Luis Enriquez Lorenzo Rodriguez v. United States

USCA11 Case: 21-10125 Date Filed: 11/04/2021 Page: 1 of 15

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10125

Non-Argument Calendar

____________________

LUIS ENRIQUEZ LORENZO RODRIGUEZ,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:16-cv-22607-UU

____________________

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2 Opinion of the Court 21-10125

Before WILSON, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Luis Lorenzo Rodriguez, a federal prisoner, appeals the dis-

trict court’s denial of his authorized successive 28 U.S.C. § 2255

motion to vacate. The district court granted a certificate of appeal-

ability (“COA”) on two issues: “(1) whether [it] erred in applying

the reasonable probability harmless error review standard to the

error identified as a Stromberg 1 error in this case; and (2) whether

[it] erred in determining the error was harmless.” The government

responds by moving for summary affirmance of the district court’s

order and for a stay of the briefing schedule, arguing that Rodri-

guez’s motion is procedurally defaulted under this Court’s decision

in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021), and that

Granda otherwise forecloses his appeal on the merits.

Summary disposition is appropriate either where time is of

the essence, such as “situations where important public policy is-

sues are involved or those where rights delayed are rights denied,”

or where “the position of one of the parties is clearly right as a mat-

ter of law so that there can be no substantial question as to the out-

come of the case, or where, as is more frequently the case, the ap-

peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,

1162 (5th Cir. 1969).

1 Stromberg v. California, 283 U.S. 359 (1931).

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21-10125 Opinion of the Court 3

When reviewing a district court’s denial of a 28 U.S.C. § 2255

motion, we review questions of law de novo and factual findings

for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th

Cir. 2004). Similarly, we review de novo whether procedural de-

fault precludes a § 2255 movant’s claim, which is a mixed question

of law and fact. Granda, 990 F.3d at 1286.

While the scope of review in a § 2255 appeal is limited to

issues specified in the COA, we will read the COA to encompass

procedural issues that must be resolved before we can reach the

merits of the underlying claim. McCoy v. United States, 266 F.3d

1245, 1248 n.2 (11th Cir. 2001). Subject to the preceding, we may

affirm the judgment of the district court on any ground supported

by the record, regardless of whether that ground was relied upon

or even considered by the district court. LeCroy v. United States,

739 F.3d 1297, 1312 (11th Cir. 2014).

Section 2255 allows federal prisoners to obtain post-convic-

tion relief and set aside prior convictions when a sentence “was im-

posed in violation of the Constitution or laws of the United States.”

28 U.S.C. § 2255(a). However, a § 2255 claim may be procedurally

defaulted if the petitioner failed to raise the claim on direct appeal.

Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998); see also

Lynn, 365 F.3d at 1234 (“[A] defendant generally must advance an

available challenge to a criminal conviction or sentence on direct

appeal or else the defendant is barred from presenting that claim in

a § 2255 proceeding.”). Procedural default is not jurisdictional, but

rather is an affirmative defense. See Howard v. United States, 374

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4 Opinion of the Court 21-10125

F.3d 1068, 1073 (11th Cir. 2004). Procedural default does not apply,

however, to alleged errors that are jurisdictional. United States v.

Bane, 948 F.3d 1290, 1294 (11th Cir. 2020).

A defendant can overcome this procedural bar by establish-

ing either (1) cause for the default and actual prejudice from the

alleged error, or (2) that he is actually innocent of the crimes for

which he was convicted. Id. at 1072. Although “a claim that is so

novel that its legal basis is not reasonably available to counsel may

constitute cause for a procedural default,” the main inquiry “is not

whether subsequent legal developments have made counsel’s task

easier, but whether at the time of the default the claim was availa-

ble at all.” McCoy, 266 F.3d at 1258 (citations and quotation marks

omitted); see also Bousley v. United States, 523 U.S. 614, 623 (1998)

(holding that perceived futility does not constitute cause to excuse

a procedural default).

