Petition for Writ of Certiorari — Jonathan Mota, Petitioner v. United States

NO. ________________

IN THE SUPREME COURT OF THE UNITED STATES

JONATHAN MOTA,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

HANNI M. FAKHOURY

Counsel of Record

MOEEL LAH FAKHOURY LLP

2006 Kala Bagai Way, Suite 16

Berkeley, CA 94704

(510) 500-9994

hanni@mlf-llp.com

QUESTIONS PRESENTED FOR REVIEW

1. Does the Ninth Circuit’s rule that issues raised and rejected on direct appeal

are not reviewable in a 28 U.S.C. § 2255 petition conflict with the general rule

announced by this Court that claims not raised on direct appeal may not be raised on

collateral review?

2. Was the Ninth Circuit correct to deny a certificate of appealability to review

the district court’s conclusion that a Fifth Amendment constructive amendment claim

raised by Mr. Mota on direct appeal was the same as the Sixth Amendment

categorical analysis challenge raised by Mr. Mota post-conviction?

i

INTERESTED PARTIES

Petitioner is Jonathan Mota, an inmate at the United States Penitentiary in

Florence, Colorado. Mr. Mota was the defendant and petitioner in the district court

and the appellant and petitioner below. Respondent is the United States.

ii

RULE 14.1(b)(iii) STATEMENT

There are no proceedings directly related to the case in this Court.

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... v

INTRODUCTION .......................................................................................................... 1

ORDERS BELOW .......................................................................................................... 1

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

STATUTES INVOLVED ............................................................................................... 1

STATEMENT OF THE CASE....................................................................................... 3

I.

Mr. Mota is convicted and sentenced to life imprisonment. ..................... 3

II.

Mr. Mota’s motion to vacate is denied. ...................................................... 4

III. The Ninth Circuit denies a certificate of appealability. ........................... 6

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

I.

This Court should permit review of the district court’s conclusion that

Mr. Mota was barred from re-litigating the issue of whether he was

convicted of Hobbs Act extortion................................................................ 8

A.

The Ninth Circuit’s rule that a petitioner is precluded from

raising claims decided on direct appeal in a § 2255 petition

conflicts with decisions of this Court requiring a petitioner

exhaust their claims. ................................................................... 10

B.

Because Mr. Mota raised a different claim on direct appeal,

the re-litigation bar did not apply in any event. ........................ 11

CONCLUSION............................................................................................................. 14

iv

TABLE OF AUTHORITIES

Cases

Barefoot v. Estelle,

463 U.S. 880 (1983).................................................................................................... 7

Belford v. United States,

975 F.2d 310 (7th Cir. 1992) ................................................................................... 10

Brown v. United States,

2020 WL 437921 (W.D.N.C. Jan. 28, 2020) ............................................................ 10

Capozzi v. United States,

531 F. Supp. 3d 399 (D. Mass. 2021) ........................................................................ 9

Dall v. United States,

957 F.2d 571 (8th Cir. 1992) ................................................................................... 10

Descamps v. United States,

570 U.S. 254 (2013).............................................................................................. 9, 13

Finch v. United States,

2022 WL 2392928 (M.D. Tenn. Jul. 1, 2022) .......................................................... 10

Hohn v. United States,

524 U.S. 236 (1998).................................................................................................... 1

Massaro v. United States,

538 U.S. 500 (2003).................................................................................................. 11

Mathis v. United States,

579 U.S. 500 (2016).................................................................................... 8, 9, 13, 14

Medrano v. United States,

315 F.2d 361 (9th Cir. 1963) ................................................................................... 11

Miller-El v. Cockrell,

537 U.S. 322 (2003).................................................................................................... 7

Munoz v. United States,

2020 WL 9219149 (S.D. Fla. Dec. 29, 2020) ........................................................... 10

Murchu v. United States,

926 F.2d 50 (1st Cir. 1991) ...................................................................................... 10

v

Odom v. United States,

455 F.2d 159 (9th Cir. 1972) ................................................................................... 11

Shepard v. United States,

544 U.S. 13 (2005).................................................................................................... 13

Slack v. McDaniel,

529 U.S. 473 (2000).................................................................................................... 7

Stein v. United States,

390 F.2d 625 (9th Cir. 1968) ................................................................................... 11

Taylor v. United States,

495 U.S. 575 (1990).................................................................................................... 8

