United States of America v. JAIRO HERNANDEZ, AKA Joker

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAIRO HERNANDEZ, AKA Joker,
Defendant-Appellant.
No. 20-17328
D.C. No.
3:14-cr-00120-EMC-6
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted December 8, 2021
San Francisco, California
Before: GRABER and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.
Jairo Hernandez appeals from the district court’s judgment denying his 28
U.S.C. § 2255 habeas motion. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing de novo, see United States v. Zuno-Arce, 339 F.3d 886, 888 (9th Cir.
2003), we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
FILED
JAN 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-17328
The district court permissibly concluded that Hernandez procedurally
defaulted the challenge to his sentence under 18 U.S.C. § 924(c) by failing to raise
that challenge on direct appeal. See Bousley v. United States, 523 U.S. 614, 621
(1998). Contrary to Hernandez’s contention, his claim that his sentence is invalid
in light of United States v. Davis, 139 S. Ct. 2319 (2019), goes to the merits of his
conviction and sentence rather than to the court’s subject matter jurisdiction. See
United States v. Cotton, 535 U.S. 625, 630–31 (2002) (“[T]he objection that the
indictment does not charge a crime against the United States goes only to the
merits of the case.” (citation omitted)); cf. United States v. Goodall, 15 F.4th 987,
994–97 (9th Cir. 2021) (holding that the appeal waiver contained in defendant’s
plea agreement barred his claim that his § 924(c) sentence was invalid in light of
Davis). Accordingly, the claim is subject to the usual procedural default rule. See
United States v. Ratigan, 351 F.3d 957, 962–63 (9th Cir. 2003). Hernandez does
not challenge the district court’s conclusion that he failed to demonstrate the
necessary cause and prejudice or actual innocence to excuse his procedural default.
See Bousley, 523 U.S. at 622.
AFFIRMED.

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