35 F.4th 979
5th Cir.2022Background
- In 2011 Jose Vargas‑Soto pleaded guilty to illegal reentry under 8 U.S.C. § 1326; the district court enhanced his sentence under § 1326(b)(2) to 180 months based on a prior manslaughter conviction the government treated as an “aggravated felony” via 18 U.S.C. § 16(b)’s residual clause.
- Vargas‑Soto appealed; the Fifth Circuit affirmed in 2012 and the Supreme Court denied certiorari in 2013, making the conviction final.
- He sought authorization to file a successive § 2255 after Johnson/Welch (2015–2016); the Fifth Circuit denied that 2016 authorization. After the Supreme Court’s Dimaya decision (2018), the Fifth Circuit granted authorization and Vargas‑Soto filed the instant § 2255 in 2019.
- The district court denied relief and a COA, concluding the manslaughter conviction met the § 16(a) elements clause; a Fifth Circuit panel later granted a COA on whether the sentence relied on the unconstitutional residual clause and whether relief under § 2255 was warranted.
- The Fifth Circuit majority held it had jurisdiction, found Vargas‑Soto’s filing timely, but affirmed denial on procedural‑default grounds (no excusing cause nor actual innocence). Judge Davis dissented, arguing Reed/novelty established cause and would reach the merits.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Vargas‑Soto) | Held |
|---|---|---|---|
| Whether Vargas‑Soto’s successive § 2255 is barred by AEDPA res judicata | The prior authorization request presented the same claim, so AEDPA § 2244(b)(1) bars relitigation | The 2016 filing was only a request for authorization, not a prior § 2255 application, so res judicata does not apply | Not barred: authorization request ≠ prior filed application, so AEDPA relitigation bar inapplicable |
| Whether the court could authorize a successive § 2255 under § 2255(h)(2) (new, retroactive rule previously unavailable) | Dimaya does not satisfy the statutory elements for authorization | Dimaya announced a new rule applicable to § 16(b) and that rule is retroactive and was previously unavailable to Vargas‑Soto | Authorized: Dimaya is a new rule, the Supreme Court’s holdings collectively dictate retroactivity, and the rule was previously unavailable |
| Whether the § 2255(f)(3) limitations period is time‑barred and which decision triggers it | Vargas‑Soto’s motion is untimely if (f)(3) is triggered by Johnson and he did not file within one year | (1) (f)(3) is triggered by the date the right was initially recognized (Johnson 2015); (2) Vargas‑Soto filed an authorization timely (June 27, 2016) so his successive filing is timely | (f)(3) triggered by Johnson (June 26, 2015); Vargas‑Soto timely sought authorization within one year of Johnson, so filing is timely |
| Whether procedural default is excused by cause & prejudice or actual innocence | Default not excused: claim was legally available and no new factual evidence of innocence | Cause: claim was novel and unavailable pre‑Johnson/Dimaya; Actual innocence: enhancement invalid under new rule | Default not excused: no cause (vagueness challenge was reasonably available pre‑Johnson/Dimaya) and actual innocence fails (challenge attacks enhancement classification, not factual guilt) |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (ACCA residual clause is void for vagueness)
- Dimaya v. Sessions, 138 S. Ct. 1204 (2018) (INA § 16(b) residual clause void for vagueness)
- Welch v. United States, 578 U.S. 120 (2016) (Johnson announced a substantive rule retroactive on collateral review)
- United States v. Davis, 139 S. Ct. 2319 (2019) (§ 924(c) residual clause void for vagueness)
- Dodd v. United States, 545 U.S. 353 (2005) (interpretation of § 2255(f)(3) trigger date)
- Tyler v. Cain, 533 U.S. 656 (2001) (methods by which Supreme Court holdings can be treated as retroactive under collateral‑review statutes)
- Reed v. Ross, 468 U.S. 1 (1984) (a claim sufficiently "novel" may supply cause to excuse procedural default)
- Bousley v. United States, 523 U.S. 614 (1998) (actual innocence requires factual innocence; futility alone is not cause)
- Schriro v. Summerlin, 542 U.S. 348 (2004) (distinguishing substantive from procedural rules for retroactivity)
- United States v. Reece, 938 F.3d 630 (5th Cir. 2019) (discussed actual‑innocence arguments in related residual‑clause context)
- United States v. Castro, 30 F.4th 240 (5th Cir. 2022) (same‑ground/void‑for‑vagueness claim equivalence among Johnson/Dimaya/Davis)