Opinion
5:08-CR-00075-FL 5:19-CV-00466-FL
02-20-2024
Cruz Eduardo Valencia-Adata, Petitioner, Petitioner, v. United States of America, Respondent.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge.
Petitioner Cruz Eduardo Valencia-Adata, proceeding under 28 U.S.C. § 2255, seeks to vacate the 235-month sentence the district court imposed after he pleaded guilty to several charges including possession of a firearm by an illegal alien-a violation of 18 U.S.C. § 922(g)(5). D.E. 73, 87, 96.
In his current § 2255 motion, Valencia-Adata contends that his previous attorney, James Todd, withdrew his previous amended motion to vacate without his consent. D.E. 143, 146. The Government moved to dismiss Valencia-Adata's motion. D.E. 149. The undersigned held an evidentiary hearing in December 2023.
After reviewing the docket and the parties' arguments, the undersigned finds that Valencia-Adata is not entitled to relief. So the district court should deny Valencia-Adata's Motions to Vacate (D.E. 143, 146) and grant the Government's Motion to Dismiss (D.E. 149).
The district court referred this matter to the undersigned United States Magistrate Judge for the entry of a memorandum and recommendation under 28 U.S.C. § 636(b)(1).
I. Background
In March 2008, a federal grand jury indicted Valencia-Adata and, three months later, returned a superseding indictment. D.E. 15, 31. A second superseding indictment filed in October 2008 charged Valencia-Adata with three counts, including possession of a firearm by an illegal alien. D.E. 65. He pleaded guilty to the three charges in January 2009. D.E. 73. The court sentenced him four months later. D.E. 82, 77. He did not pursue an appeal.
In October 2019, Valencia-Adata filed a § 2255 motion alleging actual innocence of the firearm conviction under Rehaif v. United States, 139 S.Ct. 2191 (2019). D.E. 107. In that case, the Supreme Court held that to obtain a conviction under 18 U.S.C. 922(g)(5), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Id. at 2200.
The Government moved to dismiss that motion. D.E. 115. Finding that Rehaif provided no relief to Valencia-Adata, the undersigned recommended that the court grant the Government's motion and deny Valencia-Adata's request for relief under § 2255. Mem. & Rec., D.E. 122.
Before the presiding district judge addressed that recommendation, the court appointed the Federal Public Defender to represent Valencia-Adata in connection with his Rehaif claim. D.E. 125. His attorney, James Todd, requested that the court delay ruling on the recommendation, so that he could raise a new argument based on the Fourth Circuit's decision in Gary v. United States, 954 F.3d 194 (4th Cir. 2020). In Gary, the Court of Appeals held that a court's failure to inform a defendant of the knowledge element of his felon-in-possession charge was a structural error that required vacatur. Id. at 202-05. The court granted that request. D.E. 128.
Valencia-Adata eventually filed an amended motion to vacate and moved to voluntarily dismiss his original § 2255 motion. D.E. 131, 132. The court granted the motion to dismiss. D.E. 133.
In his amended motion, Valencia-Adata raised only one issue. Am. Mot. to Vacate ¶ 12, D.E. 131. Relying on Gary he argued that his guilty plea was not knowing and voluntary because the court failed to advise him of the element requiring his knowledge of his prohibited status before accepting his guilty plea. Id.
One year later, in June 2021, the Supreme Court reversed the Fourth Circuit's decision in Gary. Greer v. United States, 141 S.Ct. 2090 (2021). The Court rejected the Fourth Circuit's holding that a Rehaif error is structural. Id. at 2100. So the Government's failure to establish that a defendant “knew he was a felon when he possessed the firearm” does not require automatic vacatur of a sentence. Id. at 2095, 2100.
About a month after the Supreme Court decided Greer, the parties jointly requested that the court set deadlines to move this case forward. D.E. 137. The joint motion noted, among other things, that “as a result of the Greer decision, the Federal Public Defender's Office is attempting to contact its clients about their Rehaif-based Section 2255 Motion[s] to determine if the client consents to its withdrawal.” Id. ¶ 4. The court granted the parties' motion and ordered that Valencia-Adata's counsel “shall make every effort to file any withdrawal of Petitioner's Rehaif-based Section 2255 no later than September 13, 2021[.]” D.E. 138.
On September 15, 2021, Todd filed a notice withdrawing the amended motion to vacate. D.E. 139.
Then, in July 2022, Valencia-Adata, proceeding pro se, asked the court to “reopen” his § 2255 motion (D.E. 140), which the court allowed (D.E. 141).
