Petition for Writ of Certiorari — Judel Espinoza-Gonzalez, Petitioner v. United States
Supreme Court briefJun 17, 2022
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No.
In The Supreme Court 0f The United States
Judel Espinoza-Gonzalez, Jose Figueroa, Frank Goldstein,
Raymond Juarez, and Jorge Rojo
v.
Petitioners,
United States of America,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
Joint Petition for a Writ of Certiorari
RENE L. VALLADARES
Federal Public Defender
*Wendi L. Overmyer
Cristen C. Thayer
Lauren Torre
Assistant Federal Public Defenders
Office of the Federal Public Defender
411 E. Bonneville, Ste. 100
Las Vegas, Nevada 89101
(702) 388-6577
Wendi_Overmyer@fd.org
Cristen_Thayer@fd.org
Lauren_Torre@fd.org
*Lead Counsel for Petitioners
Dated: June 17, 2022
Questions Presented for Review
I.
A guilty plea that includes an appellate waiver does not bar jurisdictional
challenges on appeal. Class v. United States, 138 S. Ct. 798 (2018). The first
question presented is whether a court can summarily enforce an appellate waiver to
bar motions to vacate convictions and mandatory prison sentences under 18 U.S.C.
§ 924(c) for which the district court lacked authority to enter a judgment of
conviction.
II.
For convictions and sentences to stand, they must not violate the
constitution. Challenges to illegal convictions under 18 U.S.C. § 924(c) necessarily
encompass illegal, mandatory, consecutive sentences. The second question
presented is whether courts can deny a motion to vacate an unconstitutional
conviction and mandatory prison sentence under 18 U.S.C. § 924(c) by concluding
the challenge only pertains to the illegal conviction, not the illegal sentence, and is
thus summarily barred by an appellate waiver.
ii
Related Proceedings
Petitioners Judel Espinoza-Gonzalez, Jose Figueroa, Frank Goldstein,
Raymond Juarez, and Jorge Rojo each brought separate motions to vacate their
respective 18 U.S.C. § 924(c) convictions under 28 U.S.C. § 2255 in the District of
Nevada. The district court denied each motion on its merits and granted some
Petitioners certificates of appealability (COA). The Ninth Circuit granted the
remaining Petitioners COAs and affirmed the motion denials in all five appeals.
The specific dates for each Petitioner are:
The district court denied Espinoza-Gonzalez’s motion to vacate and
denied his COA request on April 6, 2017. App. C:5a. The Ninth
Circuit granted a COA on June 16, 2017, and affirmed denial of his
motion to vacate on March 22, 2022. App. A, B:1a–4a.
The district court denied Figueroa’s motion to vacate and his COA
request on May 23, 2018. App. G:31a. The Ninth Circuit granted a
COA on October 1, 2020, and affirmed the denial of his motion to
vacate on March 23, 2022. App. E, F:27a–30a.
The district court denied Goldstein’s motion to vacate but granted his
COA request on May 17, 2017. App. J:54a. The Ninth Circuit affirmed
the denial of his motion to vacate on March 23, 2022. App. I:52a.
The district court denied Juarez’s motion to vacate and his COA
request on May 23, 2018. App. N:76a. The Ninth Circuit granted a
COA on October 1, 2020, and affirmed the denial of his motion to
vacate on March 23, 2022. App. L, M:72a–74a.
The district court denied Rojo’s motion to vacate and his COA request
on February 18, 2020. App. R:99a. The Ninth Circuit granted a COA
on October 1, 2020, and affirmed the denial of his motion to vacate on
March 23, 2022. App. P, Q:95a–98a.
