Opinion
CV-21-01959-PHX-SPL (JZB) CR-17-01152-01-PHX-SPL
07-26-2022
Levian D Pacheco, Movant, v. United States of America, Respondent.
HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Movant Levian D Pacheco has moved to vacate his convictions under 28 U.S.C. § 2255. (Doc. 1.) Because Movant's grounds for relief lack merit, the Court recommends the Motion be denied.
“Doc.” refers to the docket in this civil case. “CR doc.” refers to the docket in Movant's underlying criminal case, United States v. Pacheco, No. CR-17-01152-01-PHX-SPL. “COA Doc.” refers to the docket in Movant's appeal, United States v. Pacheco, No. 19-10014.
I. Factual Background and Procedural History.
A. Conviction and Sentencing.
The government indicted Movant on twelve counts: nine counts of abusive sexual contact with a ward in violation of 18 U.S.C. §§ 2244(a)(4) and 2246(3) (Counts 1-8, 12); two counts of sexual abuse of a ward in violation of 18 U.S.C. §§ 2243(b) and 2246(2) (Counts 9-10); and one count of attempted sexual abuse of a ward (Count 11). (CR Doc. 90.) The indictment alleged Movant was a Youth Care Worker at Casa Kokopelli in Mesa, Arizona-a detention facility that housed unaccompanied, noncitizen minors awaiting immigration proceedings under a federal contract-when he committed the offenses. (CR Doc. 90); United States v. Pacheco, 977 F.3d 764, 766 (9th Cir. 2020). Upon the government's motion, the Court dismissed Count 12 before it went to trial. (CR Docs. 116, 117.) During trial, Movant moved for a directed verdict, which the Court granted as to Count 5. (CR Doc. 230.) The jury convicted Movant on the remaining counts. (CR Docs. 232, 240.) The Court sentenced Movant to 228 months' imprisonment followed by a lifetime term of supervised release. (CR Doc. 282.)
B. Direct Appeal.
Movant timely appealed. (CR Doc. 283.) Movant raised the following issues on appeal: (1) whether the government presented sufficient evidence the minors were in “official detention . . . pending . . . deportation” as statutorily required to establish federal jurisdiction; (2) whether the government presented sufficient evidence for Count 11; (3) whether the Court wrongly admit certain expert testimony; (4) whether Movant's sentence was reasonable after the Court considered Movant's HIV status; (5) whether movant's sentence was substantively reasonable; and (6) whether Movant's case should be assigned to a different District Court judge on remand. (COA Doc. 12 at 9-11.) The Court of Appeals for the Ninth Circuit affirmed Movant's convictions and sentence. (COA Docs. 59, 60.)
Movant petitioned the United States Supreme Court for a writ of certiorari. (COA Doc. 66.) The Supreme Court denied Movant's petition. (COA Doc. 67.)
II. Motion to Vacate, Set Aside, or Correct Sentence.
Federal prisoners may move to vacate, set aside, or correct their sentence on the ground their sentence “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C.§ 2255.
As summarized in the Court's November 22, 2021 Order, Movant brings four grounds for relief:
In Ground One, Movant alleges that the conduct charged in his criminal case is “nowhere expressly enumerated as a precise subject-matter for Congress to extend a police power not provided expressly in the Constitution or by amendment.” In Ground Two, Movant asserts that when sitting within a state and operating therein, an Article III court lacks constitutional capacity to be conferred with criminal jurisdiction. In Ground Three, Movant contends he received ineffective assistance of counsel because his counsel failed to make objections based on the issues presented in Grounds One and Two in the district court or on appeal. In Ground Four, Movant asserts that “[e]stoppel against the United States has been demonstrated to be required to be imposed to prevent further governmental abuse against individuals.”
(Doc. 4 at 1-2.)
A. Procedural Default and Waiver.
Generally, to obtain relief under § 2255, movants must raise their grounds for relief on direct review or their grounds are procedurally defaulted. See e.g., United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). If a movant fails to do so, the movant must show the claim is exempt from the direct-appeal requirement, show both good cause and prejudice for the default, or show the movant is actually innocent. See Massaro v. United States, 538 U.S. 500, 504 (2003) (ineffective-assistance claims may be brought for the first time on direct appeal or in a § 2255 proceeding); United States v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007).
