Rafael Gonzalez v. United States ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL MUNOZ GONZALEZ, AKA "C", No. 20-71710
AKA Cisco, AKA Ralph Gonzalez-Munoz,
AKA Homeboy, AKA Big Homie,
Applicant, MEMORANDUM*
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
Before: CALLAHAN and FORREST, Circuit Judges, and SEEBORG,** District
Judge.
Applicant Rafael Muñoz Gonzalez (Muñoz) seeks leave to file a second or
successive motion for habeas relief under 28 U.S.C. § 2255. He argues that his
conviction for possession of a firearm in furtherance of a crime of violence or drug
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard Seeborg, Chief United States District Judge
for the Northern District of California, sitting by designation.
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 We
have jurisdiction under 28 U.S.C. § 2255, and we grant Muñoz’s request for leave
to file a second or successive § 2255 habeas motion.
In our concurrently filed opinion in Cesar Muñoz Gonzalez v. United States,
__F.4th__ (9th Cir. 2022), we adopted a pragmatic approach for determining
whether a new rule of constitutional law was “previously unavailable” within the
meaning of § 2255(h)(2) that focuses on systemic barriers, including timing and
accessible procedural means for presenting a claim. Applying this approach here, we
conclude that an argument based on the new rule announced in Davis was not
available to Muñoz while his first habeas motion was still pending. The district court
rejected Muñoz's initial habeas motion four and a half months after the Supreme
Court issued Davis. Well over the majority of that time, Muñoz’s was held in the
Special Housing Unit (SHU). While in the SHU, Muñoz’s access to the law library
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).
2
and legal documents was extremely limited; only one person is allowed in the SHU
law library at a time and there are approximately 200 prisoners in the SHU. It takes
up to three weeks for a prisoner to get access to the law library and visits are limited
to two hours. And unlike in Muñoz Gonzalez, there is no indication that Muñoz knew
about Davis during the short window of time before his initial habeas proceeding
was denied. Given these restraints, the real-world circumstances that Muñoz faced
rendered his Davis claim previously unavailable to him.
The request for leave to file a second or successive habeas motion is
GRANTED.
3