Opinion
CV-22-00219-TUC-CKJ (DTF)
12-19-2022
Ben Daranda, Petitioner, v. D. Colbert, Respondent.
REPORT AND RECOMMENDATION
On May 9, 2022, Ben Daranda ("Petitioner" or "Daranda") filed a Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1.) This matter is fully briefed. (Docs. 21, 24.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 5 at 3.) As more fully set forth below, this Court recommends the Petition be granted, Danon Colbert be substituted with Warden M. Gutierrez, the current warden of USP-Tucson, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, and this matter be transferred for resentencing.
Before venturing into the facts of Daranda's convictions or argument, it is clear that some of the convictions involved here constitute heinous and awful offenses against a vulnerable population-minors. The Court recognizes these facts and acknowledges that the law does not change based on the objectionable nature of the offenses. If the law provides relief, then the Court is duty bound to recommend that such relief be granted.
BACKGROUND
After a jury trial, Daranda was convicted of sexual exploitation of children in violation of 18 U.S.C. § 2251(a) in the United States District Court for the Western District of Louisiana. United States v. Daranda, 405 Fed.Appx. 834, 835 (5th Cir. 2010). The presentencing report (PSR) noted Daranda had pled guilty to four counts of molestation of a juvenile under La. Stat. Ann. § 14:81.2 in 2001. Id. at 836. It failed to note the plea was pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). Id. The PSR mentioned two other guilty pleas that are not relevant to the present matter. Id. The PSR stated the 2001 convictions "may trigger a mandatory life sentence under 18 U.S.C. § 3559(e)." Id. Daranda did not object to the PSR or § 3359(e) applying to his sentence. Id. The district court adopted the PSR, applied § 3559(e), and sentenced Daranda to life imprisonment, as § 3559(e) mandated. Id.
Section 3559(e) commands that a "person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim." A prior sex conviction "means a conviction for which the sentence was imposed before the conduct occurred constituting the subsequent Federal sex offense, and which was for a Federal sex offense or a State sex offense." § 3559(e)(C). The statute defines "Federal sex offense" as an offense under several enumerated sections of the United States Code. § 3559(e)(2)(A). The statute also explains that "State sex offense" is "an offense under State law that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense" if there had been federal jurisdiction. § 3559(e)(2)(B).
Daranda appealed to the Court of Appeals for the Fifth Circuit. Daranda, 405 Fed.Appx. at 835 He argued that his sentence should not have been enhanced pursuant to § 3559(e). Id. The Fifth Circuit reviewed for plain error. Id. The appellate court stated "Daranda is correct that La. Stat. Ann. § 14:81.2 criminalizes a broader range of conduct than the enumerated federal statutes (18 U.S.C. §§ 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2422(b), and 2423(a))." Id. at 837. The Fifth Circuit then employed "the modified categorical approach" and considered if the factual basis at the plea hearing in state court would have fallen under 18 U.S.C. § 2241(c). Id. It did not expressly consider if the state statute was divisible or not. Id. The court concluded that "[a]ccording to the undisputed facts in the PSR, Daranda's prior child molestation convictions fall under the definition of 'a State sex offense,' as they are 'offense[s] under State law that [are] punishable by more than one year in prison and consist[] of conduct that would be a Federal sex offense' if they had occurred within federal jurisdiction." Id. at 838 (alterations in Daranda) (quoting § 3359(e)). The Fifth Circuit also stated that "[n]o circuit court has squarely decided how courts should determine whether a given state conviction is a prior sex conviction under § 3559(e)," referring to whether the trial court should have considered the factual basis of an Alford plea. Id. at 839. The Fifth Circuit found no plain error and affirmed Daranda's sentence. Id.
