Petition for Writ of Certiorari — Carlos Mejia-Quintanilla, Petitioner v. United States

No. ________

IN THE SUPREME COURT OF THE UNITED STATES

C A R L O S M E J I A- QUINTANILLA ,

Petitioner ,

v.

UNITED STATES OF AMERICA,

Respondent.

________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

________________________________

P E T I T I ON FOR WRIT O F CERTIORARI

DARLENE BAGLEY COMSTEDT *

Law Office of Darlene Bagley Comstedt

2358 Market Street

San Francisco, California 94114

(415) 840-7365

darlene@comstedtlaw.com

* Counsel of Record for Petitioner

Appointed Pursuant to 18 U.S.C. §

3006A

QUESTIONS PRESENTED FOR REVIEW

I.

The first question for this Court’s review is whether courts can summarily

enforce an appellate waiver to bar motions to vacate convictions that are

unconstitutional.

II.

The second, related, question presented for this Court’s review is whether

a court can summarily enforce an appellate waiver to bar motions to

vacate convictions for which the district court lacked jurisdiction to enter

a judgment of conviction.

i

Table of Contents

QUESTIONS PRESENTED FOR REVIEW .................................................................. i

PETITION FOR WRIT OF CERTIORARI .................................................................... 1

OPINIONS BELOW ....................................................................................................... 1

JURISDICTION.............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS ............................................. 2

STATEMENT OF THE CASE ....................................................................................... 2

I.

Petitioner enters a plea and is sentenced to a mandatory minimum

consecutive sentence under 18 U.S.C. §§ 924(c), (j)(1). ............................................ 2

II. Petitioner seeks to vacate his § 924(j) conviction and sentence under this

Court’s Johnson and Davis decisions. Said request is denied by the district court.

4

III.

Petitioner appeals the denial of his motion to the Ninth Circuit and the

Circuit ultimately affirms based on summary application of the collateral

challenge waiver. ........................................................................................................ 5

REASONS FOR GRANTING THE WRIT ..................................................................... 7

I.

The Ninth Circuit’s opinion cannot be reconciled with Supreme Court

precedent that holds constitutional challenges such as the one presented by

Petitioner are not subject to waiver. ......................................................................... 7

II. The Ninth Circuit’s opinion cannot be reconciled with Supreme Court

precedent that holds jurisdictional claims are not subject to waiver. ................... 11

CONCLUSION.............................................................................................................. 13

ii

APPENDICES

United States of America v. Carlos Mejia-Quintanilla,

No. 17-15899, Dkt. No. 71-1 (9th Cir. Aug. 11, 2022) …………………… Appendix A

United States of America v. Carlos Mejia-Quintanilla,

No. 17-15899, Dkt. No. 82 (9th Cir. Oct. 3, 2022) ………………………..

Appendix B

United States of America v. Carlos Mejia-Quintanilla,

3:CR-11-00293-CRB, ECF Doc. No. 162 (N.D. Cal. Apr. 24, 2017)

Order Denying Motion to Vacate Sentence (28 U.S.C. § 2255)………….. Appendix C

United States of America v. Carlos Mejia-Quintanilla,

3:CR-11-00293-CRB, (N.D. Cal. July 24, 2014)

Plea Agreement ………………………………………………………………... Appendix D

United States v. Goodall,

21 F.4th 555 (9th Cir. 2021) …………………………………………………. Appendix E

iii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Blackledge v. Perry,

417 U.S. 21 (1974) ........................................................................................... 7, 9, 12

Class v. United States,

138 S. Ct. 798 (2018) ................................................................................. 8, 9, 11, 13

Johnson v. United States,

576 U.S. 591 (2015) ................................................................................................... 4

McCoy v. United States,

266 F.2d 1245 (11th Cir. 2001) ............................................................................... 11

Menna v. New York,

423 U.S. 61 (1975) (per curiam) ...................................................................... 7, 9, 10

United States v. Bibler,

495 F.3d 621 (9th Cir. 2007) ................................................................................... 12

United States v. Broce,

488 U.S. 563 (1989) ............................................................................................... 8, 9

United States v. Carlos Mejia-Quintanilla,

17-15998 (9th Cir. 2022) ........................................................................................... 5

