Celaj v. United States

• Decision Date: 01 February 2021
• Docket Number: 1:13-cv-1290 (ALC)
• Parties: Din CELAJ, Plaintiff, v. UNITED STATES of America, Defendants.
• Court: U.S. District Court — Southern District of New York

516 F.Supp.3d 351

Din CELAJ, Plaintiff,

v.UNITED STATES of America, Defendants.

1:13-cv-1290 (ALC)

United States District Court, S.D. New York.

Signed February 1, 2021

Jeffrey G. Pittel, Barstow Plaza, Great Neck, NY, Jeffrey G. Pittell, Maher & Pittell LLP, Bayside, NY, for Plaintiff.

Louis Anthony Pellegrino, U.S. Attorney Office, New York, NY, for Defendants.

OPINION AND ORDER

ANDREW L. CARTER, JR., United States District Judge:

A jury convicted Celaj of two counts of Hobbs Act Robbery, one count of Conspiracy to Commit Hobbs Act Robbery, and two counts of Attempted Hobbs Act Robbery. In addition, pursuant to 18 U.S.C. § 924(c), the jury convicted him of one count of Discharging a Firearm, one count of Brandishing a Firearm, one count of Possession of a Firearm. 924(c) compelled the government to prove that each of the three firearms offenses was linked to Celaj's commission of a crime of violence. The government tethered the discharging count to one of the Hobbs Act robberies, the brandishing count to one of the attempted Hobbs Act robberies, and the possession count to the other attempted Hobbs Act robbery.

Attacking his convictions pursuant to 28 U.S.C. § 2255, Celaj claims that his trial counsel was ineffective in five ways and that his § 924(c) convictions are invalid since they are based on crimes that are not crimes of violence.

In his initial habeas petition, Celaj raised two ineffective assistance claims based on trial counsel's failure to properly advise him with respect to a plea offer and trial counsel's refusal to allow Celaj to testify in his own defense. The Court grants an evidentiary hearing on his plea-bargaining claim but denies his testifying claim. The three additional ineffective assistance claims raised in amended petitions are denied as time-barred.

Examining the 924(c) convictions requires an appreciation that, as a society, we do not punish thoughts—no matter how nefarious or lurid—as crimes. Every criminal statute requires an act before a defendant may be convicted.

To commit Attempted Hobbs Act Robbery, a defendant need not perfect the robbery, but she must take a "substantial step" toward the completion of the offense. Not every step involved in planning or executing a robbery is a violent one. But some of these non-violent, preliminary steps qualify as a substantial step, establishing the minimum conduct needed to sustain a conviction for Attempted Hobbs Act Robbery. Therefore, since the government is never obligated to prove that the defendant's conduct—not thoughts—manifested the use, attempted use, or threatened use of physical force, Attempted Hobbs Act Robbery is not a crime of violence as defined in 18 U.S.C. § 924 and cannot serve as a predicate for a conviction under that statute.

Accordingly, the two § 924(c) convictions attached to Celaj's Attempted Hobbs Act Robbery convictions are VACATED. However, as discussed below, his § 924(c) conviction for discharging a firearm in the commission of a completed Hobbs Act Robbery stands.

BACKGROUND

Law enforcement arrested Celaj on July 8, 2007. (07-cr-837). On September 5, 2007, a grand jury indicted him on ten criminal counts including one count of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (b)(1) (Count I); one count of Hobbs Act robbery in violation of 18 U.S.C. § 1951 (b)(1) (Count II); one count of attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(b)(1) (Count III); two counts of conspiracy to violate the Controlled Substances Act in violation of 21 U.S.C. §§ 812, 841(a), and 841(b)(1)(C) (Counts IV and V); one count of conspiracy to transport stolen motor vehicles in violation of 18 U.S.C. § 371 (Count VI); one count of mail fraud and one count of conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341, 1342 (Counts VII & VIII); and two counts of using a firearm in connection with a crime of violence in violation of 18 U.S.C. 924(c) (Counts 9 & 10). (Id. at ECF 13 or "Orig. Indictment").

Chart 1—Offenses Charged in the Original Indictment

Count	Offense	Applicable Mandatory Sentence
I	Conspiracy to Commit Hobbs Act Robbery (18 U.S.C. § 1951)
II	Hobbs Act Robbery (18 U.S.C. § 1951)
Robbery of money and marijuana in the Bronx
III	Attempted Hobbs Act Robbery (18 U.S.C. § 1951)
Attempted Robbery of cocaine in Manhattan
IV	Conspiracy to Violate Controlled Substance Act (21 U.S.C. § 846)
V	Conspiracy to Violate Controlled Substance Act (21 U.S.C. § 846)
VI	Conspiracy to Transport Stolen Motor Vehicles (18 U.S.C. § 2313)
VII	Conspiracy to Commit Mail Fraud (18 U.S.C. § 1341)
VIII	Conspiracy to Commit Mail Fraud (18 U.S.C. §§ 1341, 1342)
IX	18 U.S.C. § 924(c)(1)(A)(iii)	10 years consecutive to sentence imposed in Count I
Discharge of firearm during commission of offense in Count I
X	18 U.S.C. § 924(c)(1)(A)(iii)	25 years consecutive to sentence imposed in Count II
Brandishing of firearm during commission of offense in Count II

Before trial, the government offered Celaj a plea agreement. There is no dispute that in the course of extending the offer, the government informed trial counsel, Jeremy Schneider, that if Celaj rejected the offer, the government would supersede the Indictment, adding additional substantive Hobbs Act Robbery and § 924(c) charges. The parties also do not dispute that trial counsel communicated the offer to Celaj; however, Celaj alleges that trial counsel failed to inform him of the post-trial sentencing exposure, specifically as it related to the government's threat to supersede the indictment. (13-cv-1290, ECF 1).

