(HC) Gonzalez v. Ciolli ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID TRINIDAD GONZALEZ, No. 1:20-cv-00724-DAD-SKO (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, IN PART, AND 14 WARDEN CIOLLI, DENYING MOTION TO STAY AS MOOT 15 Respondent. (Doc. Nos. 10, 12) 16 17 Petitioner David Trinidad Gonzalez is a federal prisoner proceeding pro se and in forma 18 pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 In his pending petition, petitioner asserts that according to the Ninth Circuit’s recent 22 decision in Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), he may bring his claim of actual 23 innocence in challenging his sentence—a statutory mandatory minimum sentence of life 24 imprisonment—by way of this § 2241 action. (Doc. No. 1 at 7, 12.) On August 19, 2020, 25 respondent filed a motion to stay this case pending the Ninth Circuit’s resolution of Allen because 26 the dissenting judge on the panel that decided Allen had voted to grant the respondent-appellee’s 27 petition for rehearing en banc, and the Ninth Circuit had not yet decided whether it would rehear 28 the case. (Doc. No. 10 at 3–4.) 1 On September 2, 2020, the assigned magistrate judge issued findings and 2 recommendations recommending that respondent’s motion to stay be denied as moot because 3 such a stay is unnecessary in light of the magistrate judge’s determination that petitioner’s § 2241 4 petition should be summarily dismissed for lack of jurisdiction. (Doc. No. 12 at 6–7.) 5 Specifically, the magistrate judge found that petitioner’s claims do not meet the demanding actual 6 innocence exception to qualify for escape hatch jurisdiction under 28 U.S.C. § 2255(e) because he 7 “was sentenced in 2006 after the Supreme Court rendered the Sentencing Guidelines advisory in 8 United States v. Booker, 543 US. 220, 245 (2005),” and “[a]ny error in calculating the advisory 9 Guideline range could not alter the sentence for which he is statutorily eligible.” (Id. at 5–7.) 10 Accordingly, the magistrate judge recommended that respondent’s motion to stay be denied as 11 moot and that petitioner’s § 2241 petition be summarily dismissed due to lack of jurisdiction. (Id. 12 at 7.) Those pending findings and recommendations were served on all parties and contained 13 notice that any objections thereto were to be filed within thirty (30) days after service. (Id. at 7– 14 8.) On September 24, 2020, petitioner timely filed objections to the pending findings and 15 recommendations. (Doc. No. 13.) To date, respondent has not filed any objections, and the time 16 in which to do so has now passed. 17 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 18 de novo review of this case. Having carefully reviewed the entire file, including petitioner’s 19 objections, the undersigned adopts the pending findings and recommendations, in part. 20 As to respondent’s motion to stay this case pending the Ninth Circuit’s resolution of 21 Allen, the undersigned notes that on September 22, 2020, after the pending findings and 22 recommendations were issued, the Ninth Circuit denied the petition for rehearing en banc in 23 Allen. See Allen v. Ives, 976 F.3d 863 (9th Cir. 2020). In doing so, the judges making up the 24 majority in that case provided clarification in a detailed opinion concurring in the denial of the 25 petition for rehearing en banc “to respond to [their] colleague and to explain why [they] believe 26 [they] reached the correct decision.” Id. at 864. Thus, because the Ninth Circuit’s resolution of 27 Allen is no longer pending, respondent’s motion to stay this case due to the pendency of the Allen 28 case has been rendered moot. On this basis alone, the undersigned will adopt the magistrate 1 judge’s ultimate recommendation that the pending motion to stay be denied. 2 Nonetheless, as to the magistrate judge’s finding that petitioner’s claims do not meet the 3 demanding actual innocence exception in order to qualify for the escape hatch jurisdiction 4 provided for under 28 U.S.C. § 2255(e), the undersigned declines to adopt the recommendation 5 that petitioner’s § 2241 petition be summarily dismissed due to lack of jurisdiction. This is 6 because the magistrate judge did not have the benefit of the Ninth Circuit’s clarification provided 7 in the opinion concurring in the denial of the petition for rehearing en banc in Allen at the time 8 the findings and recommendations were issued. 9 In particular, in an effort to assuage concerns that its “decision opened the proverbial 10 floodgates,” the Ninth Circuit clarified in Allen that 11 [f]or other petitioners to be similarly situated to Allen and to be actually innocent of a mandatory sentence, they will have to show: 12 (1) they were convicted of prior offenses, at least one of which was mistakenly deemed to qualify as a predicate offense; (2) the mistake 13 was later addressed by the Supreme Court in a retroactive decision clarifying the applicable law; (3) they received a mandatory 14 sentence under a mandatory sentencing scheme; and (4) all of this came to light after the opportunity to raise it in a § 2255 motion had 15 passed. 16 Allen, 976 F.3d at 869 (emphasis added). Although it is true that the petitioner in Allen was 17 sentenced under the then-mandatory sentencing guidelines, the Ninth Circuit did not limit claims 18 brought under § 2241 of actual innocence of a sentence to petitioners who were sentenced 19 pursuant to then mandatory sentencing guidelines. Rather, the Ninth Circuit clarified that 20 petitioners would have to show that “they received a mandatory sentence under a mandatory 21 sentencing scheme.” Id. 22 In this action, petitioner contends that in light of recent decisions by the Supreme Court 23 and the Ninth Circuit—Descamps v. United States, 570 U.S. 254 (2013); Mathis v. United States, 24 —– U.S. —–, 136 S. Ct. 2243 (2016); and Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) reh’g en 25 banc denied, 976 F.3d 863—which apply retroactively, he has stated a cognizable claim under § 26 2241 for actual innocence with respect to his statutory mandatory minimum sentence of life 27 imprisonment because his two prior convictions do not qualify as “felony drug offenses.” (Doc. 28 1 No. 1 at 23.) In other words, petitioner argues that he is actually innocent of the mandatory life 2 sentence enhancement proscribed by statute—namely, 21 U.S.C. §§ 841, 851. (Id. at 10, 13, 21.) 