Here, the record does not reflect Movant raised his grounds for relief at trial. He further did not raise them on direct appeal to the United States Court of Appeals for the Ninth Circuit. (See COA Doc. 12.) But the government did not raise procedural default in its response to Movant's stated grounds for relief in his Motion to vacate, set aside, or correct the sentence. (See generally Doc. 6.) Accordingly, the government has waived procedural default as a defense, and the Court will address the merits of Movant's grounds for relief. See United States v. Barron, 172 F.3d 1153, 1156 (9th Cir. 1999) (“Ordinarily, the government's failure to raise the petitioner's procedural default at the appropriate time waives the defense.”); United States v. Crooker, 360 F.Supp.3d 1095, 1103-04 (E.D. Wash. 2019) (procedural default is an affirmative defense the government must raise and is waived if the government fails to do so).
B. Grounds One and Two.
In Ground One, Movant argues Congress lacked the power to the criminalize the conduct for which he was convicted. He asserts “‘sexual abuse' of a ward, or of any individual, is not an enumerated ‘precise subject-matter' for which Congress may legislate over, and much less for the exercise of the ‘police power' over such conduct nationally.” (Doc. 2 at 10.)
“[T]he Necessary and Proper Clause grants Congress broad authority to enact federal legislation.” United States v. Comstock, 560 U.S. 126, 133 (2010). “In general, a statute is within the scope of Congress' authority as long as it ‘constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.'” United States v. Mujahid, 799 F.3d 1228, 1233 (9th Cir. 2015) (quoting Comstock, 560 U.S. at 134)). Accordingly, though Congress “cannot punish felonies generally,” Congress can criminalize conduct under the Necessary and Proper Clause in furtherance of one of its enumerated powers. Id. (citations omitted).
In Mujahid, the Ninth Circuit upheld many of the same statutes at issue in this case when challenged with the same arguments. The government charged the defendant in Mujahid with aggravated sexual abuse, sexual abuse, and abusive sexual contact in violation of 18 U.S.C. §§ 2241, 2242, and 2244 after he sexually assaulted other prisoners in a state facility. Mujahid, 799 F.3d at 1231. The Court noted the circumstances giving rise to aggravated sexual abuse-sexual abuse that occurs “in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency”-are the same for sexual abuse and abusive sexual contact. Id. That defendant also argued “the ‘police power' belongs to the states, and Congress acted beyond its limited, enumerated powers when it extended the statutory reach to cover sexual abuse that occurs in state and local institutions where federal detainees are held pursuant to a contract with a federal agency.” Id. at 1233.
Applying the five-part test laid out in Comstock, the Court upheld these sexual abuse statutes as valid exercises of Congress's power under the Necessary and Proper Clause. Id. at 1234-35; see also Comstock, 560 U.S. at 149 (these factors include: “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute's enactment in light of the Government's custodial interest . . ., (4) the statute's accommodation of state interests, and (5) the statute's narrow scope.”). The Court recognized the criminal statutes are “‘reasonably adapted' to Congress' power to act as a responsible federal custodian.” Id. (quoting Comstock, 560 U.S. at 143). The Court concluded 18 U.S.C. §§ 2241, 2242, and 2244 are a “necessary and proper” exercise of the authority that allows Congress to “create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.” Id. (citation omitted); see also Pacheco, 977 F.3d at 760 (“The evolution of [18 U.S.C. §§ 2241-2244] over time affirms Congress' intent to broadly protect federal detainees from sexual abuse.”).
Mujahid squarely controls this case. The Ninth Circuit has expressly held § 2244, criminalizing abusive sexual contact “in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency,” is valid under the Necessary and Proper Clause. Mujahid, 799 F.3d at 1234-35. Though Mujahid involved sexual abuse by and against prisoners in prisons, that case's reasoning applies with equal force to wards in a facility housing unaccompanied, noncitizen minors awaiting further federal immigration proceedings-or in other words, people “in official detention” in a “facility in which persons are held in custody . . . pursuant to a contract . . . with the head of a[] Federal department.” 28 U.S.C. § 2243(b).
Movant's case is an even clearer exercise of Congress's power than in Mujahid because Movant sexually abused noncitizen minors held for pending immigration proceedings. Congress has “plenary” power to make policies and rules regarding immigration. See Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972); see also United States v. Singh, 979 F.3d 697, 710 (9th Cir. 2020) (“The Constitution grants the federal government an ‘undoubted power over the subject of immigration and the status of aliens.'” (citing Arizona v. United States, 567 U.S. 387, 394 (2012); U.S. Const. art. I, § 8, cl. 4 (granting Congress the power to “establish an uniform Rule of Naturalization”)). Congress can also legislate in furtherance of this power under the Necessary and Proper Clause. See, e.g., Singh, 979 F.3d at 710 (criminal prohibition on campaign donations from foreign nationals “is necessary and proper to the exercise of the immigration and foreign relations power”). Congress defining a person in “official detention,” an element of sexual abuse of a ward, to include those “pending . . . deportation” is also a necessary and proper exercise of its immigration power. Accordingly, Movant's Ground One for relief fails because the statutes under which he was convicted are constitutionally sound.
