Cesar Gonzalez v. United States ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR MUÑOZ GONZALEZ, AKA No. 20-71709
Blanco, AKA Cesar Gonzales, AKA
Ricardo Martines, AKA Ricardo O.
Martinez, AKA Ricardo Martinez-
Osorio, AKA Osorio Ricardo OPINION
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive Petition
Under 28 U.S.C. § 2255Argued and Submitted June 11, 2021
Pasadena, California
Filed March 17, 2022
Before: Consuelo M. Callahan and Danielle J. Forrest,
Circuit Judges, and Richard Seeborg, * District Judge.
Opinion by Judge Forrest
*
The Honorable Richard Seeborg, Chief United States District
Judge for the Northern District of California, sitting by designation.
2 MUÑOZ GONZALEZ V. UNITED STATES
SUMMARY **
Second or Successive 28 U.S.C. § 2255 Authorization
The panel denied Cesar Muñoz Gonzalez’s application
to file a second or successive 28 U.S.C. § 2255 motion
asserting that his conviction for possession of a firearm in
furtherance of a crime of violence or drug trafficking offense
under 18 U.S.C. § 924(c) is invalid because his predicate
crime—racketeering—is no longer a categorical “crime of
violence” under a new rule of constitutional law announced
in United States v. Davis, 139 S. Ct. 2319 (2019).
For purposes of this application, the only issue was
whether Muñoz showed that his new Davis argument was
“previously unavailable,” as required by 28 U.S.C.
§ 2255(h)(2) for authorization of a second or successive
§ 2255 motion.
Based on the weight of authority, including the Supreme
Court’s interpretation of similar language in the Prison
Litigation Reform Act, the panel adopted a pragmatic
approach to determining whether a claim based on a new
constitutional rule was “previously unavailable.” Under this
approach, the prisoner must show that the real-world
circumstances that he faced prevented him, as a practical
matter, from asserting his claim based on a new rule of law
in his initial habeas proceeding. The panel recognized that
pro se prisoners face unique difficulties when litigating
habeas relief or anything else, and that language barriers, as
Muñoz cited in his case, add to those difficulties. The panel
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MUÑOZ GONZALEZ V. UNITED STATES 3
wrote that there is, however, nothing in the text or context of
AEDPA's previously-unavailable-claim requirement
suggesting that this limited exception to the otherwise broad
prohibition against filing second or successive habeas
proceedings was intended to be applied subjectively.
Applying this pragmatic approach that focuses on
external barriers, the panel concluded that Muñoz cannot
show that his new Davis argument was unavailable during
his initial habeas proceedings, where the Supreme Court
issued its decision in Davis shortly before Muñoz filed his
reply brief in support of his initial habeas motion and a few
months before that motion was decided; Muñoz had the facts
that he needed for his claim; no systemic or external barrier
prevented him from presenting his claim in his initial habeas
proceeding; and Muñoz was clearly aware of Davis because
he cited it in his reply brief in his initial habeas proceeding.
COUNSEL
Brianna Mircheff (argued) and Deborah E. Gonzalez,
Deputy Federal Public Defenders; Cuauhtemoc Ortega,
Federal Public Defender; Federal Public Defenders Office,
Los Angeles, California; for Applicant.
Bram M. Alden (argued), Assistant United States Attorney,
Acting Chief, Criminal Appeals Section; Brandon D. Fox,
Assistant United States Attorney, Chief, Criminal Division;
Nicola T. Hanna, United States Attorney; Office of the
United States Attorney, Los Angeles, California; for
Respondent.
4 MUÑOZ GONZALEZ V. UNITED STATES
OPINION
FORREST, Circuit Judge:
Applicant Cesar Muñoz Gonzalez (Muñoz) seeks leave
to file a second or successive motion for habeas relief under
28 U.S.C. § 2255. Muñoz asserts that his conviction for
possession of a firearm in furtherance of a crime of violence
or drug trafficking offense under 18 U.S.C. § 924(c) is
invalid because his predicate crime—racketeering—is no
longer a categorical “crime of violence” under a new rule of
constitutional law announced in United States v. Davis, 139
S. Ct. 2319 (2019). 1 Whether Muñoz is entitled to file a
second or successive motion depends on whether his Davis
argument was “previously unavailable” to him. 28 U.S.C.