United States v. Cotton,

535 U.S. 625 (2002) ................................................................................................. 11

United States v. Davis,

139 S. Ct. 2319 (2019) ........................................................................................... 4, 8

United States v. Goodall,

21 F.4th 555 (9th Cir. 2021).......................................................... 1, 5, 6, 7, 8, 10, 13

United States v. Mejia-Quintanilla,

3:11-cr-00293-CRB (N.D. Cal. 2017) ........................................................................ 3

United States v. Montilla,

870 F.2d 549 (9th Cir. 1989), amended at 907 F.2d 115 (9th Cir. 1990) .............. 11

United States v. Torres,

828 F.3d 1113 (9th Cir. 2016) ............................................................................. 8, 10

iv

Welch v. United States,

578 U.S. 120 (2016) ................................................................................................... 4

State Cases

Commonwealth v. Hinds,

101 Mass. 209 (1869) .......................................................................................... 7, 12

Federal Statutes

18 U.S.C. ....................................................................................................................... 13

18 U.S.C. § 924(c) ................................................................................ 2, 4, 5, 6, 8, 10, 12

18 U.S.C. § 924(c)(3)(A)’s .............................................................................................. 12

18 U.S.C. §§ 924(c),(j) ..................................................................................................... 5

18 U.S.C. §§ 924(c), (j)(1) ............................................................................................ 2, 4

18 U.S.C. § 924(j) .............................................................................................. 3, 4, 5, 10

18 U.S.C. § 1959(a)(1) ................................................................................................. 4, 5

18 U.S.C. § 1962(d) ......................................................................................................... 2

18 U.S.C. § 3231 ............................................................................................................ 11

28 U.S.C. § 1254(1) ......................................................................................................... 1

28 U.S.C. § 2255 .............................................................................................. 1, 4, 10, 12

Rules

Fed. App. R. 28(j) ............................................................................................................ 6

Sup. Ct. R. 13.1 ............................................................................................................... 1

Constitutional Provisions

U.S. Const. Amendment V ............................................................................................. 2

Other Authorities

Hertz & Liebman, Federal Habeas Corpus Prac. & Proced. § 9.1, n.31

(2020) ....................................................................................................................... 10

https://www.bop.gov.inmateloc/ ..................................................................................... 4

v

PETITION FOR WRIT OF CERTIORARI

Carlos Mejia-Quintanilla respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals is not published in the

Federal Reporter, but the opinion, United States v. Carlos Mejia-Quintanilla, No.

17-15899, No. 71 (9th Cir. Aug. 11, 2022), is attached as Appendix A. The Ninth

Circuit Court of Appeals’ order denying Mr. Mejia-Quintanilla’s petition for

rehearing, United States v. Mejia-Quintanilla, No. 17-15899, No. 82 (9th Cir. Oct. 3,

2022), is attached as Appendix B. The district court’s order denying Mr. MejiaQuintanilla’s motion under 28 U.S.C. § 2255, United States v. Carlos Mejia-

Quintanilla, 3:CR-11-00293-CRB, CR 162 (N.D. Cal. Apr. 24, 2017), is attached as

Exhibit C. The Ninth Circuit’s decision in United States v. Goodall, upon which it

exclusively relied in Mr. Mejia-Quintanilla’s case, is reported at 21 F.4th 555 (9th

Cir. 2021) and is attached as Appendix E.

JURISDICTION

The Ninth Circuit entered its final order affirming the denial of Petitioner’s

motion to vacate on August 11, 2022, see App. A, and denied Petitioner’s petition for

rehearing on October 3, 2022, see App. B. On December 19, 2022, Petitioner’s

request for a 60-day extension of time in which to file the instant petition for a writ

of certiorari was granted. See Application 22A537. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1). This petition is timely per Sup. Ct. R. 13.1.

1

CONSTITUTIONAL AND STATUTORY PROVISIONS

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.

3. Title 18, Section 924(j)(1), of the United States Code states:

(j) A person who, in the course of a violation of subsection (c), causes the

death of a person through the use of a firearm, shall –

(1) If the killing is a murder (as defined in section 1111), be punished

by death or by imprisonment for any terms of years or for life.

STATEMENT OF THE CASE

I.