In 2012, Daranda filed a motion to vacate, set aside, or correct his 2008 sentence pursuant to 28 U.S.C. § 2255. Daranda v. United States, No. 1:07-cr-10022, 2012 WL 2952145, at *1 (W.D. La. June 15, 2012), R. & R. accepted, 2012 WL 2930862 (W.D. La. July 18, 2012). Daranda did not object to whether the state offence had a federal equivalent. Id. at *1-2. Daranda argued his due process rights had been violated because his sentence had been enhanced because of his Alford plea without the "necessary judicial records" to identify the facts to which Daranda had admitted. Id. The court rejected Daranda's claims and denied his motion. Id. at *13.
In 2015, Daranda filed a second motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Daranda v. United States, No. 1:07-cr-10022, 2015 WL 13723062, at *1 (W.D. La. Feb. 4, 2015). Because this was a successive petition, the court transferred the matter to the Fifth Circuit. Id. at *2. The Fifth Circuit denied authorization to file a second or successive § 2255 motion. United States v. Daranda, No. 1:07-cr-10022 (W.D. La. May 29, 2015) (Order of USCA). Daranda also filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the District of Arizona. Daranda v. Winn, No. CV 15-0014-TUC-CKJ (DTF) (D. Ariz. May 22, 2015). The Court dismissed based on lack of jurisdiction. Id. at 3.
In 2016, Daranda filed another motion pursuant to § 2255. United States v. Daranda, No. 1:07-cr-10022 (W.D. La. Feb. 27, 2017, R. & R. accepted (W.D. La. Mar. 31, 2017). The court reasoned that § 2255 was not the proper vehicle for a sentence reduction, as Daranda requested. Id. at 3. He also filed another Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, which the Court again dismissed for lack of jurisdiction. Daranda v. Shartle, No CV 16-00136-TUC-CKJ (DTF) (D. Ariz. June 3, 2016).
In 2020, Daranda filed a third Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Daranda v. Von Blanckensee, No. CV 20-00347-CKJ (DTF) (D. Ariz. Dec. 8, 2020). Once again, the Court dismissed for lack of jurisdiction. Id. at 4. In May 2022, he filed the present Petition. (Doc. 1.)
DISCUSSION
Res Judicata or Preclusion
Respondent argues this issue has already been resolved. (Doc. 21 at 18.) Daranda did not respond to this argument. (See Doc. 24.)
In 2016, the Court screened and dismissed a § 2241 Petition from Daranda. Daranda v. Shartle, No. 4:16-cv-00136-CKJ--DTF (D. Ariz. June 3, 2016). The Court described the relevant claim as "Under 18 U.S.C. § 3559(e)(1)(B) 'State Sex Offense' as defined under § 3559(e)(2)(B) as analogous to a 'Federal Sex Offense'; the Petitioner's 'State Sex Offense' is NOT analogous to any 'Federal Sex Offense' thereby rendering the enhancement invalid." Id. at 1. The Court stated that his § 3359(c) claim had been "available to Petitioner since his sentencing" and that he had not demonstrated an unobstructed procedural shot. Id. at 3-4. Thus, the Court dismissed the case and denied a certificate of appealability. Id. at 4. This argument is the same or similar to the argument in Daranda's present petition. Compare id. at 1 with Doc. 1 at 6 and Doc. 24 at 1.
Respondent is correct that whether Daranda may utilize the escape hatch for this claim has been considered and answered in the negative. See Daranda v. Shartle, No. 4:16-cv-00136 (D. Ariz. June 3, 2016). However, it is unclear if this decision should have a preclusive effect on this matter.
In 2011, the Court of Appeals for the Ninth Circuit considered a very similar issue. Alaimalo v. United States, 645 F.3d 1042, 1049-50 (9th Cir. 2011). In Alaimalo, the petitioner had raised his actual innocence claim during direct appeal and in two previous unsuccessful § 2241 petitions that the Ninth Circuit had affirmed. Id. at 1046. The Ninth Circuit asked whether its previous denial of a § 2241 petition bared consideration of the subsequent § 2241 petition. Id. at 1049. It stated that the law-of-the-case and abuse-of-the-writ doctrines did not provide preclusive effect because the petitioner was "actually innocent and that failing to consider his habeas petition would result in manifest injustice" Id. at 1045. The Ninth Circuit determined that not considering the petition would be a miscarriage of justice even though it was probable that vacating the conviction would not reduce the length of the petitioner's confinement. Id. at 1050.
