Opinion
A-22-CV-697-RP-DH A-16-CR-78-RP
02-07-2023
JAMES CASTRO RUIZ, Plaintiff v. UNITED STATES OF AMERICA, Defendant
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, MAGISTRATE JUDGE
Before the Court is James Castro Ruiz's Motion to Vacate, Set Aside, or Correct Sentence, Dkt. 83. The undersigned submits this Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules.
I. BACKGROUND
On or about February 9, 2016, Ruiz called for a taxicab in Round Rock, Texas. Dkts. 36 and 43, at ¶ 5. The cab driver had picked up Ruiz from this residence on numerous previous occasions. Id. During the cab ride, Ruiz pulled out a stolen Glock, .40 caliber pistol and pointed it at the driver telling him to drive to various points. Id., at ¶ 6. At some point Ruiz threw a short-barreled shotgun out the window on Interstate Highway-35. Id. The cab driver was running out of gas and Ruiz directed him to pull into a gas station. Id., at ¶ 7. After being unable to use a debit card, Ruiz went inside to pay, and the cab driver took off. Id. The convenience store surveillance video showed Ruiz go into the bathroom. Id. Later, a convenience store clerk found the Glock in the restroom. Id. A review of Ruiz's phone had pictures and internet searches of the Glock. Officers also recovered the short-barreled shotgun from the side of the road where Ruiz threw it. Id. On April 5, 2016, Ruiz was charged in a four-count Indictment with:
Count One: Carjacking, in violation of 18 U.S.C. § 2119
Count Two: Possession of a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c)
Count Three: Possession of a Firearm by a Felon, in violation of 18 U.S.C. § 922(g)
Count Four: Possession of a National Firearms Registration Act Firearm, in violation of 26 U.S.C. § 5861(d)Dkt. No. 1; Dkt. 36, at ¶ 1.
On October 24, 2016, Ruiz pleaded guilty without a plea agreement to Count Two of the Indictment before a United States Magistrate Judge with the Government agreeing to dismiss the remaining counts. Dkt. 56; Dkt. 36, at ¶ 2. On October 26, 2017, the Court accepted Ruiz's guilty plea. Dkt. 35; Dkt. 36, at ¶ 3. Ruiz's plea was beneficial to him in the context of the charging scheme that removed a punishment for the carjacking followed by a mandatory consecutive sentence for the use of the firearm in connection with the carjacking.
The Probation Office determined the guideline sentence for 18 U.S.C. § 924(c) was the minimum term of imprisonment required by statute, which in Ruiz's case is 120 months. U.S.S.G. § 2K2.4(b); Dkt. 36, at ¶ 15. On December 21, 2016, Ruiz was sentenced to a 120-month term of imprisonment, followed by a five-year term of supervised release. Dkt. 57, at 9:22-24; Dkt. 44. Ruiz did not file a direct appeal.
On December 18, 2017, Ruiz filed his first motion under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Dkt. 53. The Government responded to the motion and the Court appointed counsel and set an evidentiary hearing. Dkts. 59 and 67. On November 8, 2018, Ruiz filed a motion to dismiss and withdraw his § 2255 motion. Dkt. 72. On the same date, the Court granted Ruiz's motion to dismiss. Dkt. 73. On July 6, 2022, Ruiz filed the instant motion. Dkt. 83.
II. STANDARD OF REVIEW
Under § 2255, four general grounds exist upon which a defendant may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the District Court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under § 2255 is extremely limited: “A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude ... and may not raise an issue for the first time on collateral review without showing both ‘cause' for his procedural default, and ‘actual prejudice' resulting from the error.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, “result in a complete miscarriage of justice.” United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).
Generally, a § 2255 motion must be filed within one year of the latest of four events, two of which are the date the judgment becomes final, see 28 U.S.C. § 2255(f)(1), and “the date on which the right asserted was initially recognized by the Supreme Court,” if that right applies retroactively, see 28 U.S.C. § 2255(f)(3).
