Gonzalez v. Beasley

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge D. P. Marshall, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         Introduction

         Pending before the Court is a 28 U.S.C. § 2241 Petition for a Writ of Habeas Corpus filed by Petitioner, Gabriel Gonzalez (“Gonzalez”), who is currently incarcerated in the Federal Correctional Institution located in Forrest City, Arkansas. Doc. 1. This is the second § 2241 habeas Petition he has filed in the Eastern District of Arkansas. See Gonzalez v. Beasley, No. 2:17-CV-129-DPM, 2017 WL 4799794 (E.D. Ark. Oct. 24, 2017), affirmed, No. 17-3632, 2018 WL 2717790 (8th Cir. Apr.26, 2018) (unpublished). Before addressing Gonzalez's habeas claims, the Court will briefly review the facts surrounding his conviction and sentence in United States District Court for the Central District of California and his collateral attacks on that conviction in the Eastern District of Arkansas.

         On February 27, 2006, a federal jury convicted Gonzalez of depriving three women of their right to bodily integrity, in violation of 18 U.S.C. § 242.^[1] United States v. Gonzalez, No. 02:04-CR-01189-CAS (C.D. Cal.), at doc. 100. On August 3, 2006, Gonzalez was sentenced to 360 months of imprisonment. Id. at doc. 117.

         Gonzalez appealed to the Court of Appeals for the Ninth Circuit. On July 18, 2008, it affirmed Gonzalez's convictions and sentence. United States v. Gonzalez, 533 F.3d 1057 (9th Cir. 2008).

         On November 16, 2009, Gonzalez filed a § 2255 motion to vacate his sentence on the grounds that: (1) his attorney provided ineffective assistance; and (2) the government engaged in discovery violations that deprived him of a fair trial. Gonzalez, No. 02:04-CR-01189-CAS (C.D. Cal.), at doc. 140.

         On August 21, 2010, the trial court denied Gonzalez's motion and later denied a certificate of appealability. Id. at docs. 171 and 185. On December 17, 2010, Gonzalez filed a notice of appeal, along with an application for certificate of appealability. Id. at docs. 183 and 184. On June 15, 2012, the Ninth Circuit denied Gonzalez's request for a certificate of appealability. Id. at doc. 187.

         Almost seven years later, on August 7, 2017, Gonzalez filed a § 2241 habeas Petition in the Eastern District of Arkansas. Gonzalez, No. 2:17-CV-00129-DPM-JJV, at doc. 1. He alleged that the government failed to prove an essential element of the charged crime and his remedy to correct that error under § 2255 was “inadequate and ineffective.” Id.

         On October 24, 2017, United States District Judge D. P. Marshall, Jr. entered an Order dismissing Gonzalez's § 2241 habeas Petition because it challenged his conviction or sentence and the savings clause in § 2255(e) did not apply, which meant the Court lacked subject matter jurisdiction over the case. Id. at doc. 13. Gonzalez filed a notice of appeal, along with an application for a certificate of appealability with the Court of Appeals for the Eighth Circuit. Id. at doc. 18-20.

         On February 15, 2018, while that appeal was still pending, Gonzalez filed a petition for leave to file a Rule 60(b) Motion for Relief from Judgment in the Central District of California. In that Motion, he made the same claim that he asserted in his § 2241 habeas Petition: the government had failed to prove an essential element of the crime for which he was convicted under 18 U.S.C. § 242. Gonzalez, No. 02:04-CR-01189-CAS, 2018 WL 4216686, at *1-2 (C.D. Cal. Sept. 5, 2018).

         On April 26, 2018, the Eighth Circuit denied Gonzalez's application for a certificate of appealability and summarily affirmed the dismissal of his § 2241 habeas Petition. Gonzalez, No. 2:17-CV-00129-DPM-JJV, at docs. 27 and 28; see also Gonzalez, No. 17-3632, 2018 WL 2717790 (unpublished).

         On September 5, 2018, the sentencing court denied Gonzalez's request to file a Rule 60(b) motion. It properly characterized that filing as a second or successive § 2255 motion, which Gonzalez could only file after the Ninth Circuit granted him permission to pursue such extraordinary relief. Gonzalez, No. 02:04-CR-01189-CAS, 2018 WL 4216686, at *2.^[2]

         On December 10, 2018, Gonzalez filed this § 2241 habeas Petition, in which he once again attacks the alleged unconstitutionality of his conviction under 18 U.S.C. § 242. According to Gonzalez's interpretation of that statute, it can only be constitutionally applied to “victims” whose “race, color, or alienage” had some nexus to the sexual assault. Doc. 1 at 3; Doc. 2 at 4-5. Because no such nexus existed between his “victims” and his sexual assaults against them, he argues his conviction of violating 18 U.S.C. § 242 was unconstitutional. Doc. 2. Finally, as he did in his first § 2241 habeas Petition, Gonzalez makes the conclusory assertion that his remedy under § 2255 is “inadequate and ineffective” because it “does not accommodate nor provide for an examination of statutory constructive matters concerning substantive law[.]” Doc. 1-1 at 3.

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