Lopez v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 8:20-cv-1592-SDM-AEP

8:11-cr-269-SDM-AEP

LUIS LOPEZ

____________________________________/

ORDER

Lopez moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the

validity of one of his three convictions. Lopez is imprisoned for life on each conviction,

specifically, (1) using interstate commerce in the commission of a murder-for-hire, as

prohibited by 18 U.S.C. § 1958(a); (2) conspiring to use interstate commerce in the

commission of a murder-for-hire, as prohibited by 18 U.S.C. § 1958(a); and (3)

knowingly using and carrying a firearm in relation to a crime of violence resulting in

death, as prohibited by 18 U.S.C. § 924(c)(1)(iii). Lopez challenges this last conviction.

I. BACKGROUND

The following summary of the facts derives from the circuit court’s decision on

direct appeal. (Doc. 348 at 2–5) Christie Sehorne and her husband frequented a

“swingers club,” a place where patrons swapped partners and at which Mrs. Sehorne

met Jerry Bottorff, who was employed at the club. After continuing to see each other,

Mrs. Sehorne schemed with Bottorff to have her husband murdered so she could collect

on a million-dollar life insurance policy. Bottorff approached Michael Garcia, a friend

of his from the club, about arranging the murder.1 Garcia was once a high-ranking

officer in the Latin Kings gang and was a career criminal with more than two dozen

prior convictions. After agreeing to locate someone to undertake the contract, Garcia

recruited Lopez (whom he knew from the gang) to commit the murder for $60,000.

Knowing that the husband would arrive home after midnight, Garcia stood watch,

Lopez hid in the carport, and after the husband exited his truck Lopez approached him

and fatally shot him twice (once in the abdomen and once in the head) with a revolver

provided by Garcia.

In 2014 the circuit court affirmed the convictions and sentences. (Doc. 348 in

11-cr-269) Lopez challenged his convictions and sentences in a motion under Section

2255 to vacate, which the district court denied on the merits in 2019. (Doc. 24 in 8:16-

cv-1563-SDM-AEP) Lopez filed no appeal. In 2020 the circuit court granted (Doc. 26

in 11-cr-269) Lopez leave to file the present action, an authorized second or successive

motion under Section 2255 that asserts relief under United States v. Davis, 139 S. Ct.

2319 (2019).

II. AUTHORIZED SECOND OR SUCCESSIVE MOTION TO VACATE

The circuit court was charged with determining whether to grant Lopez leave to

file a second or successive motion to vacate if he met a “threshold determination” of

possible entitlement to relief. Solomon v. United States, 911 F.3d 1356, 1360 (11th Cir.)

(“[W]e note that when this Court authorizes a federal prisoner to file a successive §

1 Christie Sehorne (later Mrs. Bottorff), Jerry Bottorff, and Michael Garica pleaded guilty and

are imprisoned for 236 months, life, and life, respectively. (Docs. 243, 244, and 285 in 11-cr-269)

2255 motion in the district court, that authorization is a threshold determination and

narrowly circumscribed.”), abrogated on other grounds by United States v. Davis, 139 S. Ct.

2319 (2019). The district court is charged with determining in the first instance whether

relief is warranted, as Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1358 (11th Cir.

2007), explains:

The statute puts on the district court the duty to make the initial

decision about whether the petitioner meets the § 2244(b)

requirements—not whether he has made out a prima facie case for

meeting them, but whether he actually meets them. Given these

circumstances, it would make no sense for the district court to

treat our prima facie decision as something more than it is or to

mine our order for factual ore to be assayed. The district court is to

decide the § 2244(b)(1) & (2) issues fresh, or in the legal

vernacular, de novo.

Lopez’s singular claim is not a successive claim precluded by Section 2244(b)(1) and,

based on the retroactive application of Davis, meets the requirements of Section

2244(b)(2)(A).