Petitioner enters a plea and is sentenced to a mandatory minimum

consecutive sentence under 18 U.S.C. §§ 924(c), (j)(1).

Petitioner is serving a mandatory minimum sentence for a § 924(j)(1)

conviction, as follows: In 2014, Mr. Mejia-Quintanilla pled guilty with a written plea

agreement to a racketeering conspiracy under 18 U.S.C. § 1962(d) (Count One) and

to carrying and using a firearm during and in relation to a crime of violence

2

resulting in murder under 18 U.S.C. § 924(j) (Count Five); Counts Two, Three, and

Four were dismissed. App. D at 1.1

Petitioner’s plea agreement contained several appellate waivers. First,

Petitioner agreed as follows:

I agree to give up my right to appeal my conviction, the judgment, and

orders of the court. I also agree to waive any right I have to appeal any

aspect of my sentence, including any orders relating to forfeiture and

or restitution. I also agree to give up any right I may have to appeal

my sentence, except that I reserve my right to appeal an upward

departure from the Guideline imprisonment range determined by the

Court.

App. D at 5.

In addition, Petitioner’s plea agreement included the following provision:

I agree not to file any collateral attack on my conviction or sentence,

including a petition under 28 U.S.C. § 2255 or 28 U.S.C. § 2241, except

that I reserve my right to claim that my counsel was ineffective in

connection with the negotiation of this Agreement or the entry of my

guilty plea. I also agree not to seek relief under 18 U.S.C. § 3582.

Id.

The district court sentenced Mr. Mejia-Quintanilla to 324 months in the

Bureau of Prisons: 204 months for Count One, and a mandatory consecutive 120

month-sentence for Count Five. CR 1292. According to the Bureau of Prisons,

Petitioner’s current projected release date is April 7, 2035. See

Although the Plea Agreement bears a stamp reading “Sealed by Court Order,” the

document was ordered unsealed by the Ninth Circuit. See Ninth Circuit Case No.

17-15899, Dkt. Nos. 23, 26.

1

CR” refers to the lower federal district court record, specifically to the document’s

ECF number on the district court’s docket record for United States v. MejiaQuintanilla, 3:11-cr-00293-CRB (N.D. Cal.).

2

3

https://www.bop.gov.inmateloc/ (Reg. No. 14926-111) (last visited February 23,

2023).

II.

Petitioner seeks to vacate his § 924(j) conviction and sentence under this

Court’s Johnson and Davis decisions. Said request is denied by the district

court.

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.

On June 24, 2016, Petitioner filed a motion in the district court under 28

U.S.C. § 2255, which was later amended on August 29, 2016. CR 141, 145.

Petitioner alleged a claim based on this Court’s decision in Johnson, infra.

Specifically, Petitioner challenged his conviction under 18 U.S.C. §§ 924(c), (j)(1),

arguing that the predicate offense, namely murder in aid of racketeering under 18

U.S.C. § 1959(a)(1), did not meet the definition of a crime of violence after Johnson.

CR 145. Petitioner challenged his § 924(j) conviction and attendant mandatory tenyear sentence under Johnson on due process and jurisdictional grounds. Id.

The government opposed the motion, arguing that Petitioner waived his right

to file a motion under 28 U.S.C. § 2255; his claim is time-barred; his claim is

incorrect; and that he is procedurally defaulted. CR 156.

4

Concluding that murder in aid of racketeering, specifically murder in aid of

racketeering involving a firearm, is a crime of violence under 18 U.S.C. § 924(c), the

district court denied relief to Petitioner. App. C. The district court denied Petitioner

a certificate of appealability. CR 163.

III.

Petitioner appeals the denial of his motion to the Ninth Circuit and the

Circuit ultimately affirms based on summary application of the collateral

challenge waiver.

