NOT FOR PUBLICATION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. § 2255

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 APPEALS
2 

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 Gonzalez 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 and 

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 

rejected Muñoz's initial habeas motion four and a half months after the Supreme 

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

Special 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—

racketeering 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 advances 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 visits 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, the real-world circumstances that Muñoz faced 

rendered his Davis claim previously unavailable to him. 

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

GRANTED.