The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-22003-Civ-COOKE
(03-20759-Cr-COOKE)
WILFREDO RODRIGUEZ,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
___________________________________/
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
THIS MATTER was referred to the Honorable Jonathan Goodman, United States
Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(A)–(B), for a ruling on all pre-trial, non-
dispositive matters and for a Report and Recommendation on any dispositive matters. ECF
No. 4. On October 28, 2020, Judge Goodman issued a Report and Recommendation
(“Report”) (ECF No. 12) recommending denial of Movant’s Motion to Vacate under 28
U.S.C. § 2255 (“Motion”) (ECF No. 3). The Motion argued that Movant’s “18 U.S.C. §
924(o) conviction on Count 3 and his § 924(c) conviction on Count 5 [were] invalid and
unconstitutional in light of United States v. Davis, 139 S. Ct. 2319 (2019).” ECF No. 3 at 5.
Davis held that the “residual clause” in “§ 924(c)(3)(B) [was] unconstitutionally vague.” 139
S. Ct. at 2336.
As relevant here, the Report recommended that Movant’s Davis claim be denied on
the merits because the Court could not find that “the alleged [Davis] error ‘had substantial and
injurious effect or influence in determining the jury’s verdict.’” See ECF No. 12 at 26 (quoting
Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008)). Key to this determination was that “the record
indicate[d] that the jury based [the § ] 924(o) and (c) convictions partly on [Movant’s]
conviction for conspiracy to possess cocaine with intent to distribute . . . and attempted
possession of cocaine with intent to distribute.” Id. at 25.1 The record so indicated because
“[a]ny reasoned assessment of the trial evidence demonstrate[d] that the offenses were all
substantially interrelated.” Id. at 22; see also id. at 21 (“These crimes are all intertwined and
were committed as part of one scheme.”).
The Report also recommended that the Motion be denied as procedurally defaulted
because, as relevant here, Movant failed to raise a vagueness claim on direct appeal. See id. at
26–27. Further, the Report found that Movant could not show “cause for his failure to raise
the claim earlier and actual prejudice resulting from the alleged error.” Id. at 27 (citation and
quotation marks omitted). Additionally, the Report found that Movant could not show that
the jury based his § 924(c) and (o) convictions solely on his conviction for Hobbs Act
conspiracy (and not the drug trafficking convictions); thus, he could not show actual
innocence. See id. at 28–29.2
Movant filed Objections (ECF No. 13) to the Report. The Objections largely repeat
arguments from the Motion and Movant’s Reply (ECF No. 10) to the Government’s Answer
(ECF No. 8). As discussed below, the Court adopts the Report with the following
supplemental discussion.
The Report correctly found that Movant procedurally defaulted the Davis claim by
failing to raise it on direct appeal. 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.” Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021) (citation
and quotation marks omitted). Movant concedes that he did not raise a vagueness challenge
to his § 924(c) and (o) convictions on direct appeal. See ECF No. 10 at 18–23.
“[Movant], therefore, procedurally defaulted this claim and cannot succeed on
collateral review unless he can either (1) show cause to excuse the default and actual prejudice
1 These offenses are “drug trafficking crimes” under § 924(c)(1)(A). Davis “invalidated only §
924(c)(3)(B)’s residual clause relating to crimes of violence.” In re Navarro, 931 F.3d 1298,
1302 (11th Cir. 2019).
2 Hobbs Act conspiracy is no longer a “crime of violence” under § 924(c)(3)(B)’s elements
clause. Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019) (per curiam). And Davis
invalidated § 924(c)(3)(B)’s residual clause. Therefore, Movant’s Hobbs Act conspiracy
conviction alone could not support his § 924(c) and (o) convictions.
from the claimed error, or (2) show that he is actually innocent of the § 924(o) [and (c)]
conviction[s].” Granda, 990 F.3d at 1286 (citation omitted).
Here, Movant cannot show actual prejudice from the alleged Davis error.3 “Actual
prejudice means more than just the possibility of prejudice; it requires that the error worked
to [Movant’s] actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Id. at 1288 (citation omitted). To meet this standard, Movant
must show “a substantial likelihood that the jury relied only on the [Hobbs Act conspiracy]
conviction, because reliance on any of [the drug trafficking crimes] would have provided a
wholly independent, sufficient, and legally valid basis to convict [Movant of the § 924(c) and
(o) offenses].” See id.
