Herrera-Gomez v. United States, 755 F.3d 142

Background

Herrera-Gomez pleaded guilty in federal court (S.D.N.Y.) in 2007 to a heroin conspiracy and was sentenced principally to 135 months; his plea agreement waived collateral attacks and his direct appeal was dismissed.
He filed a § 2255 motion in 2008 raising other claims; that motion was denied and a COA was denied on appeal.
He seeks authorization from the Second Circuit to file a successive § 2255 motion asserting (1) a Peugh-based ex post facto claim and (2) a newly discovered-evidence claim concerning a 1996 New York DWI used to enhance his federal sentence.
His DWI conviction (1996) rested on a blood-alcohol level of 0.09; New York lowered the DWI per se limit from 0.10 to 0.08 in 2009, and Herrera-Gomez contends the later change shows his prior state conviction was improper and its use in federal sentencing violates Peugh.
He also contends he recently discovered a 2009 Governor’s press release about the law change and invokes § 2255(h)(1) (newly discovered evidence).
The Second Circuit denied authorization, finding Herrera-Gomez satisfied neither § 2255(h)(2) (a new Supreme Court rule made retroactive) nor § 2255(h)(1) (newly discovered evidence with due diligence).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Peugh announced a new rule of constitutional law made retroactive to collateral review	Peugh creates an ex post facto rule that applies to his sentence enhancement based on the state DWI	Peugh was not made retroactive by the Supreme Court and is not a Teague watershed procedural rule	Denied: Peugh is not a rule made retroactive for § 2255(h)(2) purposes and is not a watershed rule under Teague
Whether Herrera-Gomez’s evidence qualifies as "newly discovered" under § 2255(h)(1)	He only recently discovered a press release showing the statutory BAC change and contends the DWI conviction was improper	Court notes he discussed BAC with counsel earlier and had opportunity to discover the law; movants must show due diligence	Denied: evidence not shown to be newly discovered or that petitioner exercised due diligence
Whether § 2255(h) incorporates due diligence or other § 2244(b) requirements	Peugh/new-evidence claims should be allowed if they meet § 2255(h) text	AEDPA and precedent import gatekeeping and prior requirements like diligence from § 2244(b)	Held: § 2255(h) requires the movant to act with due diligence; § 2244(b) limits are informative and incorporated by reference
Whether remand required to assess prima facie prejudice under § 2255(h)(1)	If evidence is new, a prima facie showing might warrant authorization	Courts must first find claim meets statutory new-evidence and diligence thresholds before assessing prejudice	Court did not reach prima facie prejudice because diligence/newness failed

Key Cases Cited

Vu v. United States, 648 F.3d 111 (2d Cir. 2011) (defines successive § 2255 motions)
Haouari v. United States, 510 F.3d 350 (2d Cir. 2007) (describes appellate gatekeeping role under AEDPA)
Felker v. Turpin, 518 U.S. 651 (1996) (AEDPA codified limits on successive petitions and moved screening to courts of appeals)
McCleskey v. Zant, 499 U.S. 467 (1991) (pre-AEDPA requirement of due diligence for successive petitions)
Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity; two exceptions)
Schriro v. Summerlin, 542 U.S. 348 (2004) (Teague’s watershed exception is extremely narrow)
Tyler v. Cain, 533 U.S. 656 (2001) (Supreme Court must make a new rule retroactive for § 2255(h)(2) to apply)
Guzman v. United States, 404 F.3d 139 (2d Cir. 2005) (Booker did not create a watershed rule)
Hawkins v. United States, 724 F.3d 915 (7th Cir. 2013) (Peugh not retroactive for collateral review)
Triestman v. United States, 124 F.3d 361 (2d Cir. 1997) (incorporating § 2244(b) provisions into § 2255(h))
Green v. United States, 397 F.3d 101 (2d Cir. 2005) (discussing interplay of § 2244(b) and § 2255)
Saffle v. Parks, 494 U.S. 484 (1990) (example of a rule that might be considered watershed)