Julian Breal v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12222
Non-Argument Calendar
____________________
JULIAN BREAL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-23158-FAM
____________________
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 1 of 8

-- 1 of 8 --

2 Opinion of the Court 22-12222
Before WILLIAM PRYOR , Chief Judge, and R OSENBAUM and J ILL
PRYOR , Circuit Judges.
PER CURIAM:
Julian Breal, a federal prisoner, appeals the order denying his
successive motion to vacate, 28 U.S.C. § 2255, his conviction and
sentence for possessing a firearm in furtherance of a crime of vio-
lence, 18 U.S.C. § 924(c). Breal obtained leave to file his motion
seeking a vacatur based on United States v. Davis, 139 S. Ct. 2319
(2019). The district court ruled that Breal procedurally defaulted his
claim for relief. We affirm.
I. BACKGROUND
In 2012, Breal and five others conspired to rob a drug dealer.
Breal provided information about the victim, his assets, and his
movements, so that the other conspirators, none of whom were
known to the victim, could execute the robbery. The other con-
spirators agreed that Breal would receive a share of the proceeds of
their crime.
The conspirators’ initial plan was to intercept the victim on
his return from a fishing trip, but they altered their plan when Breal
learned that the victim had sold his fishing boat. They decided in-
stead to rob the victim’s house. Breal provided the address and
agreed to serve as lookout. But there were too many people at the
victim’s house, so the conspirators aborted the robbery.
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 2 of 8

-- 2 of 8 --

22-12222 Opinion of the Court 3
Breal’s co-conspirators later abducted the victim at gunpoint
as he was exiting a bar. They forced the victim into the back of his
car and drove him to a co-conspirator’s house, where they tortured
the victim and demanded the names of people they could call to
demand ransom. Breal was not present, but after the victim pro-
vided several names, one of the co-conspirators called Breal, told
Breal “we got him,” and asked Breal to confirm the names and
phone numbers as potential targets for ransom money. Breal con-
firmed the information. The co-conspirators then called the vic-
tim’s brother, tortured the victim so that he screamed over the
phone, and demanded ransom. About two months later, the police
interviewed Breal. After he waived his right to counsel and his right
to remain silent, Breal confessed to his role in the crimes.
Breal and the five other conspirators were charged in a su-
perseding indictment with conspiring to commit hostage taking, 18
U.S.C. § 1203(a), hostage taking, id. §§ 1203(a), 2, kidnapping, id.
§§ 1201(a), 2, carjacking, id. §§ 2119, 2, and possessing a firearm in
furtherance of a crime of violence, id. §§ 924(c)(1)(A), 2, as set forth
in the preceding four counts. All of the co-conspirators pleaded
guilty, save for Breal. He was convicted of all counts following a
jury trial and sentenced to a total term of 50 years of imprisonment,
which included a mandatory consecutive five-year term of impris-
onment for the firearm conviction. Breal challenged his convic-
tions and sentence, without success, on direct appeal. United States
v. Breal, 593 F. App’x 949 (11th Cir. 2014).
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 3 of 8

-- 3 of 8 --

4 Opinion of the Court 22-12222
After Breal filed a motion to vacate in 2015, which the dis-
trict court denied, we denied him a certificate of appealability.
Breal did not challenge the constitutionality of the residual clause
in section 924(c) in either his direct appeal or his initial motion to
vacate. In 2018, Breal applied for leave to file a second motion to
vacate based on Sessions v. Dimaya, 138 S. Ct. 1204 (2018), but we
denied his application. In re Julian Breal, No. 18-14347 (Nov. 14,
2018). We later granted Breal leave to file a successive motion to
vacate to raise a Davis challenge to the validity of his firearm of-
fense. See 28 U.S.C. § 2255(h)(2).
Breal moved to vacate his firearm conviction. 28 U.S.C.
§ 2255. He argued that his firearm conviction was invalid because
three of his predicates—conspiracy to commit hostage taking, hos-
tage taking, and kidnapping—were no longer “crimes of violence”
after Davis. He argued that the jury’s general verdict precluded
knowing which of the four predicate offenses it relied on to convict
him of the firearm offense but that the jury most likely relied on
the offense of conspiracy to commit hostage taking because he was
not physically present for any of the substantive offenses. The gov-
ernment responded that Breal’s Davis argument was procedurally
defaulted and failed on the merits.
The magistrate judge recommended a stay pending the res-
olution of similar cases in this circuit, which the district court
granted. Following our decisions in Granda v. United States, 990 F.3d
1272 (11th Cir. 2021), cert. denied, 142 S. Ct. 1233 (2022), and Foster
v. United States, 996 F.3d 1100 (11th Cir. 2021), cert. denied, 142 S. Ct.
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 4 of 8