Movant cannot make this showing. As the Report found, “[t]he trial record makes it
abundantly clear that [Movant’s Hobbs Act conspiracy and drug trafficking convictions]
rested on the same operative facts and the same set of events.” See id. at 1289. Furthermore,
the jury convicted Movant of the drug trafficking offenses. Thus, Movant cannot show that
the jury could have found that he conspired to possess, and actually possessed, the firearms
in furtherance of the plan to rob (and later sell) the cocaine but not in furtherance of the
conspiracy and attempt to possess with intent to distribute the same cocaine. See ECF No. 12
at 28; see also Granda, 990 F.3d at 1289–91. In short, Movant has not shown actual prejudice
sufficient to excuse his default of his Davis claim.
Nor can Movant show actual innocence. “The actual innocence exception to the
procedural default bar is exceedingly narrow in scope as it concerns [Movant’s] actual
innocence rather than his legal innocence.” Granda, 990 F.3d at 1292 (citation and quotation
marks omitted). “To establish actual innocence, [Movant] must demonstrate that, in light of
all the evidence, it is more likely than not that no reasonable juror would have convicted
him.” Id. (citation omitted). Thus, to demonstrate actual innocence of the § 924(c) and (o)
convictions, he “would have to show that no reasonable juror would have concluded he
conspired to possess a firearm [and actually possessed a firearm] in furtherance of any of the
valid predicate [i.e., drug trafficking] offenses.” See id. This he cannot do because “the valid
drug-trafficking . . . predicates are inextricably intertwined with the invalid conspiracy-to-rob
3 Because Movant must show cause and prejudice to overcome the procedural default, the
Court need not consider whether he has shown cause.
predicate,” which “makes it impossible for [him] to show that his § 924(o) [and (c)]
conviction[s were] in fact based on the conspiracy-to-rob predicate.” See id.
In sum, Movant cannot show prejudice or actual innocence. Consequently, “he cannot
overcome procedural default.” See id.
Furthermore, even if Movant’s Davis claims were not procedurally defaulted, he would
not be entitled to § 2255 relief. “On collateral review, the harmless error standard mandates
that relief is proper only if the 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.” Id. (cleaned
up). Under this standard, “the court may order relief only if the error ‘resulted in actual
prejudice.’” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This requirement is
not a burden of proof. Id. at 1292–93 (citations omitted). “Instead, the reviewing court should
ask directly whether the error substantially influenced the jury’s decision.” Id. at 1293 (citation
and quotation marks omitted). “[I]f the court cannot say, with fair assurance, after pondering
all that happened without stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error, the court must conclude that the error was not
harmless.” Id. (citation and quotation marks omitted).
Here, the “record does not provoke grave doubt about whether [Movant’s] § 924(o)
[and (c)] conviction[s] rested on an invalid ground.” See id. As the Court explained above, his
“conspiracy to commit Hobbs Act robbery was inextricably intertwined with the [drug
trafficking] offenses.” See id. “There is little doubt that if the jury found that [Movant]
conspired to possess a firearm in furtherance of his conspiracy to commit Hobbs Act robbery,
it also found that he conspired to possess a firearm in furtherance of the other . . . drug-
trafficking predicates of which the jury convicted him.” See id. Thus, even though the Court
instructed the jury that it could base the § 924(c) and (o) counts on only the Hobbs Act
conspiracy count, see Cr-ECF No. 100 at 15, 17–18, Movant is not entitled to § 2255 relief.
See Granda, 990 F.3d at 1293.
In sum, after careful, de novo consideration of the Motion, Report, Objections, record,
and applicable authorities, and being otherwise fully advised in the premises, the Court agrees
with the Report and finds that the Motion should be denied.4
4 The Report recommended that the Court issue a certificate of appealability (“COA”). ECF
No. 12 at 29–30. However, after Granda, Movant is not entitled to a COA. Hamilton v. Sec’y,
Accordingly, it is ORDERED and ADJUDGED that the Report (ECF No. 12) is
APPROVED and ADOPTED. As a result, the Motion (ECF No. 3) is DENIED.
Furthermore, a certificate of appealability is DENIED. The Clerk is directed to CLOSE the
case.
DONE and ORDERED in chambers, at Miami, Florida, this 15th day of April 2021.
MARCIA G. COOKE
United States District Judge
Fla. Dep’t of Corr., 793 F.3d 1261, 1266 (11th Cir. 2015) (per curiam) (“[N]o COA should issue
where the claim is foreclosed by binding circuit precedent... .” (citation omitted)).