Santos v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

GABRIEL LUIS SANTOS,

Petitioner,

v. Case No. 2:20-cv-187-JLB-NPM

2:18-cr-218-JLB-NPM

UNITED STATES OF AMERICA,

Respondent.

ORDER AFFIRMING AND ADOPTING REPORT AND

RECOMMENDATION AND DENYING HABEAS RELIEF

AS TO THE REMAINING CLAIM

This case is before the Court on Petitioner Gabriel Luis Santos’s

(“Petitioner’s”) amended 28 U.S.C. § 2255 motion to vacate, set aside, or correct an

illegal sentence. (Doc. 7). The Government filed a response (Doc. 12). Petitioner

did not reply to the Government’s response.

Petitioner asserts two grounds for relief in his motion. In his first ground,

he argues that his attorney failed to notice an appeal despite being instructed to do

so. The Court referred Ground One to Magistrate Judge Nicholas P. Mizell for an

evidentiary hearing to establish the content of the communication between

Petitioner and his defense counsel. (Doc. 19). The Court reserved ruling on the

merits of Ground Two pending the evidentiary hearing on Ground One. (Id.).

On February 18, 2025, Judge Mizell issued a report recommending that

Ground One be denied because Petitioner was adequately advised of his appellate

rights but elected not to appeal. Specifically, Judge Mizell found:

Santos did not establish that he would have instructed

[Counsel] to notice an appeal if he had received more or

different advice about his appellate options, nor did he

establish that [Counsel] failed to notice an appeal despite

being instructed to do so. Santos should not be

permitted to notice a belated appeal.

(Doc. 36 at 15). Petitioner has not filed written objections to the Report and

Recommendation, and his time to do so has expired.

The Court has carefully reviewed Judge Mizell’s preliminary Report and

Recommendation and the entire record de novo. The factual findings are not

clearly erroneous, and the legal conclusions are consistent with the proper

application of the law to those facts. The Court thus affirms and adopts

Magistrate Judge Mizell’s finding that Petitioner is not entitled to relief on Ground

One. Further, as discussed below, the Court denies relief on Ground Two.

I. Background and Procedural History

Petitioner was charged by superseding information with: (1) interference

with commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) (a provison of the

Hobbs Act) and 2; and (2) using, carrying, and discharging a firearm in furtherance

of a violent crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2. (Criminal Case

No. 2:18-cr-218-JLB-NPM-1 at docket entry 35).1 Pursuant to a written plea

agreement, Petitioner pleaded guilty before Magistrate Judge Douglas N. Frazier.

(Cr. 36; Cr. 39). The Court accepted the plea and sentenced Petitioner to

concurrent terms of 70 months’ imprisonment on count one and 120 months’

1 Criminal Case No. 2:18-cr-218-JLB-NPM-1 will be referred to as “Criminal

Case” and citations to the criminal docket will be (Cr. at ___).

imprisonment on count two. (Cr. 54). Petitioner did not appeal his conviction or

sentence.

On March 19, 2020, Petitioner filed his first 28 U.S.C. § 2255 motion, raising

a single ground for relief. (Doc. 1). Specifically, Petitioner alleged that his defense

attorney, Roy W. Foxall (“Counsel”), did not file a notice of appeal, even after

Petitioner asked him to do so. (Id. at 2). Because the motion was not filed on the

Court’s standard pre-printed section 2255 petition form, the Court directed

Petitioner to file an amended motion. (Doc. 5). Petitioner filed his amended

motion on June 29, 2020, raising the same claim of attorney malfeasance and a

second ground. (Doc. 7). Specifically, Petitioner argues in Ground Two that his

crimes of conviction are based on unconstitutionally vague or ambiguous statutes

and that he was actually innocent of carrying or using a firearm. (See id.)

II. Legal Standards

Title 28 U.S.C. § 2255 provides federal prisoners with an avenue for relief

under limited circumstances:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess

of the maximum authorized by law, or is otherwise

subject to collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2255(a). If a court finds a claim under section 2255 to be valid, it “shall

vacate and set the judgment aside and shall discharge the prisoner or resentence

him or grant a new trial or correct the sentence as may appear appropriate.” Id. §

2255(b). But “[b]cause collateral review is not a substitute for a direct appeal, the

general rules have developed that: (1) a defendant must assert all available claims

on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions

of constitutional rights and for that narrow compass of other injury that could not

have been raised on direct appeal and would, if condoned, result in a complete

miscarriage of justice.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.

2004) (internal citations, quotations, and footnote omitted).

Under section 2255(b), unless “the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief,” the court shall

“grant a prompt hearing thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). The Eleventh

Circuit has explained that “[a] habeas corpus petitioner is entitled to an evidentiary

hearing on his claim ‘if he alleges facts which, if proven, would entitle him to

relief.’” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (quoting Futch v.

Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989)). However, “if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district court

is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S.