Applying Alaimalo here dictates that the Court consider Daranda's petition. First, Daranda is claiming actual innocence of the sentencing enhancement. (Doc. 1 at 6; Doc. 24 at 2-4.) As discussed below, Daranda is actually innocent of the sentencing enhancement. Second, not considering the petition and resting on the previous ruling would result in a manifest injustice. It appears there was a clarification within this question between the time the 2016 Order and now. See Marrero v. Ives, 682 F.3d 1190, 1193, 1195 (9th Cir. 2012) (holding "the purely legal argument that a petitioner was wrongly classified as a career offender under the Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch") with Allen v. Ives, 950 F.3d 1184, 1188-90 (9th Cir. 2020) (clarifying that when petitioner claims "that his prior conviction is not a conviction for a predicate crime, that he is therefore actually innocent of a predicate crime, and that he is thus actually innocent of the mandatory sentencing enhancement" then he is actually innocent for escape-hatch purposes). Thus, the 2016 Order does not preclude consideration of this petition. See Alaimalo, 645 F.3d at 1050.
Jurisdiction or Escape Hatch Standard
Generally, 28 U.S.C. § 2255 is the exclusive vehicle to challenge the legality of detention. Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012). A motion under § 2241 generally challenges the manner, location, or conditions of a sentence's execution. Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). However, § 2255(e)-often termed "escape hatch" or "savings clause"-allows federal prisoners to "file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is 'inadequate or ineffective to test the legality of his detention.'" Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (quoting § 2255(e)); see Muth, 676 F.3d at 818. The remedy under § 2255 is inadequate where "a petitioner (1) makes a claim of actual innocence, and (2) has not had an 'unobstructed procedural shot' at presenting that claim." Muth, 676 F.3d at 819 (quoting Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006)).
Actual Innocence Claim
Daranda argues that the sentencing court and the Fifth Circuit erroneously considered his state-court conviction to be a predicate for the mandatory minimum sentence per § 3559(e) and that he is actually innocent of the sentencing enhancement. (Doc. 1 at 6; Doc. 24 at 4.) The Court agrees Daranda is making a claim of actual innocence.
Daranda's claim matches the one asserted in Allen, where the Ninth Circuit concluded that the petitioner was "actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch." 950 F.3d at 1188-90. This was later limited to mandatory sentencing scheme, which § 3559(e) is. Shepherd v. Unknown Party, Warden, FCI Tucson, 5 F.4th 1075, 1077 (9th Cir. 2021). Respondent contends Daranda cannot establish actual innocence because the Fifth Circuit said it was not plain error for the sentencing court to apply the conduct approach. (Doc. 21 at 10-13.) However, Respondent is arguing merits instead of the jurisdictional question. Daranda is making a claim of actual innocence and satisfies the first prong of cognizability under the escape hatch.
Obstructed Procedural Shot
Daranda argues the Fifth Circuit case law foreclosed his argument prior to Mathis v. United States, 579 U.S. 500 (2016). (Doc. 24 at 4-7.) Thus, he contends he did not have an unobstructed procedural shot at presenting this issue during his direct appeal or his § 2255 petition. Id.
If the circuit precedent would have foreclosed the argument at the time of the direct appeal and § 2255 motion, then the petitioner did not have an unobstructed procedural shot at presenting the claim. Allen, 950 F.3d at 1190. First, the Court must consider "(1) whether the legal basis for petitioner's claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner's claim after that first § 2255 motion." Harrison, 519 F.3d at 1990.
This is the current standard. There is a case before the Supreme Court of the United States that could alter this standard. See Jones v. Hendrix, 142 S.Ct. 2706 (2022) (granting petition for writ of certiorari).
