreme Court has held that a novel rule meets this standard when "a decision of this Court . . . explicitly overrule[s] one of our precedents." Id. at 17.
Here, Johnson expressly overruled Supreme Court precedent. See Johnson, 135 S. Ct. at 2563 ( ). Therefore, Petitioner has demonstrated cause. See e.g, Alvarado v. United States, Case No. CV 16-4411-GW, 2016 WL 6302517, at *3 (C.D. Cal. Oct. 14, 2016) (); United States v. Casas, Civil Case No. 16cv1339-BTM, 2017 WL 1008109, at *2 (S.D. Cal. Mar. 14, 2017) ().
As to prejudice, the government generally argues that Petitioner has not suffered any actual prejudice because his sentence remains lawful. Petitioner contends that if he prevails "his sentence would have been the height of prejudice because it was based on an unconstitutional provision." (Dkt. No. 2023 at 6.)
"If a petitioner succeeds in showing cause, the prejudice prong of the test requires demonstrating 'not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" United States v. Braswell, 501F.3d 1147, 1150 (9th Cir. 2007) (emphasis in original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). In this case, if Petitioner were to prevail on his motion, his sentence be unlawful and vacated. Therefore, the Court concludes that Petitioner has demonstrated actual prejudice. In sum, Petitioner's claims are not procedurally default.
The government also argues that Figueroa waived his right to collaterally attack his sentence in his written plea agreement. Petitioner argues that Ninth Circuit authority supports his waiver argument.
Figueroa signed his plea agreement as well as initialed each page of the agreement. (Dkt. No. 1327.) Specifically, he waived any right to appeal or to collaterally attack his conviction and sentence....
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