Valencia-Adata now claims that he did not consent to the voluntary withdrawal of his amended motion in September 2021. D.E. 143, 146. And he says that his conviction must be vacated in light of Rehaif.
The Government has moved to dismiss the latest motion to vacate. D.E. 149. It argues that Valencia-Adata procedurally defaulted on his Rehaif claim by not pursuing it on direct appeal. And it maintains that the most recent motion is untimely because it was filed more than a year after Rehaif.
The court held an evidentiary hearing to receive evidence on the issue raised in the latest motion to vacate. Both Valencia-Adata and Todd testified at that hearing.
Valencia-Adata testified first. He acknowledged that at the time of his arrest he knew he was in the country illegally. Hr'g Tr. at 12:25-13:3, 17:1-7. He also admitted possessing firearms. Id. at 17:15-17. But despite those facts, he believed he was entitled to relief under Rebaf because he did not know that it was illegal for him to possess a gun. Id. at 12:10-24.
As for the withdrawal of his amended motion to vacate, he said that he did not recall speaking with Todd about that decision. Id. at 20:22-25. And he did not recall Todd telling him he planned to withdraw the § 2255 motion. Id. at 21-9:11. Instead, he recalled Todd telling him they would probably lose the motion “[b]ut there were other benefits for” him. Id. at 20:22-21:8.
Since he never authorized Todd to withdraw the motion, id. at 13:22-23, he was surprised to receive the notice of withdrawal, id. at 13:25-14:4. He explained that it took him several months to ask the court to reopen his case because of the difficulty of accessing the necessary resources to do so. Id. at 22:8-23:1.
Todd testified next and recounted his representation of Valencia-Adata. Shortly after his representation began, he asked the court to delay its ruling on the memorandum and recommendation that recommended dismissing his client's § 2255 motion. Id. at 25:15-24. Then, after speaking with Valencia-Adata, Todd withdrew his client's original § 2255 motion and filed an amended one. Id. at 25:25-26:8. The case was then stayed until the Supreme Court decided Greer. Id. at 26:9-16.
According to Todd, the Supreme Court's June 2021 decision in Greer was unfavorable to Valencia-Adata's interests. Id. at 26:17-22. Several days before the court-ordered deadline to submit briefing on the effect of Greer on Valencia-Adata's case, Todd spoke with his client. Id. at 28:6-11. The conversation lasted between 30 minutes and an hour. Id. at 31:11-16. Todd had no independent recollection of the conversation. But he believed that, given the circumstances, his “motivation for having the phone conversation” was to relay concerns about the impact an adverse ruling on the amended § 2255 motion would have on Valencia-Adata's ability to obtain compassionate release. Id. at 29:10-30:1.
About a week after that call, Todd withdrew the amended § 2255 motion. Id. at 30:2-5. Given that the motion was “a substantive motion on the merits[,]” he believed that he would need “the consent of a client to withdraw such a motion.” Id. at 30:9-16. And it was his habit and practice to obtain that consent before doing so. Id. at 30:17-20. Todd had no reason to believe that he would have acted inconsistently with that habit. Id. at 30:21-25.
II. Analysis
A. Standard of Review for § 2255 Petitions
Valencia-Adata can prevail on his motion to vacate in four ways. He could show that the district court imposed a sentence that violated the Constitution or laws of the United States. 28 U.S.C. § 2255(a). Or he could establish that the court lacked jurisdiction to sentence him. Id. He could also show that his sentence exceeded what the law allowed. Id. And if he cannot make any of those showings, he could still prevail by showing that his sentence was otherwise subject to collateral attack. Id. No matter which avenue he pursues, he must show that he is entitled to relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).
B. Procedural Default
The Government argues that Valencia-Adata procedurally defaulted his Rehaif claim by failing to raise it on direct appeal. In general, a petitioner may not bring claims under § 2255 that he could have raised on direct appeal. United States v. Frady, 456 U.S. 152, 167 (1982); Massaro v. United States, 538 U.S. 500, 504 (2003). To overcome this bar, the petitioner must show “cause and actual prejudice” or establish that he is “actually innocent[.]” Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted). Cause for procedural default “turn[s] on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). And although “[t]he Supreme Court has yet to define the exact contours of the prejudice standard in the § 2255 procedural-default context[,]” a petitioner must ordinarily “show that the error ‘worked to his actual and substantial disadvantage.'” United States v. McKinney, 60 F.4th 188, 195 (4th Cir. 2023) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
Since Valencia-Adata did not appeal his original conviction, he has procedurally defaulted on his claim unless he can show one of the recognized exceptions applies. He cannot do so.