iii
Table of Contents
Questions Presented for Review ................................................................................... ii
Related Proceedings...................................................................................................... iii
Table of Contents .......................................................................................................... iv
Table of Authorities ....................................................................................................... v
Petition for Certiorari .................................................................................................... 1
Opinions Below .............................................................................................................. 1
Jurisdiction .................................................................................................................... 2
Constitutional and Statutory Provisions Involved ....................................................... 2
Statement of the Case ................................................................................................... 2
I. Petitioners are sentenced to mandatory minimum sentences under
18 U.S.C. § 924(c). ............................................................................................... 2
II. Petitioners seek to vacate their § 924(c) convictions and sentences
under this Court’s Johnson and Davis decisions. .............................................. 5
III. Petitioners appeal the denials of their motions to Ninth Circuit and the
Circuit affirms based on summary application of the collateral challenge
waivers................................................................................................................. 8
Reasons for Granting the Petition .............................................................................. 10
I. Goodall cannot be reconciled with precedent that holds jurisdictional
claims are not subject to waiver. ...................................................................... 10
II. By barring relief of illegal convictions and sentences, Goodall failed
to adhere to the constitutional floor below which a defendant’s plea,
conviction, and sentencing may not fall. .......................................................... 12
Conclusion .................................................................................................................... 15
Appendix
iv
Table of Authorities
Federal Constitution
Page(s)
U.S. Const. amend. V ................................................................................................... 2
Federal Cases
Blackledge v. Perry,
417 U.S. 21 (1974) ................................................................................................. 11
Class v. United States,
138 S. Ct. 798 (2018) ................................................................................... ii, 10, 11
Ex parte Siebold,
100 U.S. 371 (1879) ............................................................................................... 11
Johnson v. United States,
576 U.S. 591 (2015) ................................................................................................. 5
McCoy v. United States,
266 F.3d 1245 (11th Cir. 2001) ............................................................................. 10
Menna v. New York,
423 U.S. 61 (1975) ................................................................................................. 11
Norton v. Shelby Cnty.,
118 U.S. 425 (1886) ............................................................................................... 11
United States v. Barron,
172 F.3d 1153 (9th Cir. 1999) ............................................................................... 15
United States v. Bibler,
495 F.3d 621 (9th Cir. 2007) ........................................................................... 10, 11
United States v. Borden,
16 F.4th 351 (2d Cir. 2021) ................................................................................... 13
United States v. Caruthers,
458 F.3d 459 (6th Cir. 2006) ................................................................................. 13
United States v. Cotton,
535 U.S. 625 (2002) ............................................................................................... 10
United States v. Davis,
139 S. Ct. 2319 (2019) ............................................................................................. 8
v
United States v. Fowler,
794 F.2d 1446 (9th Cir. 1986) ............................................................................... 14
United States v. Goodall,
21 F.4th 555 (9th Cir. 2021) .......................................................................... passim
United States v. Johnson,
988 F.2d 941 (9th Cir. 1993) ................................................................................. 14
United States v. McBride,
826 F.3d 293 (6th Cir. 2016) ................................................................................. 13
United States v. Montilla,
870 F.2d 549 (9th Cir. 1989),
amended at 907 F.2d 115 (9th Cir. 1990) ............................................................. 10
United States v. Shipp,
589 F.3d 1084 (10th Cir. 2009) ............................................................................. 12
United States v. St. Hubert,
883 F.3d 1319 (11th Cir. 2018) ............................................................................. 10
United States v. Teeter,
257 F.3d 14 (1st Cir. 2001) ............................................................................. 13, 14
United States v. Torres,
828 F.3d 1113 (9th Cir. 2016) ....................................................................... 7, 9, 12
Welch v. United States,
578 U.S. 120 (2016) ................................................................................................. 5
White v. Klitzkie,
281 F.3d 920 (9th Cir. 2002) ................................................................................... 9
Federal Statutes
18 U.S.C. § 2 ......................................................................................................... 3, 4, 5
18 U.S.C. § 924 .................................................................................................... passim
18 U.S.C. § 1201 ........................................................................................................ 3, 5
18 U.S.C. § 1951 ....................................................................................................... 3, 4
18 U.S.C. § 2119 ........................................................................................................... 4
18 U.S.C. § 3231 ......................................................................................................... 10
21 U.S.C. § 841 ......................................................................................................... 3, 5
vi
21 U.S.C. § 846 ............................................................................................................. 5
28 U.S.C. § 1254 ........................................................................................................... 2
28 U.S.C. § 2255 .................................................................................................. passim
Federal Rules
Fed. R. Crim. P. 35 ..................................................................................................... 14
Supreme Court Rules
S. Ct. R. 12.4 ................................................................................................................ 1
S. Ct. R. 13.1 ................................................................................................................ 2
Secondary Sources
Hertz & Liebman,
Federal Habeas Corpus Prac. & Proced. § 9.1 (2020) .......................................... 13
vii
Petition for Certiorari
Judel Espinoza-Gonzalez, Jose Figueroa, Frank Goldstein, Jorge Rojo, and
Raymond Juarez jointly petition for a writ of certiorari to review judgments of the
United States Court of Appeals for the Ninth Circuit. A joint petition is proper
under Sup. Ct. R. 12.4, as Petitioners each challenge the judgments on identical
issues.