Movant frames Ground Two in manner like Ground One. In Ground Two, Movant argues federal courts sitting within states cannot be conferred with jurisdiction over criminal cases at all. (Doc. 2 at 14-21.) He asserts such cases can only be brought in the District Court for the District of Columbia. (Id. at 18-29.)
As the government notes, under the Constitution “[t]he judicial Power . . . extend[s] to all Cases . . . arising under this Constitution, [and] the Laws of the United States ....” U.S. Const. art. III, § 2. “So long as Congress does not violate other constitutional provisions, its ‘control over the jurisdiction of the federal courts' is ‘plenary.'” Patchak v. Zinke, 138 S.Ct. 897, 906 (2018) (citation omitted). Acting under this plenary power, Congress has extended to the District Courts “original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” 18 U.S.C. § 3231. Sections 2243 and 2244, and the definitional statute § 2246, are federal criminal statutes and accordingly, under Article III, § 2, of the Constitution and 18 U.S.C. § 3231, the United States District Courts can hear charges the government brings under them-regardless of whether that District Court sits within a state or not. Ground Two, therefore, also lacks merit.
C. Ground Three.
In Ground Three, Movant argues his counsel was ineffective for failing to raise the arguments of Grounds One and Two on direct appeal. To succeed on an ineffectiveassistance claim, a movant must show both that: (1) counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) “the deficient performance prejudiced the [movant's] defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish prejudice, the movant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Movant fails to establish either prong of Strickland regarding counsel's decision not to raise the arguments Movant presents in Grounds One and Two. As for Ground Two, the argument that federal criminal cases can only be heard in the District Court for the District of Columbia is frivolous. Counsel did not fall below an objective standard of reasonable representation, let alone prejudice Movant's defense or appeal, by declining to raise this argument. See Smith v. Robbins, 528 U.S. 259, 278 (2000) (though defendants generally have a right to counsel though the course of a first, direct appeal, “it is equally true that this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal”). Ground One is also meritless as discussed above. See Mujahid, 799 F.3d at 1234-35. Movant, therefore, fails to establish either prong of Strickland regarding counsel's decision to not raise Ground One earlier in his case. See Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (“The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” (citation omitted)).
D. Ground Four.
In Ground Four, Movant argues “[e]stoppel against the United States has been demonstrated,” requiring “the United States to cease and desist in the enforcement of its ‘police power' over ‘precise subject-matter' not within the express enumeration in the Constitution.” (Doc. 2 at 25, 33.)
A party asserting estoppel against the federal government must show “the government engaged in ‘affirmative misconduct going beyond mere negligence,' and even then, estoppel will only apply ‘where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.'” Tomczyk v. Garland, 25 F.4th 638, 647 (9th Cir. 2022) (quoting Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986). “[E]stoppel against the government is unavailable where petitioners have not lost any rights to which they were entitled.” Id. (quoting Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000)).
Assuming Ground Four is cognizable in § 2255 proceedings, Movant points to no affirmative conduct by the government other than prosecuting him under the sexual-abuse statutes discussed above, let alone conduct giving rise to “a serious injustice.” Ground Four largely reiterates Movant's arguments for Grounds One and Two. Movant does not have a right to be free from prosecution under a valid federal statute the government is charged with enforcing. Ground Four lacks merit.
See Lord v. Lambert, 347 F.3d 1091, 1094 (9th Cir. 2003) (non-constitutional, non-jurisdictional errors are only cognizable in collateral challenges if the error is “a fundamental defect which inherently results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair procedure,” and the error “presents exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
III. Conclusion.
The Motion lacks merit. The record is sufficiently developed, and the Court finds the Motion, files, and record conclusively show Movant is entitled to no relief. Additionally, an evidentiary hearing is unnecessary for resolving this matter. See Baumann v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982); 28 U.S.C. § 2255(b).
Accordingly, IT IS RECOMMENDED that the Motion to Vacate, Set Aside or Correct Sentence (doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED a certificate of appealability and leave to proceed in forma pauperis on appeal be DENIED. Movant has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections.
Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.