United States v. Currie,

589 F.2d 993 (9th Cir. 1979) .................................................................. 6, 10, 11, 14

United States v. Davis,

588 U.S. 445 (2019)................................................................................................... 8

United States v. Frady,

456 U.S. 152 (1982).................................................................................................. 11

United States v. Greene,

834 F.2d 1067 (D.C. Cir. 1987) ................................................................................ 10

United States v. Kalish,

780 F.2d 506 (5th Cir. 1986) ................................................................................... 10

United States v. Mota,

753 Fed. Appx. 470 (9th Cir. Feb. 20, 2019) ................................................ 4, 12, 13

United States v. Warner,

23 F.3d 287 (10th Cir. 1994) ................................................................................... 10

United States v. White,

510 F. Supp. 3d 443 (W.D. Tx. 2020) ...................................................................... 10

Statutes

18 U.S.C. § 922 ............................................................................................................... 4

18 U.S.C. § 924 ..................................................................................................... passim

18 U.S.C. § 1111 ............................................................................................................. 2

vi

18 U.S.C. § 1951 ............................................................................................................. 1

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

28 U.S.C. § 2253 ......................................................................................................... 3, 7

28 U.S.C. § 2255 ................................................................................................... passim

vii

INTRODUCTION

Jonathan Mota respectfully petitions this Court for a writ of certiorari, seeking

to vacate the order of the United States Court of Appeals for the Ninth Circuit

denying a certificate of appealability (“COA”), and requesting this Court grant a COA

and remand to the Ninth Circuit to review the Northern District of California’s denial

of Mr. Mota’s motion to vacate under 28 U.S.C. § 2255.

ORDERS BELOW

The Ninth Circuit’s order denying Mr. Mota a COA is unreported and included

in the Appendix at 20a. The Northern District of California’s June 24, 2024 order

denying Mr. Mota’s motion to vacate and request for a COA is unreported and

included in the Appendix at 1a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). Hohn v. United States,

524 U.S. 236, 253 (1998). The Ninth Circuit entered its order denying a COA on

March 7, 2025. This petition is thus timely. Sup. Ct. R. 13.3.

STATUTES INVOLVED

Title 18 U.S.C. § 1951 states, in part:

(a) Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in commerce, by

robbery or extortion or attempts or conspires so to do, or commits or

threatens physical violence to any person or property in furtherance of

a plan or purpose to do anything in violation of this section shall be fined

under this title or imprisoned not more than twenty years, or both.

(b) As used in this section—

(1) The term “robbery” means the unlawful taking or obtaining of

personal property from the person or in the presence of another, against

his will, by means of actual or threatened force, or violence, or fear of

injury, immediate or future, to his person or property, or property in his

1

custody or possession, or the person or property of a relative or member

of his family or of anyone in his company at the time of the taking or

obtaining.

(2) The term “extortion” means the obtaining of property from

another, with his consent, induced by wrongful use of actual or

threatened force, violence, or fear, or under color of official right.

Title 18 U.S.C. § 1111(a) states:

Murder is the unlawful killing of a human being with malice

aforethought. Every murder perpetrated by poison, lying in wait, or any

other kind of willful, deliberate, malicious, and premeditated killing; or

committed in the perpetration of, or attempt to perpetrate, any arson,

escape, murder, kidnapping, treason, espionage, sabotage, aggravated

sexual abuse or sexual abuse, child abuse, burglary, or robbery; or

perpetrated as part of a pattern or practice of assault or torture against

a child or children; or perpetrated from a premeditated design

unlawfully and maliciously to effect the death of any human being other

than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

Title 18 U.S.C. § 924(c) states, in part:

…any person who, during and in relation to any crime of violence

or drug trafficking crime (including a crime of violence or drug

trafficking crime that provides for an enhanced punishment if

committed by the use of a deadly or dangerous weapon or device) for

which the person may be prosecuted in a court of the United States, uses

or carries a firearm, or who, in furtherance of any such crime, possesses

a firearm, shall, in addition to the punishment provided for such crime

of violence or drug trafficking crime-(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of

imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of

imprisonment of not less than 10 years.

Title 18 U.S.C. § 924(j)(1) states, in part:

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 term of years or for life…

2

Title 28 U.S.C. § 2255(a) states:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized

by law, or is otherwise subject to collateral attack, may move the court

which imposed the sentence to vacate, set aside or correct the sentence.

Title 28 U.S.C. § 2253(c) states:

(c)(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1)

only if the applicant has made a substantial showing of the denial of a

constitutional right.