Petitioner timely appealed. United States v. Carlos Mejia-Quintanilla, 1715998 (9th Cir.). The Ninth Circuit granted Petitioner a Certificate of Appealability

(“COA”) on whether murder in aid of racketeering under 18 U.S.C. §1959(a)(1)

qualifies as a crime of violence under 18 U.S.C. §§ 924(c),(j). On appeal before the

Ninth Circuit, Petitioner argued that his § 924(j) conviction is unconstitutional

because the predicate offense is not a “crime of violence” under the force clause of §

924(c)(3)(A). ACR 13.3

After Petitioner’s appeal was briefed, and after the Ninth Circuit had issued

its initial opinion in Petitioner’s favor, see ACR 58, the Ninth Circuit issued United

States v. Goodall, 21 F.4th 555, 558 (9th Cir. 2021)4. App. E. In Goodall, the Ninth

Circuit held that the defendant’s 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.” Goodall, 21 F.4th at 559-62. The

ACR” refers to the lower federal appellate court record, specifically to the

document’s docket number on the Ninth Circuit’s docket record for United States v.

Mejia-Quintanilla, Case No. 17-15899.

4 This opinion amends the Ninth Circuit’s earlier opinion reported at 15 4th 987 (9th

Cir. 2021).

3 “

5

Goodall panel reasoned the “illegal” sentence exception to enforcing appellate

waivers did not apply because the panel viewed the defendant as challenging only

his § 924(c) conviction. Id. at 562-65. Goodall declined to consider whether the

miscarriage of justice exception to enforcing a waiver would apply in this context.

Id. at 565, n.6.

The mandate had not yet issued in Petitioner’s case when Goodall was

decided, and the government, which had already sought a petition for rehearing and

stay of the mandate on other grounds, see ACR 62, filed a citation of supplemental

authorities pursuant to Fed. App. R. 28(j) with the Ninth Circuit, alerting the panel

to Goodall and arguing that, pursuant to its holding, Petitioner’s appeal must be

denied. ACR 66. Following briefing on the government’s petition for panel

rehearing, and without seeking input about the miscarriage of justice exception, the

Ninth Circuit dismissed the appeal as barred by his appellate waiver, citing Goodall

and the collateral attack waivers in the plea agreement. App. A. The summary

affirmance stated, in pertinent part:

[W]e dismiss the appeal because it is barred by the appellate waiver in

Mejia-Quintanilla’s plea agreement.

Mejia-Quintanilla’s written plea agreement expressly waived his right

to appeal or collaterally challenge his conviction or sentence. MejiaQuintanilla was convicted of a violation of 18 U.S.C. § 924(j)(1) and (2),

which has the element of violating 18 U.S.C. § 924(c). The violation of §

924(c), in turn, has the element of carrying and using a firearm during

and in relation to a crime of violence, in this case, murder in violation

of California Penal Code § 187. Mejia-Quintanilla seeks to challenge

this conviction on the ground that he is actually innocent of violating §

924(j)(1), because he could not have violated § 924(c) (an element of §

924(j)(1)). Specifically, he argues that pursuant to recent Supreme

Court cases, § 187 murder is not a crime of violence under § 924(c). We

6

reject his challenge. Because the language of Mejia-Quintanilla’s

appellate waiver encompasses his right to appeal his conviction for

violating § 924(j), the appellate waiver bars Mejia-Quintanilla’s

challenge to his conviction. See United States v. Goodall, 21 F.4th 555,

561 (9th Cir. 2021), cert. denied, No. 21-7486 (U.S. Apr. 25, 2022).

Id. at pp. 2-3.

REASONS FOR GRANTING THE WRIT

I.

The Ninth Circuit’s opinion cannot be reconciled with Supreme Court

precedent that holds constitutional challenges such as the one presented

by Petitioner are not subject to waiver.

The plea of guilty is, of course, a confession of all the facts charged in

the indictment, and also of the evil intent imputed to the defendant. It

is a waiver also of all merely technical and formal objections of which

the defendant could have availed himself by any other plea or motion.

But if the facts alleged and admitted do not constitute a crime against

the laws of the Commonwealth, the defendant is entitled to be

discharged.

Commonwealth v. Hinds, 101 Mass. 209, 210 (1869) (emphasis added).

