United States District Court, E.D. Arkansas, Eastern Division
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.
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2018) (unpublished).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
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. 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.
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).
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.
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.
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.
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.
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).
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).
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.
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.