“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.” Granda, 990

F.3d at 1288 (quotation marks omitted). The actual-prejudice

standard is a more stringent standard than plain error. Id. The ul-

timate question is whether the intrusion affected the jury’s deliber-

ations and verdict. Id. To demonstrate that he suffered actual prej-

udice, a petitioner must show at least a substantial likelihood that

the jury actually relied on an invalid predicate. Id. However, we

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21-10125 Opinion of the Court 5

have noted that “a federal court may skip over the procedural de-

fault analysis if a claim would fail on the merits in any event.” Dal-

las v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020), cert. denied,

No. 20-7589 (U.S. Oct. 4, 2021).

Section 924(c) provides for a mandatory consecutive sen-

tence for any defendant who uses or carries a firearm during a

crime of violence or a drug-trafficking crime. 18 U.S.C. § 924(c)(1).

Section 924(o) provides that “[a] person who conspires to commit

an offense under subsection (c) shall be imprisoned for not more

than 20 years.” 18 U.S.C. § 924(o). For the purposes of § 924(c), a

“crime of violence” means an offense that is a felony and:

(A) has as an element the use, attempted use, or

threatened use of physical force against the

person or property of another, or

(B) that by its nature, involves a substantial risk

that physical force against the person or prop-

erty of another may be used in the course of

committing the offense.

Id. § 924(c)(3)(A), (B). We have referred to § 924(c)(3)(A) as the

“elements clause” and to § 924(c)(3)(B) as the “residual clause.”

United States v. Davis, 139 S. Ct. 2319, 2323, 2336 (2019). The Su-

preme Court held in Davis that § 924(c)(3)(B)’s residual clause was

unconstitutionally vague. Id. We have held that a challenge that

the § 924(c) counts of an indictment failed to charge an offense

against the laws of the United States because the predicate offenses

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6 Opinion of the Court 21-10125

were not crimes of violence was jurisdictional and thus not waived

by the defendant pleading guilty. United States v. St. Hubert, 909

F.3d 335, 343–44 (11th Cir. 2018).

After Davis, we held that conspiracy to commit Hobbs Act

robbery did not qualify as a crime of violence under the elements

clause. Brown v. United States, 942 F.3d 1069, 1075–76 (11th Cir.

2019). But we have held that attempted Hobbs Act robbery quali-

fies as a crime of violence under § 924(c)’s elements clause. St. Hu-

bert, 909 F.3d at 351. However, the Supreme Court recently

granted certiorari in United States v. Taylor to consider whether

attempted Hobbs Act robbery qualifies as a crime of violence under

§ 924(c)’s elements clause. United States v. Taylor, 141 S. Ct. 2882

(2021).

In Granda, we held that a § 2255 movant’s challenge under

Davis was procedurally defaulted and that he could not show

cause, actual prejudice, or actual innocence to overcome the de-

fault. Granda, 990 F.3d at 1286–92. Specifically, we determined

that the petitioner could not show cause for failing to raise a vague-

ness challenge to § 924(c) on direct appeal in 2009 because the law

in existence at the time of his appeal confirmed that “he did not

then lack the building blocks of a due process vagueness challenge”

to the residual clause. Id. at 1287 (quotation marks omitted).

Moreover, we reasoned that, because “[t]he tools existed to chal-

lenge myriad other portions of § 924(c) as vague[,] they existed to

support a similar challenge to its residual clause.” Id. at 1288.

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21-10125 Opinion of the Court 7

Next, we reasoned that, even if Granda could show cause,

he could not show actual prejudice to overcome procedural de-

fault, because the jury’s findings as to which of his multiple, quali-

fying convictions was a predicate for his § 924(o) conviction rested

on the same operative facts and set of events—a conspiracy and

attempt to rob at gunpoint a tractor-trailer of cocaine. Id. at 1289.

We concluded that the alternative predicate offenses were inextri-

cably intertwined and encompassed in a “tightly bound factual re-

lationship” that precluded him from showing actual prejudice. Id.

at 1291. We further concluded that Granda also could not show

actual innocence to overcome procedural default, as the inextrica-

bly intertwined nature of his valid drug-trafficking and crime-of-vi-

olence predicates with his invalid Hobbs-Act-conspiracy predicate,

“[made] it impossible for Granda to show that his § 924(o) convic-

tion was in fact based on the conspiracy-to-rob predicate.” Id. at

1291–92.