3 At the time of petitioner’s trial, conviction, and sentencing, § 841(b)(1)(A)(ii)(II) provided 4 in relevant part that: 5 any person who violates [§ 841(a)] shall be sentenced . . . [i]n the case of a violation . . . involving . . . 5 kilograms or more of a 6 mixture or substance containing a detectable amount of . . . cocaine, . . . such person shall be sentenced to a term of imprisonment which 7 may not be less than 10 years or more than life . . .. If any person commits [such] a violation . . . after two or more prior convictions 8 for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release 9 . . .. 10 21 U.S.C. § 841 (effective Nov. 2, 2002 to Mar. 8, 2006). 11 As noted in the pending findings and recommendations, on September 5, 2000, petitioner 12 was indicted in the United States District Court for the Northern District of Ohio for drug 13 trafficking offenses along with 35 co-defendants. (Doc. No. 12 at 2) (citing United States v. 14 Gonzalez, No. 3:00-cr-00756-JZ, Indictment, Doc. No. 1 (N.D. Ohio, Sep. 5, 2000)). On April 15 25, 2005, petitioner was convicted by a jury on one count of conspiracy to possess and distribute 16 cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846, and on one count of 17 possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). (Doc. No. 12 at 18 2.) The jury also found petitioner responsible for at least five kilograms of cocaine in connection 19 was his conviction. (Id.) On January 11, 2006, petitioner was sentenced to life imprisonment. 20 (Id.; see also United States v. Gonzalez, No. 3:00-cr-00756-JZ, Judgment, Doc. No. 1435 at 2 21 (N.D. Ohio, Jan. 12, 2006) (sentencing petitioner “to the custody of the United States Bureau of 22 Prisons to be imprisoned for a total term of life on both counts to run concurrently”)). 23 Specifically, petitioner “was sentenced to a statutory mandatory term of life imprisonment 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 pursuant to 21 U.S.C. § 841(b).” United States v. Gonzalez, 257 F. App’x 932, 933 (6th Cir. 2 2007).1 3 As petitioner emphasizes in his objections to the pending findings and recommendations, he was 4 sentenced under a mandatory sentencing scheme proscribed by statute, not pursuant to the 5 sentencing guidelines. (Doc. No. 13 at 3–5.) Indeed, petitioner’s claim is not based on any 6 purported error or mistake in calculating or applying the sentencing guidelines. The fact that 7 petitioner was sentenced post-Booker when the sentencing guidelines were advisory is irrelevant 8 to the determination of whether petitioner can satisfy the demanding actual innocence exception 9 to qualify for the escape hatch jurisdiction under 28 U.S.C. § 2255(e). Petitioner was sentenced 10 to the statutory mandatory sentence of life imprisonment pursuant to 21 U.S.C. §§ 841, 851 – a 11 mandatory sentence under a mandatory sentencing scheme as described by the Ninth Circuit in 12 Allen. Accordingly, the undersigned declines to adopt the magistrate judge’s recommendation 13 that this case be summarily dismissed due to lack of jurisdiction. 14 The court pauses to note, however, that it does not mean to suggest that the pending 15 petition is impervious to attack on other bases, such as failure to state a cognizable claim for 16 federal habeas relief, or that his claims may ultimately be found meritorious. Rather, in the 17 undersigned’s view, in light of the Ninth Circuit’s clarification of the decision in Allen, summary 18 1 As the Sixth Circuit summarized in its order affirming petitioner’s conviction and sentence on direct appeal: 19 Prior to sentencing, the presentence investigative report (“PSR”) 20 listed a base offense level of 38 for Gonzalez based on his involvement with more than 150 kilograms of cocaine. The PSR 21 then recommended a four-point increase pursuant to U.S.S.G. § 3B1.1(a) because Gonzalez was alleged to have been a leader in 22 the drug conspiracy. Gonzalez’s criminal history computation resulted in a score of 20, due in part to two drug-related felony 23 convictions, entered in 1992 and 1993. Based on Gonzalez’s offense level and criminal history, the Guidelines range was 24 calculated to be 360 months to life. The PSR recommended, however, that because Gonzalez had two prior felony convictions, 25 he was subject to a mandatory term of life imprisonment, pursuant to U.S.S.G. § 5G1.1(b) and 21 U.S.C. § 841(b). Gonzalez opposed 26 the § 841(b) enhancement, but the district court overruled his objection and found that Gonzalez was eligible for the mandatory 27 life sentence. 28 United States v. Gonzalez, 257 F. App’x 932, 935–36 (6th Cir. 2007). 1 | dismissal of the petition is not appropriate because it does not plainly appear from that petition 2 | that petitioner is not entitled to relief. 3 Accordingly: 4 1. The pending findings and recommendations issued on September 2, 2020 (Doc. 5 No. 12), are adopted in part, as follows: 6 a. Respondent’s motion to stay this case (Doc. No. 10) is denied as moot; 7 b. The court declines to summarily dismiss this action; and 8 2. The matter is referred back to the assigned magistrate for proceedings consistent 9 with this order. 10 | IT IS SO ORDERED. a Dated: _ March 16, 2021 J al, Al ~ i 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28