# Santos v. United States

> District Court, M.D. Florida · March 17, 2025

URL: https://www.frixlaw.com/law-library/cases/10824940

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10824940

## How later opinions describe it (automated extraction)

- 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
- 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
- recognizing that a guilty plea establishes factual guilt and serves as an admission of all elements of the criminal charge
- recognizing that a defendant’s sworn statements “constitute a formidable barrier in any subsequent collateral proceedings”
- explaining that no evidentiary hearing is needed when a petitioner’s claims are “affirmatively contradicted by the record” or “patently frivolous”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10824940. Public record. Not legal advice.