§ 2255(h)(2). Adopting a pragmatic approach, we conclude
that this argument was available to Muñoz when his first
habeas motion was still pending, and we deny him leave to
file a second or successive motion.
I. BACKGROUND
Muñoz was convicted and sentenced for racketeering,
drug trafficking conspiracy, and related offenses. Of
particular importance here is his conviction for possession of
a firearm in furtherance of a crime of violence or drug
trafficking under 18 U.S.C. § 924(c). United States v.
1
The verdict form did not require the jury to specify which
conviction—racketeering or Muñoz’s two drug offenses—served as the
predicate offense for his § 924(c) conviction. The government concedes
that, despite the uncertainty about which offense was the predicate for
his § 924(c) conviction, Muñoz can establish that Davis at least advances
his claim. See Henry v. Spearman, 899 F.3d 703, 706 (9th Cir. 2018)
(petitioner need only show “possible merit to warrant a fuller exploration
by the district court”) (citation omitted).
MUÑOZ GONZALEZ V. UNITED STATES 5
Torres, 869 F.3d 1089, 1092–94 (9th Cir. 2017); Muñoz
received a mandatory sentence of five years on this
conviction, to run consecutively to the sentences imposed on
his other convictions.
After an unsuccessful direct appeal 2, Muñoz filed a pro
se § 2255 motion challenging his convictions. He raised five
separate claims, none of which challenged his § 924(c)
conviction. Three months after Muñoz filed his § 2255
motion, the Supreme Court decided Davis. 139 S. Ct. 2319.
Ten days later, Muñoz filed his reply in support of his
motion. At the suggestion of “another [inmate] in the law
library,” Muñoz argued in reply that the definition of “felony
drug offense” was unconstitutionally vague based on the
“very recent U.S. v. Davis.” Muñoz did not understand his
Davis argument but included it “in case” it might help him.
He did not make a Davis argument related to his § 924(c)
conviction.
The district court denied Muñoz’s § 2255 motion three
months later, and Muñoz filed a notice of appeal. After the
district court denied a certificate of appealability (COA) on
limited remand, this court also denied a COA.
Eight months after the district court denied Muñoz’s first
§ 2255 motion, he filed the subject motion, seeking leave
from this court to file a second § 2255 motion in the district
court to assert a new argument based on Davis that his
§ 924(c) conviction was invalid because his predicate
racketeering conviction is no longer a categorical crime of
violence. Muñoz contends that his § 924(c) conviction
2
Torres, 869 F.3d at 1092; United States v. Torres, 711 F. App’x
829 (9th Cir. 2017), cert. denied sub nom. Muñoz Gonzelez v. United
States, 138 S. Ct. 1601 (2018).
6 MUÑOZ GONZALEZ V. UNITED STATES
should be vacated and that he should be resentenced without
the mandatory five-year consecutive sentence imposed for
this conviction.
II. DISCUSSION
The court of appeals must grant leave for a federal
prisoner to file a “second or successive” § 2255 motion in
district court. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h);
United States v. Buenrostro, 638 F.3d 720, 723 (9th Cir.
2011) (per curiam). Where the prisoner’s proposed claim is
based on a new constitutional rule, leave is given only if the
prisoner makes a prima facie showing that the new rule was
“made retroactive to cases on collateral review by the
Supreme Court” and was “previously unavailable.”
28 U.S.C. § 2255(h)(2) (emphasis added); Tate v. United
States, 982 F.3d 1226, 1227 (9th Cir. 2020) (per curiam). For
purposes of this application, the government does not
dispute that Davis announced a new constitutional rule that
applies retroactively. Thus, the only issue is whether Muñoz
has shown that his new Davis argument related to his
§ 924(c) conviction was “unavailable” during his first
habeas proceeding.