Valencia-Adata argues that he should be allowed to avoid the procedural default bar because Rehaif was decided many years after his time to appeal expired. Resp. in Opp. at 4, D.E. 154. When a party attempts to establish cause through an intervening change in the law, he must show that “the legal basis for the claim was not reasonably available when the matter should have been raised.” Mikalajunas, 186 F.3d at 493. The knowledge-of-status issue decided in Rehaif had been percolating in the federal courts for years. See United States v. Butler, 637 F.3d 519, 524 (5th Cir. 2011) (collecting cases); United States v. Langley, 62 F.3d 602, 605-606, 608 (4th Cir. 1995) (en banc) (Phillips, J., dissenting). So the argument was available to Valencia-Adata when he was eligible to pursue a direct appeal.
No doubt circuit precedent at the time was unfavorable to that effort. But the fact that an attempt to appeal an issue would not have succeeded, or was even futile, does not establish cause sufficient to excuse a procedural default. United States v. Pettiford, 612 F.3d 270, 281 (4th Cir. 2010).
Nor can he show prejudice or actual innocence. To show prejudice, a petitioner must prove that errors in the proceedings “worked to his actual and substantial disadvantage” and were of constitutional dimension. See Frady, 456 U.S. at 170. To show actual innocence, a petitioner must show that he “has been incarcerated for a crime he did not commit.” United States v. Jones, 758 F.3d 579, 584 (4th Cir. 2014). Actual innocence depends on factual innocence and “is not satisfied by a showing that a petitioner is legally, but not factually, innocent.” See Mikalajunas, 186 F.3d at 494.
Valencia-Adata readily admits that he knew he was in the United States illegally and that he possessed a firearm. So he cannot establish that he is factually innocent of the offense. Nor did he identify any errors in his proceeding that worked to his actual and substantial disadvantage Thus he cannot establish any of the other factors necessary to excuse his procedural default.
C. Timeliness
The Government also contends that his latest motion is untimely. It argues that Valencia-Adata's criminal judgment became final in August 2009, when his time to appeal expired. So he had until August 2010 to seek relief under § 2255.
As noted above, the court granted a later motion to reduce his sentence on Counts One and Three. D.E. 96. But this did not restart the § 2255 clock. See Couther v. United States, 619 F.Supp.3d 570, 579 (E.D. Va. 2022) (petitioner's § 2255 motion, filed eight years after his sentence became final and six years after a sentence reduction pursuant to 3582(c)(2), was untimely), appeal docketed, No. 22-7003 (4th Cir. Aug. 29, 2022); see also United States v. Jones, 796 F.3d 483, 486 (5th Cir. 2015) (a sentence reduction under § 3582(c)(2) does not restart the clock for the one-year limitations period applicable to § 2255 motions). Even if the sentence reduction restarted the limitations period on a § 2255 motion, Valencia-Adata's original motion to vacate, filed over three years after his sentence reduction, which he did not appeal, was well beyond the one-year statute of limitations. See D.E. 107.
In general a § 2255 motion must be filed within one year from the date a defendant's conviction became final. 28 U.S.C. § 2255(f)(1). But when the Supreme Court recognizes a new right and makes that right retroactively applicable to cases on collateral review, the one-year filing period begins anew. Id. § 2255(f)(3). The Fourth Circuit has held that Rehaif both recognized a new right and that right applies retroactively. United States v. Waters, 64 F.4th 199, 203 (4th Cir. 2023).
Since the Supreme Court decided Rehaif on June 21, 2019, Valencia-Adata had until June 21, 2020, to seek relief. His amended motion was filed before that deadline, so it was timely. But that motion was voluntarily withdrawn and terminated by the court. It was not until late July 2022, more than two years after the filing period expired, that he asked the court to reopen his motion. The government maintains that the reopened motion is untimely and must be dismissed.
Valencia-Adata counters by claiming that he is entitled to equitable tolling of the limitations period. A party pursuing a § 2255 claim must show two things before they can rely on the equitable tolling doctrine to avoid the statute of limitations. First, he must show “that he has been pursuing his rights diligently[.]” Holland v. Florida, 560 U.S. 631, 649 (2010). To make this showing, the movant need only show “reasonable diligence, not maximum feasible diligence.” Id. at 653 (cleaned up).
And second, he must establish “that some extraordinary circumstance stood in his way and prevented timely filing.” Id. A claim of extraordinary circumstances has three elements. To begin with, a movant must show that they were subject to “extraordinary circumstances[.]” United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Then he must establish that those circumstances were “beyond his control or external to his own conduct[.]” Id. And then he must prove that those circumstances “prevented him from filing on time.” Id.
