United States v. Salazar
| Decision Date | 09 June 2021 |
| Docket Number | Case No. 6:10-cr-60121-AA,Case No. 6:20-cv-01438-AA |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. PAUL ANTHONY SALAZAR, Defendant. |
| Court | U.S. District Court — District of Oregon |
In 2011, Defendant Paul Anthony Salazar pleaded guilty to and was convicted of one count of Failure to Register as a Sex Offender as required by the Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. § 20901 et seq., in violation of 18 U.S.C. § 2250(a). Currently, there are allegations that Salazar has violated the terms of his supervised release. On June 23, 2020, Salazar filed a motion to terminate his supervised release, dismiss the present supervised release violation, and vacate his underlying conviction. ECF No. 117. On August 24, 2020, Salazar refiled his motion as one pursuant to 28 U.S.C. § 2255.1 ECF No. 129. The Court heard oral argument on the motion on October 14, 2020 and took the matter under advisement. ECF No. 137. Although the Court indicated at subsequent hearings that it was inclined to deny the motion, a close review of the history of the case and the relevant precedents compels a different result. And so, for the reasons set forth below, the motion is GRANTED.
In February 1989, Salazar was convicted by a jury in the State of Florida of two counts of handling and fondling a child under the age of sixteen, in violation of Florida Statutes § 800.04(1). Def. Mot. Ex. A, at 1-2. Specifically, Salazar grabbed and touched a twelve-year-old victim several times in her vaginal area and rubbed her breast, causing her to scream. Presentence Report ("PSR") ¶ 27.
Salazar was sentenced on February 8, 1989 to three-and-a-half years in state custody along with one year of probation. Def. Mot. Ex. A, at 3. Salazar was released on April 6, 1990. PSR ¶ 27. Salazar moved to Alabama, where he was convicted of theft in 2001 and for failure to abide by state sex offender registration requirements in 2006. Id. at ¶ 28-29. In 2007, Salazar was convicted in Tennessee for failure to abide by state sex offender registration requirements. Id. at ¶ 30.
In 2008, Salazar was convicted of transporting illegal aliens into the country in the Southern District of California and was sentenced to fifteen months imprisonment with a three-year term of supervised release. PSR ¶ 31. After being released from custody Salazar absconded from supervision and was arrested in Oregon on August 13, 2009. Id. On December 7, 2010, Salazar's case in the Southern District of California was transferred to this Court. Id.
After absconding again in 2010, Salazar was apprehended in Eugene, Oregon on September 24, 2010. PSR ¶ 12. It was discovered that he had been living at the Eugene Mission under an assumed name. Id. Officers also found graphic written materials and electronic storage devices containing images of naked children in his possession. Id. at ¶ 13. On October 21, 2010, Salazar was indicted for a single count of Failure to Register as a Sex Offender in violation of 18 U.S.C. § 2250(a), based on his 1989 Florida conviction. ECF No. 8.
On July 12, 2011, Salazar pleaded guilty to this charge as part of a negotiated resolution with the Government. ECF No. 26. Pursuant to that agreement, Salazar admitted that he traveled in interstate commerce and knowingly failed to register as a sex offender. He also agreed that he was a Tier III offender and required to register for life. ECF Nos. 27, 28. On September 23, 2011, this Court sentenced Salazar to twenty-four months in custody with a five-year term of supervised release. ECF No. 31.
Salazar's term of supervision commenced on June 21, 2012. ECF No. 34. Since that time, Salazar has been found in violation of the terms of his supervision on threeoccasions, and he has absconded multiple times. ECF Nos. 44, 63, 85. Salazar most recently self-surrendered after absconding to Mexico.
Salazar primarily argues that his 1989 Florida conviction is not a sex offense under SORNA. Alternatively, he argues that even if the conviction was a qualifying sex offense, he was not required register under SORNA on September 12, 2010. As a preliminary matter, however, the Court must ascertain the proper procedural vehicle for Salazar's motion.
Salazar presents his motion as one brought under 28 U.S.C. § 2255. The Government argues that Salazar's § 2255 motion is untimely and so cannot be considered under that statute.
Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:
[T]he 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). However, motions brought under this subsection must be filed no later than one year from the date on which the judgment of conviction becomes final, 28 U.S.C. § 2255(f)(1), or the date on which the right was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review, 28 U.S.C. § 2255(f)(3).
More than one year has passed since Salazar's conviction in this case became final, and he cites no qualifying intervening precedent from the Supreme Court within the last year. Accordingly, the Court concludes that, to the extent Salazar brings this motion pursuant to § 2255, the motion is time-barred.
However, § 2255 is not a defendant's only available avenue for relief. Although a federal defendant seeking to challenge his sentence generally must file a motion under 28 U.S.C. § 2255, there is an exception to that general rule under the "escape hatch" of § 2255(e), which allows the petitioner to file a petition under 28 U.S.C. § 2241 "if, and only if, the remedy under § 2255 is inadequate or ineffective to test the legality of his detention." Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (internal quotation marks and citation omitted). A defendant may file a § 2241 petition under the escape hatch "when the prisoner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Id. (internal quotation marks and citation omitted). In the Ninth Circuit, "[A]ctual innocence means factual innocence, not mere legal insufficiency." Id. at 1193 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted) (alteration in original))
In this case, Salazar argues that he was innocent of failing to register because (1) his underlying conviction was not a qualifying offense under SORNA; and (2) even if it were, he was no longer required to register as a sex offender under SORNA in 2010. The parties contend, and the Court agrees, that 28 U.S.C. § 2241 provides an appropriate procedural vehicle for consideration of Salazar's motion.
SORNA was enacted to create a "comprehensive national system for the registration of sex offenders and offenders against children." United States v. Elkins, 683 F.3d 1039, 1040 (9th Cir. 2012) (internal quotation marks and citation omitted); 34 U.S.C. § 20901. To that end, sex offenders must register as such in their relevant jurisdictions and update their registration if changes to their names, residence, employment, or student status occur. 34 U.S.C. §§ 20913(a), (c). SORNA defines the term "sex offender" as "an individual who was convicted of a sex offense." 34 U.S.C. § 20911(1). SORNA separates the level of sex offenders into tiers, with a Tier I being the least severe and Tier III being the most severe. 34 U.S.C. §§ 20911(1)-(3). The tier level determines how long an offender is required to register under federal law. 34 U.S.C. § 20915(a). And 18 U.S.C. § 2250 imposes criminal penalties on persons who are required to register under SORNA, but knowingly fail to do so.
Salazar contends that his Florida conviction does not qualify as a sex offense requiring registration under SORNA and that, even if it did qualify, it would be a Tier I offense and Salazar's obligation to register as a sex offender would have expired by the time of his offense conduct. In evaluating Salazar's claims, the Court must therefore engage in a two-step inquiry. First, the Court must determine whether the offense of conviction is one that requires registration under the Act. See 34 U.S.C. §§ 20911(1), (5), (7). And if the offense requires registration, the Court must consider how long Salazar's registration requirement lasted. 34 U.S.C. § 20915(a).
On February 8, 1989, Salazar was convicted of Handling and Fondling a Child Under the Age of Sixteen Years in violation of Florida Statutes § 800.04(1). Def. Mot. Ex. A, at 1-2. The version of Florida Statutes § 800.04(1) operative in 1989 provided in relevant part that: "Any person who shall: (1) Handle, fondle or make an assault upon any child under the age of 16 years in a lewd, lascivious or indecent manner . . . without committing the crime of sexual battery shall be guilty of a felony of the second degree . . ." Def. Mot. Ex. B, at 5-6.
Salazar contends the application of SORNA must be subject to the "categorical approach," where the offense of conviction is compared to a generic federal offense. Salazar argues that, under the categorical approach, Florida Statutes § 800.04(1) is overbroad and so does not qualify as an offense requiring registration under SORNA.
The determination of whether someone is a "sex offender" who is required to register under SORNA is controlled by a series of statutory definitions in 34 U.S.C. § 20911. As previously noted, a "sex offender" is "an individual who was convicted of a sex offense." 34...
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