III. ANALYSIS
Ruiz asserts four bases of relief in his petition. In Ground One, he relies on United States v. Taylor, 142 S.Ct. 2015 (June 21, 2022), arguing that an underlying “crime of violence” should not have applied as a factor in his case, as it was declared unconstitutionally vague when used in conjunction with § 924(c). In Ground Two, he cites United States v. Tucker, 47 F. 4th 258 (5th Cir. 2022), for the proposition that because his sanity was an issue in his case, he should receive relief in conjunction with § 922(g). For Ground Three, Ruiz relies on United States v. Borden, 141 S.Ct. 1817 (2021), for the proposition that his underlying carjacking act is constitutionally insufficient to establish a crime of violence pursuant to § 924(c). And, in Ground Four, he relies on United States v. Davis, 139 S.Ct. 2319 (2019), where the Supreme Court determined that § 924(c)(3)(B), defining a crime of violence was unconstitutionally vague, to argue that his underlying crime- carjacking- is not a crime of violence.
A. Grounds One and Four
Ruiz raises claims based on the Supreme Court's decisions in United States v. Taylor, 142 S.Ct. 2015 (2022), and United States v. Davis, 139 S.Ct. 2319 (2019).
First, Ruiz's Davis claim should be dismissed as time barred. A § 2255 motion raising a Davis claim that is filed within a year of the date the judgment became final would be timely. A § 2255 motion raising a Davis claim that is filed more than a year after the judgment became final also would be timely under § 2255(f)(3) if it is filed on or before June 24, 2020, the one-year anniversary of the Davis decision. Ruiz did not file his motion within a year of the Davis decision. Because Ruiz failed to file his motion within a year of either the date his conviction became final or the date the Supreme Court decided Davis, his Davis claim is time-barred and should be dismissed.
As to Ruiz's claims pursuant to Taylor, the Government concedes that Taylor applies retroactively on collateral review. Taylor precludes an enhanced punishment for a certain class of offenders: a defendant whose prior conviction was for an attempted-robbery offense that no longer qualifies as a “violent felony” now subject to a 10-year maximum sentence under 18 U.S.C. § 924(a)(2), not a 15-year minimum sentence under the Armed Career Criminal Act. See Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (explaining that substantive rules include those establishing that a class of defendants “faces a punishment that the law cannot impose upon [them]”). Ruiz asserts that he belongs in this class and that his conviction and sentence under 18 U.S.C. § 924(c) is not a crime of violence and thus no longer constitutionally valid in light of the Supreme Court's decision in Taylor.
In Taylor, the Supreme Court held that under § 924(c), a federal felony qualifies as a “crime of violence” if it meets either of two definitions: (A) the offense “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the elements clause); or (B) the offense “by its nature[] involves a substantial risk that physical force ... may be used” (the residual clause). 142 S.Ct. at 2019.
In Taylor, the Supreme Court struck down § 924(c)(3)(B), or the residual clause, for being “unconstitutionally vague.” 139 S.Ct. at 2336. Nevertheless, an offense may still be a crime of violence if it meets the definition contained within the “elements clause,” § 924(c)(3)(A). See Taylor, 142 S.Ct. 2015; United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017); In re Fields, 831 Fed.Appx. 710, 711 (5th Cir. 2020).
Here, Ruiz pleaded guilty to the offense charged in Count 2 of the Indictment, namely, Possession of Firearm in Furtherance of a Crime of Violence. Further, the charge to which he pleaded explicitly contained the predicate offense “carjacking,” in violation of 18 U.S.C. §§ 924(c) & 2119.
The Fifth Circuit has held that carjacking is a crime of violence under § 924(c)(3)(A) because “it ‘has as an element the use, attempted use, or threatened use of physical force.'” See United States v. Cash, No. 4:16-CR-25(4), 2022 WL 2760227 (E.D. Tex. July 13, 2022) (citing In re Fields, 831 Fed.Appx. at 711). Therefore, the Supreme Court's holdings in either Taylor or Davis have no effect on Ruiz's convictions, as they were based on a “crime of violence” as defined by the “elements clause” of § 924(c)(3)(A). Ruiz's Grounds One and Four are without merit.
B. Ground Two
In Ground Two, Ruiz seems to assert that his case is similar to United States v. Tucker, 47 F.4th 258 (5th Cir. 2022), due to his mental health conditions. He appears to preemptively argue that should this charge be reinstated, there is no predicate for the charge per 18 U.S.C. § 922(g), Possession of a Firearm by a Felon offense. Ruiz's Tucker argument is based on a Fifth Circuit decision, does not apply in Ruiz's case, and is not cognizable pursuant to § 2255.