465, 474 (2007); see also Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002)

(explaining that no evidentiary hearing is needed when a petitioner’s claims are

“affirmatively contradicted by the record” or “patently frivolous”).

III. Discussion

The facts surrounding Petitioner’s arrest are summarized in the factual basis

section of his plea agreement and are as follows:

On December 1, 2018, Khai Francisco Victor Marrero

(“Marrero”) and Gabriel Luis Santos (“Santos”) conspired

to rob T.G.J. of marijuana. In furtherance of their

scheme, Marrero contacted T.G.J. and arranged to

purchase one quarter-pound of marijuana from him.

T.G.J. agreed to meet Marrero near T.G.J.’s residence in

Fort Myers to conduct the transaction. Marrero and

Santos drove to the planned meeting location in Marrero’s

vehicle, a green Suzuki Forenza, with Marrero driving

and Santos seated in the front passenger seat. Both

Marrero and Santos were in possession of loaded

firearms—Marrero had a loaded Diamondback .380

caliber pistol (S/N ZD0289) and Santos had a loaded Sig

Saur .40 caliber pistol (S/N AL14886). Once they arrived

at the planned meeting location, Santos exited the vehicle

and hid behind exterior residential air-conditioning units

while Marrero waited in the vehicle for T.G.J.

Soon thereafter, T.G.J. entered the front passenger seat of

Marrero’s vehicle and handed Marrero marijuana,

expecting to receive cash in exchange for the narcotics.

At approximately the same time, Santos approached the

vehicle wearing a ski-mask and pointed his Sig Sauer

pistol at T.G.J. As Santos approached T.G.J, T.G.J

reacted by kicking at Santos, and Santos discharged his

Sig Sauer firearm at T.G.J., striking T.G.J. in the chest

with a single bullet. After he was shot, T.G.J. exited the

vehicle, Santos re-entered the vehicle, and Marrero drove

he and Santos away from the scene.

(Cr. 36 at 17–18). As noted, the Court adopts Judge Mizell’s Report and

Recommendation regarding Petitioner’s entitlement to a belated appeal (Doc. 36)

and denies Ground One. The Court separately considers Ground Two of

Petitioner’s motion.

Petitioner raises three “issues” in Ground Two. First, he asserts that he

suffered due process and equal protection violations because a Hobbs Act robbery,

his crime of conviction, “is unconstitutionally vague.” (Doc. 7 at 15).2 Although

the legal bases for Petitioner’s argument are not entirely clear, he asserts that “the

language of the Hobbs Act robbery [statute] is identical to the language of 18 U.S.C.

§ 924(c)(3)(B) and 18 U.S.C. [§] 16. They all possess the unconstitutionally vague

residual clause.” (Id. at 18).3 The Court disagrees. The Hobbs Act robbery

statute states as follows:

Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in

commerce, by robbery or extortion or attempts or

conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a plan

or purpose to do anything in violation of this section shall

be fined under this title or imprisoned not more than

twenty years, or both.

18 U.S.C. § 1915(a). As applicable here, the statute defines robbery as the

unlawful taking of personal property from a person by means of actual or

threatened force or violence. Id. § 1915(b). Contrary to Petitioner’s contention, no

2 Petitioner does not explain this claim. Instead, he merely quotes large

portions of United States v. Davis, 588 U.S. 445 (2019) verbatim, without citation,

and without explanation of the passages’ signifcance.

3 Sections 16(b) and 924(c)(3)(B) of Title 18 are sentencing statutes that

outline the potential punishments for specific crimes. Under 18 U.S.C. §

924(c)(3)(B)’s “residual clause,” a violent felony includes offenses that present a

“serious potential risk of physical injury to another.” Id. § 924(c)(3)(B)(ii).

Likewise, 18 U.S.C. § 16’s residual clause defines a “crime of violence” as an offense

that “by its nature, involves a substantial risk that physical force against the person

or property of another may be used in the course of committing the offense.” 18

U.S.C. § 16(b). See Davis, 588 U.S. at 448–55 (discussing the residual clauses of §§

924(c)(3)(B)(ii) and 16(b)).

portion of the Hobbs Act robbery statute contains a clause similar to 18 U.S.C. §

924(c)(3)(B) or 18 U.S.C. § 16(b)’s “residual clauses,” which the Supreme Court

found to be unconstitutional. See Davis, 588 U.S. at 470 (holding that imposing an

increased sentence for using a firearm during the commission of a crime of violence

under section 924(c)(3)(B)’s residual clause violates the Constitution's guarantee of

due process); Sessions v. Dimaya, 584 U.S. 148, 174 (2018) (holding that imposing

an increased sentence under the residual clause defining a “crime of violence,” as

set forth in 18 U.S.C. § 16(b), violates the Constitution’s guarantee of due process).

Petitioner does not direct this Court to any relevant caselaw or advance any

persuasive argument that any portion of the Hobbs Act robbery statute for which he

pleaded guilty and sentenced is unconstitutionally vague. The Court, therefore,

finds that Petitioner is not entitled to relief on this issue.