Lopez challenges his conviction charged in count three, that is, knowingly using

and carrying a firearm in relation to a crime of violence resulting in death, as prohibited

by 18 U.S.C. § 924(c)(1)(iii). This firearm conviction is based on Lopez’s using or

carring a firearm during a “crime of violence,” which is defined in Section 924(c)(3) as

“a felony and (A) has as an element the use, attempted use, or threatened use of

physical force against the person . . . of another, or (B) that by its nature, involves a

substantial risk that physical force against the person . . . of another may be used in the

course of committing the offense.” The definition in part “(A)” is commonly called the

“elements clause” or “use-of-force clause” and the definition in part “(B)” is commonly

called the “residual clause.” Lopez contends that the firearm conviction is invalid

under Davis, which holds that the residual clause in Section 924(c)(3)(B) is

“unconstitutionally vague.” Moreover, Davis applies retroactively. In re: Wissam T.

Hammoud, 931 F.3d 1032, 1038, 1039 (11th Cir. 2019) (“We conclude that Davis . . .

announced a new substantive rule[, and] we conclude that . . . the Supreme Court’s

holding[] in Davis . . . ‘necessarily dictate[s]’ that Davis has been ‘made’ retroactively

applicable to criminal cases that became final before Davis was announced.”).

Count three of the superseding indictment charges Lopez with violating

Section 924(c) based on the crimes “alleged in Counts One and Two,” specifically, the

substantive crime of using interstate commerce in the commission of a murder-for-hire

(count one) and the inchoate crime of conspiring to use interstate commerce in the

commission of a murder-for-hire (count two). The jury was instructed that, to convict

Lopez of the firearm charge under Section 924(c), they must find beyond a reasonable

doubt that “the defendant committed the crime of violence charged in [either] Count

One or Count Two of the Indictment.” (Doc. 301 at 16 in 11-cr-269) (bolding added)

The jury found Lopez guilty of the firearm charge in count three and the offenses

charged in counts one and two, but the verdict does not delineate between counts one

and two as the predicate offense for the firearm conviction. Lopez argues that, as a

consequence, the record fails to show which predicate offense –– the substantive offense

in count one or the conspiracy offense in count two –– is the basis for the Section 924(c)

firearm conviction.

Lopez argues that a conspiracy conviction cannot support a Section 924(c)

firearm conviction because a conspiracy fails to qualify as a crime of violence under the

elements clause. Respondent argues that, although generally true regarding a

conspiracy conviction, under United States v. Runyan, 995 F.3d 192, 204 (4th Cir. 2021),

a “conspiracy to commit murder for hire where death results, in violation of § 1958(a),

is a crime of violence under § 924(c)(3)’s force clause . . . .” Lopez counters (1) that this

district court is governed by decisions from the Eleventh Circuit Court of Appeals, not

the Fourth Circuit Court of Appeals, and (2) that under United States v. Preacher, 631

F.3d 1201, 1203 (11th Cir. 2011), a conviction under Section 1958(a) for a conspiracy

to use interstate commerce to commit a murder-for-hire is not a “crime of violence,”

specifically, the offense requires no use, attempted use, or threatened use of physical

force because “once the defendant uses an instrument of interstate commerce with the

intent that a murder-for-hire be committed, the crime is completed.” See also Brown v.

United States, 942 F.3d 1069, 1075 (11th Cir. 2019) (Because “[n]either an agreement to

commit a crime nor a defendant’s knowledge of the conspiratorial goal necessitates the

existence of a threat or attempt to use force[,] we conclude that conspiracy to commit

Hobbs Act robbery does not qualify as a ‘crime of violence,’ as defined by

§ 924(c)(3)(A).”). This district court must follow Eleventh Circuit precedent that a

conviction for a conspiracy cannot support a Section 924(c) firearm conviction under

the elements clause. Likewise, this district court must follow Eleventh Circuit

precedent that this claim is subject to the usual defenses. In re Moss, 703 F.3d 1301,

