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Arrana-Garcia v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
Aug 9, 2016
Case No. CV416-120 (S.D. Ga. Aug. 9, 2016)

Opinion

Case No. CV416-120 Case No. CR413-161

08-09-2016

ERIC ARRANA-GARCIA, Movant, v. UNITED STATES OF AMERICA, Respondent.


REPORT AND RECOMMENDATION

Having pled guilty to conspiracy to possess with intent to distribute and to distribute 50 grams or more of methamphetamine; distribution of five grams or more of meth; and using and carrying a firearm during and in relation to a drug trafficking crime, (doc. 103 (plea agreement), doc. 105 (judgment) (entered January 23, 2014)), Eric Arrana-Garcia moves under 28 U.S.C. § 2255 to vacate his carrying conviction. Doc. 112. Review of the parties' briefing shows that his motion must be denied.

All citations are to the criminal docket unless otherwise noted and all page numbers are those imprinted by the Court's docketing software.

After the Court sentenced him to 216 months' imprisonment on January 12, 2015 (doc. 105), Arrana-Garcia never appealed. His conviction thus became final on January 26, 2015. Fed. R. App. P. 4(b)(1)(A) (criminal defendants must file a notice of appeal within 14 days of the entry of judgment). He filed the instant § 2255 motion approximately one year and four months later. Doc. 112 at 2 (signature-filed May 19, 2016). In it he argues that Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), voids his 18 U.S.C. § 924(c) conviction for carrying a firearm during and in relation to a drug trafficking crime. Doc. 112 at 4.

In a reply to the Government's response, Arrana-Garcia abandons his Johnson argument and, for the first time, argues that something about the phrase "brandished a firearm" constitutes a "lie[] . . . fed to the understanding of an under privileged member of a minority, the Petitioner." Doc. 115 at 4. He also contends that his attorney provided ineffective assistance by not fully explaining his plea agreement and threatening him if failed to sign it. Id. In addition to lacking all merit, those claims are time-barred. See infra.

The Armed Career Criminal Act ("ACCA") -- the statute Johnson addressed -- provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g) and (2) have "three prior convictions . . . for a violent felony or a serious drug offense, or both." It defines "violent felony" as, among other things, a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at § 924(e)(2)(B). Johnson found that "residual" clause so vague that it violates due process. See 135 S. Ct. at 2557. Importantly, it said nothing about "serious drug offenses," which remain a valid basis for ACCA enhancements. See id. at 2563 ("Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony," much less its definition of "serious drug offense").

Even assuming it applies at all to § 924(c), Johnson provides Arrana-Garcia no succor here. Under that provision, a person cannot use or carry a firearm during or in relation to "any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A) (emphasis added). Although one clause of its crime of violence definition reads similarly (though not identically) to ACCA's residual clause (and thus Johnson's logic may well apply), Arrana-Garcia committed a drug trafficking offense. As the Government aptly put it, "Johnson has no conceivable application in that context." Doc. 114 at 3.

Some courts have found that it does. See, e.g., United States v. Baires-Reyes, 2016 WL 3163049 at * 5 (N.D. Cal. June 7, 2016) (finding that § 924(c)'s residual clause is unconstitutionally vague). In this circuit it remains an open question. See In re St. Fleur, ___ F.3d ___, 2016 WL 3190539 at * 3 (11th Cir. June 8, 2016).

Recall that Johnson says nothing about the viability of "serious drug offense" predicates. See 135 S. Ct. at 2563. The term "drug trafficking crime" in § 924(c)(1)(A) covers similar ground as that ACCA phrase. And just as Johnson's logic failed to implicate drug offenses in the ACCA context, so too does it not apply to "drug trafficking crimes" for purposes of § 924(c).

Under ACCA, "serious drug offense" means, among other things, "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).

"Drug trafficking crime" under § 924(c)(2) "means any felony punishable under the Controlled Substances Act."

It follows that Arrana-Garcia cannot look to Johnson and § 2255(f)(3) to define when his one-year statute of limitations began to run. Instead, he's relegated to § 2255(f)(1), which dictates that the clock started the day his conviction became final (January 26, 2015). Time expired on January 26, 2016, so his motion is untimely by several months (he did not file it until May 19, 2016, doc. 112 at 13).

Equitable tolling can, in exceptional circumstances, allow untimely motions to proceed. See Holland v. Florida, 560 U.S. 631, 649 (2010). So can a "'fundamental miscarriage of justice'" that "'has probably resulted in the conviction of one who is actually innocent.'" Fail, 2016 WL 1658594 at * 4 (quoting McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013)). Arrana-Garcia invokes neither tolling nor the miscarriage exception, and offers no new evidence or exceptional circumstances to trigger either. --------

Accordingly, Eric Arrana-Garcia's § 2255 motion should be DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb.9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.") (emphasis added). Any motion for leave to appeal in forma pauperis therefore is moot.

SO REPORTED AND RECOMMENDED, this 9th day of August, 2016.

/s/_________

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA


Summaries of

Arrana-Garcia v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
Aug 9, 2016
Case No. CV416-120 (S.D. Ga. Aug. 9, 2016)
Case details for

Arrana-Garcia v. United States

Case Details

Full title:ERIC ARRANA-GARCIA, Movant, v. UNITED STATES OF AMERICA, Respondent.

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

Date published: Aug 9, 2016

Citations

Case No. CV416-120 (S.D. Ga. Aug. 9, 2016)

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