NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL MUNOZ GONZALEZ, AKA "C", AKA Cisco, AKA Ralph Gonzalez

- Munoz, AKA Homeboy, AKA Big Homie,

Applicant,

v.

UNITED STATES OF AMERICA,

Respondent. No. 20

- 71710

MEMORANDUM *

Application to File Second or Successive Petition Under 28 U.S.C. § 225 5

Argued and Submitted June 11, 2021 Pasadena, California

Before: CALLAHAN and FORREST, Circuit Judges, and SEEBORG, * * District Judge.

Applicant Rafael Muñoz Gonzalez (Muñoz) seeks leave to file a second or

successive motion for habeas relief under 28 U.S.C. § 2255. He argues that his

conviction for possession of a firearm in furtherance of a crime of violence or drug

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. 

# FILED

MAR 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 trafficking offense under 18 U.S.C. § 924(c) is invalid because his predicate crime

—

racketeering

— is no longer a categorical “crime of violence” under a new rule of

constitutional law announced in United States v. Davis , 139 S. Ct. 2319 (2019). 1 We

have jurisdiction under 28 U.S.C. § 2255, and we grant Muñoz’s request for leave

to file a second or successive § 2255 habeas motion

.

In our concurrently filed opinion in Cesar Muñoz Gonz alez v. United States

,

__F.4th__ (9th Cir. 2022 ) , we adopted a pragmatic approach for determining

whether a new rule of constitutional law was “previously unavailable” within the

meaning of § 2255(h)(2) that focuses on systemic barriers, including timing a nd

accessible procedural means for presenting a claim . Applying this approach here, we

conclude that an argument based on the new rule announced in Davis was not

available to Muñoz while his first habeas motion was still pending

. The district court

rejecte d Muñoz's initial habeas motion f our and a half months after the Supreme

Court issued Davis

. Well over the majority of that time, Muñoz’s was held in the

S pecial Housing Unit (SHU)

. While in the SHU, Muñoz’s access to the law library

1 The verdict form did not require the jury to specify which conviction

— racketeer ing or Muñoz’s two drug offenses

— served as the predicate offense for his § 924(c) conviction. The government concedes that, despite the uncertainty about

which offense was the predicate for his § 924(c) conviction, Muñoz can establish

that Davis at least a dvances his claim. See Henry v. Spearman , 899 F.3d 703, 706 (9th Cir. 2018) (petitioner need only show “ possible merit to warrant a fuller exploration by the district court”) (citation omitted)

.3 and legal documents was extremely limited; only one person is allowed in the SHU

law library at a time and there are approximately 200 prisoners in the SHU. It takes

up to three weeks for a prisoner to get access to the law library and visi ts are limited

to two hours. And unlike in Muñoz Gonzalez , there is no indication that Muñoz knew

about Davis during the short window of time before his initial habeas proceeding

was denied. Given these restraints

, t he real

- world circumstances that Muñoz f aced

rendered his Davis claim previously unavailable to him.

The request for leave to file a second or successive habeas motion is

GRANTED.