(3) The certificate of appealability under paragraph (1) shall

indicate which specific issue or issues satisfy the showing required by

paragraph (2).

STATEMENT OF THE CASE

I.

Mr. Mota is convicted and sentenced to life imprisonment.

On January 18, 2013, a man ran into a convenience store in Kelseyville,

California with a handgun, and demanded money. An employee, Forrest Seagrave,

tried to intervene, but was shot by the suspect, and ultimately died. Law enforcement

concluded Mr. Mota was the robber and shooter, and he was arrested in February

2013.

On June 27, 2013, the operative superseding indictment issued in the Northern

District of California charging Mr. Mota with violating the Hobbs Act, in violation of

18 U.S.C. § 1951(a) (Count One), use or possession of a firearm during a crime of

3

violence, in violation of 18 U.S.C. § 924(c) (Count Two), murder caused by a firearm

in relation to a crime of violation, in violation of 18 U.S.C. § 924(j) (Count Three), and

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count

Four).

Mr. Mota represented himself at trial with the assistance of standby counsel.

Count Four was severed, and Mr. Mota was tried before a jury that found him guilty

on Counts One, Two, and Three. On Count Three, charging use of a firearm causing

death, the jury found the government had proven only second-degree murder, not

first-degree murder. After the verdict, the government dismissed Count Four. The

district court ultimately imposed a sentence of life imprisonment on Mr. Mota as a

result of his conviction on Count Three on October 28, 2016.

Mr. Mota was appointed counsel on appeal and the Ninth Circuit vacated the

§ 924(c) conviction and sentence on Count Two as multiplicitous of the § 924(j)

conviction and sentence on Count Three, but otherwise affirmed the judgment.

United States v. Mota, 753 Fed. Appx. 470 (9th Cir. Feb. 20, 2019). This Court denied

a petition for writ of certiorari on January 27, 2020. Mota v. United States, 140 S. Ct.

962 (Jan. 27, 2020). The District Court issued an amended judgment on September

21, 2020, vacating the sentence on Count Two, and reimposing a life sentence on

Count Three.

II.

Mr. Mota’s motion to vacate is denied.

Mr. Mota’s appellate attorney filed a motion to vacate under 28 U.S.C. § 2255

on Mr. Mota’s behalf on April 30, 2021, and then an amended motion to vacate on

4

October 4, 2021. On January 3, 2022, the government filed its opposition to Mr.

Mota’s amended motion to vacate, raising both procedural and substantive challenges

to the motion. On March 30, 2022, this Court granted Mr. Mota’s appellate attorney’s

motion to withdraw and appointed new counsel to represent Mr. Mota. With new

counsel, Mr. Mota filed a reply to the government’s opposition on August 5, 2022 and

requested leave to file a second amended motion, a request the district court granted

over the government’s objection on May 25, 2023.

The operative second amended motion to vacate raised six claims. Relevant

here is Ground One, which argued that the § 924(j) conviction must be vacated

because Mr. Mota was not convicted of a “crime of violence.” More specifically, the

predicate “crime of violence” underlying Count Three was the Hobbs Act violation

charged in Count One. Although the First Superseding Indictment and the

Amended Judgment both referred to “Hobbs Act robbery,” Mr. Mota argued the jury

was only instructed on the elements of Hobbs Act extortion. App. 4a-5a. He argued

the § 924(j) conviction could not stand because numerous district courts have found

that Hobbs Act extortion is not categorically a “crime of violence” under the “force”

or “elements” clause of § 924(c)(3)(A).

Mr. Mota also requested the Court order an evidentiary hearing to resolve

factual disputes necessary to resolve the motion, and issue a COA if it ultimately

denied the motion to vacate. The government opposed, raising procedural objections

and responded substantively to all of Mr. Mota’s arguments.

5

On June 24, 2024, the district court denied Mr. Mota’s motion to vacate, along

with his requests for an evidentiary hearing and a COA. It found several claims

procedurally defaulted because they had not been raised on direct appeal, and

rejected the argument that any procedural default was excused by ineffective

assistance of appellate counsel. The district court rejected other claims on the merits.

As to Claim One, the district court refused to consider Mr. Mota’s argument

that he had not been convicted of Hobbs Act robbery but instead had been convicted

of Hobbs Act extortion, finding the issue had been “raised, and disposed of, on direct

appeal.” App. 5a. It relied on the Ninth Circuit’s prior decision in United States v.