1303 (11th Cir. 2013) (“Should the district court conclude that Mr. Moss has

established the statutory requirements for filing a second or successive motion, it shall

proceed to consider the merits of the motion, along with any defenses and arguments

the respondent may raise. Any determination that the district court makes about

whether Mr. Moss has satisfied the requirements for filing a second or successive

motion, and any determination it makes on the merits, if it reaches the merits, is subject

to review on appeal from a final judgment or order if an appeal is filed”). Although

Davis applies retroactively, the United States may assert the usual defenses, including

“waiver, procedural default, or the concurrent sentence doctrine[, and a]t this

preliminary stage [of determining whether to authorize a second or successive motion

to vacate], we offer no opinion as to whether these, or any other defense, might bar or

defeat Cannon’s Davis claim.” In re Cannon, 931 F.3d 1236, 1245 (11th Cir. 2019). The

United States correctly argues that procedural default bars review of Lopez’s only

claim.

A. Procedural Default:

“Under the procedural default rule, a defendant generally must advance an

available challenge to a criminal conviction on direct appeal or else the defendant is

barred from raising that claim in a habeas proceeding.” Fordham v. United States,

706 F.3d 1345, 1349 (11th Cir. 2013). On direct appeal Lopez challenged only the

denial of his motions for both a judgment of acquittal and a new trial. (Doc. 348 in 11-

cr-269) Consequently, Lopez procedurally defaulted the challenge he presents in this

collateral review –– the validity of his firearm conviction under count three.

To overcome the procedural default, Lopez must “either (1) show cause to excuse the

default and actual prejudice from the claimed error, or (2) show that he is actually

innocent of the . . . conviction.” Granda v. United States, 990 F.3d 1272, 1286 (11th Cir.

2021) (underlining original). Although not based on a murder-for-hire, Granda is

remarkably similar to Lopez.

1. Cause:

In his reply Lopez correctly states the following regarding “unavailability” as a

basis for “cause” (Doc. 13 at 2):

A constitutional claim is not “reasonably available” if the

Supreme Court decision establishing that claim: (1) explicitly

overrules one of the Court’s precedents; (2) overturns a

longstanding and widespread practice to which the Court has not

spoken “but which a near-unanimous body of lower court

authority has expressly approved;” or (3) disapproves a practice

that the Court “‘arguably has sanctioned in prior cases.’” Reed,

468 U.S. at 17.[2] “By definition, when a case falling into one of

the first two categories is given retroactive application, there will

almost certainly have been no reasonable basis upon which an

attorney previously could have urged a . . . court to adopt the

position that [the Supreme Court] has ultimately adopted,” and

such a case will satisfy the cause requirement. Id.

Although Lopez contends that his “case fits all three categories,” he primarily argues

entitlement to “cause” under the first two categories. (Doc. 13 at 2–3) However,

Granda rejects reliance on the first two categories as “cause” to overcome the

procedural default of a Davis claim and determines that “Granda’s Davis claim fits most

neatly into th[e] third category.” Granda, 990 F.3d at 1287. The third category

“focus[es] on whether others were recognizing and raising the same or similar claims in

2 Reed v. Ross, 468 U.S. 1, 16 (1984) (“[W]e hold that where a constitutional claim is so novel

that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise

the claim in accordance with applicable state procedures.”).

the period preceding or concurrent with the petitioner’s failure to raise his claim.” Pitts

v. Cook, 923 F.2d 1568, 1572 (11th Cir. 1991). Granda determines that, under the third

category, “cause” is not shown because, since “[t]he tools existed to challenge myriad

other portions of § 924(c) as vague[,] they existed to support a similar challenge to its

residual clause[, and, consequently,] Granda cannot show cause to excuse his

procedural default.” 990 F.3d at 1288. Because he fails to show “cause,” Lopez cannot

meet his burden of showing both “cause” and “prejudice.” Moreover, Lopez also

cannot show “prejudice.”

