Opinion
20-71724
03-17-2022
MICHAEL ANTHONY TORRES, AKA Mikey, Applicant, v. UNITED STATES OF AMERICA, Respondent.
NOT FOR PUBLICATION
Argued and Submitted June 11, 2021 Pasadena, California
Application to File Second or Successive Petition Under 28 U.S.C. § 2255
Before: CALLAHAN and FORREST, Circuit Judges, and SEEBORG, [**] District Judge.
MEMORANDUM [*]
Applicant Michael Anthony Torres 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 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). We have jurisdiction under 28 U.S.C. § 2255, and we grant Torres's request for leave to file a second or successive § 2255 habeas motion.
The verdict form did not require the jury to specify which conviction- racketeering or Torres'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, Torres 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).
In our concurrently filed opinion, 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 Torres while his first habeas motion was still pending. The district court rejected Torres's initial habeas motion less than two months after the Supreme Court issued Davis. Torres faced multiple institutional hurdles in accessing legal resources and preparing and filing legal documents and, unlike in Muñoz Gonzalez, there is no indication that Torres knew about Davis during the very short window of time before his initial habeas motion was denied. Given these restraints, we find that the real-world circumstances that Torres faced rendered his Davis claim previously unavailable to him.
The request for leave to file a second or successive habeas motion is GRANTED.
[*] 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.