United States District Court, D. Arizona
REPORT & RECOMMENDATION ON MOTION TO VACATE, SET
ASIDE OR CORRECT SENTENCE
F. Metcalf, United States Magistrate Judge
MATTER UNDER CONSIDERATION
following his conviction in the United States District Court
for the District of Arizona, filed through counsel a Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255, which was transferred to this Court from
the Ninth Circuit Court of Appeals on February 16, 2017, with
instructions to file the Motion as of June 27, 2016 (Doc. 3).
On July 24, 2017 Respondent filed its Response (Doc. 9).
Movant filed a Reply on September 12, 2017 (Doc. 13).
Movant's Motion is now ripe for consideration.
Accordingly, the undersigned makes the following proposed
findings of fact, report, and recommendation pursuant to Rule
10, Rules Governing Section 2255 Cases, Rule 72(b), Federal
Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule
72.2(a)(2), Local Rules of Civil Procedure.
RELEVANT FACTUAL & PROCEDURAL BACKGROUND A.
PROCEEDINGS AT TRIAL
26, 2001, Movant was charged with: (1) Conspiracy to Commit
Hostage Taking (18 U.S.C. §§ 371 and 1203); (2)
Hostage Taking (18 U.S.C. §§ 1203 and 2); (3)
Conspiracy to Harbor Illegal Aliens (8 U.S.C. §§
1324(a)(1)(A)(iii) and (a)(1)(A)(v)(I)); (4) Harboring
Illegal Aliens (8 U.S.C. §§ 1324(a)(1)(A)(iii) and
(a)(1)(A)(v)(II)); (5) Possession or Use of a Firearm in a
Crime of Violence (18 U.S.C. §§ 924(c) and 2); and
(6) Re-entry After Deportation (8 U.S.C. § 1326(a)
enhanced by (b)(1)). (CR Doc. 30, Superseding Indictment.)
(Filings in the underlying criminal case, United States
v. Melchor-Zaragoza, CR-01-0017-PHX-JAT, are referenced
herein as “CR Doc. .”)
February 21, 2002, Movant entered a plea of guilty to the
illegal re-entry charge, Count 6. However, he proceeded to
trial on the remaining charges. (CR Doc. 202, Judgment.)
jury trial, Movant was convicted of Counts 1 through 5. On
June 10, 2002, he was sentenced to 327 months on Counts 1 and
2, and 120 months on Counts 3, 4, and 6, all to be served
concurrently, and a term of 84 months on Count 5, to be
consecutive to the sentence on Counts 1, 2, 3, 4, and 6.
PROCEEDINGS ON DIRECT APPEAL
filed a direct appeal, raising claims of the exercise of a
peremptory challenge to a juror on the basis of race,
improper admission of prior bad acts, instructional error,
sentencing error based on the vulnerable victim enhancement,
and improper refusal of a downward departure for acceptance
of responsibility. On December 5, 2003, the Ninth Circuit
Court of Appeals rejected Movant's claims and affirmed.
(CR Doc. 287, Memorandum Decision.) Movant did not seek
further review. (Motion, Doc. 3 at 2, ¶ 6.)
