MICHAEL ANTHONY TORRES, AKA Mikey v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ANTHONY TORRES, AKA
Mikey,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 20-71724
MEMORANDUM*
Application to File Second or Successive Petition
Under 28 U.S.C. § 2255
Argued and Submitted June 11, 2021
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and SEEBORG, ** District
Judge.
Applicant Michael Anthony Torres seeks leave to file a second or successive
motion for habeas relief under 28 U.S.C. § 2255. He argues that his conviction for
possession of a firearm in furtherance of a crime of violence or drug trafficking
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard Seeborg, Chief United States District Judge
for the Northern District of California, sitting by designation.
FILED
MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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offense under 18 U.S.C. § 924(c) is invalid because his predicate crime—
racketeering—is no longer a categorical “crime of violence” under a new rule of
constitutional law announced in United States v. Davis, 139 S. Ct. 2319 (2019).1 We
have jurisdiction under 28 U.S.C. § 2255, and we grant Torres’s request for leave to
file a second or successive § 2255 habeas motion.
In our concurrently filed opinion, Muñoz Gonzalez v. United States, __F.4th__
(9th Cir. 2022), we adopted a pragmatic approach for determining whether a new
rule of constitutional law was “previously unavailable” within the meaning of
§ 2255(h)(2) that focuses on systemic barriers, including timing and accessible
procedural means for presenting a claim. Applying this approach here, we conclude
that an argument based on the new rule announced in Davis was not available to
Torres while his first habeas motion was still pending. The district court rejected
Torres’s initial habeas motion less than two months after the Supreme Court issued
Davis. Torres faced multiple institutional hurdles in accessing legal resources and
preparing and filing legal documents and, unlike in Muñoz Gonzalez, there is no
1 The verdict form did not require the jury to specify which conviction—
racketeering or Torres’s two drug offenses—served as the predicate offense for his
§ 924(c) conviction. The government concedes that, despite the uncertainty about
which offense was the predicate for his § 924(c) conviction, Torres can establish that
Davis at least advances his claim. See Henry v. Spearman, 899 F.3d 703, 706 (9th
Cir. 2018) (petitioner need only show “possible merit to warrant a fuller exploration
by the district court”) (citation omitted).

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indication that Torres knew about Davis during the very short window of time before
his initial habeas motion was denied. Given these restraints, we find that the real-
world circumstances that Torres faced rendered his Davis claim previously
unavailable to him.
The request for leave to file a second or successive habeas motion is
GRANTED.

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