Currie, 589 F.2d 993 (9th Cir. 1979), which held that “[i]ssues disposed of on a

previous direct appeal are not reviewable in a subsequent § 2255 proceeding.” Currie,

589 F.2d at 995; see App. 5a.

Mr. Mota filed a timely notice of appeal on July 6, 2024.

III.

The Ninth Circuit denies a certificate of appealability.

On August 12, 2024, Mr. Mota filed a motion for a COA with the Ninth Circuit.

On March 7, 2025, the Ninth Circuit denied a certificate of appealability in a brief

one paragraph order. It found Mr. Mota “has not shown that ‘jurists of reason would

find it debatable whether the [28 U.S.C. § 2255 motion] states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.’” App. 20a (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

6

REASONS FOR GRANTING THE WRIT

A federal prisoner seeking appellate review of an order denying a motion to

vacate his conviction under 28 U.S.C. § 2255 must first obtain a certificate of

appealability. 28 U.S.C. § 2253(c). The “showing required to satisfy § 2253(c) is

straightforward: The petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.” Slack,

529 U.S. at 484. That standard can be satisfied not only by showing “reasonable

jurists could debate” whether the “petition should have been resolved in a different

manner,” but also where the “the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Id. at 484 (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n. 4 (1983)). “A COA does not require a showing that the appeal will succeed”

and “a court of appeals should not decline the application for a COA merely because

it believes the applicant will not demonstrate an entitlement to relief.” Miller-El v.

Cockrell, 537 U.S. 322, 337 (2003).

Because the issue raised by Mr. Mota in Ground One of his second amended

motion to vacate is “debatable” and meets the low standard for a COA established by

this Court, a writ of certiorari should issue, a COA should be granted, and the case

remanded to the Ninth Circuit. See Miller-El, 537 U.S. at 348 (remanding to appeals

court when Court found “COA inquiry” revealed “District Court’s decision was

debatable”).

7

I.

This Court should permit review of the district court’s conclusion that Mr.

Mota was barred from re-litigating the issue of whether he was convicted of

Hobbs Act extortion.

Under 18 U.S.C. § 924(j) a defendant who, “in the course of a violation of

subsection (c), causes the death of a person through the use of a firearm” can be

punished with death or up to life in prison. Section 924(c), in turn, provides for the

punishment of “any person who, during and in relation to any crime of violence…uses

or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.”

18 U.S.C. § 924(c)(1)(A). A “crime of violence” is defined as a felony offense that “has

as an element the use, attempted use, or threatened use of physical force against the

person or property of another.” 18 U.S.C. § 924(c)(3)(A). 1

In determining whether a predicate offense is a “crime of violence,” “[h]ow a

given defendant actually perpetrated the crime…makes no difference.” Mathis v.

United States, 579 U.S. 500, 510 (2016). Instead, courts must use the categorical

approach laid out in Taylor v. United States, 495 U.S. 575 (1990).

Under this approach, courts must “compare the elements of the statute forming

the basis of the defendant’s conviction with the elements of the ‘generic’ crime.”

Descamps v. United States, 570 U.S. 254, 257 (2013). An offense may “categorically”

qualify as a generic offense “only if the statute’s elements are the same as, or

narrower than, those of the generic offense.” Id. “All that counts” under categorical

1 Section 924(c) has a second definition of “crime of violence,” defined as an offense

“that by its nature, involves a substantial risk that physical force against the person

or property of another may be used in the course of committing the offense.” 18

U.S.C. § 924(c)(3)(B). But in United States v. Davis, 588 U.S. 445 (2019), this Court

held that this second definition was unconstitutionally vague.

8

analysis are “the elements of the statute of conviction;” the “label” assigned to a crime,

“the particular facts” of the crime, or “the means by which the defendant, in real life,

committed his crimes” have “no relevance to whether that offense” is a crime of

violence. Mathis, 579 U.S. at 509-10.

Claim One in Mr. Mota’s second amended petition raised a constitutional claim

challenging his conviction and life sentence on Count Three for causing the death of

a person through the use of a firearm during a crime of violence, in violation of 18

U.S.C. § 924(j). The predicate “crime of violence” underlying Count Three was the

Hobbs Act violation charged in Count One. Although the First Superseding

Indictment and the Amended Judgment both referred to “Hobbs Act robbery,” Mr.

Mota argued the jury was only instructed on the elements of Hobbs Act extortion.

App. 4a-5a.

