United States v. Navarro
| Decision Date | 17 June 2016 |
| Docket Number | Case No. 3:16-CV-215 JD,Case No. 3:02-CR-61 JD |
| Parties | UNITED STATES OF AMERICA v. ERNESTO NAVARRO |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court on a motion under 28 U.S.C. § 2255. The defendant, Ernesto Navarro, was sentenced in 2003 to a term of 188 months of imprisonment on his conviction for possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Now on his third petition for collateral relief, with authorization from the Seventh Circuit, he asserts that his sentence is unlawful in light of Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the so-called residual clause of the Armed Career Criminal Act is void for vagueness. Mr. Navarro was not sentenced under the Armed Career Criminal Act, though; rather, he argues that Johnson invalidates his designation as a career offender under § 4B1.1 of the Sentencing Guidelines. In response, the government raises a number of procedural and substantive impediments to relief, including that Mr. Navarro's plea agreement waived his right to move for collateral relief; that his motion is barred because he has presented the same claim in a previous petition; that he is ineligible for relief on a successive petition because the Supreme Court has not made the applicable rule retroactive; and that he procedurally defaulted on his claim. For the reasons discussed below, the Court agrees that Mr. Navarro is not entitled to relief.
Before turning to the parties' arguments, there is another issue to address that has not been raised in the parties' filings. Mr. Navarro is currently scheduled to be released from the Bureau of Prisons on July 7, 2016, as confirmed by the Probation Office. At that point, the Court will be unable to reduce Mr. Navarro's sentence of imprisonment, and Mr. Navarro's request that his sentence be "time served" will essentially have taken place. In addition, Mr. Navarro received the statutory minimum term of supervised release for his offense, which is four years, 21 U.S.C. § 841(b)(1)(B), so the Court would have no authority to impose a shorter term of supervision even if it granted his motion.1 Further, Mr. Navarro's motion only attacks his sentence, not his conviction. Thus, it appears that upon Mr. Navarro's imminent release from prison, the Court will be unable to grant him relief, and his motion under § 2255 will be moot. See United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir. 2001) (); Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995) (). Accordingly, so that Mr. Navarro can at least receive a ruling on his motion, the Court has endeavored to issue an order prior to that date, and so has addressed some of the issues in a somewhat abbreviated fashion.
On May 29, 2002, Mr. Navarro was found in possession of over 264 pounds of marijuana, 27 of which he had just delivered to another person. He was subsequently indicted for possession of over 100 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C.§ 841(a)(1). Mr. Navarro eventually pled guilty pursuant to a written plea agreement. Of note, that plea agreement contained the following provision:
I agree that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offense(s) as set forth above in paragraph 9(c) of this plea agreement. With that understanding, I expressly waive my right to appeal my sentence on any ground, including any appeal right conferred by Title 18, United States Code, Section 3742. I also agree not to contest my sentence or the manner in which it was determined in any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255.
[DE 26 p. 3]. The plea agreement also accurately set forth the statutory minimum and maximum penalties. Those included a prison term of at least 5 years and up to 40 years, and a term of supervised release of at least 4 years.
At the sentencing hearing on January 30, 2003, Mr. Navarro was determined to be a career offender under § 4B1.1 based on two prior convictions: a 1997 conviction for aiding, inducing, or causing robbery, a Class C felony under Indiana law, and a 1999 conviction for criminal recklessness, a Class D felony under Indiana law. Mr. Navarro argued that neither conviction constituted a crime of violence, as defined under § 4B1.2(a). However, the Court concluded that the 1997 robbery conviction was a crime of violence under § 4B1.2(a)(1), as an offense that "has as an element the use, attempted use, or threatened use of physical force . . . ." The Court also concluded that the 1999 criminal recklessness conviction was a crime of violence under § 4B1.2(a)(2), as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another"—the "residual clause" of the definition of crime of violence. As a career offender, Mr. Navarro's total offense level was 31 and his criminal history category was VI, § 4B1.1(b)(2), producing a guideline range of 188 to 235 months of imprisonment. The Court imposed a sentence of 188 months of imprisonment, to be followed by the statutory minimum term of 4 years of supervised release. [DE 41].
Mr. Navarro did not appeal. However, on January 29, 2004, he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255. He raised four grounds for his motion, all premised on ineffective assistance of counsel, and two of which argued that his attorney rendered ineffective assistance relative to the career offender designation. [DE 44]. Mr. Navarro simultaneously moved to hold the § 2255 proceedings in abeyance while he challenged the constitutionality of his criminal recklessness conviction in state court, which he hoped would allow him to seek a resentencing absent the career offender guideline. [DE 45]. In response, the government argued that Mr. Navarro's challenges to his career offender designation were barred by the plea agreement's waiver of any post-conviction proceedings, and that the waiver was valid and enforceable. The Court agreed and denied the motion. [DE 49].
In 2012, Mr. Navarro filed another petition for collateral relief. This time, he filed a petition under 28 U.S.C. § 2241 in the Southern District of Indiana, his district of confinement. Navarro v. United States, No. 2:12-cv-333 (S.D. Ind. filed Nov. 7, 2012). In that petition, he argued that his criminal recklessness conviction was improperly characterized as a crime of violence and that, as a result, he was erroneously designated a career offender. In support, he cited the Supreme Court's decision in Begay v. United States, 553 U.S. 137 (2008), which held that an offense only qualified under the residual clause of the definition of "violent felony" under the Armed Career Criminal Act if it involved intentional or purposeful conduct. Applying Begay, the Seventh Circuit had held that criminal recklessness under Indiana law no longer satisfied the residual clause unless the defendant was convicted of committing the offense knowingly or intentionally. United States v. Smith, 544 F.3d 781 (7th Cir. 2008). Since Mr. Navarro was charged with committing the offense recklessly, his conviction for that offense would no longer constitute a crime of violence. Nonetheless, the court dismissed Mr. Navarro's petition withprejudice, holding that the waiver in Mr. Navarro's plea agreement barred his petition. Mr. Navarro did not appeal.
The Supreme Court subsequently held in Johnson v. United States, 135 S. Ct. 2551 (2015) that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, in violation of the Due Process Clause. Through appointed counsel, Mr. Navarro then applied to the Seventh Circuit for authorization to file a successive motion under § 2255 raising a claim under Johnson. The Seventh Circuit granted Mr. Navarro's application on February 8, 2016, finding that Mr. Navarro "has made a prima facie showing that he may be entitled to relief." [DE 52]. In doing so, it declined to consider the various procedural defenses asserted by the government, noting, "We believe these contentions would be better addressed by the district court after adversarial testing, for which we lack the time given the 30-day deadline for deciding applications." Id. The court also cited to 28 U.S.C. § 2244(b)(4), which states, "A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the application shows that the claim satisfies the requirements of this section." Id. Mr. Navarro then filed his motion in this Court on April 7, 2016, and the motion has been fully briefed.
Section 2255(a) of Title 28 provides that a federal prisoner "claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is appropriate only for "an error of law that is jurisdictional, constitutional, or constitutes afundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593,...
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