Opinions Below
The opinions of the court of appeals are not published in the Federal
Reporter, but the opinions are reprinted at United States v. Espinoza-Gonzalez, No.
17-15778, 2022 WL 848038 (9th Cir. Mar. 22, 2022); United States v. Figueroa, No.
18-16151, 2022 WL 861035 (9th Cir. Mar. 23, 2022); United States v. Goldstein, No.
17-16187, 2022 WL 861040 (9th Cir. Mar. 23, 2022); United States v. Juarez, No.
18-16145, 2022 WL 861032 (9th Cir. Mar. 23, 2022); United States v. Rojo, No. 2015708, 2022 WL 861039 (9th Cir. Mar. 23, 2022). App. A, E, I, L, P.
The orders of the district court are unreported, but the orders are reprinted
at United States v. Espinoza-Gonzalez, No. 2:13-cr-217-JCM-GWF, 2017 WL
1347673 (D. Nev. Apr. 6, 2017); United States v. Figueroa, No. 2:11-cr-91-JCMCWH (D. Nev. May 23, 2018);United States v. Goldstein, No. 2:10-cr-525-JAD-PAL,
2017 WL 2174949 (D. Nev. May 17, 2017); United States v. Juarez, No. 2:11-cr-91JCM-CWH (D. Nev. May 23, 2018); United States v. Rojo, No. 2:12-cr-00216-LDGVCF, 2020 WL 821026 (D. Nev. Feb. 18, 2020). App. C, G, J, N, R.
1
Jurisdiction
The Ninth Circuit Court of Appeals entered final orders affirming the denial
of Petitioners’ motions to vacate on March 22 and 23, 2022. App. A, E, I, L, P. This
Court’s jurisdiction is invoked under 28 U.S.C. § 1254(a). This joint petition is
timely per Sup. Ct. R. 13.1.
Constitutional and Statutory Provisions Involved
1.
U.S. Const. amend. V: “No person shall . . . be deprived of life, liberty, or
property, without due process of law.
2.
Title 18, Section 924(c), of the United States Code states, in relevant part:
(3) For purposes of this subsection the term “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 property of another may be used in the course
of committing the offense.
Statement of the Case
I.
Petitioners are sentenced to mandatory minimum sentences under 18 U.S.C.
§ 924(c).
Petitioners are serving mandatory minimum sentences for § 924(c)
convictions, as follows:1
1 “ECF No.” citations refer to the respective Petitioner’s case docket in the
District of Nevada: United States v. Espinoza-Gonzalez, 2:12-cr-00217-JCM-GWF
(D. Nev.); United States v. Jose Figueroa, 2:11-cr-00091-JCM-CWH-2 (D. Nev.);
United States v. Goldstein, 2:10-cr-00525-JAD-PAL (D. Nev.); United States v.
Juarez, 2:11-cr-00091-JCM-CWH-1 (D, Nev); United States v. Rojo, 2:12-cr-00216LDG-VCF (D. Nev).
2
In 2012, Espinoza-Gonzalez pled guilty with a written plea agreement to five
counts relating to a kidnapping and robbery of an alleged drug courier committed
with Petitioner Rojo: conspiracy to commit Hobbs Act robbery under 18 U.S.C. §
1951 (Count One); aiding and abetting Hobbs Act robbery 18 U.S.C. § 1951 and § 2
(Count Two); brandishing a firearm during a crime of violence under 18 U.S.C. §
924(c) (Count Three), with the crime of violence being aiding and abetting Hobbs
Act robbery (Count Two); aiding and abetting kidnapping under 18 U.S.C. § 1201
and § 2 (Count Four); and conspiracy to possess heroin with intent to distribute
under 21 U.S.C. § 841 (Count Five). App. D:12a. The district court sentenced
Espinoza-Gonzalez to concurrent 8-year sentences for Counts One, Two, Four, and
Five, and a mandatory consecutive 7-year sentence for Count Three. ECF No. 80.