This basic tenet has been repeatedly reaffirmed by this Court. In Blackledge

v. Perry, 417 U.S. 21 (1974) the Court wrote that the right asserted by the

defendant – and accepted by the Court – was “the right not to be haled into court at

all upon the felony charge [since] the very initiation of the proceedings [] operated to

deprive him due process of law.” Blackledge, 417 U.S. at 30-31 (habeas relief sought

on the grounds that defendant’s reindictment, and attendant conviction, resulted

from an unconstitutional vindictive prosecution). Just a short while later, in Menna

v. New York, 423 U.S. 61 (1975) (per curiam) the Court held that “a plea of guilty to

a charge does not waive a claim that – judged on its face – the charge is one which

the State may not constitutionally prosecute.” Menna, 423 U.S. at 63 (subsequent

7

prosecution, and resultant guilty plea, challenged on Double Jeopardy grounds). In

United States v. Broce, 488 U.S. 563 (1989), this Court repeated that a guilty plea

does not bar an appellate claim “where on the face of the record the court had no

power to enter the conviction or impose the sentence.” Broce, 488 U.S. at 569.

This Court affirmed these historical, and consistent, holdings in Class v.

United States, 138 S. Ct. 798 (2018). In Class, the Court parsed out those

constitutional claims rendered precluded by a guilty plea – e.g. the constitutionality

of case-related government conduct that takes place before a plea is entered, and

the constitutional right to a fair trial and accompanying constitutional guarantees –

from those constitutional claims that remain even following a guilty plea: those

which, judged on their face, would “extinguish the government’s power to

constitutionally prosecute the defendant if the claim were successful.” Class, 138 S.

Ct. at 805-06.

The Ninth Circuit’s opinion in United States v. Goodall, 21 F.4th 555 (9th

Cir. 2021) conflicts with this Court’s precedent. In Goodall, the defendant moved to

vacate his conviction for a violation of 18 U.S.C. § 924(c) on the grounds that, post-

Davis5, his conviction must be vacated because a Hobbs Act conspiracy is not a

“crime of violence” under the “elements clause” of § 924(c). Goodall, 21 F.4th at 56061. The Ninth Circuit found that the defendant’s appellate waiver barred his

challenge; and found the “illegal sentence” exception to an appellate waiver

discussed in United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016)

5

United States v. Davis, 139 S. Ct. 2319 (2019).

8

inapplicable as said term does not encompass illegal convictions. Id. at 562-65. The

Ninth Circuit reasoned that to construe the “illegal sentence” exception to include

illegal convictions “might undo nearly all appellate waivers, past and present,

yielding perverse consequences.” Id. at 564.

The “perverse consequences” the Ninth Circuit fears should appellate waivers

not bar challenges to illegal convictions are nothing compared to the perverse

consequences that would result from enforcing an unconstitutional conviction and

forcing an individual to remain incarcerated from the resultant sentence. Contrary

to the Ninth Circuit’s attempt to distinguish the two, illegal sentences are often

inextricably intertwined with illegal convictions. See, e.g., Broce, infra (a guilty plea

does not bar an appellate claim “where on the face of the record the court had no

power to enter the conviction or impose the sentence”) (emphasis added).

As in Class, Petitioner’s constitutional claim for prosecution of a non-federal

offense is not expressly waived in the general collateral attack waiver contained in

his plea agreement, see App. D: his challenge does not, in any way, deny that he

engaged in the conduct to which he admitted; rather, he seeks to raise a claim

which, “judged on its face” would extinguish the government’s power to

constitutionally prosecute him if successful. See Class, 138 S. Ct. at 805; see also

Blackledge, infra; Menna, infra. Further, as in Class,

[T]he claims at issue here do not fall within any of the categories of

claims that [the appellate waiver in] Class’ plea agreement forbids him

to raise on direct appeal. They challenge the Government’s power to

criminalize Class’ (admitted) conduct. They thereby call into question

the Government’s power to constitutionally prosecute him. A guilty

plea does not bar a direct appeal in these circumstances.

9

Id. The question involved in Petitioner’s motion to vacate involves conduct that does

not constitute a § 924(c) offense and, subsequently, upon which a § 924(j) conviction

cannot be based; it involves conduct that was unconstitutionally prosecuted as it

was without subject matter jurisdiction.