In Granda, we also held that, notwithstanding procedural

default, collateral relief for a Davis claim is proper only if the court

has “grave doubt” about whether a trial error had “substantial and

injurious effect or influence” in determining the verdict. Id. at 1292

(quoting Davis v. Ayala, 576 U.S. 257, 267–68 (2015)). We ex-

plained that a petitioner must show more than a reasonable possi-

bility that the error was harmful, and we would grant relief “only

if the error ‘resulted in actual prejudice’” to the petitioner. Id.

(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Thus, it

is not enough for a petitioner to show that the court may have

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8 Opinion of the Court 21-10125

relied on the now-invalid residual clause; he must show a substan-

tial likelihood that the court did rely only on that subsection.

Id. at 1288.

Further, we rejected the argument that we must apply the

categorical approach to a § 924(c) conviction to presume that con-

viction rested on an invalid predicate. Id. at 1295–96. We reasoned

that the defendant’s general verdict in Granda did not mandate ap-

plication of the categorical approach because the Brecht harmless

error standard only required it to determine whether, as a matter

of law, there was “grave doubt about whether an instruction on an

invalid predicate substantially influenced what the jury already

found beyond a reasonable doubt.” Id. at 1295. We explained that

our holding that Granda did not suffer harm from the erroneous

jury instruction was not inconsistent with our decision in In re

Gomez, 830 F.3d 1225 (11th Cir. 2016), in which we authorized a

movant to file a second or successive § 2255 motion alleging that

his § 924(c) conviction was based on an invalid predicate because

the jury could have found that he only “possessed” a firearm during

his offense of Hobbs Act conspiracy where the general verdict did

not reveal a finding that he was guilty of “conspiring to carry a fire-

arm” during one, some, or all of his predicate offenses. Id. at 1296

(quoting Gomez, 830 F.3d at 1227–28). We noted that Gomez left

open the possibility that the district court would apply Brecht’s

harmless error inquiry to Gomez’s challenge on the merits. Id. We

concluded that, because Brecht only requires an examination of

whether alternative, valid predicates grounded a defendant’s

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21-10125 Opinion of the Court 9

§ 924(c) conviction, a defendant cannot succeed on the merits of

his challenge if there were other valid predicates that the jury could

have relied on to support his conviction. Id. at 1296.

In Parker, we applied Granda to another § 2255 movant

challenging his § 924(c) and (o) convictions under Davis. Parker v.

United States, 993 F.3d 1257, 1262–65 (11th Cir. 2021). The defend-

ant was convicted of eight counts, all of which stemmed from a

conspiracy to rob a drug stash house of cocaine. Id. at 1259–61.

We determined that the movant’s challenges were procedurally

defaulted because he did not argue during his original proceedings

that his convictions under § 924(c) and (o) must be vacated because

§ 924(c)’s residual clause was unconstitutionally vague. Id. at 1262.

We noted that “Granda held that a vagueness-based challenge to

the § 924(c)(3)(B) residual clause was not sufficiently novel to es-

tablish cause, and the inextricability of [a petitioner’s] valid and in-

valid predicate offenses would prevent him from showing preju-

dice.” Id. at 1265.

In Foster, which involved Parker’s codefendant, we relied

on both Granda and Parker in affirming the denial of a Davis-based

§ 2255 motion challenging the movant’s § 924(c) and (o) convic-

tions. Foster v. United States, 996 F.3d 1100, 1107–10 (11th Cir.

2021), petition for cert. filed, No. 20-1732 (U.S. Sept. 29, 2021). We

determined that the government had waived its procedural default

argument by failing to raise it below. Id. at 1106–07. However, we

held that the prisoner’s Davis claim failed on the merits because the

inclusion of an invalid predicate of conspiracy to commit Hobbs

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10 Opinion of the Court 21-10125

Act robbery in his indictment and jury instructions was harmless,

as it was inextricably intertwined with two qualifying drug-traffick-

ing predicate offenses. Id. at 1107–10.