Next, Petitioner argues that his conviction under section 924(c) for using,

carrying, and discharging a firearm in furtherance of a violent crime is

unconstitutional because it is not properly predicated on a crime of violence or a

drug trafficking crime. (Doc. 7 at 20–22). Again, Petitioner relies on the Supreme

Court’s decision in Davis, which held that the residual clause of section 924(c)(3)(B)

was unconstitutionally vague. However, Davis left intact the elements clause of

section 924(c)(3)(A), which defines “crime of violence” as a felony that “has as an

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

person or property of another.” 18 U.S.C. § 924(c)(3)(A). Under this definition, a

Hobbs Act robbery involving the shooting of a victim is indisputably a crime of

violence. See 18 U.S.C. § 1915(b) (defining robbery as the unlawful taking of

personal property from a person by means of actual or threatened force or violence).

Put simply, it is obvious that Petitioner’s shooting of T.G.J. in the chest while

attempting to rob him involved the use of physical force against a person. See In

re Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016) (recognizing that a “conviction for

Hobbs Act robbery . . . clearly qualifies as a ‘crime of violence’ under the use-of-force

clause in § 924(c)(3)(A)”). Accordingly, Petitioner is not entitled to relief on the

second issue raised in Ground Two.

As his third issue raised in Ground Two, Petitioner argues that he never fired

a weapon and did not know that his codefendant was going to shoot the victim.

(Doc. 7 at 22). In short, he argues that he is actually innocent. But by pleading

guilty, Petitioner admitted committing the crimes for which he was convicted and

the factual basis underlying those crimes. United States v. Saac, 632 F.3d 1203,

1209 (11th Cir. 2011) (recognizing that a guilty plea establishes factual guilt and

serves as an admission of all elements of the criminal charge).

In his signed plea agreement, Petitioner admitted that he, not his

codefendant, shot the victim in the chest after the victim kicked at him during

Petitioner’s ambush of victim. (Cr. 36 at 17–18). Moreover, the Court listened to

Plaintiff’s entire plea colloquy (which was recorded but not transcribed). (Cr. 42).

Petitioner testified under oath at the colloquy. (Id.). The factual basis was read

out loud, and Petitioner confirmed that it was true. (Id.). In open court,

Petitioner stated that he had a gun, used it during the robbery, and that the gun

discharged when he “came up to [the victim’s] car with a pistol.” (Id.).

It is well settled that a defendant will not be heard to contend in a section

2255 motion that his sworn statements made during a Rule 11 colloquy are false.

United States v. Stitzer, 785 F.2d 1506, 1514 n.4 (11th Cir. 1986) ( “[I]f the Rule 11

plea taking procedure is careful and detailed, the defendant will not later be heard

to contend that he swore falsely.”); Blackledge v. Allison, 431 U.S. 63, 73–74 (1977)

(recognizing that a defendant’s sworn statements “constitute a formidable barrier in

any subsequent collateral proceedings”). Petitioner has not identified (nor has this

Court identified) any deficiencies in his Rule 11 colloquy. As such, Petitioner

cannot now argue that he is innocent of the charges to which he pleaded guilty.

Accordingly, the Court finds that Petitioner is not entitled to relief on the third

issue raised in Ground Two.

IV. Conclusion

Accordingly, it is hereby ORDERED AND ADJUDGED:

1. The Court AFFIRMS and ADOPTS Judge Mizell’s finding of facts

and recommendation to deny Ground One (Doc. 36).

2. The Court DENIES Ground Two, and with no further claims, Gabriel

Luis Santos’s amended motion to vacate, set aside, or correct an illegal sentence

under 28 U.S.C. § 2255 (Doc. 7) is DENIED.

2. The Clerk of the Court is directed to terminate any pending motions,

enter judgment in favor of Respondent United States of America and against

Petitioner Gabriel Luis Santos, and close this case. The Clerk shall also file a copy

of this Order and terminate the pending section 2255 motion in Petitioner’s

underlying criminal case. (Cr. 60).

IT IS FURTHER ORDERED:

A CERTIFICATE OF APPEALABILITY IS DENIED. A prisoner has no

absolute entitlement to appeal a district court’s denial of his § 2255 motion. 28

U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180 (2009). Rather, “[a COA] may

issue... only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Petitioner

must demonstrate that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke,

542 U.S. 274, 282 (2004) or, that “the issues presented [are] adequate to deserve

encouragement to proceed further.” Miller—El v. Cockrell, 537 U.S. 322, 336 (2003)

(citation and quotation omitted). Petitioner has not made the requisite showing in

these circumstances. Because Petitioner is not entitled to a certificate of

appealability, he is not entitled to proceed in forma pauperis on appeal.

DONE AND ORDERED in Fort Myers, Florida, on March 17, 2025.

i 7 a LF LG □□

Dts Loflhre, □□

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

Copies to: Gabriel Luis Santos

Counsel of Record