United States v. Francia

519 F.Supp.3d 1017

UNITED STATES of America, Plaintiff,

v.Julio FRANCIA, Defendant.

No. CIV 20-00460 JB\KK

No. CR 12-03025 JB\KK

United States District Court, D. New Mexico.

Filed December 31, 2020

Julio Francia, Bennettsville, South Carolina, Pro se petitioner.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant Julio Francia's second Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody, filed April 21, 2020 (CIV Doc. 1; CR Doc. 57)("Second Motion"). Francia is incarcerated and is proceeding pro se. See Second Motion at 2. He challenges his firearm conviction on the ground that Hobbs Act robbery, 18 U.S.C. § 1951(a), is not an underlying "crime of violence" for purposes of 18 U.S.C. § 924(c). Having screened the Motion, the Court concludes that habeas relief is unavailable as a matter of law. The Court will (i) dismiss the Second Motion; (ii) deny a certificate of appealability; and (iii) enter a separate Final Judgment closing the civil habeas case.

FACTUAL AND PROCEDURAL BACKGROUND

On November 27, 2012, a two-count federal Indictment charged Francia with armed robbery. See Indictment at 1-2, filed November 27, 2012 (CR Doc. 4)("Indictment"). Count 1 alleges a violation of Hobbs Act Robbery, 18 U.S.C. § 1951(a), and states:

On or about October 17, 2012, in Bernalillo County, in the District of New Mexico, the defendant, JULIO FRANCIA, did unlawfully obstruct, delay and affect interstate commerce, as that term is defined in Title 18, United States Code, Section 1951, in that the defendant did unlawfully take and obtain U.S. currency from the presence of O.L., a person known to the Grand Jury, who was then employed by Subway, located at 8520 Montgomery Blvd. NE, Albuquerque, NM, against O.L.’s will by means of actual and threatened force, violence, and fear of injury to the person of O.L., that is, the defendant threatened O.L., with a firearm.

Indictment at 1. Count 2 alleges a firearm violation under 18 U.S.C. § 924(c) and states:

On or about October 17, 2012, in Bernalillo County, in the District of New Mexico, the defendant, JULIO FRANCIA, knowingly used, carried and brandished a firearm during and in relation to, and possessed said firearm in furtherance of, a crime of violence for which the defendant may be prosecuted in a court of the United States: to wit, interference with interstate commerce by robbery, as charged in Count 1 of this indictment.

Indictment at 2. On May 22, 2013, an Information charged Francia with four additional counts of Hobbs Act Robbery in violation of 18 U.S.C. § 1951(a). See Information, filed May 22, 2013 (CR Doc. 26)(Information). The Information alleges Francia robbed four businesses: two Auto Zone locations, a Taco Bell, and a Twisters Restaurant in 2012. See Information at 1-2.

In 2013, Plaintiff United States of America and Francia entered into a plea agreement, in which Francia agreed to plead guilty to the above charges. See Plea Agreement, filed May 22, 2013 (CR Doc. 29). Francia admitted that, in each business, he pulled out a firearm and demanded money from the register. See Plea Agreement at 3-4. The United States and Francia agreed and stipulated, pursuant to rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, "that Defendant shall serve a sentence of incarceration which shall be within a range of fifteen (15) to twenty (20) years." Plea Agreement at 5. The Court accepted the Plea Agreement and sentenced Francia to a total term of 210 months of imprisonment, as follows:

87 months is imposed as to Count 1 of the Indictment and each of Counts 1 through 3 of Information; said counts shall run concurrently. 87 months is imposed as to Count 4 of Information; 48 months of said term shall run concurrently and 39 months shall run consecutively. 7 years (84 months) is imposed as to Count 2 of Indictment; said term shall run consecutively.

Judgment at 3, filed November 25, 2013 (Doc. 43). The Court also imposed three years of supervised release as to each count of the Indictment and Information, to run concurrently. See Judgment at 4. The Court entered the Judgment on November 25, 2013. See Judgment at 1. Francia did not file a direct appeal.