In 2012, Figueroa pled guilty with a written plea agreement to eight counts
relating to robberies, in which some were committed with Petitioner Juarez:
conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951 (Count One); six
counts of aiding and abetting Hobbs Act robbery under 18 U.S.C. § 1951 and § 2
(Counts Three, Five, Seven, Nine, Eleven, and Thirteen); aiding and abetting
discharging a firearm during a crime of violence under 18 U.S.C. § 924(c) and § 2
(Count Eight), with the crime of violence being aiding and abetting Hobbs Act
robbery (Count Seven). App. H:37a. The district court sentenced Figueroa to
concurrent 15-year sentences on Counts One, Three, Five, Seven, Nine, Eleven, and
Thirteen, and a mandatory consecutive 10-year sentence for Count Eight. ECF No.
75.
3
In 2014, Goldstein pled guilty with a written plea agreement to one count
under § 924(c) based on Hobbs Act robbery (Count Four), one count of Hobbs Act
robbery under 18 U.S.C. § 1951 (Count Three), and one count of federal carjacking
under 18 U.S.C. § 2119 (Count One). App. J:59a. The district court sentenced
Goldstein to concurrent 3-year sentences on the carjacking and robbery counts, to be
served consecutive to the mandatory 5-year sentence on the § 924(c) count. ECF
No. 212.
In 2012, Juarez pled guilty with a written plea agreement to six counts
relating to robberies committed with Petitioner Figueroa: conspiracy to commit
Hobbs Act robbery under 18 U.S.C. § 1951 (Count One); aiding and abetting Hobbs
Act robbery under 18 U.S.C. § 1951 and § 2 (Counts Three, Five, Seven, and Nine);
aiding and abetting discharging a firearm during a crime of violence under 18
U.S.C. § 924(c) and § 2 (Count Eight) with the crime of violence being aiding and
abetting Hobbs Act robbery (Count Seven). App. O:82a. The district court
sentenced Juarez to 9 years and 2 months concurrent imprisonment on Counts One,
Three, Five, Seven, and Nine, and to 10-years consecutive imprisonment for Count
Eight. ECF No. 67.
In 2012, Rojo pled guilty with a written plea agreement to five counts
relating to a kidnapping and robbery of an alleged drug courier committed with
Petitioner Espinoza-Gonzalez: conspiracy to commit Hobbs Act robbery under 18
U.S.C. § 1951 (Count One); aiding and abetting Hobbs Act robbery under 18 U.S.C.
§ 1951 and § 2 (Count Two); aiding and abetting brandishing a firearm during a
4
crime of violence under 18 U.S.C. § 924(c) and § 2 (Count Three), with the alleged
crime of violence being aiding and abetting Hobbs Act robbery charged in Count
Two; aiding and abetting kidnapping under 18 U.S.C. § 1201 and § 2 (Count Four);
and conspiracy to possess heroin with intent to distribute under 21 U.S.C. §§ 846,
841 (Count Five). App. S:105a. The district court sentenced Rojo to 8 years and 1month concurrent imprisonment on Counts One, Two, Four and Five, and to 7 years
consecutive imprisonment on Count Three. ECF No. 81.
The plea agreements for each Petitioner contained the same appellate
waivers, preserving the right to appeal any upward departure or variance from the
sentencing guideline range and “knowingly and expressly” waiving: “the right to
appeal any other aspect of the conviction or sentence” and “the right to bring any
collateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction,
sentence, and the procedure by which the court adjudicated guilt and imposed
sentence, except non-waivable claims of ineffective assistance of counsel.” App.
D:18a; H:44a; K:70a; O:88a; S:111a–112a.
II.
Petitioners seek to vacate their § 924(c) convictions and sentences under this
Court’s Johnson and Davis decisions.
In 2015, this Court held that imposing an increased sentence under the
residual clause of the Armed Career Criminal Act’s (“ACCA”) violent felony
definition violates the Constitution’s guarantee of due process. Johnson v. United
States, 576 U.S. 591 (2015). This Court later issued Welch v. United States, 578
U.S. 120, 135 (2016), holding Johnson announced a new substantive rule applying
retroactively to cases on collateral review.
5
Petitioners sought relief from their § 924(c) convictions by moving to vacate
under 28 U.S.C. § 2255 raising claims under Johnson. All petitioners argued their
§ 924(c) convictions must be vacated because their relative predicate offenses no
longer qualified as crimes of violence after Johnson. Espinoza-Gonzalez, ECF Nos.