As a result, Mr. Mota’s § 924(j) conviction could not stand because numerous

courts have found that Hobbs Act extortion is not categorically a “crime of violence”

under the “force” or “elements” clause of § 924(c)(3)(A). See Capozzi v. United States,

531 F. Supp. 3d 399, 405 (D. Mass. 2021) (“[T]he Court concludes that Hobbs Act

extortion can be committed without ‘the use, attempted use or threatened use of

physical force’ because it can be committed by fear of economic harm.”); United States

v. White, 510 F. Supp. 3d 443, 447-48 (W.D. Tx. 2020) (“Although Hobbs Act robbery

is a crime of violence under § 924(c)(3)(A), extortion is not.”). 2

2 See also Finch v. United States, 2022 WL 2392928, at *4 (M.D. Tenn. Jul. 1, 2022)

(“The offense of attempted Hobbs Act extortion does not satisfy § 924(c)’s elements

clause”); Munoz v. United States, 2020 WL 9219149, at *1 (S.D. Fla. Dec. 29, 2020)

9

The district court here, however, refused to consider this argument finding the

issue had been “raised, and disposed of, on direct appeal.” App. 5a. It relied on the

Ninth Circuit’s prior decision in Currie, which held that “[i]ssues disposed of on a

previous direct appeal are not reviewable in a subsequent § 2255 proceeding.” Currie,

589 F.2d at 995; see App. 5a (citing Currie). Other Circuits have established a similar

rule. See Murchu v. United States, 926 F.2d 50, 55 (1st Cir. 1991); United States v.

Kalish, 780 F.2d 506, 508 (5th Cir. 1986); Belford v. United States, 975 F.2d 310, 313

(7th Cir. 1992); Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992); United States

v. Warner, 23 F.3d 287, 291 (10th Cir. 1994); United States v. Greene, 834 F.2d 1067,

1073 (D.C. Cir. 1987). There are both legal and factual problems with that conclusion,

requiring this Court to grant certiorari and issue a COA.

A.

The Ninth Circuit’s rule that a petitioner is precluded from raising

claims decided on direct appeal in a § 2255 petition conflicts with

decisions of this Court requiring a petitioner exhaust their claims.

The rule in Currie that the district court relied on to deny Mr. Mota’s petition—

that an issue disposed on direct appeal is not reviewable in a § 2255 proceeding—

conflicts with “the general rule that claims not raised on direct appeal may not be

raised on collateral review unless the petitioner shows cause and prejudice.” Massaro

v. United States, 538 U.S. 500, 504 (2003) (citing United States v. Frady, 456 U.S.

152, 167-68 (1982)). Tellingly, none of the cases cited by the Ninth Circuit in Currie

(“The government has conceded that Hobbs Act extortion is not a crime of violence”);

Brown v. United States, 2020 WL 437921, at *2 (W.D.N.C. Jan. 28, 2020) (“The

offense underlying Petitioner’s § 924(c) convictions was Hobbs Act extortion which

the Government correctly concedes is not a crime of violence under § 924(c)’s force

clause.”).

10

for its contrary rule, or any cases cited by the other circuits adopting a similar rule,

relied on any cases by this Court. Instead, Currie relied on a string of prior Ninth

Circuit cases from the 1960s, none of which relied on Supreme Court precedent. See

Currie, 589 F.2d at 995 (citing Odom v. United States, 455 F.2d 159, 160 (9th Cir.

1972), Stein v. United States, 390 F.2d 625, 626 (9th Cir. 1968), Medrano v. United

States, 315 F.2d 361, 362 (9th Cir. 1963)).

Requiring a petitioner to both raise a claim on direct appeal to defeat

procedural default, but then deem the claim non-cognizable in a § 2255 proceeding

disadvantages petitioners and makes the remedies established by Congress in § 2255

unavailable and meaningless. The entire purpose of procedural rules is “to induce

litigants to present their contentions to the right tribunal at the right time.” Massaro,

538 U.S. at 504 (quotations and citations omitted). The Ninth Circuit’s rule entices

petitioners to not raise claims on direct appeal, only to then have the claim deemed

unexhausted once raised for the first time in post-conviction proceedings.

Because the Ninth Circuit’s rule conflicts with the longstanding precedent of

this Court, a writ of certiorari should issue to clarify that a claim previously raised

and resolved on direct appeal may be raised in a § 2255 petition.

B.

Because Mr. Mota raised a different claim on direct appeal, the relitigation bar did not apply in any event.