A. The “Previously Unavailable” Requirement
Neither we nor the Supreme Court has interpreted
§ 2255(h)(2)’s “previously unavailable” requirement, nor
did Congress define this term. However, the Supreme Court
has interpreted what “available” means in the context of the
Prison Litigation Reform Act’s (PLRA) requirement that
prisoners exhaust the “administrative remedies as are
available” before filing a lawsuit to challenge a prison
condition. Ross v. Blake, 578 U.S. 632, 635 (2016). In that
context, the Supreme Court explained that “the ordinary
meaning of the word ‘available’ is ‘capable of use for the
MUÑOZ GONZALEZ V. UNITED STATES 7
accomplishment of a purpose,’ and that which ‘is accessible
or may be obtained.’” Id. at 642 (quoting Booth v. Churner,
532 U.S. 731, 737–38 (2001)). The Court further explained
that this is a pragmatic analysis: “courts in this and other
cases must apply [the availability standard] to the real-world
workings of prison grievance systems.” Id. at 643. For
example, when a prison’s administrative grievance system is
“so opaque that it becomes, practically speaking, incapable
of use” because “no ordinary prisoner can discern or
navigate it,” administrative remedies are not “available.” Id.
at 643–44. Likewise, the Court instructed that administrative
remedies are not available when a prisoner is “thwart[ed] . . .
from taking advantage of a grievance process through
machinations, misrepresentation, or intimidation.” Id. at
644.
Although Ross addressed a different statute, the Supreme
Court’s analysis is persuasive here. If the PLRA’s
availability-of-administrative-remedies standard is
measured against “the real-world” practicalities that
prisoners face, id. at 643, we see no reason why the
Antiterrorism and Effective Death Penalty Act of 1996’s
(AEDPA) previously-unavailable-claim standard, which
uses similar language, should not be interpreted to account
for whether a prisoner seeking to raise a claim based on a
new constitutional rule in a second or successive habeas
proceeding could have, as a practical matter, raised that
claim at an earlier time. See 28 U.S.C. § 2244(b)(2)(A).
Several of our sister circuits have adopted a pragmatic
approach when interpreting AEDPA’s “previously
unavailable” requirement. 3 For example, in In re Cathey, the
3
This same “previously unavailable” requirement also applies to
second or successive habeas petitions filed under § 2254. 28 U.S.C.
8 MUÑOZ GONZALEZ V. UNITED STATES
Fifth Circuit refused to adopt a “strict rule” that a claim
based on a new constitutional rule is available anytime the
Supreme Court announces the rule before the inmate’s initial
habeas proceeding is concluded. 857 F.3d 221, 229–30 (5th
Cir. 2017). Rather, that court recognized that there is “a gray
area of previous unavailability [of a new constitutional rule]
despite technical availability,” and it adopted a “rebuttable
presumption that a new rule of constitutional law was
previously available if published by the time a district court
ruled on a petitioner’s initial habeas petition,” which can be
overcome by presenting “cogent arguments that [the claim]
was previously unavailable” during the initial habeas
proceedings. Id. at 229–30 (internal quotation marks and
citation omitted).
Applying this pragmatic standard, the Fifth Circuit
concluded that Cathey sufficiently established that his
proposed claim was “previously unavailable” even though it
was based on a constitutional rule that was announced well
before his initial habeas proceedings were concluded—in
fact, before he even filed his initial habeas petition. Cathey
sought to bring a claim under Atkins v. Virginia, 536 U.S.
304 (2002), which held that imposing capital sentences
against intellectually disabled prisoners violates the Eighth
Amendment. In re Cathey, 857 F.3d at 223. Even though
Atkins had already been decided, throughout his initial
habeas proceedings, Cathey, who was represented by
counsel, believed that his IQ was “outside of the range that
§ 2244(b)(2)(A). Requests for habeas relief brought under § 2255 are
motions. 28 U.S.C. § 2255. Requests for habeas relief brought under
U.S.C. § 2254 are referred to as petitions or applications. But regardless
of whether the underlying collateral attack arises under § 2254 or § 2255,
a request for permission to file a second or successive habeas filing is
referred to as an application. We follow this nomenclature.
MUÑOZ GONZALEZ V. UNITED STATES 9
was then understood to satisfy the subaverage intellectual
functioning prong of an Atkins claim.” Id. at 230. Only after
the state disclosed evidence that his IQ was lower than he
had understood and that new science showed prior IQ tests
could be inflated did he realize that he had a valid Atkins
claim. Id. at 230–33. And those disclosures were both made
after Cathey’s first habeas petition was decided. Id. Under
these circumstances, the Fifth Circuit found that Cathey
made a sufficient showing that his Atkins claim was
“previously unavailable” to warrant allowing him to present
his second or successive petition to the district court. Id. at
233.