84, 85; Figueroa, ECF Nos. 80, 93; Goldstein, ECF Nos. 214, 215; Juarez, ECF Nos.
84, 92; Rojo, ECF Nos. 87, 88. Petitioners challenged their § 924(c) convictions and
attendant mandatory sentences under Johnson on due process, fundamental
miscarriage of justice, and jurisdictional grounds. Espinoza-Gonzalez, ECF No. 84,
p. 4; Figueroa, ECF No. 80, p. 4; Goldstein, ECF No. 214, p. 4; Juarez, ECF No. 84,
p. 4; Rojo, ECF No. 87, p. 4.
The government opposed, arguing that: (1) Petitioners’ claims are foreclosed
by precedent finding the predicates qualify as crimes of violence; (2) Petitioners’
claims are barred by the collateral attack waivers in the plea agreements; (3)
Petitioners’ motions were untimely because the predicates do not rest on the
§ 924(c) residual clause; and (4) that Johnson did not invalidate the § 924(c)
residual clause. Espinoza-Gonzalez, ECF No. 85, pp. 2–15 (also arguing that
Petitioner waived his challenge to the indictment by not raising it in a pretrial
motion); Figueroa, ECF No. 95, pp. 2–20; Goldstein, ECF No. 217, pp. 2–14; Juarez,
ECF No. 96, pp. 2–20; Rojo, ECF No. 90, pp. 2–16 (also arguing that Petitioner
waived his challenge to the indictment by not raising it in a pretrial motion).
Petitioners replied to all arguments. Espinoza-Gonzalez, ECF No. 89;
Figueroa, ECF No. 102; Goldstein, ECF No. 218; Juarez, ECF No. 104; Rojo, ECF
6
No. 92. Specifically explaining that Ninth Circuit precedent, United States v.
Torres, 828 F.3d 1113, 1125 (9th Cir. 2016), precluded enforcing the collateral
challenge waivers when the challenge is to the legality of the sentence, which
includes unconstitutional sentences. Espinoza-Gonzalez, ECF No. 89, pp. 4–6;
Figueroa, ECF No. 102, pp. 2–4; Goldstein, ECF No. 218, pp. 4–5; Juarez, ECF No.
104, pp. 2–4; Rojo, ECF No. 92, pp. 3–4.
The district court denied relief to each Petitioner, as follows:
The district court denied Espinoza-Gonzalez’s motion on the merits, holding
that Hobbs Act robbery remained a crime of violence. App. C:8a. The district court
did not address aiding and abetting Hobbs Act robbery or whether his claim was
procedurally barred and denied a COA. App. C.
The district court denied Figueroa’s motion on the merits, holding that Hobbs
Act robbery remained a crime of violence. App. G:33a–35a. The district court did
not address aiding and abetting Hobbs Act robbery or whether his claim was
procedurally barred and denied a COA. App. G.
The district court denied Goldstein’s motion on the merits, holding that
Hobbs Act robbery remained a crime of violence post-Davis. App. J:56a–57a. The
district court expressly declined to address whether Goldstein was procedural
barred from bringing a § 2255 motion. App. J:57a, n.16. The district court granted
a COA on the merits question. App. J:58a.
The district court denied Juarez’s motion on the merits, holding that Hobbs
Act robbery remained a crime of violence as the aiding and abetting nature of the
7
predicate was not highlighted in the district court briefings. App. N:78a–80a. The
district court did not address whether Juarez’s claim was otherwise barred and also
denied a COA. App. N.
The district court denied Rojo’s motion on the merits, holding that Hobbs Act
robbery remained a crime of violence. App. R:102a–103a. The district court did not
address aiding and abetting Hobbs Act robbery or whether his claim was
procedurally barred and denied a COA. App. R.
III.
Petitioners appeal the denials of their motions to Ninth Circuit and the
Circuit affirms based on summary application of the collateral challenge
waivers.
Petitioners timely appealed. United States v. Espinoza-Gonzalez, 17-15778
(9th Cir.); United States v. Figueroa, 18-16151 (9th Cir.); United States v.
Goldstein, 17-16187 (9th Cir.); United States v. Juarez, 18-16145 (9th Cir.); United
States v. Rojo, 20-15708 (9th Cir.).
