Petition for Writ of Certiorari — Judel Espinoza-Gonzalez, Petitioner v. United States

Supreme Court briefJun 17, 2022

Ask Donna

What actually matters in this document.

Text

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.

15

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

16

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.