Similarly, in In re Hill, the Eleventh Circuit rejected a
“mechanistic test” for assessing whether a claim based on a
new rule of constitutional law was previously available. 113
F.3d 181, 183 (11th Cir. 1997) (per curiam). As an initial
matter, the Eleventh Circuit assessed the previously
unavailable requirement “with reference to the availability
of the claim at the time the first federal habeas application
was filed.” Id. at 182. But it also required an inmate to
“demonstrate the infeasibility of amending” his request for
habeas relief if it is still pending when a new rule that applies
retroactively is announced. Id. at 183. The court explained
that its “pragmatic approach . . . properly recognizes that the
liberal amendment policy applicable to habeas petitions may
make claims based upon new rules of constitutional law
‘available’ to the petitioner during a prior habeas action,
even when the claim would not have been available at the
inception of that prior action.” Id.In that case, Hill sought to bring a claim under Cage v.
Louisiana, 498 U.S. 39 (1990), and challenge his conviction
based on an improper jury instruction. In re Hill, 113 F.3d at
182. Cage was issued while Hill’s initial petition was still
10 MUÑOZ GONZALEZ V. UNITED STATES
pending. Id. at 183. After Hill filed his initial petition, the
district court permitted him to present additional filings, and
a year after Cage was decided Hill filed a supplemental brief
that addressed other issues. Id. Hill’s petition remained
pending for an additional two and a half years, and yet he
never asserted a claim based on Cage. Id. These facts were
central to the Eleventh Circuit’s denial of his request for
leave to file a second or successive habeas petition, and it
concluded “that the circumstances . . . conclusively refute
Hill’s contention that his Cage claim was ‘previously
unavailable’ within the meaning [of AEDPA].” Id. at 184.
The Eighth Circuit also applies a pragmatic approach to
determining unavailability. Davis v. Norris, 423 F.3d 868,
879 (8th Cir. 2005). In Davis, the prisoner sought to bring an
Atkins claim in a second or successive petition. Id. at 878.
Represented by counsel, the prisoner filed his first habeas
petition after Atkins was argued in the Supreme Court but
before a decision was issued. Id. at 879; see also, Davis v.
Norris, No. CV 01-05188-SOH, Dkt. No. 17 (W.D. Ark.
Apr. 1, 2002). The district court held an evidentiary hearing
on the habeas petition three months after Atkins was issued
and did not deny the petition until well over a year after that.
Id. The evidence that the prisoner relied on in making his
later-presented Atkins claims was also available to him
during the pendency of his initial habeas proceeding. See id.Under these circumstances, the Eighth Circuit held that “the
Atkins rule was not previously unavailable” because the
prisoner “could have raised [it] in the district court.” Id.Based on the weight of authority, including the Supreme
Court’s interpretation of similar language in the PLRA, we
likewise adopt a pragmatic approach to determining whether
a claim based on a new constitutional rule was “previously
unavailable,” as required by AEDPA when a prisoner seeks
MUÑOZ GONZALEZ V. UNITED STATES 11
to file a second or successive request for habeas relief based
on a new constitutional rule. 28 U.S.C. § 2244(b)(2)(A).
Under this approach, the prisoner seeking to file a second or
successive request for habeas relief must show that the real-
world circumstances that he faced prevented him, as a
practical matter, from asserting his claim based on a new rule
of law in his initial habeas proceeding. If he makes this
showing, leave to file a second or successive request for
habeas relief must be granted.
B. Muñoz’s Motion
We now turn to Muñoz’s newly asserted Davis
argument. As previously noted, the Supreme Court issued its
decision in Davis shortly before Muñoz filed his reply brief
in support of his initial habeas motion and a few months
before that motion was decided. Thus, purely as a matter of
timing, the Davis argument was available during Muñoz’s
initial habeas proceeding. And despite Muñoz’s suggestion
that the district court “seemed to deter” amendments or
additional filings in his initial proceeding, the record does
not establish that he would have been prohibited from
amending his initial habeas motion to assert a Davis
argument related to his § 924(c) conviction.
