Ruiz v. United States

1

JAMES CASTRO RUIZ, Plaintiff v. UNITED STATES OF AMERICA, Defendant

Nos. A-22-CV-697-RP-DH, A-16-CR-78-RP

United States District Court, W.D. Texas, Austin Division

February 7, 2023

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DUSTIN M. HOWELL, MAGISTRATE JUDGE

Before the Court is James Castro Ruiz's Motion to Vacate, Set Aside, or Correct Sentence, Dkt. 83. The undersigned submits this Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules.

I. BACKGROUND

On or about February 9, 2016, Ruiz called for a taxicab in Round Rock, Texas. Dkts. 36 and 43, at ¶ 5. The cab driver had picked up Ruiz from this residence on numerous previous occasions. Id. During the cab ride, Ruiz pulled out a stolen Glock, .40 caliber pistol and pointed it at the driver telling him to drive to various points. Id., at ¶ 6. At some point Ruiz threw a short-barreled shotgun out the window on Interstate Highway-35. Id. The cab driver was running out of gas and Ruiz directed him to pull into a gas station. Id., at ¶ 7. After being unable to use a debit card, Ruiz went inside to pay and the cab driver took off. Id. The convenience store surveillance video showed Ruiz go into the bathroom. Id. Later, a convenience store clerk found the Glock in the restroom. Id. A review of Ruiz's phone had pictures and internet searches of the Glock. Officers also recovered the short-barreled shotgun from the side of the road where Ruiz threw it. Id. On April 5, 2016, Ruiz was charged in a four-count Indictment with:

Count One: Carjacking, in violation of 18 U.S.C. § 2119

Count Two: Possession of a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c)

Count Three: Possession of a Firearm by a Felon, in violation of 18 U.S.C. § 922(g)

Count Four: Possession of a National Firearms Registration Act Firearm, in violation of 26 U.S.C. § 5861(d)

Dkt. No. 1; Dkt. 36, at ¶ 1.

On October 24, 2016, Ruiz pleaded guilty without a plea agreement to Count Two of the Indictment before a United States Magistrate Judge with the Government agreeing to dismiss the remaining counts. Dkt. 56; Dkt. 36, at ¶ 2. On October 26, 2017, the Court accepted Ruiz's guilty plea. Dkt. 35; Dkt. 36, at ¶ 3. Ruiz's plea was beneficial to him in the context of the charging scheme that removed a punishment for the carjacking followed by a mandatory consecutive sentence for the use of the firearm in connection with the carjacking.

The Probation Office determined the guideline sentence for 18 U.S.C. § 924(c) was the minimum term of imprisonment required by statute, which in Ruiz's case is 120 months. U.S.S.G. § 2K2.4(b); Dkt. 36, at ¶ 15. On December 21, 2016, Ruiz was sentenced to a 120-month term of imprisonment, followed by a five-year term of supervised release. Dkt. 57, at 9:22-24; Dkt. 44. Ruiz did not file a direct appeal.

On December 18, 2017, Ruiz filed his first motion under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Dkt. 53. The Government responded to the motion and the Court appointed counsel and set an evidentiary hearing. Dkts. 59 and 67. On November 8, 2018, Ruiz filed a motion to dismiss and withdraw his § 2255 motion. Dkt. 72. On the same date, the Court granted Ruiz's motion to dismiss. Dkt. 73. On July 6, 2022, Ruiz filed the instant motion. Dkt. 83.

II. STANDARD OF REVIEW

Under § 2255, four general grounds exist upon which a defendant may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the District Court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under § 2255 is extremely limited: “A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude ... and may not raise an issue for the first time on collateral review without showing both ‘cause' for his procedural default, and ‘actual prejudice' resulting from the error.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, “result in a complete miscarriage of justice.” United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).

Generally, a § 2255 motion must be filed within one year of the latest of four events, two of which are the date the judgment becomes final, see 28 U.S.C. § 2255(f)(1), and “the date on which the right asserted was initially recognized by the Supreme Court,” if that right applies retroactively, see 28 U.S.C. § 2255(f)(3).