Our prior panel precedent rule mandates that “a prior

panel’s holding is binding on all subsequent panels unless and until

it is overruled or undermined to the point of abrogation by the Su-

preme Court or by this court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). There is no exception

to the rule based upon an “overlooked reason” or “perceived defect

in the prior panel’s reasoning or analysis as it relates to the law in

existence at that time.” Smith v. GTE Corp., 236 F.3d 1292, 1303

(11th Cir. 2001) (quotation marks omitted); see also United States

v. Lee, 886 F.3d 1161, 1163 n.3 (11th Cir. 2018) (“It does not matter

whether a prior case was wrongly decided; whether it failed to con-

sider certain critical issues or arguments; or whether it lacked ade-

quate legal analysis to support its conclusions.” (citations omitted)).

A grant of certiorari does not change circuit law or free us from

following the prior panel precedent rule. See Gissendaner v. Ga.

Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015) (“Until the Su-

preme Court issues a decision that actually changes the law, we are

duty-bound to apply this Court’s precedent . . . .”); Ritter v. Thig-

pen, 828 F.2d 662, 665–66 (11th Cir. 1987) (stating that “a grant of

certiorari does not constitute new law”).

Here, the government is correct as a matter of law that Ro-

driguez’s challenge is foreclosed by Granda, Parker, and Foster.

First, to the extent that Rodriguez argues that our rulings in

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21-10125 Opinion of the Court 11

Granda, Parker, and Foster were wrongly decided, his argument

fails under our prior panel precedent rule. Lee, 886 F.3d at 1163

n.3; Archer, 531 F.3d at 1352. Similarly, Rodriguez’s argument that

attempted Hobbs Act robbery is not categorically a crime of vio-

lence is also precluded by binding precedent, as we held in St. Hu-

bert that attempted Hobbs Act robbery qualifies as a crime of vio-

lence under § 924(c)’s elements clause. 909 F.3d at 351. And while

the Supreme Court has granted certiorari to consider whether at-

tempted Hobbs Act robbery qualifies as a crime of violence under

§ 924(c)’s elements clause, a grant of certiorari does not itself un-

dermine binding precedent. Ritter, 828 F.2d at 665–66; see also

Archer, 531 F.3d at 1352 (articulating this Court’s prior panel prec-

edent rule).

Next, despite the district court’s finding to the contrary, the

government is correct as a matter of law that his challenge is pro-

cedurally defaulted under Granda and Parker. Groendyke Transp.,

Inc., 406 F.2d at 1162; Granda, 990 F.3d at 1286–92; Parker, 993 F.3d

at 1265. Rodriguez did not raise on direct appeal an argument that

§ 924(c)(3)(B) was unconstitutionally vague. And he cannot show

cause for failing to do so because we have since concluded that the

building blocks to bring such a due process vagueness challenge

existed at the time of his direct appeal, and he had the tools to chal-

lenge § 924(c) as vague. Granda, 990 F.3d at 1286–92; Parker, 993

F.3d at 1265. Indeed, Rodriguez’s direct appeal in 2011 occurred

after the petitioner’s direct appeal in Granda.

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12 Opinion of the Court 21-10125

Moreover, even if Rodriguez could show cause, he could

not establish actual prejudice or actual innocence to overcome de-

fault because his valid and invalid predicate offenses were “inextri-

cably intertwined” and encompassed in a “tightly bound factual re-

lationship” that prevents him from showing a substantial likelihood

that the jury actually relied on an invalid predicate. Granda, 990

F.3d at 1291. The factual circumstances that gave rise to Rodri-

guez’s convictions arose out of a home-invasion robbery during

which he conspired with three codefendants to rob a house of

money and drugs. Like in Granda and Parker, the objects of the

Hobbs Act conspiracy offense, the attempted Hobbs Act robbery

offense, and the drug-trafficking offense were the drugs and drug

proceeds that the defendants believed were in the house. See

Granda, 990 F.3d at 1298; Parker, 993 F.3d at 1259–61. And Rodri-

guez had knowledge of the drug-trafficking objective of the rob-

bery, as the defendants selected the Roche’s house because they

believed that it contained drug proceeds and drugs. In reaching its

verdict, the jury did not indicate which of the possible predicate

offenses it relied on to find Rodriguez guilty of Count 3. But be-

cause the object of the offenses was the same, the jury could not

have found that Rodriguez possessed his firearm in furtherance of

the robbery conspiracy without also finding at the same time that

he possessed the firearm in furtherance of his conspiracy and at-

tempt to obtain and distribute drugs and attempt the robbery itself.