Nonetheless, Muñoz asserts that his new Davis argument
was previously unavailable to him because it is unreasonable
to expect a pro se prisoner with an eighth-grade education
and no experience filing habeas applications to learn about a
new rule of constitutional law and amend his habeas
application to add a new claim in such a short time. He also
lists other circumstances that added to his difficulty: his first
language is Spanish, he taught himself how to look up cases
on LexisNexis, and he did not have unlimited access to the
prison law library. He further claims he “doesn’t think [the
12 MUÑOZ GONZALEZ V. UNITED STATES
Davis decision] was available on the computer in the law
library until after [he] mailed in [his] reply.”
In describing his difficulties, Muñoz tries to minimize
that he in fact did raise an argument based on Davis in his
initial habeas proceeding. He contends that he did so only at
another prisoner’s suggestion and that he had not read Davis.
He further claims that he did not understand Davis or what
he had written about it in making his earlier argument.
Finally, he asserts that he could not have amended his initial
petition because he did “not know what it means to amend”
a habeas motion or that he could have done so.
We do not dispute that pro se prisoners face unique
difficulties when litigating requests for habeas relief, or
anything else for that matter. See, e.g., Woods v. Carey, 684
F.3d 934, 938 (9th Cir. 2012) (recognizing pro se prisoner
litigants face “unique handicaps of incarceration” (quoting
Rand v. Rowland, 154 F.3d 952, 958 (9th Cir. 1998) (en
banc))). Nor do we doubt that language barriers add to those
difficulties. But it is axiomatic that pro se litigants, whatever
their ability level, are subject to the same procedural
requirements as other litigants. United States v. Merrill, 746
F.2d 458, 465 (9th Cir.1984); cf. Roy v. Lampert, 465 F.3d
964, 970 (9th Cir. 2006).
The difficulties that Muñoz identifies in and of
themselves do not render a claim based on a new
constitutional rule unavailable. See Ross, 578 U.S. at 643
(reasoning that an administrative remedy is unavailable only
if it “is not capable of use to obtain relief”); cf. Bills v. Clark,
628 F.3d 1092, 1099–1100 (9th Cir. 2010) (holding that to
establish eligibility for equitable tolling in habeas
proceedings due to mental impairment, a prisoner must
show, among other things, that “his mental impairment was
an ‘extraordinary circumstance’ beyond his control”
MUÑOZ GONZALEZ V. UNITED STATES 13
(internal quotation marks and citation omitted)). Instead, his
difficulties largely mirrored the general challenges pro se
prisoners face when preparing legal filings; they did not
effectively create an external barrier to his ability to amend
his petition, especially given his awareness of the recent
Davis decision. Nor were his difficulties inherently related
to his claim being based on a new rule of law as opposed to
his pro se status. 4
The authorities discussed above focus on the real-world
circumstances impacting whether a legal claim or remedy
can be utilized or accessed by a prisoner. The circumstances
relevant to this inquiry relate to: (1) the timing of the change
in law, see In re Hill, 113 F.3d at 182; (2) whether the
prisoner had a factual basis for a claim based on the new law
and when the prisoner learned of that factual basis, see In re
Cathey, 857 F.3d at 230–33; cf. Hirabayashi v. United
States, 828 F.2d 591, 605 (9th Cir. 1987) (in corum nobis
context delay is justified when a petitioner discovered new
evidence that he could not reasonably have located earlier);
and (3) whether there is a procedural avenue for presenting
the new claim that is generally accessible, see, e.g., Ross,
578 U.S. at 642; cf. Lakawanna Cnty Dist. Atty v. Cross, 532
U.S. 394, 405 (2001) (characterizing in dicta that
§ 2244(d)(1)(B) tolls “[the] 1-year limitations period while
petitioner is prevented from filing application by an
impediment . . . created by State action”) (internal quotation
marks and citation omitted). This analysis typically focuses
4
In a similar context, we recently held that a prisoner is not denied
“an unobstructed procedural shot” to present a claim based on a decision
issued before the prisoner’s initial § 2255 motion was exhausted because
he filed his motion pro se. Pavulak v. Blanckensee, 14 F.4th 895, 897
(9th Cir. 2021) (per curium). As we explained, to conclude otherwise
would “effectively overrule our precedent that there is no right to counsel
in federal post-conviction proceedings.” Id.14 MUÑOZ GONZALEZ V. UNITED STATES
on external barriers. See Menominee Indian Tribe of Wis. v.
