United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PETITIONER'S
"MOTION TO VACATE UNDER 28 U.S.C. §
Gail Dein United States Magistrate Judge.
matter is before the court on petitioner's "Motion
Under 28 U.S.C. § 2255." (Docket No. 651). By this
pleading, the petitioner, Julio Gonzalez, is seeking to
vacate his sentence as being unconstitutional. The government
has opposed the petitioner's filing as being a second and
successive habeas petition for relief. (See Docket
No. 654). A review of the record establishes that this is
Gonzalez's second habeas petition under 28 U.S.C. §
2255, and that he failed to obtain authorization for such a
filing from the First Circuit Court of Appeals. Therefore,
and for the reasons detailed more fully herein, this court
recommends to the District Judge to whom this case is
assigned that this habeas petition (Docket No. 651) be
STATEMENT OF FACTS
was determined by law enforcement to be a member of a violent
kidnapping crew operating in Lawrence, Massachusetts that
frequently targeted and abducted drug dealers Matter Not
Available for ransom. (PSR ¶ 8). He was charged in a
Superseding Indictment, issued on May 16, 2013, with
conspiracy to commit kidnapping, in violation of 18 U.S.C.
§ 1201(c). (Docket No. 122). The Indictment arose out of
the kidnapping on January 30, 2012 of "JP, " who
had been held captive until a ransom was paid. (Id.;
PSR ¶¶ 7-37) The incident involved the use of a
firearm. (PSR ¶ 15).
pled guilty on November 20, 2014 to conspiracy to commit
kidnapping in violation of 18 U.S.C. § 1201(c). (Docket
No. 445). The United States Probation Office determined that
petitioner's overall offense level was 40, including
enhancements for the ransom demand and use of a weapon. A
three point reduction for acceptance of responsibility led to
a total offense level of 37. (PSR ¶¶ 43-53).
Gonzalez was determined to have a criminal history category
of II, based on two continuances without a finding for
receiving stolen property and reckless endangerment of a
child. (PSR ¶¶ 58-62). According to his PSR,
Gonzalez's guideline range of imprisonment was 235 to 293
months. (PSR ¶ 94). On April 16, 2015, the court
sentenced Gonzalez to a term of imprisonment of 192 months.
(Docket No. 554).
First § 2255 Habeas Petition
April 17, 2015, petitioner appealed his sentence to the First
Circuit Court of Appeals. (Docket No. 555). While his appeal
was pending, on June 24, 2016, Gonzalez filed his first pro
se "Motion to Vacate under 28 U.S.C. §
2255" with the District Judge, alleging that his
sentence was unconstitutional and should be reduced pursuant
to Johnson v. United States. 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015). (See Docket No. 618). In
Johnson, the Supreme Court had ruled that imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act of 1984 ("ACCA") was
unconstitutional. Id. at 2563. The government
opposed the § 2255 petition on the grounds that
"the defendant's sentencing range was driven
entirely by the kidnapping guidelines, " and "[had]
not [been] enhanced because he was deemed to be an armed
career criminal or a career offender." (Docket No. 624
at 2). Thus, according to the government, Johnson
had no relevance to Gonzalez's sentence. (Id.).
October 11, 2016, the First Circuit issued a Judgment
affirming Gonzalez's sentence. (Docket No. 633). On
October 26, 2016, the District Court denied Gonzalez's
motion and dismissed his § 2255 petition. (Docket No.
635). Gonzalez appealed the dismissal of his petition to the
First Circuit on November 14, 2016. (Docket No. 637). The
First Circuit requested that the District Court issue or deny
a certificate of appealability, a necessary predicate for
Gonzalez to appeal the denial of his habeas
petition. (See Docket No. 641). The District Court
declined to issue the certificate of appealability, finding
that Gonzalez had failed to establish that "reasonable
jurists could debate" the merits of his contention that
Johnson mandated that he be resentenced. (Docket No. 645 at
2). Thus, the District Court concluded, Johnson was
inapplicable because Gonzalez had not been sentenced as an
Armed Career Criminal under the ACCA. (Id.). In
addition, Gonzalez had failed to put forth "any specific
bases for vacating his sentence" under Johnson.
(Id. at 3).
February 14, 2017, while the appeal of his first habeas
petition was pending before the First Circuit, Gonzalez filed
the instant motion under 28 U.S.C. § 2255 (the
"second habeas petition"). (Docket No. 651).
Thereafter, on May 24, 2017, the First Circuit also refused
to issue a certificate of appealability to allow Gonzalez to
pursue the dismissal of his first habeas petition and his
Johnson claim. (Docket No. 669). As the First
Circuit ruled, "petitioner has failed to make the
requisite showing that reasonable jurists could find
debatable or wrong the district court's assessment of his
claim." (Id. (citing Slack v.
McDaniel. 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04,
146 L.Ed.2d 542 (2000))).
second habeas petition, Gonzalez again challenges the
enhancement of his sentence based on the ransom demand and
use of a dangerous weapon. While the grounds for his
challenge are not entirely clear, he does challenge the
enhancement as being unconstitutional under Mathis v.
United States. 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).
(Docket No. 651 at 1). He also reiterates his argument that
under Johnson, he "no longer qualifies for an
enhanced sentence" and that the imposition of the
enhancement "violates due process and should be vacated,
set aside or corrected." (Id. at 2).
facts will be provided ...