III. ANALYSIS

Ruiz asserts four bases of relief in his petition. In Ground One, he relies on United States v. Taylor, 142 S.Ct. 2015 (June 21, 2022), arguing that an underlying “crime of violence” should not have applied as a factor in his case, as it was declared unconstitutionally vague when used in conjunction with § 924(c). In Ground Two, he cites United States v. Tucker, 47 F. 4th 258 (5th Cir. 2022), for the proposition that because his sanity was an issue in his case, he should receive relief in conjunction with § 922(g). For Ground Three, Ruiz relies on United States v. Borden, 141 S.Ct. 1817 (2021), for the proposition that his underlying carjacking act is constitutionally insufficient to establish a crime of violence pursuant to § 924(c). And, in Ground Four, he relies on United States v. Davis, 139 S.Ct. 2319 (2019), where the Supreme Court determined that § 924(c)(3)(B), defining a crime of violence was unconstitutionally vague, to argue that his underlying crime- carjacking- is not a crime of violence.

A. Grounds One and Four

Ruiz raises claims based on the Supreme Court's decisions in United States v. Taylor, 142 S.Ct. 2015 (2022), and United States v. Davis, 139 S.Ct. 2319 (2019).

First, Ruiz's Davis claim should be dismissed as time barred. A § 2255 motion raising a Davis claim that is filed within a year of the date the judgment became final would be timely. A § 2255 motion raising a Davis claim that is filed more than a year after the judgment became final also would be timely under § 2255(f)(3) if it is filed on or before June 24, 2020, the one-year anniversary of the Davis decision. Ruiz did not file his motion within a year of the Davis decision. Because Ruiz failed to file his motion within a year of either the date his conviction became final or the date the Supreme Court decided Davis, his Davis claim is time-barred and should be dismissed.

As to Ruiz's claims pursuant to Taylor, the Government concedes that Taylor applies retroactively on collateral review. Taylor precludes an enhanced punishment for a certain class of offenders: a defendant whose prior conviction was for an attempted-robbery offense that no longer qualifies as a “violent felony” now subject to a 10-year maximum sentence under 18 U.S.C. § 924(a)(2), not a 15-year minimum sentence under the Armed Career Criminal Act. See Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (explaining that substantive rules include those establishing that a class of defendants “faces a punishment that the law cannot impose upon [them]”). Ruiz asserts that he belongs in this class and that his conviction and sentence under 18 U.S.C. § 924(c) is not a crime of violence and thus no longer constitutionally valid in light of the Supreme Court's decision in Taylor.

In Taylor, the Supreme Court held that under § 924(c), a federal felony qualifies as a “crime of violence” if it meets either of two definitions: (A) the offense “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the elements clause); or (B) the offense “by its nature[] involves a substantial risk that physical force ... may be used” (the residual clause). 142 S.Ct. at 2019.

In Taylor, the Supreme Court struck down § 924(c)(3)(B), or the residual clause, for being “unconstitutionally vague.” 139 S.Ct. at 2336. Nevertheless, an offense may still be a crime of violence if it meets the definition contained within the “elements clause,” § 924(c)(3)(A). See Taylor, 142 S.Ct. 2015; United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017); In re Fields, 831 Fed.Appx. 710, 711 (5th Cir. 2020).

Here, Ruiz pleaded guilty to the offense charged in Count 2 of the Indictment, namely, Possession of Firearm in Furtherance of a Crime of Violence. Further, the charge to which he pleaded explicitly contained the predicate offense “carjacking,” in violation of 18 U.S.C. §§ 924(c) & 2119.

The Fifth Circuit has held that carjacking is a crime of violence under § 924(c)(3)(A) because “it ‘has as an element the use, attempted use, or threatened use of physical force.'” See United States v. Cash, No. 4:16-CR-25(4), 2022 WL 2760227 (E.D. Tex. July 13, 2022) (citing In re Fields, 831 Fed.Appx. at 711). Therefore, the Supreme Court's holdings in either Taylor or Davis have no effect on Ruiz's convictions, as they were based on a “crime of violence” as defined by the “elements clause” of § 924(c)(3)(A). Ruiz's Grounds One and Four are without merit.

B. Ground Two

In Ground Two, Ruiz seems to assert that his case is similar to United States v. Tucker, 47 F.4th 258 (5th Cir. 2022), due to his mental health conditions. He appears to preemptively argue that should this charge be reinstated there is no predicate for the charge per 18 U.S.C. § 922(g), Possession of a Firearm by a Felon offense. Ruiz's Tucker argument is based on a Fifth Circuit...