GRAJALES

v.

ANTONELLI

THIS CAUSE is before the Court on the Revised Report of Magistrate Judge [DE 19].1 The Movant has not filed objections and the time for doing so has expired. The Court has conducted a de novo review of the issues raised in the Revised Report and has conducted a thorough review of the relevant portions of the file and record. Based thereon, for the following reasons, the Court adopts and affirms the Revised Report, denies the Motion to Vacate, and grants a Certificate of Appealability as recommended in the Revised Report.

I. Background

Movant challenges his conviction arising from an undercover reverse sting operation involving the attempted robbery of 30 kilograms of cocaine. Movant was charged in five counts of the Indictment. In Count¹, Movant was charged with Conspiracy to interfere with commerce

1. Section 924(c) is void for vagueness and should be vacated in accordance with Johnson, and by extension, Dimaya;

2. The indictment is illegal and unconstitutional because Counts¹ and³ charge the same elements in violation of U.S. v. Reedy;

3. Movant’s conviction is illegal based on an entrapment defense;

4. Counsel was ineffective during the entire course of representation for failure to argue any mitigating factors that would have resulted in a more favorable sentence;

5. Also, throughout the petition, Movant alleges that he is unaware whether his attorney filed an appeal, or alternatively, that his attorney refused to file an appeal when he specifically instructed him to do so.

[DE 19 at 2-3]. The Revised Report recommends that the Movant’s Motion to Vacate be denied in its entirety and the case be closed. Specifically, as to Claims² through 5, the Revised Report recommends that those claims be denied as time barred. As to Claim¹ (the “Davis” claim), the Revised Report recommends that the claim be denied on the merits because the Movant is unable to meet his burden of demonstrating that the jury relied upon conspiracy to commit Hobbs Act Robbery to support his § 924(c) conviction.² However, the Magistrate Judge recommends that a Certificate of Appealability issue as to whether Movant’s burden of proof requires him to prove that it is more likely than not that he was adjudicated guilty solely under § 924(c)’s residual clause that the Supreme Court has found to be unconstitutional. The Magistrate Judge further recommends that a Certificate of Appealability should issue as to what weight should be afforded to prior published panel decisions on applications for successive motions to vacate to the extent that the Magistrate Judge relied on such cases to determine the Movant’s burden in this case.

III. Analysis

A. Claims 2 through 5 are untimely

In the Revised Report, the Magistrate Judge determined that Claims² through 5 were untimely because they were not filed within a year of the Movant’s August 25, 2014 conviction becoming final as required by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2255. The Report notes that the Movant failed to point to an applicable new rule of constitutional law that should be applied retroactively to cases on collateral review or to provide any other valid basis, e.g. equitable tolling, actual innocence, to excuse the Movant’s untimely filing as to those Claims.

2-5 and denies them as untimely. B. The Movant has not met his burden as to Claim¹, the Davis Claim As to Claim¹, the Movant seeks relief based upon the Supreme Court’s ruling in United States v. Davis, 139 S. Ct. 2319 (2019), which held that the residual clause of 18 U.S.C. § 924(c) was unconstitutionally vague. Movant argues his conviction for Count 5 cannot stand because it was based on conspiracy to commit Hobbs Act Robbery which no longer qualifies as a crime of violence under § 924(c)’s invalid residual clause. In rejecting this argument, the Magistrate Judge acknowledged that the verdict form did not specify which Counts in the Indictment the jury relied upon to support a conviction for Count 5. However, based on the Eleventh Circuit’s holding in Beeman v. United States, 871 F. 3d 1215,

122 (11th Cir. 2017), the Magistrate Judge concluded that the Movant had failed to meet his burden of demonstrating that it was more likely than not that the jury relied solely on the invalidated predicate offense of conspiracy to commit Hobbs Act Robbery in convicting him of Count 5. The Magistrate Judge also rejected any potential argument that the Movant was entitled to relief based on Stromberg v. People of California, 283 U.S. 359 (1931). Specifically, the Magistrate Judge found that the Movant was unable to meet all three of the Stromberg factors, as he was unable to demonstrate that it is impossible to determine from the record on which ground the jury based its Count 5 conviction.³ On this point, the Magistrate Judge explained that all of the acts and offenses were intertwined, and thus it was unlikely that the jury would have solely relied upon Hobbs Act robbery conspiracy as the predicate offense. Based on the Court’s review of the evidence at trial, the Court agrees with the Magistrate

Judge’s determination on these issues, as the Movant is unable to satisfy his burden as discussed in In re Cannon, 931 F. 3d 1236, 1243 (11th Cir. 2019) and Beeman v. United States, 871 F. 3d 1215, 122 (11th Cir. 2017). Specifically, the Court finds that there is no reasonable possibility that the jury’s § 924(c) verdict rested solely on the Hobbs Act conspiracy Count. This is because the conspiracy to commit Hobbs Act robbery was inextricably intertwined with and in furtherance of the drug-trafficking offenses, which the jury found proven beyond a reasonable doubt.4 See In re Cannon, 931 F. 3d 1236, 1243 (11th Cir. 2019). Movant is therefore unable to meet his burden of demonstrating the likelihood that the jury based its verdict of guilt for Count 5 solely on the Hobbs Act conspiracy and not also on one of the other valid predicate offenses, e.g. attempted Hobbs Act Robbery or drug trafficking crimes, identified in the Indictment. See

Id. (citing Beeman v. United States, 871 F. 3d 1215, 122 (11th Cir. 2017). The Court however notes that the issues presented in both In Re Cannon and Beeman are distinguishable from the case at bar. In in Re Cannon, the issue was whether the movant was entitled to file a second or

C. Certificate of Appealability

Notwithstanding the Court’s determination that the Movant is not entitled to relief, the Court will issue a certificate of appealability for Movant’s motion pursuant to Rule 11 of the Rules Governing Section 2255 Cases, as recommended by the Magistrate Judge. In order to obtain a certificate of appealability, Movant must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is satisfied “by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Jones v. Secretary, 607 F. 3d 1346, 1349 (11th Cir. 2010) (quotation omitted). The undersigned agrees with the Magistrate Judge that the Movant has made this showing in this case as reasonable jurists could disagree as to whether the Movant’s burden on a Davis claim is the same as the burden set forth in Beeman, i.e. that it was more likely than not that the jury relied solely on the invalidated predicate offense in convicting him of § 924(c). Similarly, reasonable jurists could disagree as to the precedential weight of published panel decisions regarding applications for second or successive motions to vacate as in In Re Cannon, to the extent that those opinions are relied upon in denying relief on the merits of a § 2255 Motion.

IV. Conclusion

Accordingly, having carefully reviewed Magistrate Judge Reid’s well-reasoned Revised Report, and the relevant parts of the record, it is ORDERED that: (1) The Revised Report of Magistrate Judge [DE 14] is AFFIRMED and ADOPTED and incorporated by reference into this Court’s Order. (2) Movant’s Motion to Vacate, Set Aside or Dismiss Sentence Pursuant to 28 U.S.C. § 2255 [DE¹] is DENIED. (3) All pending motions not otherwise ruled upon in this Order are DENIED AS

MOOT.

(4) A certificate of appealability is GRANTED as to the following issues: (1) the correct legal standard that Movant must meet in order to prove that he is entitled to relief; and (2) the precedential weight that should be afforded to published panel decisions on applications for a second or successive motions to vacate. (5) This case is CLOSED. DONE and ORDERED in Miami, Florida, this 1st day of September, 2020. 4 . °

UNITED STATES DISTRICT JUDGE

Cc: Counsel of record