2. Prejudice:

“To prevail on a cause and prejudice theory, a petitioner must show ‘actual

prejudice.’ ‘Actual prejudice means more than just the possibility of prejudice; it

requires that the error worked to [the petitioner’s] actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.’” Fordham v. United

States, 706 F.3d at 1350 (quoting Ward v. Hall, 592 F.3d 1144, 1179 (11th Cir. 2010)

(brackets original). As Granda explains, Lopez must “show at least a ‘substantial

likelihood’ that the jury actually relied on [the conspiracy] conviction to provide the

predicate offense[, m]ore specifically, he must establish a substantially likelihood that

the jury relied only on the [conspiracy] conviction . . . .” Granda, 990 F.3d at 1288

(bolding added). This “actual reliance” by the jury is necessary because “[i]f the

absence of the invalid [conspiracy] predicate would not likely have changed the jury’s

decision to convict, Granda has not suffered actual prejudice.” 990 F.3d at 1288.

Count one charged Lopez with using interstate commerce in a murder-for-hire,

count two charged a conspiracy in that murder-for-hire, and count three charged

knowingly using and carrying a firearm during a crime of violence. There was only one

murder, which is the basis for all three counts, and both counts one and two were

charged as predicate offenses to support the firearm charge in count three. As discussed

above, because the conspiracy conviction in count two no longer qualifies as a crime of

violence, to show prejudice Lopez must show that the jury relied on the conspiracy

charge in count two –– to the exclusion of the murder-for-hire charge in count one –– as

the predicate offense for count three. This he cannot do because both “of the § 924([c])

predicates are inextricably intertwined, arising out of the same [murder-for-hire]

scheme.” Granda, 990 F.3d at 1280. See In re Pollard, 931 F.3d 1318, 1321 (11th Cir.

2019) (“If the companion crime for which an applicant was convicted qualifies as a

crime of violence under § 924(c)(3)(A)’s use-of-force clause, that applicant cannot show

that there is a “reasonable likelihood” that he will benefit from the rule announced in

Davis.”) (denying leave to file a second or successive motion to vacate); Foster v. United

States, 996 F.3d 1100, 1107 (11th Cir. 2021) (“As for the merits of Foster’s claim,

however, we conclude that Foster cannot prevail. The Hobbs Act conspiracy was

inextricably intertwined with Foster’s conspiracy and attempt to possess with intent to

distribute cocaine (Counts 2 and 3), convictions Foster does not dispute are valid drug

trafficking predicates for Counts 4 and 5. Accordingly, the inclusion of an invalid

predicate offense –– the Hobbs Act conspiracy –– in his indictment and jury instructions

was harmless.”).

The remaining question is whether the murder-for-hire charged in count one

qualifies under the elements clause as a “crime of violence,” which requires having as

“an element the use, attempted use, or threatened use of physical force against the

person . . . of another.” The Eleventh Circuit has not answered this question. But in

granting Lopez leave to file a second or successive motion to vacate, the circuit court

acknowledged that “[o]ur reasoning in Thompson3 suggests that murder for hire qualifies

as a crime of violence under § 924(c)(3)(A) because it necessarily involves the use of

force capable of causing physical pain or injury, insofar as it must result in the death of

a person. See 924 F.3d at 1158–59.” (Doc. 387 at 8) In accord with the circuit court’s

suggestion, murder-for-hire under 18 U.S.C. § 1958(a) necessarily has as “an element

the use, attempted use, or threatened use of physical force against the person . . . of

another” because the goal of using interstate commerce in the circumstance is to

murder a person.

As a consequence, the inextricably intertwined charges in counts one and two

preclude Lopez from showing prejudice because he cannot show that the jury relied on

the invalid predicate charge (the conspiracy charge in count two) to the exclusion of

valid predicate charge (the murder-for-hire charge in count one). A movant under

Section 2255 “bears the burden to prove the claims in his § 2255 motion.” Rivers v.