Simply put, for a conviction to stand, it must not violate the constitution:

“the Constitution imposes a floor below which a defendant’s plea, conviction , and

sentencing may not fall.” Torres, 828 F.3d at 1125-26. In holding that challenges to

illegal convictions do not fall within the “illegal sentence” exception to appellate

waivers, the Ninth Circuit errantly made a distinction without difference. 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.” 28 U.S.C. § 2255. A

defendant’s challenge to his sentence necessarily encompasses all “challenges to the

legality of holding the petitioner in custody at all” – which necessarily encompasses

“the legality of the underlying conviction.” Hertz & Liebman, Federal Habeas

Corpus Prac. & Proced. § 9.1, n.31 (2020) (emphasis added). And in cases such as

Petitioner’s, where the offense of conviction carries a mandatory consecutive

sentence, the illegal conviction and the illegal sentence are as one.

The Ninth Circuit’s erroneous holding in Goodall conflicts with this Court’s

precedent and, if not remedied by this Court, will lead to unjust consequences. But

for his unconstitutional § 924(j)(1) conviction, Petitioner would not be forced to

serve a mandatory consecutive term of 10 years’ imprisonment. Mandating the

enforcement of appellate waivers to preclude relief from illegal, unconstitutional

10

convictions is contrary to this Court’s precedent. Indeed, it is contrary to justice

itself. This Court should grant review of this important federal question.

II.

The Ninth Circuit’s opinion cannot be reconciled with Supreme Court

precedent that holds jurisdictional claims are not subject to waiver.

In addition to constitutional considerations, there are jurisdictional limits to

which courts must adhere. Congress limits federal judicial subject matter

jurisdiction by clearly stating that 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. Subject matter jurisdiction involves the very power of a court to hear

a case and, as such, “can never be forfeited or waived.” United States v. Cotton, 535

U.S. 625, 630 (2002). As a result, defects in subject-matter jurisdiction “require

correction regardless of whether the error was raised in district court.” Id.

As discussed infra, 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). Numerous circuits agree

that an appeal waiver does not waive a jurisdictional defect. See, e.g., McCoy v.

United States, 266 F.2d 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”). Indeed, the Ninth Circuit itself has held

that “[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); and, as

11

such, an appeal waiver will not apply if the sentence violates the law, United States

v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007).

Petitioner raised jurisdictional challenges under 28 U.S.C. § 2255 by arguing

that his § 924(j)(1) conviction and resulting sentence is 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, subsequently, the government failed to charge a

federal offense. CR 145. The Ninth Circuit, in its initial memorandum disposition in

Petitioner’s case, agreed, finding that the predicate offense charged is not a crime of

violence. ACR 58-1.6

As in Blackledge, infra, the right the Petitioner asserts is the right “not to be

haled into court at all upon the felony charge.” Blackledge, 417 U.S. at 30. This

reflects an understanding of the very nature of guilty pleas: a plea is a confession of

all facts charged in the indictment, “[b]ut if the facts alleged and admitted do not

constitute a crime against the laws of the Commonwealth, the defendant is entitled

to be discharged.” Hinds, 101 Mass. at 210 (1869). Here, without a lawful “crime of

violence” predicate upon which a violation of § 924(c) could be based, Petitioner

could not be prosecuted, convicted, or sentenced for the § 924(j)(1) count. This claim,

on its face and based on the existing record, would extinguish the government’s

Upon granting the government’s petition for panel rehearing following the

issuance of the initial memorandum disposition in Petitioner’s case, said

memorandum disposition was withdrawn and was replaced with the memorandum

disposition dismissing Petitioner’s appeal upon its finding that it is barred by the

appellate waiver in his plea agreement. ACR 71-1

6

12

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 its own

precedent and that of other Circuits, holding that jurisdictional claims cannot be

waived. Goodall, 21 F.4th at 557-64. This Court should grant this petition to correct

this error and to affirm this Court’s precedent that jurisdictional claims cannot be

waived.

CONCLUSION

For the foregoing reasons, this Court should grant this petition for a writ of

certiorari. Alternatively, this Court should grant, vacate, and remand for

consideration of the miscarriage of justice exception to enforcing the waiver in

Petitioner’s case. 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.”)

Dated: February 28, 2023.

Respectfully submitted,

/s/ Darlene Bagley Comstedt_______

DARLENE BAGLEY COMSTEDT*

Darlene Bagley Comstedt

2358 Market Street

San Francisco, CA 94114

(415) 840-7365

darlene@comstedtlaw.com

* Counsel of record for Petitioner

Appointed pursuant to 18 U.S.C.

§ 3006A

13