In June 2019, this Court issued United States v. Davis, 139 S. Ct. 2319
(2019), holding the residual clause of 18 U.S.C. § 924(c)(3)(B) violates the
Constitution’s guarantee of due process. The Ninth Circuit granted Figueroa,
Juarez, and Rojo each COAs on whether aiding and abetting Hobbs Act robbery
qualified as a crime of violence post-Davis. App. F, M, Q. The Ninth Circuit
granted Espinoza-Gonzalez a COA on whether Hobbs Act robbery qualified as a
crime of violence. App. B.
After Petitioners appeals were briefed, the Ninth Circuit issued United
States v. Goodall, 21 F.4th 555, 558 (9th Cir. 2021), holding the defendant’s
appellate waiver barred his direct appeal challenge to a § 924(c) conviction that
8
rested on conspiracy and its attendant mandatory prison sentence. In Goodall, the
Ninth Circuit held the appeal was barred by the plea agreement’s appellate waiver
of “the right to appeal any other aspect of the conviction or sentence and any order
of restitution or forfeiture.” Id. at 559–62. The Goodall panel reasoned the “illegal”
sentence exception to enforcing appellate waivers did not apply because the panel
viewed the defendant as challenging only his conviction. Id. at 562–65. But Goodall
declined to consider—and left open—whether the miscarriage of justice exception to
enforcing a waiver would apply in this context. Id. at 565 n.6.
Without seeking input from the parties about the applicability of Goodall or
the miscarriage of justice exception, the Ninth Circuit summarily affirmed denial of
each Petitioner’s motion to vacate, citing Goodall and the collateral attack waivers
in the plea agreements. App. A, E, I, L, P. Each summary affirmance contains the
same ruling on waiver:
[W]e agree with the government that [Defendant’s] claim is barred by
the collateral attack waiver in his plea agreement. [Defendant] argues
that the waiver is not enforceable because his attack on his § 924(c)
conviction and sentence falls within the illegal sentence exception
discussed in United States v. Torres, 828 F.3d 1113, 1125 (9th Cir.
2016). However, this exception does not apply where, as in this case,
the challenge is to a purportedly illegal conviction. See United States
v. Goodall, 21 F.4th 555, 562-65 (9th Cir. 2021) (holding that the illegal
sentence exception to appellate waivers does not apply to challenges to
illegal convictions). Because the collateral attack waiver forecloses
§ 2255 relief, we affirm the denial of [Defendant’s] motion. See White
v. Klitzkie, 281 F.3d 920, 922 (9th Cir. 2002) (“[W]e can affirm the
district court on any ground supported by the record.”).
App. A, E, I, L, P.
9
Reasons for Granting the Petition
I.
Goodall cannot be reconciled with precedent that holds jurisdictional claims
are not subject to waiver.
Congress limits federal judicial subject matter jurisdiction by stating the
“district courts of the United States shall have original jurisdiction . . . of all
offenses against the laws of the United States.” 18 U.S.C. § 3231. Because subject
matter jurisdiction involves the power of a court to hear a case, it “can never be
forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). Thus,
defects in subject-matter jurisdiction “require correction regardless of whether the
error was raised in district court.” Id.
A guilty plea including an appellate waiver does not bar a claim on appeal
when the court had no power to enter the conviction or impose the sentence. Class
v. United States, 138 S. Ct. 798 (2018); see also United States v. St. Hubert, 883
F.3d 1319, 1326 (11th Cir. 2018) (a district court lacks jurisdiction to accept a guilty
plea to a “non-offense”). The Ninth Circuit itself holds “[c]laims that ‘the applicable
statute is unconstitutional or that the indictment fails to state an offense’ are
jurisdictional claims.” United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989),
amended at 907 F.2d 115 (9th Cir. 1990). Other circuits agree an appeal waiver
does not waive a jurisdictional defect. See, e.g., McCoy v. United States, 266 F.3d
1245, 1249 (11th Cir. 2001) (“Because parties cannot by acquiescence or agreement
confer jurisdiction on a federal court, a jurisdictional defect cannot be waived or
procedurally defaulted . . . a judgment tainted by a jurisdictional defect must be
reversed”); United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (an appeal
10
waiver will not apply if the sentence violates the law; a sentence is illegal if it
violates the Constitution).
