United States District Court, D. Arizona
CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE
Pending before the Court is the Motion to Vacate and Set Aside by Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Doc. 1). A response and reply have been filed. The Court finds it would not be assisted by an evidentiary hearing or oral argument. See Walker v. Johnston, 312 U.S. 275, 284 (1941) (where a prisoner is entitled to relief as a matter of law, an evidentiary hearing is not needed); see also Korematsu v. United States, 584 F.Supp. 1406 (D.C.Cal. 1984). For the reasons stated herein, the Court will grant the Motion.
I. Procedural History
On January 6, 1999, Pedro Rosales-Martinez (“Rosales-Martinez”) was ordered removed from the United States due to a DUI conviction. The decision was affirmed by the Board of Immigration Appeals (“BIA”). In late December, 2005, the Department of Homeland Security (“DHS”) conceded Rosales-Martinez was no longer removable as charged because the Ninth Circuit had determined that an Arizona DUI conviction was not a crime of violence and, therefore, not an aggravated felony – DHS sought to reopen the proceedings. The BIA granted the motion to reopen in order to vacate the prior removal order and terminate the proceedings, but declined to remand the proceedings for a rehearing.
On February 22, 2006, new removal proceedings were initiated against Rosales-Martinez. The new Notice to Appear alleged Rosales-Martinez was subject to removal as an aggravated felon based on a 1998 attempted burglary conviction. The Immigration Judge (“IJ”) ruled against Rosales-Martinez’s argument that the principles of res judicata barred DHS from seeking to remove him a second time. The IJ found that Rosales-Martinez was convicted within the burglary statutes for an unlawful or unprivileged entry pursuant to Taylor v. United States, 495 U.S. 575 (1990) and ordered Rosales-Martinez be removed from the United States because of his attempted burglary conviction. The BIA agreed that res judicata did not apply and affirmed the IJ’s decision to remove Rosales-Martinez. Rosales-Martinez did not file a direct appeal of the BIA’s decision.
On June 14, 2006, Rosales-Martinez was removed from the United States through Nogales, Arizona.
On July 24, 2006, Rosales-Martinez was arrested; he was charged with illegal reentry after deportation. An Expedited Order of Removal was issued on July 25, 2006.
On August 23, 2006, Rosales-Martinez was indicted on one count of Attempted ReEntry after Deportation in violation of 8 U.S.C. § 1326, enhanced by 8 U.S.C. § 1326(b)(2), in CR 06-1449. On December 21, 2006, trial counsel for Rosales-Martinez filed a motion to dismiss the indictment alleging that the January 6, 1999 order of removal against the defendant was vacated by the BIA. A memorandum from an Immigration Expert was attached in support of the motion to dismiss. In response, the government argued that the order of removal that supported the allegations in the indictment was based on the valid 2006 removal order, and not the original order that had been vacated. Attaching an additional memorandum from the expert, trial counsel for Rosales-Martinez withdrew the motion to dismiss. This second memorandum indicated that the expert would like to see documents concerning Rosales-Martinez’s attempted burglary conviction because an argument as to whether Rosales-Martinez was an aggravated felon could exist. However, trial counsel did not provide the expert with judicially noticeable documents regarding the attempted burglary conviction. Motion, Doc. 1-2, Ex. 1, 8/13/13 Aff. of Counsel, p. 4 of 32. Further, counsel did not conduct any independent pre-trial research as to whether the attempted burglary conviction qualified as an aggravated felony. Id. at 5 of 32. The expert provided additional analysis and memoranda to trial counsel, ultimately concluding “Mr. Rosales-Martinez was convicted of a burglary that meets the federal definition of ‘burglary’ and was sentenced to more than one year, he is an aggravated felon.” Response, Doc. 13, Ex. 2/25/07 Memo of Expert. The matter proceeded to a bench trial on April 17, 2007. This Court found Rosales-Martinez guilty.
After imposing a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on Rosales-Martinez’s conviction for attempted burglary in violation of A.R.S. § 13-1507, on October 23, 2007, this Court sentenced Rosales-Martinez to a term of sixty-five (65) months in the custody of the Bureau of Prisons to be followed by a thirty-six (36) month term of supervised release. An appeal was filed.