Daranda reasons he did not have an unobstructed procedural shot at bringing his claim because the law of the Fifth Circuit at the time of his direct appeal and his § 2255 motion "typically proceeded directly to the modified categorical approach whenever documents underlying the prior conviction were available-without confirming that alternatives in the statute of conviction represented elements, rather than mere means." (Doc. 24 at 5.) First, Respondent asserts the divisibility argument was not foreclosed by the Supreme Court prior to Mathis. (Doc. 21 at 14-16.) Second, Respondent contends there has been no intervening court decisions in the Fifth Circuit, such the conduct-based approach is still the law of circuit. Id. at 13. Third, Respondent even argues the Fifth Circuit had articulated the elements versus means distinction as early as 2004; thus, the argument was available when Daranda was appealing and filing his § 2255 motion. Id. at 16-17.
The Court finds Respondent's arguments to be unavailing. First, Respondent is incorrect to focus on whether the Supreme Court had foreclosed the argument. The appropriate inquiry is whether the law in the Fifth Circuit had foreclosed the argument. See Allen, 950 F.3d at 1190 (considering law of sentencing circuit); Alaimalo, 645 F.3d at 1047-48 (same).
On direct appeal, the Fifth Circuit stated it was employing the modified categorical approach to Daranda's sentence enhancement, proceeding to the facts without considering if the alternatives listed in the statute were elements or means. Daranda, 405 Fed.Appx. at 838. This was expected because at the time of Daranda's direct appeal and § 2255 motion, the Fifth Circuit would look to the elements of statutes and if the statute contained "a series of disjunctive elements, this court may look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction." United States v. Hernandez-Galvan, 632 F.3d 192, 197 (5th Cir. 2011) (quoting United States v. Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 2006)). While the Fifth Circuit used "elements" and even asked if a "statute is divisible," see id.; United States v. Martinez-Garcia, 625 F.3d 196, 198 (5th Cir. 2010) (concluding burglary statute was divisible), the courts often used very little explanation and misapplied the terms. The perfect example is Daranda's direct appeal. The Respondent concedes that La. Stat. Ann. § 14:81.2 is not divisible (Doc. 21 at 11-12 n.6) but the Fifth Circuit did not even pause to consider the question. Daranda, 405 Fed.Appx. at 838. Even the Fifth Circuit has acknowledged that its divisibility analysis changed after Mathis. See United States v. Perlaza-Ortiz, 869 F.3d 375, 377-78 (5th Cir. 2017) ("While understandable in light of our pre-Mathis precedents, the district court's application of the enhancement constituted legal error."); United States v. Reyes-Ochoa, 861 F.3d 582, 587-88 (5th Cir. 2017). Hence, this change occurred after Daranda's direct appeal and § 2255 motion.
To the extent Respondent is arguing the Fifth Circuit has not and would not apply Mathis to § 3559(e), the Fifth Circuit has applied Mathis to when a statute is divisible in more broad terms. United States v. Fuentes-Canales, 902 F.3d 468, 474 (5th Cir. 2018).
Further, that the Fifth Circuit stated it was employing the modified categorical approach during Daranda's direct appeal, which indicates it would apply Mathis.
Respondent's argument that the Fifth Circuit used elements and means as early as 2004 is undermined by the vary case he cites. (Doc. 21 at 16-17 (citing United States v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir. 2004), overruled on other grounds by United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018)).) Instead, that case concluded that "whenever a statute provides a list of alternative methods of commission-just as the statute in Taylor referred to burglaries of several different types of structures, we may look to charging papers to see which of the various statutory alternatives are involved in the particular case." Id. (citation omitted). This is in direct conflict with Mathis. See Mathis, 579 U.S. at 506, 513, 517-18 (explaining "alternative methods" provides means-not elements-such that looking into facts or at further documents would be inappropriate).