Petitioners raised jurisdictional challenges under 28 U.S.C. § 2255 by
arguing their § 924(c) convictions and sentences are illegal and unconstitutional
because the predicate offense charged is not a crime of violence under 18 U.S.C.
§ 924(c)(3)(A)’s elements clause, and thus the government failed to charge a federal
offense. Espinoza-Gonzalez, ECF Nos. 84, 85; Figueroa, ECF Nos. 80, 93; Goldstein,
ECF Nos. 214, 215; Juarez, ECF Nos. 84, 92; Rojo, ECF Nos. 87, 88. The “right that
[Petitioners’] assert[] . . . is the right not to be haled into court at all upon the felony
charge.” Blackledge v. Perry, 417 U.S. 21, 30 (1974); Menna v. New York, 423 U.S.
61, 62 (1975); see also Norton v. Shelby Cnty., 118 U.S. 425, 442 (1886) (“An
unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords
no protection; it creates no office; it is, in legal contemplation, as inoperative as
though it had never been passed.”); Ex parte Siebold, 100 U.S. 371, 376–77 (1879)
(An offense created by an unconstitutional act is not a crime, and a conviction under
it is “illegal and void, and cannot be a legal cause of imprisonment.”). Without a
lawful crime-of-violence predicate, Petitioners could not be prosecuted, convicted, or
sentenced for the § 924(c) counts at all. This claim, “‘judged on its face’ based upon
the existing record, would extinguish the government’s power to ‘constitutionally
prosecute’ the defendant if the claim were successful.” Class, 138 S. Ct. at 806.
Goodall failed to acknowledge this Court’s precedent, along with the Ninth
Circuit’s own precedent and other Circuit precedent, holding jurisdictional claims
11
cannot be waived. 21 F.4th at 557–64. This Court should grant this joint petition
to bring the Ninth Circuit’s errant waiver law in line with this Court’s precedent,
and the other Circuits holdings, that jurisdictional claims cannot be waived.
II.
By barring relief of illegal convictions and sentences, Goodall failed to adhere
to the constitutional floor below which a defendant’s plea, conviction, and
sentencing may not fall.
For convictions and sentences to stand, they must not violate the
constitution. Thus, the Ninth Circuit recognizes that “the Constitution imposes a
floor below which a defendant’s plea, conviction, and sentencing may not fall,” and
that constitutional floor may render appellate waivers unenforceable. Torres, 828
F.3d at 1125–26 (emphasis added) (appellate waivers do not preclude challenges to
illegal, unconstitutional sentences).
Challenges to illegal “sentences” encompass illegal convictions. Yet the
Goodall panel summarily concluded, post-Davis, that a defendant challenging his
unconstitutional conviction and resulting mandatory sentence under § 924(c) was
not a challenge to an illegal sentence—but to an illegal conviction. Goodall, 21
F.4th at 563. The Ninth Circuit thus errantly made a distinction without
difference.
A sentence imposed for an illegal conviction is therefore also illegal—any
such sentence violates the Constitution. See, e.g., United States v. Shipp, 589 F.3d
1084, 1091 (10th Cir. 2009) (defendant incorrectly sentenced as armed career
criminal received “a punishment that the law cannot impose upon him . . . his due
process rights were violated . . . result[ing] in a complete miscarriage of justice”).
12
Other circuits recognize that waivers can be invalid or inapplicable under theories
like Petitioners’ challenges. See, e.g., United States v. McBride, 826 F.3d 293, 295
(6th Cir. 2016) (defendant “could not have intentionally relinquished a claim based
on Johnson, which was decided after his sentencing”); see also United States v.
Caruthers, 458 F.3d 459, 472 (6th Cir. 2006) (“an appellate waiver does not preclude
an appeal asserting that the statutory-maximum sentence has been exceeded”).
Thus, circuits routinely vacate § 924(c) convictions that rest on non-qualifying
predicates, given Davis. See, e.g., United States v. Borden, 16 F.4th 351 (2d Cir.
2021).
Goodall thus not only conflicts with this Court’s precedent, but that of its
sister Circuits and its own precedent. When a defendant files a § 2255 motion, he
asserts “that the sentence was imposed in violation of the Constitution or laws of
the United States”—an illegal sentence. 28 U.S.C. § 2255(a) (emphasis added).
