Cesar Gonzalez v. United States, 28 F.4th 973

Muñoz was convicted of racketeering, drug‑trafficking offenses, and possession of a firearm in furtherance of a crime under 18 U.S.C. § 924(c); the verdict form did not identify which predicate (racketeering or drug offenses) supported the § 924(c) conviction.
After a direct appeal, Muñoz filed a pro se § 2255 motion raising five claims but did not challenge the § 924(c) conviction there.
The Supreme Court decided United States v. Davis while Muñoz’s § 2255 was pending; Muñoz mentioned Davis in his reply (at another inmate’s suggestion) but did not press a Davis-based challenge to his § 924(c) predicate.
The district court denied Muñoz’s first § 2255; after denial and denial of COA, Muñoz sought leave to file a second or successive § 2255 arguing Davis invalidates racketeering as a categorical "crime of violence," so his § 924(c) conviction must be vacated.
The government conceded Davis could advance Muñoz’s claim but the sole question was whether the Davis argument was "previously unavailable" under 28 U.S.C. § 2255(h)(2).
The Ninth Circuit adopted a pragmatic availability standard, found no external obstacle that prevented Muñoz from raising the Davis claim during his initial proceeding, and denied leave to file a second or successive § 2255.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Muñoz’s Davis‑based challenge to his § 924(c) predicate was “previously unavailable” under § 2255(h)(2)	Muñoz: as a pro se, Spanish‑speaking, eighth‑grade educated prisoner with limited library access and a short window, he could not reasonably amend to raise the Davis § 924(c) claim while his first § 2255 was pending	Government: Davis issued while the first petition was pending; Muñoz cited Davis in his reply; no systemic or external barrier prevented amendment	Court: Adopts pragmatic test and holds the claim was available; denies leave to file second/successive § 2255
Proper interpretation of “previously unavailable” in AEDPA second/successive context	Muñoz: (implicitly) a litigant’s personal limitations can render a claim unavailable	Government: Availability should be judged by whether external, practical obstacles prevented raising the claim, consistent with other circuits and Ross v. Blake	Court: Interprets the phrase pragmatically — availability turns on external, real‑world barriers, not a subjective assessment of a prisoner’s individual limitations

United States v. Davis, 139 S. Ct. 2319 (2019) (held § 924(c)’s residual clause unconstitutionally vague)
Ross v. Blake, 578 U.S. 632 (2016) (explains "availability" pragmatically in PLRA context)
In re Cathey, 857 F.3d 221 (5th Cir. 2017) (adopts a pragmatic/rebuttable‑presumption approach to previous unavailability)
In re Hill, 113 F.3d 181 (11th Cir. 1997) (refuses a mechanistic test; considers whether amendment was feasible while initial petition was pending)
Davis v. Norris, 423 F.3d 868 (8th Cir. 2005) (held new‑rule claims not previously unavailable where petitioner could have raised them during pendency)
Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250 (2016) (requires an external obstacle for equitable tolling/exceptional relief)