Additionally, as explained in Allen, Daranda could not have filed a second or successive § 2255 motion to remedy this issue because it does not fall within the available reasons to files such a motion-newly discover evidence or new rule of constitutional law. 950 F.3d at 1191 (citing § 2255(h)). The Fifth Circuit has also held that Mathis did not state a new rule of constitutional law, such that a petitioner could file a second or successive § 2255 motion. In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (mem.); see also United States v. Wiese, 896 F.3d 720, 725 (5th Cir. 2018) ("Mathis did not state a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court ....")
Thus, Daranda did not have an unobstructed procedural shot at this argument. Thus, this Court has jurisdiction over the claim and should continue to the merits.
MERITS
Respondent contends the Fifth Circuit in Daranda's direct appeal applied the conduct-based approach. (Doc. 21 at 11.) Further, Respondent instead argues that no other case has considered if analysis of § 3559(e) has changed since the direct appeal. Id. at 13.
In Mathis, the Supreme Court considered how to consider prior convictions for "violent felonies" within the mandatory sentencing structure of the Armed Career Criminal Act (ACCA). 579 U.S. at 503. It explained that "[t]he comparison of elements that the categorical approach requires is straightforward when a statute sets out a single (or 'indivisible') set of elements to define a single crime." Id. at 504-05. Courts are then to line up the elements and see if they match. Id. at 505. If a statute is "divisible" (or "lists elements in the alternative, and thereby define multiple crimes"), then courts could employ the "modified categorical approach." Id. Only then should courts look to a limited class of documents to determine what crime, with what elements, the defendant was previously convicted of. Id. When a statute "enumerates various factual means of committing a single element," courts do not have any "special warrant to explore the facts of an offense." Id. at 506, 509.
The Supreme Court also noted that permitting a sentencing court to go further than the categorical approach "would raise serious Sixth Amendment concerns." Id. at 511. Because "only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction." Id.
The Fifth Circuit previously applied the modified categorical approach to the enhancement in Daranda's case. Daranda, 405 Fed.Appx. at 838. Further, the Fifth Circuit has recognized that Mathis "clarified when and how the modified categorical approach is applied in the context of federal sentencing." United States v. Hinkle, 832 F.3d 569, 575 (5th Cir. 2016); see also United States v. Tanksley, 848 F.3d 347, 350-52 (5th Cir. 2017) (finding "an otherwise controlling precedent" to be obsolete after Mathis). As such, the Fifth Circuit would apply the categorical approach from Mathis.
Respondent admits that the state statute is broader than the enumerated federal statutes. (Doc. 21 at 11-12 n.6.) Respondent also acknowledges that the state statute is indivisible. Id. Thus, if the Fifth Circuit would apply the categorical approach, Daranda's state offense clearly would not qualify as a predicate offence under § 3559(e). As such, Daranda is actually innocent of the sentencing enhancement and is entitled to resentencing. There is an open question on whether the Arizona District Court has the authority to resentence Daranda, or whether this matter should be transferred to the Western District of Louisiana. There is a similar question before Judge Rosemary Marquez. See Courtright v. Unknown Party, No. 4:18-cv-00406-RM-JR (D. Ariz.). Additionally briefing may be warranted to determine the appropriate district for resentencing. However, the Court would find that transfer to the Western District of Louisiana is appropriate. Neither the Fifth nor the Ninth Circuit has ruled on this issue. Nonetheless, the Court finds Guenther v. Marske, 997 F.3d 735 (7th Cir. 2021), instructive. Such that the Court recommends this matter be transferred for resentencing. RECOMMENDATION
For the reasons stated above, the Magistrate Judge recommends that the District Judge enter an order:
(1) SUBSTITUTING Warren M. Gutierrez as Respondent for Danon Colbert pursuant to Rule 25(d).
(2) GRANTING Petitioner's Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. 1).
(3) TRANSFERRING this matter to the Western District of Louisiana for resentencing.
Pursuant to 28 U.S.C. § 636(b)(1) and 72(b)(2), Fed. R. Civ. P., any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: 4:22-cv-00219-TUC-CKJ.