United States, 577 U.S. 250, 256–57 (2016) (holding that the
“extraordinary circumstances” element for equitable tolling
requires evidence of “an external obstacl[e],” which reflects
the “requirement that a litigant seeking tolling show that
some extraordinary circumstance stood in his way”)
(internal quotation marks and citation omitted); Smith v.
Davis, 953 F.3d 582, 588 (9th Cir. 2020) (recognizing that a
habeas petitioner seeking equitable tolling must establish
some extraordinary circumstance stood in the way of filing
his petition within the one-year limitations period); Grant v.
Swarthout, 862 F.3d 914, 924–26 (9th Cir. 2017) (finding
that prison officials’ delay in providing a prisoner with a
requested certificate required for an in forma pauperis
application caused the federal habeas petition’s
untimeliness); Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir.
2003) (holding that a petitioner’s attorney’s misconduct may
justify equitable tolling). This makes sense because, as the
Supreme Court has explained, “availability” relates to
whether something is “capable of use for the
accomplishment of a purpose” or “is accessible.” Ross, 578
U.S. at 642 (internal quotation marks and citation omitted).
Perhaps it can be argued that “availability” may be
analyzed either objectively (whether a claim is “capable of
use” by or “accessible” to an ordinary prisoner) or
subjectively (whether a particular prisoner can use or access
a claim given his unique characteristics and limitations). But
there is nothing in the text or context of AEDPA’s
previously-unavailable-claim requirement suggesting that
this limited exception to the otherwise broad prohibition
against filing second or successive habeas proceedings was
intended to be applied subjectively. Indeed, serious fairness
concerns would arise if a legal claim were deemed
“available” to one prisoner but not another based on personal
MUÑOZ GONZALEZ V. UNITED STATES 15
factors specific to the prisoner. And certainly were we to
conclude that a prisoner’s comprehension of the law or
experience with the legal system dictates whether a legal
claim is available to him, the previously-unavailable-claim
exception would be broadened far beyond its current
application and become an open invitation for litigation.
Here, Muñoz points to his personal characteristics in
arguing that his Davis argument was unavailable to him
during his initial habeas proceeding. Again, we do not doubt
that he faced difficulties in asserting his Davis argument. He
has limited education, English is not his first language, he
lacks legal experience, and he had a relatively short time—
approximately three months—to discover the new rule
established in Davis and amend his § 2255 motion. 5 But
these characteristics, and the relatively short time frame he
faced, are not the kinds of circumstances that render a claim
based on a new rule of law “previously unavailable.” The
new rule existed; Muñoz had the facts that he needed for his
claim; no systemic or external barrier prevented him from
presenting his claim in his initial habeas proceeding; and
Muñoz was clearly aware of Davis because he cited it in his
reply brief in his initial habeas proceeding.
Therefore, we conclude that Muñoz cannot show that his
new Davis argument was unavailable during his initial
habeas proceedings. Nothing relevant to our inquiry changed
5
Muñoz argues that his limited access to a law library prevented
him from amending his petition. But he does not allege that he was
prevented from visiting the law library or that there were prison
conditions, such as lockdowns or placement in a secure housing unit, that
prevented him from regular access. Indeed, Muñoz states in his
declaration that he could research cases on LexisNexis, and that during
the time he was writing his reply brief for his initial petition, he visited
the law library five times.
16 MUÑOZ GONZALEZ V. UNITED STATES
between when Muñoz asserted his first Davis argument in
his initial habeas proceeding and when he asserted his new
Davis argument in his request for leave to file a second or
successive habeas motion. The law and the factual basis on
which he relies in asserting his new claim was available to
him during his initial habeas proceeding. That he may not
have recognized the specific Davis argument that he now
seeks to raise until after his initial proceeding was concluded
is no different from any other prisoner who fails to raise a
habeas claim due to ignorance or lack of diligence, and it is
not a basis for granting leave to file a second or successive
habeas motion.
Muñoz’s request for leave to file a second or successive
§ 2255 habeas motion is DENIED.