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applying Allen to a petitioner who "was sentenced to the statutory mandatory sentence of life imprisonment," even though the case was decided after Booker , when the guidelines were advisory
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No. 1:20-cv-00724-DAD-SKO (HC)
03-16-2021
DAVID TRINIDAD GONZALEZ, Petitioner, v. WARDEN CIOLLI, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, IN PART, AND DENYING MOTION TO STAY AS MOOT
(Doc. Nos. 10, 12)
Petitioner David Trinidad Gonzalez is a federal prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
In his pending petition, petitioner asserts that according to the Ninth Circuit's recent decision in Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), he may bring his claim of actual innocence in challenging his sentence—a statutory mandatory minimum sentence of life imprisonment—by way of this § 2241 action. (Doc. No. 1 at 7, 12.) On August 19, 2020, respondent filed a motion to stay this case pending the Ninth Circuit's resolution of Allen because the dissenting judge on the panel that decided Allen had voted to grant the respondent-appellee's petition for rehearing en banc, and the Ninth Circuit had not yet decided whether it would rehear the case. (Doc. No. 10 at 3-4.)
On September 2, 2020, the assigned magistrate judge issued findings and recommendations recommending that respondent's motion to stay be denied as moot because such a stay is unnecessary in light of the magistrate judge's determination that petitioner's § 2241 petition should be summarily dismissed for lack of jurisdiction. (Doc. No. 12 at 6-7.) Specifically, the magistrate judge found that petitioner's claims do not meet the demanding actual innocence exception to qualify for escape hatch jurisdiction under 28 U.S.C. § 2255(e) because he "was sentenced in 2006 after the Supreme Court rendered the Sentencing Guidelines advisory in United States v. Booker, 543 US. 220, 245 (2005)," and "[a]ny error in calculating the advisory Guideline range could not alter the sentence for which he is statutorily eligible." (Id. at 5-7.) Accordingly, the magistrate judge recommended that respondent's motion to stay be denied as moot and that petitioner's § 2241 petition be summarily dismissed due to lack of jurisdiction. (Id. at 7.) Those pending findings and recommendations were served on all parties and contained notice that any objections thereto were to be filed within thirty (30) days after service. (Id. at 7-8.) On September 24, 2020, petitioner timely filed objections to the pending findings and recommendations. (Doc. No. 13.) To date, respondent has not filed any objections, and the time in which to do so has now passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of this case. Having carefully reviewed the entire file, including petitioner's objections, the undersigned adopts the pending findings and recommendations, in part.
As to respondent's motion to stay this case pending the Ninth Circuit's resolution of Allen, the undersigned notes that on September 22, 2020, after the pending findings and recommendations were issued, the Ninth Circuit denied the petition for rehearing en banc in Allen. See Allen v. Ives, 976 F.3d 863 (9th Cir. 2020). In doing so, the judges making up the majority in that case provided clarification in a detailed opinion concurring in the denial of the petition for rehearing en banc "to respond to [their] colleague and to explain why [they] believe [they] reached the correct decision." Id. at 864. Thus, because the Ninth Circuit's resolution of Allen is no longer pending, respondent's motion to stay this case due to the pendency of the Allen case has been rendered moot. On this basis alone, the undersigned will adopt the magistrate judge's ultimate recommendation that the pending motion to stay be denied.
Nonetheless, as to the magistrate judge's finding that petitioner's claims do not meet the demanding actual innocence exception in order to qualify for the escape hatch jurisdiction provided for under 28 U.S.C. § 2255(e), the undersigned declines to adopt the recommendation that petitioner's § 2241 petition be summarily dismissed due to lack of jurisdiction. This is because the magistrate judge did not have the benefit of the Ninth Circuit's clarification provided in the opinion concurring in the denial of the petition for rehearing en banc in Allen at the time the findings and recommendations were issued.
In particular, in an effort to assuage concerns that its "decision opened the proverbial floodgates," the Ninth Circuit clarified in Allen that
[f]or other petitioners to be similarly situated to Allen and to be actually innocent of a mandatory sentence, they will have to show: (1) they were convicted of prior offenses, at least one of which was mistakenly deemed to qualify as a predicate offense; (2) the mistake was later addressed by the Supreme Court in a retroactive decision clarifying the applicable law; (3) they received a mandatory sentence under a mandatory sentencing scheme; and (4) all of this came to light after the opportunity to raise it in a § 2255 motion had passed.Allen, 976 F.3d at 869 (emphasis added). Although it is true that the petitioner in Allen was sentenced under the then-mandatory sentencing guidelines, the Ninth Circuit did not limit claims brought under § 2241 of actual innocence of a sentence to petitioners who were sentenced pursuant to then mandatory sentencing guidelines. Rather, the Ninth Circuit clarified that petitioners would have to show that "they received a mandatory sentence under a mandatory sentencing scheme." Id.