The Ninth Circuit Court of Appeals issued its ruling on December 21, 2011. The court determined Rosales-Martinez's Arizona conviction for attempted burglary is not categorically a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). That court further determined that the documents considered by this Court under the modified categorical approach "do not establish that Rosales-Martinez formed the intent to commit the burglary before entering the structure, or that his entry was unlawful or unprivileged, or that he burgled an immovable structure." Reply, Ex. 1, Doc. 6, pp. 2-3. The matter was vacated and remanded. On April 9, 2012, at the government's request, the appellate court amended its December 21, 2011, Memorandum to replace "vacated and remand" with "affirmed." The mandate was issued on January 24, 2013.
On January 30, 2013, after the Memorandum had been amended to reflect the matter was affirmed, this Court ordered that Rosales-Martinez "and/or his attorney may apply to this Court to vacate his sentence and resentence him consistent with the decision of the Ninth Circuit Court of Appeals if [Rosales-Martinez] is available for resentencing." Doc. 73. On April 19, 2013, this Court set this matter for a re-sentencing hearing and directed counsel for the government to coordinate with defense counsel to parole Rosales-Martinez into the United States for his re-sentencing. On September 11, 2013, Rosales-Martinez was re-sentenced to a term of fifteen (15) months incarceration, with credit for time served. No appeal was filed.
On June 14, 2010, while his appeal was pending, Rosales-Martinez filed a motion with the BIA to reopen the immigration proceedings based on res judicata and Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007); he requested the final order of removal entered July 2006 be vacated. On July 27, 2010, the BIA issued its decision denying the motion to reopen as untimely, and declined to exercise its discretion to reopen the proceedings sua sponte. Factors considered by the BIA included the motion was principally based on Bravo-Pedroza, which was decided after Rosales-Martinez had already unlawfully reentered the United States, the motion to reopen was filed three years after the change in case law upon which Rosales-Martinez relied, the case did not affect Rosales-Martinez’s underlying removability on the pertinent charge, and Rosales-Martinez was found removable based on his 1998 Arizona attempted burglary conviction which had not been vacated. Response, Ex. 5, July 27, 2010 BIA decision, Doc. 13-1, pp. 43-44 of 91.
On May 12, 2012, Rosales-Martinez filed a second motion to reopen the 2006 immigration proceedings. On September 7, 2012, the BIA, determining the second motion to reopen was time barred, number barred, and no showing had been made to excuse the late filing, declined to exercise its discretionary sua sponte discretion to reopen the proceedings. Response, Ex. 7, September 7, 2012 Order, Doc. 13-1, p. 79 of 91.
On September 5, 2013, prior to the re-sentencing, Rosales-Martinez filed a Motion to Vacate and Set Aside by Person in Federal Custody Pursuant to 28 U.S.C. § 2255. A response raising affirmative defenses and a reply were filed. On February 7, 2014, this Court issued an Order denying the government’s request to dismiss the Motion to Vacate and Set Aside by Person in Federal Custody Pursuant to 28 U.S.C. § 2255 and directed the filing of a supplemental answer and a supplemental reply.
On June 10, 2014, the government filed its supplemental response and, on July 28, 2014, Rosales-Martinez filed a supplemental reply.
II. Legal Standard
The statute governing habeas review of a federal conviction provides four grounds that justify relief for a federal prisoner who challenges the fact or length of his detention: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” or (4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).
III. Res Judicata
Rosales-Martinez argues that his 2006 removal is invalid because the Ninth Circuit has held that “res judicata bars the Secretary of Homeland Security … from initiating a second deportation case on the basis of a charge that he could have brought in the first case, when, due to a change of law that occurred during the course of the first case, he lost the first case.” Bravo-Pedroza, 475 F.3d at 1358. Rosales-Martinez asserts that, by failing to allege the attempted burglary conviction in the 1999 removal proceedings, DHS should have been barred from alleging the attempted burglary conviction as a basis for removal in 2006.
While the government does not dispute this, the government argues that res judicata bars Rosales-Martinez from raising this claim in this proceeding. However, the Supreme Court “has consistently relied on the equitable nature of habeas corpus to preclude application of strict rules of res judicata.” Schlup v. Delo, 513 U.S. 298 (1995). Rather, the Court has developed an equitable inquiry which considers cause, prejudice, and a miscarriage of justice. Id. at 320-322. Because the government does not address the merits of Rosales-Martinez’s ...