Granda, 990 F.3d at 1289. Thus, due to their inextricably inter-

twined nature, Rodriguez could not show a substantial likelihood

that the jury actually relied on an invalid predicate. Id. at 1291.

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Rodriguez argues that his constitutional challenge to his §

924(o) conviction cannot be procedurally defaulted because it is a

jurisdictional challenge, citing our holding in St. Hubert that a chal-

lenge that the predicate offense for a § 924(c) conviction was not a

“crime of violence” was a jurisdictional claim that was not waived

by a guilty plea. Bane, 948 F.3d at 1294; St. Hubert, 909 F.3d at

343–44. Although we have not explicitly considered in a published

opinion whether such a challenge to a § 924(c) conviction cannot

be procedurally defaulted because it is jurisdictional, we have held

in Granda and Parker that a claim like Rodriguez’s can be proce-

durally defaulted. Granda, 990 F.3d at 1286–92; Parker, 993 F.3d at

1262. Pursuant to the prior panel precedent rule, Granda and Par-

ker are binding until they are overruled or undermined to the point

of abrogation, and there is no exception to the prior panel prece-

dent rule based on law or arguments that those decisions may have

overlooked. Archer, 531 F.3d at 1352; Smith, 236 F.3d at 1303; Lee,

886 F.3d at 1163 n.3.

Moreover, Rodriguez’s challenge to his § 924(o) conviction

fails on the merits under Granda and its progeny. Granda, 990 F.3d

at 1292; Parker, 993 F.3d at 1265; Foster, 996 F.3d at 1107–10; see

Dallas, 964 F.3d at 1307 (noting that “a federal court may skip over

the procedural default analysis if a claim would fail on the merits in

any event”). Rodriguez relies on the standard set out in Stromberg

to support his challenge on the merits and acknowledges that

Stromberg error is subject to Brecht’s harmless error standard,

which requires him to show that the alleged error resulted in actual

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14 Opinion of the Court 21-10125

prejudice. Granda, 990 F.3d at 1292; Foster, 996 F.3d at 1109. Be-

cause Brecht’s harmless error inquiry requires an examination of

whether alternative, valid predicates grounded Rodriguez’s convic-

tion, he cannot succeed on the merits of his challenges, as there

were other valid predicates that the jury could have relied on to

support his conviction. Granda, 990 F.3d at 1296. Like in Granda,

Parker, and Foster, which all involved materially similar facts, Ro-

driguez cannot prevail on the merits for the same reason that he

cannot show actual prejudice—the jury could not have found that

he possessed his firearm in furtherance of the conspiracy to steal

drugs without also finding at the same time that he possessed the

firearm in furtherance of his conspiracy and attempt to obtain and

distribute drugs and attempt the robbery itself. Granda, 990 F.3d

at 1289, 1293; Parker, 993 F.3d at 1265; Foster, 996 F.3d at 1107–09.

His argument that his case is distinguishable from Granda

similarly fails due to the inextricably intertwined nature of his of-

fenses. Although the jury was instructed that the government was

required to prove that he violated § 924(c) during a single crime of

violence or drug trafficking crime, rather than both, the jury could

not have found him guilty of possessing the gun during the at-

tempted Hobbs Act robbery without also finding him guilty of pos-

sessing it during the drug trafficking offense. Because Rodriguez’s

Hobbs Act conspiracy was inextricably intertwined with the other

predicate offenses, the “record does not provoke grave doubt about

whether [his] § 924(o) conviction rested on an invalid predicate.”

Granda, 990 F.3d at 1293. Further, we rejected Rodriguez’s

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21-10125 Opinion of the Court 15

argument that it must apply the categorical approach to a § 924(o)

conviction to presume that that conviction rested on an invalid

predicate. Id. at 1295–96. Therefore, even if Rodriguez could over-

come procedural default, his merits challenge fails because he did

not suffer harm due to the inextricably intertwined nature of his

predicate offenses.

Accordingly, because the government’s position is clearly

correct as a matter of law, we GRANT its motion for summary af-

firmance and DENY as moot its accompanying motion to stay the

briefing schedule. See Groendyke Transp., Inc., 406 F.2d at 1162.