1:16-cv-00298
D. Haw.Dec 23, 2016Background
- Adam Avila pled guilty (Nov. 3, 2011) to conspiracy to distribute and possession with intent to distribute ≥50 grams of methamphetamine; sentenced Feb. 25, 2013 to 228 months as a career offender under the U.S. Sentencing Guidelines (USSG).
- At sentencing the court treated two California Penal Code § 273.5(a) convictions for corporal injury to a spouse/cohabitant as "crimes of violence" under USSG § 4B1.1/§ 4B1.2(a)(1) (the force clause), and Avila’s plea waiver preserved only ineffective-assistance and upward-departure claims.
- Avila filed a pro se petition styled to invoke multiple common‑law writs but substantively raising claims under 28 U.S.C. § 2255 (filed June 2, 2016 under the mailbox rule).
- Avila argued (inter alia) that Johnson v. United States and Welch v. United States created a new, retroactive rule that invalidated his career‑offender designation, that the sentence violated the Ex Post Facto Clause and double jeopardy, that the indictment omitted elements, and that the government breached the plea agreement.
- The government opposed; the district court construed the filing as a § 2255 motion, found the claims cognizable under § 2255, and denied relief as time‑barred because the one‑year limitation ran from March 14, 2013 and Avila’s motion was filed well after that date.
- The court denied a certificate of appealability, concluding reasonable jurists would not find the timeliness ruling debatable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held | |
|---|---|---|---|---|
| Timeliness under 28 U.S.C. § 2255(f) | Avila: Johnson/Welch recognized a new, retroactive right that restarts § 2255’s one‑year clock | Government: Avila’s claims are untimely; Johnson/Welch inapplicable because convictions rest on the force clause | Motion denied as time‑barred; Johnson/Welch do not restart the clock for Avila | |
| Proper vehicle for relief | Avila styled petition with multiple common‑law writs (audita querela, coram nobis, mandamus, etc.) | Government: those writs are unavailable where § 2255 provides a remedy or where petitioner remains in custody | Court treats filing as § 2255 motion; common‑law writs inapplicable | |
| Applicability of Johnson to USSG career‑offender designation | Avila contends Johnson invalidates career‑offender enhancement under USSG residual clause | Government: Avila’s § 273.5 convictions qualify under the force clause, not the residual clause; Johnson targets only the residual clause | Court: Even assuming Johnson applies to the Guidelines, it is irrelevant—§ 273.5 falls under the force clause and is unaffected | |
| Certificate of appealability (COA) | Avila sought COA to appeal denial | Avila argued the claims raise substantial constitutional questions | Court: No; reasonable jurists would not debate the court’s timeliness ruling | COA denied |
Key Cases Cited
- Blackledge v. Allison, 431 U.S. 63 (1977) (standard for denying evidentiary hearing on frivolous or incredible claims)
- United States v. Mejia‑Mesa, 153 F.3d 925 (9th Cir. 1998) (district court may deny § 2255 hearing when record conclusively shows no relief)
- United States v. Valdez‑Pacheco, 237 F.3d 1077 (9th Cir. 2001) (common‑law writs survive only to fill gaps not covered by statutory postconviction remedies)
- Matus‑Leva v. United States, 287 F.3d 758 (9th Cir. 2002) (coram nobis not available to prisoners in custody)
- United States v. Gilbert, 807 F.3d 1197 (9th Cir. 2015) (when conviction is final for purposes of § 2255 limitations)
- United States v. Laurico‑Yeno, 590 F.3d 818 (9th Cir. 2010) (holding Cal. Penal Code § 273.5 is a crime of violence under the force clause)