1. The First Motion and First § 2255 MOO.

On July 1, 2016, Francia filed his first Motion To Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (CR Doc. 45)("First Motion"). Francia challenged the validity of his § 924(c) firearm conviction pursuant to Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson v. United States focuses on the definition of "violent felony," which appears in both the Armed Career Criminal Act ("ACCA") and § 924(c). 576 U.S. at 591, 135 S.Ct. 2551. The definition includes crimes that: (i) have an element of force or threat of force (the "Elements Clause"); or, alternatively (ii) involve conduct that presents a serious potential risk of physical injury (the "Residual Clause"). 18 U.S.C. §§ 924(e)(2)(B)(i)-(ii), 924(c)(3)(A)-(B). In Johnson v. United States, the Supreme Court of the United States of America found the ACCA's latter definition of violent felony -- the Residual Clause -- to be unconstitutionally vague. See Johnson v. United States, 576 U.S. at 596, 135 S.Ct. 2551. The Residual Clause requires judges to disregard whether the crime was actually violent and to "imagine how the idealized ordinary case of the crime ... plays out," including whether the crime potentially presents some undefined degree of risk. Johnson v. United States, 576 U.S. at 596, 135 S.Ct. 2551. The First Motion argued that, because § 924(c) mirrors the ACCA's language, Francia's underlying felony -- Hobbs Act Robbery -- is only a "crime of violence" under § 924(c) ’s Residual Clause, and that the conviction is therefore invalid under Johnson v. United States. See 576 U.S. at 596, 135 S.Ct. 2551.

The Court rejected this argument. See United States v. Francia, No. CR 12-3025 JB, 2017 WL 2266852, at *8-10 (D.N.M. Feb. 28, 2017) (Browning, J.)("First § 2255 Ruling"). In the First § 2255 Ruling, the Court determines that Hobbs Act robbery qualifies as a violent felony under § 924(c) ’s Elements Clause, because violent force is an element of the crime. See First § 2255 Ruling, 2017 WL 2266852, at *8-10. The First § 2255 Ruling, therefore, concludes that Francia's § 924(c) firearm conviction is valid, notwithstanding § 924(c) ’s defective Residual Clause. See First § 2255 Ruling, 2017 WL 2266852, at *10. In an unrelated case, the United States Court of Appeals for the Tenth Circuit later confirmed that Hobbs Act Robbery is a crime of violence for purposes of § 924(c), and that § 924(c) ’s unconstitutional Residual Clause cannot provide relief from an armed robbery conviction. See United States v. Melgar-Cabrera, 892 F.3d 1053, 1064 (10th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 494, 202 L.Ed.2d 386 (2018).

2. The Circuit Petition and the Certification Order.

On April 21, 2020, Francia filed a Petition for Permission to File a Successive § 2255 Motion with the Tenth Circuit, along with a copy of his proposed Second Motion. See Petition for Permission to File Successive § 2255 Motion in District Court, filed April 21, 2020 in the Tenth Circuit Court of Appeals, Court of Appeals Docket # 20-2050 ("Circuit Petition"). In the Circuit Petition, Francia seeks leave to file a successive habeas claim based on United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). In United States v. Davis, the Supreme Court formally extends the ruling in Johnson v. United States, holding that a § 924(c) firearm conviction cannot be predicated on an underlying "crime of violence" that falls within § 924(c) ’s defective Residual Clause. See United States v. Davis, 139 S. Ct. at 2325-36.

The Tenth Circuit granted leave for Francia to file a successive habeas claim under United States v. Davis in this Court. See Order entered May 12, 2020 (CR Doc. 56)("Certification Order").¹ The Clerk's Office used the Certification Order and a copy of the Second Motion, which Francia originally filed as an attachment to the Circuit Petition, to open a civil habeas case, No. CIV 20-460 JB-KK. The Court referred the habeas case to the Honorable Kirtan Khalsa, United States Magistrate Judge for the United States District Court for the District of New Mexico, for recommended findings and disposition, and to enter non-dispositive orders. See Order of Reference Relating to Prisoner Cases filed November 5, 2020 (CV Doc. 4). Magistrate Judge Khalsa gave Francia an opportunity to file a more detailed 28 U.S.C. § 2255 motion, or alternatively, to rely on the Second Motion attached to the Circuit Petition. See Order Regarding Habeas Petition at 1, filed May 18, 2020 (CIV Doc. 3). The Order states that, if Francia "wishes to rely on his original § 2255 motion that he submitted to the Tenth Circuit, he does not need to take any further action." Order Regarding Habeas Petition at 1.

Francia took no further action, and the Court therefore will analyze the Second Motion as the controlling pleading in this habeas case. Like the prior filings, the Second Motion challenges Francia's § 924(c) conviction on the ground that the Residual Clause is unconstitutionally vague. See Second Motion at 5. The Second Motion is ready for initial screening under rule 4 of the Rules Governing Section 2255 Cases in the United States District Courts, effective February 1, 1997, and amended on February 1, 2010 (hereinafter, "Habeas Corpus Rule 4").

LAW REGARDING 28 U.S.C. § 2255 HABEAS RELIEF

Section 2255 provides:

A prisoner in custody under a 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

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