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Melchor-Zaragoza v. United States

United States District Court, D. Arizona

February 9, 2018

Aquileo Melchor-Zaragoza, Movant/Defendant
v.
United States of America, Respondent/Plaintiff.

          REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

          James F. Metcalf, United States Magistrate Judge

         I. MATTER UNDER CONSIDERATION

         Movant, 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).

         The 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.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. PROCEEDINGS AT TRIAL

         On June 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. .”)

         On 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.)

         After a 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. (Id.)

         B. PROCEEDINGS ON DIRECT APPEAL

         Movant 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.)

         C. PROCEEDINGS ON FIRST MOTION TO VACATE

         On 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 the indictment.

(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.)

         Movant 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.)

         D. PROCEEDINGS ON CURRENT MOTION TO VACATE

         Motion - 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.)

         Movant 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.

         Movant 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.

         Response - 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).

         Reply - 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).

         III. APPLICATION OF LAW TO FACTS A. LEGAL BACKGROUND AND MERITS OF GROUND ONE - JOHNSON

         Because 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 preliminary matter.

         1. The Armed Career Criminal Act

         The 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 imprisonment.

         That part of the ACCA defines “violent felony” as follows:

“any crime punishable by imprisonment for a term exceeding one ...

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