-- 4 of 8 --

22-12222 Opinion of the Court 5
500 (2021), Breal argued that his case was distinguishable from
Granda and Foster because the essence of his convictions was based
on his imputed, not active, participation, making it more likely that
the jury relied on an invalid predicate offense. He also argued that
he had shown cause to overcome the procedural default because
his Davis argument was not reasonably available to counsel during
his direct appeal.
The government responded that Breal could not show cause
and prejudice because, as in Granda, the tools necessary for raising
a vagueness challenge to the residual clause in section 924(c) were
available to him, and the valid and invalid predicate offenses were
inextricably intertwined. It argued that, under Pinkerton v. United
States, 328 U.S. 640 (1946), Breal was liable for the reasonably fore-
seeable substantive offenses that his co-conspirators committed in
furtherance of the conspiracy, so his physical absence during the
substantive offenses did not distinguish his case from Granda.
The magistrate judge recommended denying Breal’s motion
because, based on Granda, his argument was procedurally de-
faulted, and he could not establish cause and prejudice or actual
innocence. The district court overruled Breal’s objections, adopted
the report and recommendation, and denied his motion to vacate.
The district court issued Breal a certificate of appealability as to
“whether the procedural default rule bars relief in this case.”
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 5 of 8

-- 5 of 8 --

6 Opinion of the Court 22-12222
II. STANDARD OF REVIEW
The application of the doctrine of procedural default to a
motion to vacate presents a mixed question of fact and law, which
we review de novo. Granda, 990 F.3d at 1286.
III. DISCUSSION
A federal prisoner can move to vacate, set aside, or correct
his sentence on the “ground that . . . sentence was imposed in vio-
lation of the Constitution or laws of the United States.” 28 U.S.C.
§ 2255(a). A motion for collateral relief is subject to the doctrine of
procedural default. Granda, 990 F.3d at 1280. That doctrine bars a
prisoner from obtaining postconviction relief based on an argu-
ment that he could have raised at trial and on direct appeal. McKay
v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). A prisoner can
excuse his procedural default by establishing both “cause to excuse
the default and actual prejudice from the claimed error,” or actual
innocence. Granda, 990 F.3d at 1286.
Granda controls this appeal. Ordinarily, a prisoner can estab-
lish cause if his postconviction motion is based on a novel legal rule
that was unavailable to counsel on direct appeal. See id. In Granda,
we considered the issue whether a Davis challenge presented a
novel constitutional rule that provided cause to excuse the mo-
vant’s procedural default. We ruled that vagueness challenges to
criminal statutes were “commonplace” at the time of Granda’s di-
rect appeal in 2009, so Granda “did not then lack the ‘building
blocks’ of a vagueness challenge to the § 924(c) residual clause,”
and could not establish cause to excuse his default. Id. at 1287.
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 6 of 8

-- 6 of 8 --

22-12222 Opinion of the Court 7
Breal argues that his Davis challenge was unavailable during
his direct appeal in 2014. But he fails to explain how, if the building
blocks of a vagueness challenge were available to Granda at least
as early as 2009, those building blocks were unavailable to Breal
during his direct appeal five years later. Breal seeks to distinguish
his case from Granda based on his “prior attempts to file a 2255 Pe-
tition.” But whether Breal previously sought to collaterally attack
his section 924(c) conviction based on Dimaya or Johnson v. United
States, 135 S. Ct. 2551 (2015), matters not. To avoid procedural de-
fault, he was required to make this challenge “on direct appeal,” and,
to establish cause to excuse the default, he must establish that the
argument was unavailable “at the time of the default.” Granda, 990
F.3d at 1286 (emphasis added).
Breal also cannot establish prejudice or that actual inno-
cence excuses his procedural default. Breal argues that he is inno-
cent of the firearm offense because all of his predicate offenses are
invalid, except for his carjacking offense which he acknowledges is
a valid crime-of-violence predicate under our prior precedent. See
Steiner v. United States, 940 F.3d 1282, 1293 (11th Cir. 2019); In re
Smith, 829 F.3d 1276, 1280–81 (11th Cir. 2016). “Actual innocence
means factual innocence, not mere legal innocence.” Granda, 990
F.3d at 1292 (quoting Lynn v. United States, 365 F.3d 1225, 1235 n.18
(11th Cir. 2004)). To establish actual innocence, Breal must estab-
lish that no reasonable juror would have concluded that he pos-
sessed a firearm under any theory of liability in furtherance of the
valid predicate offense of carjacking. See id. Breal cannot do so.
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 7 of 8

-- 7 of 8 --

8 Opinion of the Court 22-12222
All of Breal’s “predicates are inextricably intertwined, arising
out of the same [] scheme.” Id. at 1280. Breal conspired with the
other conspirators to intercept and rob the victim. To effectuate
their goal, the other conspirators forced the victim at gunpoint into
the back of the victim’s car and drove the car to one of the con-
spirator’s homes. Indeed, as we explained in deciding Breal’s direct
appeal, the “substantive offense of carjacking was foreseeable be-
cause the original plan involved a carjacking. And the carrying or
use of a firearm during the carjacking . . . of a drug dealer was rea-
sonably foreseeable, based on the inherent dangers of the drug
trade and the planned violent conduct in abducting the victim.”
Breal, 593 F. App’x at 952. Because Breal cannot show
cause-and-prejudice or actual innocence, he cannot overcome his
procedural default.
IV. CONCLUSION
We AFFIRM the denial of Breal’s motion to vacate.
USCA11 Case: 22-12222 Document: 33-1 Date Filed: 05/09/2023 Page: 8 of 8

-- 8 of 8 --