1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-22003-Civ-COOKE

(03-20759-Cr-COOKE)

WILFREDO RODRIGUEZ,

Movant,

vs. 

UNITED STATES OF AMERICA,

Respondent.

___________________________________/

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION OF 

MAGISTRATE JUDGE

THIS MATTER was referred to the Honorable Jonathan Goodman, United States 

Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(A)–(B), for a ruling on all pre-trial, nondispositive matters and for a Report and Recommendation on any dispositive matters. ECF 

No. 4. On October 28, 2020, Judge Goodman issued a Report and Recommendation 

(“Report”) (ECF No. 12) recommending denial of Movant’s Motion to Vacate under 28 

U.S.C. § 2255 (“Motion”) (ECF No. 3). The Motion argued that Movant’s “18 U.S.C. § 

924(o) conviction on Count 3 and his § 924(c) conviction on Count 5 [were] invalid and 

unconstitutional in light of United States v. Davis, 139 S. Ct. 2319 (2019).” ECF No. 3 at 5.

Davis held that the “residual clause” in “§ 924(c)(3)(B) [was] unconstitutionally vague.” 139 

S. Ct. at 2336.

As relevant here, the Report recommended that Movant’s Davis claim be denied on 

the merits because the Court could not find that “the alleged [Davis] error ‘had substantial and 

injurious effect or influence in determining the jury’s verdict.’” See ECF No. 12 at 26 (quoting 

Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008)). Key to this determination was that “the record 

indicate[d] that the jury based [the § ] 924(o) and (c) convictions partly on [Movant’s] 

conviction for conspiracy to possess cocaine with intent to distribute . . . and attempted 

Case 1:20-cv-22003-MGC Document 26 Entered on FLSD Docket 04/15/2021 Page 1 of 5
2

possession of cocaine with intent to distribute.” Id. at 25.1 The record so indicated because

“[a]ny reasoned assessment of the trial evidence demonstrate[d] that the offenses were all 

substantially interrelated.” Id. at 22; see also id. at 21 (“These crimes are all intertwined and 

were committed as part of one scheme.”).

The Report also recommended that the Motion be denied as procedurally defaulted 

because, as relevant here, Movant failed to raise a vagueness claim on direct appeal. See id. at 

26–27. Further, the Report found that Movant could not show “cause for his failure to raise 

the claim earlier and actual prejudice resulting from the alleged error.” Id. at 27 (citation and 

quotation marks omitted). Additionally, the Report found that Movant could not show that 

the jury based his § 924(c) and (o) convictions solely on his conviction for Hobbs Act 

conspiracy (and not the drug trafficking convictions); thus, he could not show actual 

innocence. See id. at 28–29.2

Movant filed Objections (ECF No. 13) to the Report. The Objections largely repeat 

arguments from the Motion and Movant’s Reply (ECF No. 10) to the Government’s Answer 

(ECF No. 8). As discussed below, the Court adopts the Report with the following 

supplemental discussion.

The Report correctly found that Movant procedurally defaulted the Davis claim by 

failing to raise it on direct appeal. A “defendant generally must advance an available challenge 

to a criminal conviction on direct appeal or else the defendant is barred from raising that claim 

in a habeas proceeding.” Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021) (citation 

and quotation marks omitted). Movant concedes that he did not raise a vagueness challenge 

to his § 924(c) and (o) convictions on direct appeal. See ECF No. 10 at 18–23. 

“[Movant], therefore, procedurally defaulted this claim and cannot succeed on 

collateral review unless he can either (1) show cause to excuse the default and actual prejudice 

1 These offenses are “drug trafficking crimes” under § 924(c)(1)(A). Davis “invalidated only § 

924(c)(3)(B)’s residual clause relating to crimes of violence.” In re Navarro, 931 F.3d 1298, 

1302 (11th Cir. 2019).

2 Hobbs Act conspiracy is no longer a “crime of violence” under § 924(c)(3)(B)’s elements 

clause. Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019) (per curiam). And Davis

invalidated § 924(c)(3)(B)’s residual clause. Therefore, Movant’s Hobbs Act conspiracy 

conviction alone could not support his § 924(c) and (o) convictions.

Case 1:20-cv-22003-MGC Document 26 Entered on FLSD Docket 04/15/2021 Page 2 of 5
3

from the claimed error, or (2) show that he is actually innocent of the § 924(o) [and (c)] 

conviction[s].” Granda, 990 F.3d at 1286 (citation omitted). 

Here, Movant cannot show actual prejudice from the alleged Davis error.3 “Actual 

prejudice means more than just the possibility of prejudice; it requires that the error worked 

to [Movant’s] actual and substantial disadvantage, infecting his entire trial with error of 

constitutional dimensions.” Id. at 1288 (citation omitted). To meet this standard, Movant 

must show “a substantial likelihood that the jury relied only on the [Hobbs Act conspiracy]

conviction, because reliance on any of [the drug trafficking crimes] would have provided a 

wholly independent, sufficient, and legally valid basis to convict [Movant of the § 924(c) and 

(o) offenses].” See id.

