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Arazola-Galea v. United States

United States Court of Appeals, Ninth Circuit

December 12, 2017

Mario Kelbia Arazola-Galea, Petitioner,
v.
United States of America, Respondent.

          Submitted November 15, 2017 [*] San Francisco, California

         Application to File Second or Successive Petition Under 28 U.S.C. § 2255

          Tara K. Hoveland, South Lake Tahoe, California, for Petitioner.

          Karla Hotis Delord, Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange, Acting United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Respondent.

          Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and William E. Smith, [**] Chief District Judge.

         SUMMARY [***]

         28 U.S.C. § 2255

         Denying an application for authorization to file a second or successive motion pursuant to 28 U.S.C. § 2255 to vacate a sentence, the panel held that Mathis v. United States, 136 S.Ct. 2243 (2016), which clarified application of the categorical analysis to the Armed Career Criminal Act, did not establish a new rule of constitutional law.

          OPINION

          RAWLINSON, CIRCUIT JUDGE.

         Mario Arazola-Galea is a native and citizen of Honduras who has been living in the United States since at least 2000. In 2013, Arazola-Galea was arrested by border patrol agents in Arizona and ordered detained on a felony complaint. Arazola-Galea pled guilty to an Information charging him with re-entry of a previously removed alien in violation of 8 U.S.C. § 1326. Arazola-Galea also admitted a violation of his supervised release from a prior conviction. Investigation revealed that Arazola-Galea had previously been deported after a felony conviction for possession of a controlled substance in violation of Colorado Revised Statute (C.R.S.) § 18-18-405(1). The district court determined that the Colorado conviction was for a drug trafficking offense as defined under U.S.S.G. §2L1.2(b)(1)(A), and sentenced Arazola-Galea to 70 months' imprisonment.

         Arazola-Galea timely filed a direct appeal, which this Court dismissed based on the valid appellate waiver in Arazola-Galea's plea agreement. Arazola-Galea then filed a motion to vacate the sentence under 28 U.S.C. § 2255, arguing that his Sixth Amendment right to counsel was violated and that the district court lacked jurisdiction to enhance his sentence without conducting a jury trial. The district court dismissed the motion with prejudice based upon the plea waiver. Arazola-Galea filed a subsequent motion for authorization to file a second or successive habeas petition, arguing that Johnson v. United States, 135 S.Ct. 2551 (2015) entitled him to retroactive relief from his sentence. We denied the motion, determining that the holding in Johnson was not implicated.

         Months later, Arazola-Galea filed the present motion for authorization to file a second or successive habeas petition. Arazola-Galea argues that, in light of the Supreme Court's holding in Mathis v. United States, 136 S.Ct. 2243 (2016), the sentencing enhancement applied to his Colorado conviction for possession of a controlled substance was improper because his conviction was for an offense broader than the generic offense described in the federal definition of a drug trafficking offense in U.S.S.G. §2L1.2(a) and (b). We deny Arazola-Galea's application.

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may file a second or successive petition for a writ of habeas corpus if we certify that the claim is based upon "[1] a new rule, [2] of constitutional law, [3] made retroactive to cases on collateral review by the Supreme Court, [4] that was previously unavailable." 28 U.S.C. § 2255(h)(2); 28 U.S.C. § 2244(b)(2)(A).

         The sole issue we must decide is whether Arazola-Galea's application to file a second or successive habeas petition can survive "the stringent standard" set forth in AEDPA that generally prohibits such filings. See Goodrum v. Busby, 824 F.3d 1188, 1193 (9th Cir. 2016). Arazola-Galea argues that his application satisfies this stringent standard because Mathis articulated a new constitutional rule that ...


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