PROCEEDINGS ON FIRST MOTION TO VACATE
December 3, 2004, Movant filed his first Motion to Vacate
pursuant to 28 U.S.C. § 2255 (Doc. 290). Movant raised
the following nine claims:
(1) Sentencing enhancements violated his due process and
Sixth Amendment rights as set forth in Apprendi v. New
Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 124 S.Ct. 2531 (2004) and United States
v. Ameline, 376 F.3d 967 (9th Cir. 2004); (2) the
District Court violated his Due Process and his Sixth
Amendment rights by imposing a two-level increase for
vulnerable victim; (3) counsel was ineffective in failing to
argue that the court could not increase his sentence based on
facts not charged in the indictment or found by the jury; (4)
the rulings of Apprendi, Blakely, and
Ameline should apply retroactively to this case; (5)
Count One contained five or more charges in violation of
Movant's Fifth and Sixth Amendment rights; (6) the Fifth
and Sixth Amendment were violated because Movant was charged
with multiple conspiracies for a single scheme or plan; (7)
the jury instructions broadened the scope of the indictment
in violation of Fifth Amendment; (8) the Fifth and Sixth
Amendment were violated because Movant was charged with both
the possession and brandishing elements of 18 U.S.C. §
924(c); and (9) trial and appellate counsel were ineffective
in failing to argue the merits of claims five through eight,
in regard to the duplicitous and multiplicitous charges of
(CR Doc. 307, Report & Recommendation at 1-2.) On
December 2, 2005, the Motion to Vacate was denied on its
merits. (CR Doc. 313, Order 12/2/05.)
sought review by the Ninth Circuit Court of Appeals, arguing
“that the superseding indictment improperly joined
distinct and separate offenses in the same counts, and
improperly charged multiple offenses based on the same
underlying conduct. He contend[ed] that these alleged errors,
combined with the jury instructions, resulted in an improper
constructive amendment of the indictment.” (CR Doc.
324, Memorandum Decision, 3/10/08 at 2.) The Ninth Circuit
affirmed on March 10, 2008. (Id.)
PROCEEDINGS ON CURRENT MOTION TO VACATE
- Movant commenced the current case by filing an application
for authorization to file a second or successive 28 U.S.C.
§ 2255 motion with the Ninth Circuit Court of Appeals.
The court granted that application, and directed the filing
of the Motion to Vacate in this court as of June 27, 2016,
the date the application was filed. (9th Cir.
Order 2/16/17, Doc. 3.)
argues his conviction for violating 18 U.S.C. § 924(c)
must be vacated because: (a) under Johnson v. United
States, 135 S.Ct. 2551 (2015) the “residual
clause” of the definition of a crime of violence in
§ 924(c)(3) is unconstitutionally vague; and (b) his
predicate offense of hostage taking under 18 U.S.C. §
1203 does not qualify under the “force clause” of
§ 924(c)(3) because it does not require the intentional
use of violent force.
argues that Johnson has been made retroactive to
cases on collateral review, his Motion was filed less than
one year after Johnson was decided and thus is
timely, and Johnson is an intervening change in the
law requiring that its merits be reached.
- On July 24, 2017, Respondent filed its Response (Doc. 9).
Respondent argues: (1) Johnson is not applicable to
§ 924(c)(3) (id. at 5-7); and (2) Movant's
motion is barred by the habeas statute of limitations in 28
U.S.C. § 2255(f) (id. at 9-10).
- On September 12, 2017, Movant filed a Reply (Doc. 13).
Movant argues: (1) Respondent has waived any procedural
default defense (id. at 1-2); (2) the reasoning of
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), cert. granted, 137 S.Ct. (2016), requires the
extension of Johnson to § 924(c) (id.
at 2-5); (3) because Johnson applies, Movant's
Motion is timely, and if not his actual innocence justifies
relief from the statute of limitations (id. at 5-6).
APPLICATION OF LAW TO FACTS A. LEGAL BACKGROUND AND MERITS OF
GROUND ONE - JOHNSON
the validity of Respondent's statute of limitations
defense depends, to a large extent, upon the nature of
Movant's claims, the undersigned addresses the background
and merits of Movant's Johnson claim as a
The Armed Career Criminal Act
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 922(g), et seq, establishes various crimes
and punishment enhancements for various offenders and
offenses. In one particular, under 18 U.S.C. §
924(e)(2), if an offender has three or more prior convictions
for a “serious drug offense” or “violent
felony, ” the ACCA increases the prison term to a
mandatory minimum 15-year sentence and a maximum term of life
part of the ACCA defines “violent felony” as
“any crime punishable by imprisonment for a term
exceeding one ...