Rodolfo Martinez v. USA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10458
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-62630-KAM; 0:08-cr-60309-KAM-3
RODOLFO MARTINEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 2, 2021)
Before JORDAN, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
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Rodolfo Martinez, a federal prisoner, appeals the district court’s denial of his
authorized, second 28 U.S.C. § 2255 motion to vacate. He argues that his
conviction for using or carrying a firearm during a crime of violence or a
drug-trafficking crime is invalid because one of the two predicate crimes on which
the conviction was based no longer qualifies as a crime of violence under United
States v. Davis, 139 S. Ct. 2319 (2019). The government responds by moving for
summary affirmance of the district court’s order and for a stay of the briefing
schedule, arguing that Martinez’s Davis claim is procedurally defaulted.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969).1
When reviewing a district court’s denial of a 28 U.S.C. § 2255 motion, we
review questions of law de novo and factual findings for clear error. Lynn v.
United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Similarly, we review de
novo whether procedural default precludes a § 2255 movant’s claim, which is a
1 We are bound by cases decided by the former Fifth Circuit before October 1, 1981. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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mixed question of law and fact. Granda v. United States, 990 F.3d 1272, 1286
(11th Cir. 2021).
Section 2255 allows federal prisoners to obtain post-conviction relief and set
aside prior convictions when a sentence “was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C. § 2255(a). But a § 2255
claim, including a claim raised under Davis, may be procedurally defaulted if the
petitioner failed to raise the claim at trial or on direct appeal. See Granda, 990
F.3d at 1285–86. A defendant can overcome this procedural bar by establishing
either (1) cause for the default and actual prejudice from the alleged error, or
(2) that he is actually innocent of the crimes for which he was convicted. Id. at
1286.
Section 924(c) of Title 18 of the United States Code provides for a
mandatory consecutive sentence for any defendant who uses or carries a firearm
during a crime of violence or a drug-trafficking crime. After the Supreme Court in
Davis held that a portion of the statute defining a “crime of violence” was invalid,
this Court held that conspiracy to commit Hobbs Act robbery did not qualify as a
crime of violence within the meaning of § 924(c). Brown v. United States, 942
F.3d 1069, 1075–76 (11th Cir. 2019).
Martinez argues that his § 924(c) conviction is invalid because it was
predicated in part on his Hobbs Act conspiracy offense as a crime of violence,
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contrary to Davis. The government is correct as a matter of law that Martinez’s
Davis challenge is procedurally defaulted—as Martinez concedes—because he
never argued that § 924(c) was unconstitutionally vague prior to these § 2255
proceedings.2 See Parker, 993 F.3d at 1265; Granda, 990 F.3d at 1286–92. He
cannot show cause for failing to do so because the building blocks for raising that
argument existed at the time of his 2011 direct appeal; “a vagueness-based
challenge to the § 924(c)(3)(B) residual clause was not sufficiently novel to
establish cause.” Parker, 993 F.3d at 1265; see Granda, 990 F.3d at 1287. Nor
can he show prejudice, because his Davis claim is foreclosed on the merits by our
decisions in Granda and Parker.3 As in those cases, the record here makes clear
that the valid and invalid predicates for Martinez’s firearm conviction—conspiracy
to commit Hobbs Act robbery by robbing a drug dealer of cocaine, and conspiracy
to possess the cocaine with intent to distribute it—were “inextricably intertwined.”
Granda, 990 F.3d at 1280. In other words, “the jury could not have concluded that
[Martinez] conspired to possess a firearm in furtherance of his robbery conspiracy
2 While the scope of review in a § 2255 appeal is limited to issues specified in the certificate of
appealability (COA), we may read the COA to encompass procedural issues that must be resolved
before we can reach the merits of the underlying claim, and we do so here. McCoy v. United
States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001).
3 Notably, in Granda and Parker, we rejected the same arguments in reliance on Stromberg v.
California, 283 U.S. 359 (1931), Alleyne v. United States, 570 U.S. 99 (2013), and In re Gomez,
830 F.3d 1225 (11th Cir. 2016), that Martinez raises here. See Parker, 993 F.3d at 1264–65;
Granda, 990 F.3d at 1293–96.
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without also finding at the same time that he conspired to possess the firearm in
furtherance of his conspiracy and attempt to obtain and distribute the cocaine.” Id.
at 1289; see Parker, 993 F.3d at 1265 (“if the jury relied on the invalid Hobbs Act
conspiracy predicate, it also relied on the valid drug trafficking predicates”).
Last, Martinez has not made any attempt to overcome the procedural bar by
showing that he is actually innocent of the § 924(c) charge, nor could he meet that
standard on this record. “To establish actual innocence, [the] petitioner must
demonstrate that, in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him.” Granda, 990 F.3d at 1292 (alteration
in original) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). For
purposes of this motion, Martinez has not challenged the description of his offense
conduct contained in his presentence investigation report or the evidence presented
at his trial, all of which amply supports the jury’s verdict finding him guilty of
using or carrying a firearm in furtherance of a conspiracy to possess with intent to
distribute cocaine, in violation of 18 U.S.C. § 924(c).
Because the government’s position is correct as a matter of law, we GRANT
the government’s motion for summary affirmance. See Groendyke Transp., Inc.,
406 F.2d at 1162. We DENY the accompanying motion to stay the briefing
schedule as moot.
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