According to the definitive treatise on the matter, a defendant’s challenge to his
sentence necessarily encompasses all “challenges to the legality of holding the
petitioner in custody at all,” including “typically the legality of the underlying
conviction.” Hertz & Liebman, Federal Habeas Corpus Prac. & Proced. § 9.1, n.31
(2020) (collecting cases) (emphasis added). Illegal convictions and illegal sentences
are inextricably linked, especially when the offense at issue is 18 U.S.C. § 924(c),
which requires the district court impose a mandatory minimum sentence upon
conviction. Thus, circuits have long-recognized the miscarriage of justice exception
to appellate waivers. See, e.g., United States v. Teeter, 257 F.3d 14, 26 n.9 (1st Cir.
13
2001) (noting miscarriage of justice exception “is infinitely variable” and providing a
six-factor analysis to determine whether the exception applies).
Goodall acknowledged that an “illegal sentence is one ‘not authorized by the
judgment of conviction, . . . in excess of the permissible statutory penalty for the
crime, or [that] is in violation of the Constitution.’” Id. But illogically, the panel
concluded an illegal sentence “does not include illegal convictions.” Id. The Ninth
Circuit based its errant holding on the Circuit’s interpretation of a former version of
Fed. R. Crim. P. 35, which authorized a district court to correct an “illegal sentence
at any time.” Goodall, 21 F.4th at 563 (citing United States v. Fowler, 794 F.2d
1446, 1449 (9th Cir. 1986); United States v. Johnson, 988 F.2d 941, 943 (9th Cir.
1993)). In Fowler, the Ninth Circuit held under former Rule 35 that an illegal
sentence included “a sentence which is not authorized by the judgment of conviction
or in excess of the permissible statutory penalty for the crime, or in violation of the
constitution.” Fowler, 794 F.2d at 1449 (cleaned up). In Johnson, the Ninth Circuit
held an illegal sentence did not include a defendant’s argument he was improperly
convicted of prohibited person in possession of a firearm. Johnson, 988 F.2d at 943.
Citing Fowler and Johnson, the Goodall panel summarily concluded, post-Davis,
that a defendant challenging his unconstitutional conviction and resulting
mandatory sentence under § 924(c) was not a challenge to an illegal sentence—but
rather to an illegal conviction. Goodall, 21 F.4th at 563.
The gravity of the erroneous Goodall holding is severe. But for the illegal,
unconstitutional § 924(c) convictions and sentences, each Petitioner would not face
14
mandatory consecutive terms of 7 to 10 years. The impact of correcting the error, in
contrast, is minimal. The plea agreements remain valid as to the remaining non§ 924(c) counts. See United States v. Barron, 172 F.3d 1153, 1158 (9th Cir. 1999).
Mandating enforcement of appellate waivers to preclude relief from illegal,
unconstitutional convictions, and mandatory consecutive sentences is contrary to
this Court’s precedent and to justice. This Court should grant review of this
important federal question to bring the Ninth Circuit in line with this Court’s
precedent that general appellate waivers do not preclude challenges to illegal
convictions and sentences.
Conclusion
Petitioners ask the Court to grant this joint petition for a writ of certiorari.
Alternatively, the Court should grant, vacate, and remand for consideration of the
miscarriage of justice exception to enforcing the waiver in Petitioners’ cases. See
Goodall, 21 F.4th at 565 n.6 (“Defendant did not raise, and we do not consider, the
applicability, if any, of an exception for a miscarriage of justice. We express no view
on the viability of that exception in other circumstances.”). The Circuit applied the
collateral challenge waivers here without providing Petitioners an opportunity to
address the miscarriage of justice exception, an issue unnecessary to address until
the Goodall decision limited the illegal sentence exception to enforcement of
waivers. At the least, Petitioners’ request the Court grant, vacate, and remand
their appeals so they may litigate the miscarriage of justice exception.
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Dated: June 17, 2022.
Respectfully submitted,
RENE L. VALLADARES
Federal Public Defender
/s/ Wendi L. Overmyer
Wendi L. Overmyer
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
Wendi_Overmyer@fd.org
Lead Counsel for Petitioners
/s/ Cristen C. Thayer
Cristen C. Thayer
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
Cristen_Thayer@fd.org
/s/ Lauren B. Torre
Lauren B. Torre
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
Lauren_Torre@fd.org
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.