Section 2255(f)(3) provides that when the Supreme Court “decides a case recognizing a new right, a federal prisoner seeking to assert that right will have one year from [the Supreme Court's] decision within which to file his § 2255 motion.” See Dodd v. United States, 545 U.S. 353, 358-59 (2005). To the extent Ruiz relies upon Tucker as an opinion setting forth a newly recognized right, this decision is from the Fifth Circuit Court of Appeals, not the United States Supreme Court. Section 2255(f)(3) applies only to claims relying on a rule or right “newly recognized by the Supreme Court.” Section 2255(f)(3) does not apply here and does not extend the time to file a petition. See Teel v. United States, No. 2:17-CV-85-Z, 2020 WL 5458676, at *8 (N.D. Tex. Apr. 24, 2020), report and recommendation adopted, No. 2:17-CV-85-Z, 2020 WL 2730851 (N.D. Tex. May 26, 2020).
Moreover, Tucker involved how prior adjudication as a “mental defective” is determined to support prosecution pursuant to 18 U.S.C. § 922(g)(4). 47 F.4th 258, 259-60 (5th Cir. 2022). Ruiz's prosecution initially alleged a violation of 18 U.S.C. § 922(g)(3), which is Felon in Possession of a Firearm, a different offense. Tucker is inapplicable to Ruiz's case.
Further, Ruiz's claim is procedurally defaulted because it could have been addressed on direct appeal but was not. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a § 2255 proceeding unless the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 158 (1979). “After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally ‘entitled to presume that the defendant stands fairly and finally convicted.'” Ramirez-Jimenez v. United States, 212 F.Supp.3d 684, 689 (W.D. Tex. 2015) (quoting United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001)). Ruiz's mental issues were well documented in his presentence report and addressed by the Court at his guilty plea and sentencing. Ruiz could have addressed any issues regarding his understanding of the proceedings and competency on appeal and did not. This claim fails.
C. Ground Three
Lastly, Ruiz alleges he is entitled to relief pursuant to United State v. Borden, 141 S.Ct. 1817 (2021). In Borden, the Supreme Court held that an offense that may be committed recklessly lacks the mens rea element sufficient to satisfy the definition of a “violent felony” under the elements clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(i). 141 S.Ct. at 1825. Ruiz appears to allege that the carjacking crime listed as predicate to his § 924(c) possesses the mens rea of “recklessness,” and therefore does not qualify as an intentional violent act, and thus Borden invalidates his sentence. Ruiz further claims that by having only the § 924(c) conviction supported by the underlying offense of carjacking, it can no longer serve as a predicate as the other counts were dismissed.
First, Ruiz's claim as to Borden is time barred and should be dismissed on that basis. Ruiz did not file his motion within a year of the Borden decision. Ruiz had until June 10, 2022, to timely file his Borden claim. However, Ruiz did not execute his motion until June 30, 2022. Ruiz has failed to file his motion within a year of either the date his conviction became final or the date the Supreme Court decided Borden.
Additionally, Ruiz's claim fails because “carjacking,” the basis of his conviction is an intentional act and cannot by committed by mere recklessness. Also, regarding Ruiz's assertion that by having only the § 924(c) conviction supported by the underlying offense of carjacking, it no longer holds as a predicate as all other counts were dismissed, the Fifth Circuit has held that a defendant does not need to be convicted of the underlying offense to be convicted of § 924(c). “[I]t is only the fact of the offense, and not a conviction, that is needed to establish the required predicate.” United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir. 1990). This claim is also without merit and should be denied.
IV. RECOMMENDATION
In accordance with the foregoing discussion, the undersigned RECOMMENDS that the District Court DENY James Castro Ruiz's Motion to Vacate, Set Aside, or Correct Sentence, Dkt. 83. The referral in this case is CANCELED.
V. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a proceeding under § 2255 “[u]nless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c) (1)(B). Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, effective as amended to February 1, 2010, the District Court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
A certificate of appealability (“COA”) may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595 (2000). In cases where a district court rejected a movant's constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the denial of the movant's § 2255 motion on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Accordingly, a certificate of appealability should not be issued.
VI. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).