In this action, petitioner contends that in light of recent decisions by the Supreme Court and the Ninth Circuit—Descamps v. United States, 570 U.S. 254 (2013); Mathis v. United States, — U.S. —, 136 S. Ct. 2243 (2016); and Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) reh'g en banc denied, 976 F.3d 863—which apply retroactively, he has stated a cognizable claim under § 2241 for actual innocence with respect to his statutory mandatory minimum sentence of life imprisonment because his two prior convictions do not qualify as "felony drug offenses." (Doc. No. 1 at 23.) In other words, petitioner argues that he is actually innocent of the mandatory life sentence enhancement proscribed by statute—namely, 21 U.S.C. §§ 841, 851. (Id. at 10, 13, 21.)
At the time of petitioner's trial, conviction, and sentencing, § 841(b)(1)(A)(ii)(II) provided in relevant part that:
any person who violates [§ 841(a)] shall be sentenced . . . [i]n the case of a violation . . . involving . . . 5 kilograms or more of a mixture or substance containing a detectable amount of . . . cocaine, . . . such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life . . .. If any person commits [such] a violation . . . after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . ..21 U.S.C. § 841 (effective Nov. 2, 2002 to Mar. 8, 2006).
As noted in the pending findings and recommendations, on September 5, 2000, petitioner was indicted in the United States District Court for the Northern District of Ohio for drug trafficking offenses along with 35 co-defendants. (Doc. No. 12 at 2) (citing United States v. Gonzalez, No. 3:00-cr-00756-JZ, Indictment, Doc. No. 1 (N.D. Ohio, Sep. 5, 2000)). On April 25, 2005, petitioner was convicted by a jury on one count of conspiracy to possess and distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846, and on one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). (Doc. No. 12 at 2.) The jury also found petitioner responsible for at least five kilograms of cocaine in connection was his conviction. (Id.) On January 11, 2006, petitioner was sentenced to life imprisonment. (Id.; see also United States v. Gonzalez, No. 3:00-cr-00756-JZ, Judgment, Doc. No. 1435 at 2 (N.D. Ohio, Jan. 12, 2006) (sentencing petitioner "to the custody of the United States Bureau of Prisons to be imprisoned for a total term of life on both counts to run concurrently")). Specifically, petitioner "was sentenced to a statutory mandatory term of life imprisonment ///// ///// ///// ///// ///// pursuant to 21 U.S.C. § 841(b)." United States v. Gonzalez, 257 F. App'x 932, 933 (6th Cir. 2007). As petitioner emphasizes in his objections to the pending findings and recommendations, he was sentenced under a mandatory sentencing scheme proscribed by statute, not pursuant to the sentencing guidelines. (Doc. No. 13 at 3-5.) Indeed, petitioner's claim is not based on any purported error or mistake in calculating or applying the sentencing guidelines. The fact that petitioner was sentenced post-Booker when the sentencing guidelines were advisory is irrelevant to the determination of whether petitioner can satisfy the demanding actual innocence exception to qualify for the escape hatch jurisdiction under 28 U.S.C. § 2255(e). Petitioner was sentenced to the statutory mandatory sentence of life imprisonment pursuant to 21 U.S.C. §§ 841, 851 - a mandatory sentence under a mandatory sentencing scheme as described by the Ninth Circuit in Allen. Accordingly, the undersigned declines to adopt the magistrate judge's recommendation that this case be summarily dismissed due to lack of jurisdiction.
As the Sixth Circuit summarized in its order affirming petitioner's conviction and sentence on direct appeal:
Prior to sentencing, the presentence investigative report ("PSR") listed a base offense level of 38 for Gonzalez based on his involvement with more than 150 kilograms of cocaine. The PSR then recommended a four-point increase pursuant to U.S.S.G. § 3B1.1(a) because Gonzalez was alleged to have been a leader in the drug conspiracy. Gonzalez's criminal history computation resulted in a score of 20, due in part to two drug-related felony convictions, entered in 1992 and 1993. Based on Gonzalez's offense level and criminal history, the Guidelines range was calculated to be 360 months to life. The PSR recommended, however, that because Gonzalez had two prior felony convictions, he was subject to a mandatory term of life imprisonment, pursuant to U.S.S.G. § 5G1.1(b) and 21 U.S.C. § 841(b). Gonzalez opposed the § 841(b) enhancement, but the district court overruled his objection and found that Gonzalez was eligible for the mandatory life sentence.
The court pauses to note, however, that it does not mean to suggest that the pending petition is impervious to attack on other bases, such as failure to state a cognizable claim for federal habeas relief, or that his claims may ultimately be found meritorious. Rather, in the undersigned's view, in light of the Ninth Circuit's clarification of the decision in Allen, summary dismissal of the petition is not appropriate because it does not plainly appear from that petition that petitioner is not entitled to relief.
Accordingly:
1. The pending findings and recommendations issued on September 2, 2020 (Doc. No. 12), are adopted in part, as follows:
a. Respondent's motion to stay this case (Doc. No. 10) is denied as moot;
b. The court declines to summarily dismiss this action; and
IT IS SO ORDERED.
2. The matter is referred back to the assigned magistrate for proceedings consistent with this order.
Dated: March 16 , 2021
/s/_________
UNITED STATES DISTRICT JUDGE
United States v. Gonzalez, 257 F. App'x 932, 935-36 (6th Cir. 2007).