Valencia-Adata's has not argued that he diligently pursued his rights with respect to the withdrawn claim. This omission is enough to deny him relief under the equitable tolling doctrine. But even if he had, his attempt to show reasonable diligence would not succeed. He did not move to reopen this matter for nearly 10 months after Todd filed the motion to withdraw.
His exceptional circumstances argument fares no better. Although not explicitly stated, Valencia-Adata's filings imply that Todd's allegedly unapproved withdrawal of the amended motion satisfies the exceptional circumstances test. The evidence, however, does not support this claim.
Valencia-Adata and his former attorney tell competing stories about the circumstances of the amended motion's withdrawal. After reviewing the record and considering their testimony, the undersigned concludes that Todd's testimony is credible and Valencia-Adata's is not. In assessing the credibility of witnesses, trial courts consider “variations in demeanor and tone of voice.” Anderson v. City of Bessemer, N.C., 470 U.S. 564, 575 (1985). In addition, “[d]ocuments or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Id. Additional considerations can include the witness's motives and the level of detail in the witness's statements. See, e.g., United States v. Wilson, 624 F.3d 640, 665 (4th Cir. 2010).
Todd's version of events shows a commitment to maximizing Valencia-Adata's chances of success. Upon appearing in the case, Todd quickly asked the court to delay ruling on Valencia-Adata's original motion. This benefitted Valencia-Adata's because his original argument-that Rehaif entitles him to relief because he did not know that it was illegal for him to possess a firearm-centered on a misunderstanding of Rehaif's holding.
Rehaif requires the Government show more than that the defendant knew he possessed a firearm. Rehaif, 139 S.Ct. at 2000. It must also show that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.” Id.
In Valencia-Adata's case, the relevant category of persons is those who are “illegally or unlawfully in the United States[.]” 18 U.S.C. § 922(g)(5). He knew that he was illegally and unlawfully in the United States. Hr'g Tr. at 12:19-13:3; 17:1-7; 17:15-17. So Rehafprovides him with no relief.
It is of no moment that he claims to have not known about the prohibition in § 922(g)(5). Courts have repeatedly rejected this argument. United States v. Moody, 2 F.4th 180, 197 (4th Cir. 2021); United States v. Collins, 982 F.3d 236, 242 n.2 (4th Cir. 2020). This is because “ignorance of the law . . . is no defense to criminal prosecution.” Cheek v. United States, 498 U.S. 192, 199 (1991). So that argument was unlikely to result in a ruling in Valencia-Adata's favor.
But the argument Todd raised in the amended motion, at least at the time of its filing, provided Valencia-Adata with a much better chance of prevailing. The amended motion was based on Fourth Circuit precedent that likely would have required the court to grant the amended motion.
The Supreme Court's decision in Greer, however, extinguished any chance Valencia-Adata had to prevail on the argument in the amended motion. Withdrawing the motion was a strategically wise thing to do given the Supreme Court's decision, since a ruling against Valencia-Adata could harm his ability to pursue other avenues to shorten his sentence.
And Valencia-Adata provided no reason to think that he would have wanted to proceed with the amended motion after the Supreme Court's decision.
Of course, just because it was the strategically wise thing to do, does not mean that Todd could withdraw the motion without his client's consent. Yet the record suggests that Valencia-Adata provided that consent.
The Supreme Court decided Greer in June 2021. 141 S.Ct. at 2090. A month later, the parties filed a joint motion noting, among other things, that “as a result of the Greer decision, the Federal Public Defender's Office is attempting to contact its clients about their Rehaif-based Section 2255 Motion[s] to determine if the client consents to its withdrawal.” D.E. 137 ¶ 4. The court then set a September 13, 2021, deadline for Valencia-Adata to decide whether he wanted to withdraw his motion. D.E. 139. The record establishes that, just four days before that deadline, Todd spoke with Valencia-Adata for between 30 minutes and an hour. Hr'g Tr. at 31:11-16. There was nothing else going on in the case at that point other than whether Valencia-Adata wanted to withdraw his amended motion. Thus there was no reason for Todd to contact his client but to discuss that issue.
Given these facts, the undersigned credits Todd's testimony and concludes that Valencia-Adata consented to the withdrawal of the amended motion. Thus he cannot show exceptional circumstances justify equitably tolling the statute of limitations. As a result, his motion is untimely and should be dismissed.
III. Conclusion
For these reasons, the undersigned recommends that the court deny Valencia-Adata's Motions to Vacate (D.E. 143, 146) and grant the Government's Motion to Dismiss (D.E. 149).
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared here. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.