United States, 777 F.3d 1306, 1316 (11th Cir. 2015). “Where, as here, the evidence does

3 Thompson v. United States, 924 F.3d 1153, 1158 (11th Cir. 2019) (“We would conclude that

federal second-degree murder qualifies under § 924(c)’s elements clause. At a minimum, federal second-

degree murder has as an element the killing of a human being with malice aforethought.”).

not clearly explain what happened, . . . the party with the burden loses.” Beeman v.

United States, 871 F.3d 1215, 1225 (11th Cir. 2017) (quoting Romine v. Head, 253 F.3d

1349, 1357 (11th Cir. 2001)). Lopez shows neither “cause” nor “prejudice.”

3. Actual Innocence:

The term “‘actual innocence’ means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Accord Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001), and Sawyer v. Holder, 326 F.3d 1363,

1367 (11th Cir. 2003). Lopez recognizes that, under Johnson, 256 F.3d at 1171, “[t]o

meet [the actual innocence] standard, a petitioner must ‘show that it is more likely than

not that no reasonable juror would have convicted him’ of the underlying offense.”

(Doc. 13 at 3) (brackets original to Lopez). As discussed immediately above regarding

his inability to show prejudice, Lopez cannot show that the jury would not have

convicted him of the firearm charge in count three if they were advised that only the

substantive offense in count one qualified as a predicate offense. Once again, Granda,

990 F.3d at 1292, supports this determination:

But the same shortcoming that prevents Granda from showing

actual prejudice –– that the valid drug-trafficking and crime-of-

violence predicates are inextricably intertwined with the invalid

conspiracy-to-rob predicate –– makes it impossible for Granda to

show that his § 924(o) conviction was in fact based on the

conspiracy-to-rob predicate.

Since Granda can show neither cause, nor prejudice, nor actual

innocence, he cannot overcome procedural default.

B. Merits Notwithstanding Procedural Default:

Lopez would not prevail on the merits of his claim because his inability to show

prejudice to overcome the procedural default likewise precludes his entitlement to relief

on the merits. Again, as Granda, 990 F.3d at 1292, explains, “[t]he inextricability of the

alternative predicate crimes compels the conclusion that the error Granda complains

about –– instructing the jury on a constitutionally invalid predicate as one [of] several . .

. potential alternative predicates –– was harmless.” In a collateral proceeding, “relief is

proper only if the federal court has ‘grave doubt about whether a trial error of federal

law had substantial and injurious effect or influence in determining the jury’s verdict.’ ”

Davis v. Ayala, 576 U.S. 257, 267–68 (2015) (quoting O’Neal v. McAninch, 513 U.S. 432,

436 (1995)). Moreover, the movant must show that the error “resulted in actual

prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). As discussed above

regarding his ability to show neither prejudice nor actual innocence to overcome

procedural default, Lopez cannot show that the jury would not have convicted him of

the firearm charge in count three if they were advised that only the substantive offense

in count one qualified as a predicate offense.

Consequently, the district court has no “grave doubt,” as Ayala, 576 U.S. at 267,

requires, “about whether [the inclusion of the conspiracy charge as a possible predicate

offense] had substantial and injurious effect or influence in determining the jury’s

verdict.” Lopez is entitled to no relief under Section 2255.

The motion to vacate (Doc. 1) 1s DENIED. The clerk must enter a judgment

against Lopez and CLOSE this case.

DENIAL OF BOTH

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Lopez ts not entitled to a certificate of appealability (“COA”). A prisoner

moving under Section 2255 has no absolute entitlement to appeal a district court’s

denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must

first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” To merit a

certificate of appealability, Lopez must show that reasonable jurists would find

debatable both (1) the merits of the underlying claims and (2) the procedural issues he

seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000);

Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that

reasonable jurists would debate either the merits of the claims or the procedural issues,

Lopez is entitled to neither a certificate of appealability nor an appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis 1s

DENIED. Lopez must obtain permission from the circuit court to appeal in forma

pauperis.

ORDERED in Tampa, Florida, on September 8, 2023.

ALTAD.W AA dyelen

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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