The district court was also factually wrong.

On direct appeal, Mr. Mota argued the jury was incorrectly instructed on the

elements of Hobbs Act extortion, not Hobbs Act robbery, which resulted in a

constructive amendment of the indictment, in violation of the Fifth Amendment.

11

Reviewing for plain error, the Ninth Circuit on direct appeal concluded that “even if

the jury instructions for Count One permitted the jury to convict for Hobbs Act

extortion, rather than robbery (the conduct charged in the indictment)…the jury

could not have found that Forrest Seagrave consented to Mota taking property.”

Mota, 753 Fed. Appx. at 471; see also App. 4a. Thus, under the re-litigation bar as

interpreted by the Ninth Circuit in Currie, Mr. Mota could not, in his § 2255

proceeding, relitigate whether the indictment was constructively amended in

violation of the Fifth Amendment.

But that was not the claim Mr. Mota was raising post-conviction. He was

raising a different claim involving a different legal right: that his conviction under

the Hobbs Act—as demonstrated by the jury instructions—was not a predicate “crime

of violence” under the Taylor categorical approach that can support a § 924(j)

conviction. This Court has repeatedly emphasized that categorical analysis is rooted

in the Sixth Amendment right to have facts that increase punishment determined by

a jury. See Mathis, 579 U.S. at 511 (explaining one reason for categorical analysis’

focus on elements is to avoid “serious Sixth Amendment concerns”); Descamps, 570

U.S. at 269 (noting “categorical approach’s Sixth Amendment underpinnings”);

Shepard v. United States, 544 U.S. 13, 24 (2005) (finding court in Taylor “anticipated

the very rule later imposed for the sake of preserving the Sixth Amendment rights”).

The district court conflated Mr. Mota’s appellate challenge to the jury

instructions with the categorical challenge raised in his § 2255 proceedings by finding

the issue of whether Mr. Mota had been convicted of extortion instead of robbery was

12

raised on direct appeal because “the Ninth Circuit found that the jury could not have

convicted Mota of extortion, as the jury ‘could not have found’ the required element

of consent on the evidence presented to them.” App. 5a (quoting Mota, 753 Fed Appx.

at 471) (emphasis in original).

But the Ninth Circuit never addressed that issue directly, and certainly not

within the rubric of categorical analysis. The district court recognized that on direct

appeal, and after he had filed his opening brief, Mr. Mota requested leave of this

Court to file a supplemental brief challenging whether a Hobbs Act violation was a

“crime of violence.” App. 5a. The Ninth Circuit denied that request and the issue was

never addressed by this Court on direct appeal. See United States v. Mota, Ninth Cir.

No. 16-10468, Dkt. 62, Order.

Nor would the facts of the offense have been relevant for the categorical

analysis Mr. Mota attempted to raise post-conviction. “All that counts” under

categorical analysis are “the elements of the statute of conviction;” the “label”

assigned to a crime, or “the particular facts” of the crime, “the means by which the

defendant, in real life, committed his crimes” have “no relevance to whether that

offense” is a crime of violence. Mathis, 579 U.S. at 509-10. The Ninth Circuit’s focus

on the facts of the offense in disposing of Mr. Mota’s Fifth Amendment constructive

amendment claim on direct appeal necessarily meant it was not considering the Sixth

Amendment elements based challenge under Taylor that Mr. Mota presented to the

district court post-conviction.

13

The Sixth Amendment based categorical challenge raised in Mr. Mota’s § 2255

motion was not the same “issue, couched in different language” of the Fifth

Amendment constructive amendment claim he raised on direct appeal. Currie, 589

F.2d at 994. Because the claims were separate and independent of one another, and

involved different constitutional rights and analysis, Mr. Mota was not precluded

from re-litigating the issue post-conviction.

Because this issue is at least debatable, the Ninth Circuit should have issued

a COA to allow for appellate review. Thus, this Court should grant a writ of certiorari,

issue a COA and remand to the Ninth Circuit to consider in the first instance whether

Mr. Mota could raise Ground 1 of his second amended motion to vacate.

CONCLUSION

The petition for a writ of certiorari should be granted, a COA issued, and the

case remanded to the Ninth Circuit for further proceedings.

Dated: June 4, 2025

HANNI M. FAKHOURY

Counsel of Record

MOEEL LAH FAKHOURY LLP

2006 Kala Bagai Way, Suite 16

Berkeley, CA 94704

(510) 500-9994

hanni@mlf-llp.com

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