Movant cannot make this showing. As the Report found, “[t]he trial record makes it 

abundantly clear that [Movant’s Hobbs Act conspiracy and drug trafficking convictions]

rested on the same operative facts and the same set of events.” See id. at 1289. Furthermore, 

the jury convicted Movant of the drug trafficking offenses. Thus, Movant cannot show that 

the jury could have found that he conspired to possess, and actually possessed, the firearms 

in furtherance of the plan to rob (and later sell) the cocaine but not in furtherance of the 

conspiracy and attempt to possess with intent to distribute the same cocaine. See ECF No. 12 

at 28; see also Granda, 990 F.3d at 1289–91. In short, Movant has not shown actual prejudice 

sufficient to excuse his default of his Davis claim. 

Nor can Movant show actual innocence. “The actual innocence exception to the 

procedural default bar is exceedingly narrow in scope as it concerns [Movant’s] actual 

innocence rather than his legal innocence.” Granda, 990 F.3d at 1292 (citation and quotation 

marks omitted). “To establish actual innocence, [Movant] must demonstrate that, in light of 

all the evidence, it is more likely than not that no reasonable juror would have convicted

him.” Id. (citation omitted). Thus, to demonstrate actual innocence of the § 924(c) and (o) 

convictions, he “would have to show that no reasonable juror would have concluded he 

conspired to possess a firearm [and actually possessed a firearm] in furtherance of any of the 

valid predicate [i.e., drug trafficking] offenses.” See id. This he cannot do because “the valid 

drug-trafficking . . . predicates are inextricably intertwined with the invalid conspiracy-to-rob 

3 Because Movant must show cause and prejudice to overcome the procedural default, the 

Court need not consider whether he has shown cause. 

Case 1:20-cv-22003-MGC Document 26 Entered on FLSD Docket 04/15/2021 Page 3 of 5
4

predicate,” which “makes it impossible for [him] to show that his § 924(o) [and (c)]

conviction[s were] in fact based on the conspiracy-to-rob predicate.” See id.

In sum, Movant cannot show prejudice or actual innocence. Consequently, “he cannot 

overcome procedural default.” See id.

Furthermore, even if Movant’s Davis claims were not procedurally defaulted, he would 

not be entitled to § 2255 relief. “On collateral review, the harmless error standard mandates 

that relief is proper only if the court has grave doubt about whether a trial error of federal law 

had substantial and injurious effect or influence in determining the jury’s verdict.” Id. (cleaned 

up). Under this standard, “the court may order relief only if the error ‘resulted in actual 

prejudice.’” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This requirement is 

not a burden of proof. Id. at 1292–93 (citations omitted). “Instead, the reviewing court should 

ask directly whether the error substantially influenced the jury’s decision.” Id. at 1293 (citation 

and quotation marks omitted). “[I]f the court cannot say, with fair assurance, after pondering 

all that happened without stripping the erroneous action from the whole, that the judgment 

was not substantially swayed by the error, the court must conclude that the error was not 

harmless.” Id. (citation and quotation marks omitted). 

Here, the “record does not provoke grave doubt about whether [Movant’s] § 924(o) 

[and (c)] conviction[s] rested on an invalid ground.” See id. As the Court explained above, his 

“conspiracy to commit Hobbs Act robbery was inextricably intertwined with the [drug 

trafficking] offenses.” See id. “There is little doubt that if the jury found that [Movant]

conspired to possess a firearm in furtherance of his conspiracy to commit Hobbs Act robbery, 

it also found that he conspired to possess a firearm in furtherance of the other . . . drugtrafficking predicates of which the jury convicted him.” See id. Thus, even though the Court 

instructed the jury that it could base the § 924(c) and (o) counts on only the Hobbs Act 

conspiracy count, see Cr-ECF No. 100 at 15, 17–18, Movant is not entitled to § 2255 relief. 

See Granda, 990 F.3d at 1293. 

In sum, after careful, de novo consideration of the Motion, Report, Objections, record, 

and applicable authorities, and being otherwise fully advised in the premises, the Court agrees 

with the Report and finds that the Motion should be denied.4

4 The Report recommended that the Court issue a certificate of appealability (“COA”). ECF 

No. 12 at 29–30. However, after Granda, Movant is not entitled to a COA. Hamilton v. Sec’y, 

Case 1:20-cv-22003-MGC Document 26 Entered on FLSD Docket 04/15/2021 Page 4 of 5
5

Accordingly, it is ORDERED and ADJUDGED that the Report (ECF No. 12) is 

APPROVED and ADOPTED. As a result, the Motion (ECF No. 3) is DENIED. 

Furthermore, a certificate of appealability is DENIED. The Clerk is directed to CLOSE the 

case. 

DONE and ORDERED in chambers, at Miami, Florida, this 15th day of April 2021. 

Fla. Dep’t of Corr., 793 F.3d 1261, 1266 (11th Cir. 2015) (per curiam) (“[N]o COA should issue 

where the claim is foreclosed by binding circuit precedent . . . .” (citation omitted)).

Case 1:20-cv-22003-MGC Document 26 Entered on FLSD Docket 04/15/2021 Page 5 of 5