Schneider disputes Celaj's depiction of their communications. In an affirmation submitted to the Court, trial counsel states that he informed Celaj of the government's threat and that a superseded indictment "significantly increased the mandatory minimum sentence [he] would face if convicted." (13-cv-1290, ECF 55 at 26–33 or Schneider Aff. ¶13).

Celaj rejected the deal and the government superseded the indictment. (07 Cr. 837 at ECF No. 102, or Sup. Indictment). Relevant to this case, the new indictment dismissed what was originally Count III (attempted Hobbs Act Robbery) and added two new attempted Hobbs Act Robbery counts (Sup. Indictment Counts IV and VI) as well as two new § 924(c) counts for using a firearm in connection with the attempted and Hobbs Act robberies. (Sup. Indictment Counts V and VII). Accordingly, under the new indictment, Celaj faced a mandatory minimum sentence of 82 years.

Chart 2—Offenses Charged in the Superseded Indictment

Count	Offense	Applicable Mandatory Sentence
I	Conspiracy to Commit Hobbs Act Robbery (18 U.S.C. § 1951)
II	Hobbs Act Robbery (18 U.S.C. § 1951)
Robbery of money and marijuana in the Bronx
III	18 U.S.C. § 924(c)(1)(A)(ii)	7 years consecutive to sentence imposed in Count II
Discharge of firearm during commission of offense in Count II
IV	Attempted Hobbs Act Robbery (18 U.S.C. § 1951)
Attempted Robbery of Bobby Brown in Long Island
V	18 U.S.C. § 924(c)(1)(A)(ii); (C)(1)	25 years consecutive to sentence imposed in Count IV
Brandishing a firearm during commission of offense in Count IV
VI	Attempted Hobbs Act Robbery—Substantive Offense
Attempted Robbery near Sayville
VII	18 U.S.C. § 924(c)(1)(A)(I); (C)(I)	25 years consecutive to sentence imposed in Count IV
Possession of a firearm in during commission of offense in Count VI
VIII	Hobbs Act Robbery (18 U.S.C. § 1951)
Robbery in Pennsylvania
IX	18 U.S.C. § 924(c)(1)(A)(iii)	25 years consecutive to sentence imposed in Count VIII
Discharge of firearm during commission of offense in Count I
X	Conspiracy to Violate Controlled Substance Act (21 U.S.C. § 846)
XI	Conspiracy to Transport Stolen Motor Vehicles and to Receive, Possess, Conceal, Store, Barter, Sell, and Dispose of Stolen Motor Vehicles (18 U.S.C. § 2312 & § 2313)
XII	Transport of Stolen Motor Vehicles (18 U.S.C. § 2312)
XIII	Conspiracy to Commit Mail Fraud (18 U.S.C. § 1341)

During trial, the government and trial counsel entered into a stipulation providing:

IT IS HEREBY STIPULATED AND AGREED by and among the United States of America, by PREET BHARARA, United States Attorney for the Southern District of New York, through John T. Zach and Arlo Devlin-Brown, Asssitant United States Attorneys, of counsel, and DIN CELAJ, the defendant, by and through his attorney, Jeremy Schneider, Esp., that marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area.

The stipulation helped to enable the government to prove the interstate commerce elements of the Hobbs Act Robbery charges. Celaj provides that he did not agree to the stipulation. (13-cv-1290, ECF 28 or Supp. Aff. ¶ 13).

Following a jury trial in this district in front of Judge Patterson, Celaj was convicted of all but two of the Superseding Indictment's 13 counts. Specifically, the jury acquitted Celaj of Counts VIII and IX for Hobbs Act Robbery and the corresponding § 924(c) count. (7-cr-837, ECF 161 or Judgment).

Judge Patterson sentenced Celaj to imprisonment for nine one-month sentences to run concurrently on Counts I, II, III, IV, VI, X, XI, XII, and XIII, and for two 25-year sentences to run consecutively on Counts V and VII for a total of 601 months. (Judgment at 3). Judge Patterson also sentenced Celaj to three years supervised release for each count to run concurrently. (Id. at 4).

Celaj appealed his conviction and sentence, both of which were affirmed by the Second Circuit on February 27, 2012. U.S. v. Celaj , 649 F.3d 162 (2d Cir. 2011). The Supreme Court subsequently denied his petition for a Writ of Certiorari on February 27, 2012. Celaj v. U.S. , 565 U.S. 1235, 132 S.Ct. 1636, 182 L.Ed.2d 233 (2012).

On February 25, 2013, Celaj filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. (13 Civ. 1290 at ECF No. 1). The petition argued two separate grounds for habeas relief, both of which relied on the claim that Celaj received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution....