Corbett v. United States
| Decision Date | 30 September 2019 |
| Docket Number | Case No. 3:15-cv-1461 (RNC) |
| Court | U.S. District Court — District of Connecticut |
| Parties | LARRY CORBETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
Petitioner Larry Corbett, a federal inmate, brings this action pro se under 28 U.S.C. § 2255 challenging his life sentence arising from the January 2008 kidnapping, robbery, and murder of George McPherson. Corbett argues that his convictions were imposed in violation of his Sixth Amendment right to effective assistance of counsel and that he is innocent of the crimes. He also moves to amend the petition. Finally, several procedural motions are pending. For reasons that follow, the motion to amend the petition is granted in part; however, the petition and the remaining motions are denied.
In February 2010, a grand jury returned a superseding indictment charging Corbett with six counts: (I) kidnapping resulting in death (18 U.S.C. § 1201(a)(1)); (II) premeditated murder (id. § 924(j)(1)); (III) felony murder (id. § 924(c), (j)(1)); (IV) interference with commerce through the use of violence (id. § 1951(a)); (V) possession with intent to distribute marijuana (21 U.S.C. § 841(a)(1), (b)(1)(D)); and (VI) using a firearm in relation to a drug trafficking offense (18 U.S.C. § 924(c)(1)(A)(iii)). Before trial, he moved to suppress inculpatory statements he made during a post-arrest interrogation. United States v. Corbett, 762 F. Supp. 2d 428, 429-30 (D. Conn. 2011). Judge Christopher Droney denied the motion. Id. at 437. Following a bench trial, Judge Droney found Corbett guilty on all counts except premeditated murder. United States v. Corbett, No. 3:10-CR-28 (CFD), 2011 WL 2144659, at *8 (D. Conn. May 31, 2011). Corbett received a total effective sentence of life plus ten years. On direct appeal, the Second Circuit affirmed both the district court's rejection of Corbett's motion to suppress and Corbett's conviction and sentence. United States v. Corbett, 750 F.3d 245, 246-47 (2d Cir. 2014). The Supreme Court denied Corbett's petition for writ of certiorari on October 6, 2014. Corbett v. United States, 135 S. Ct. 261 (2014).
In August 2015, Corbett moved for an extension of time in which to file his habeas petition. The Court ruled that it lacked jurisdiction to consider a motion for extension of time because Corbett had not yet filed a § 2255 motion. The Court noted that "[a] motion for extension of time can be treated as a section 2255 motion if it includes allegations that support aclaim for relief under that section," but found no grounds on which to so construe Corbett's motion. See Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001). Corbett timely filed his § 2255 petition on October 5, 2015. See 28 U.S.C. § 2255(f)(1). The petition requested appointment of counsel.
In April 2016, Corbett moved to vacate and replace his § 2255 petition. In June, he asked the Second Circuit for leave to file a successive habeas petition. In July, the Court of Appeals stayed the motion pending decisions in two similar cases. See United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), vacated and remanded, No. 18-6985, 2019 WL 2649797, at *1 (U.S. June 28, 2019); United States v. Hill, 890 F.3d 51 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019). The Court instructed Corbett that he would have 30 days from the date of those decisions to file a letter addressing their impact on his successive habeas motion.
In September 2016, Corbett moved the Second Circuit to provide him with copies of the decisions in Hill and Barrett once they were docketed; to extend his response deadline from 30 to 90 days from the date of the decisions; and for appointment of counsel. Later that month, the appellate court recognized that the initial § 2255 motion was pending before this Court and denied the motion for leave to file a successive § 2255 motion as unnecessary. The Second Circuit vacated the stay andtransferred the proceeding to this Court. Pending are Corbett's initial § 2255 motion (ECF No. 1); his motion to modify the initial petition (ECF No. 10, 14); his motions for copies of, and an extension to respond to, Hill and Barrett (ECF No. 13); and his request for appointment of counsel (ECF No. 1, 13).
To obtain relief under § 2255, a petitioner must show that his "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. A claim is cognizable under § 2255 if it involves a "fundamental defect which inherently results in a complete miscarriage of justice." Davis v. Hill, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Pursuant to the "mandate rule," a § 2255 motion generally does not provide an opportunity to relitigate issues that were raised and considered on direct appeal. Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). The mandate rule also "precludes re-litigation of issues impliedly resolved by the appellate court's mandate." Id. (citing United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001)). In addition, if a petitioner failed to raise a claim that was ripe for review on direct appeal, the claim is procedurally barred unless he "establishes (1) cause for the procedural default and ensuing prejudice or (2) actualinnocence." United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011).
To avoid dismissal, a motion under § 2255 "must contain assertions of fact that a petitioner is in a position to establish by competent evidence." United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987). A hearing is not required to adjudicate a § 2255 motion "where the allegations are insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous." United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970). Even where a "claim is not so clearly bereft of merit as to be subject to dismissal on its face," courts may decide a § 2255 motion on the basis of documentary evidence and affidavits. Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001).
In April 2016, Corbett moved to amend his § 2255 petition to retract unspecified "incomplete and confusing" claims and to add claims under Johnson v. United States, 135 S. Ct. 2551 (2015). He also raised Johnson in his motion before the Second Circuit. "[I]n general, when a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion" under Federal Rule of Civil Procedure 15. Ching v. United States, 298 F.3d 174, 177(2d Cir. 2002). Accordingly, I will construe the April 2016 motion (ECF No. 10) and the purported successive habeas petition transferred to me by the Second Circuit (ECF No. 14) as motions to amend.
The motions are granted in part and denied in part. "The court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). The government has provided no reason why the amendment should not be permitted.1 Moreover, the Court has an obligation to construe pro se filings "liberally" and to interpret such filings "to raise the strongest arguments that they suggest." Williams v. Annucci, 895 F.3d 180, 187 (2d Cir. 2018) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam)). Accordingly, I will consider Corbett's Johnson claim. However, the motion to retract unnamed other claims is denied for lack of specificity. This ruling accords with my obligation to construe Corbett's filings liberally because it allows me to consider all his arguments.
Also pending are Corbett's motions for an extension of time to update the Court after the decisions in Hill and Barrett andfor copies of those rulings (ECF No. 13). The motions are rendered moot by this order. Finally, Corbett's request for appointment of counsel is denied (ECF Nos. 1, 13). Appointment of counsel in habeas cases is discretionary. Counsel should be appointed when the interests of justice so require or an evidentiary hearing is warranted. See 18 U.S.C. § 3006A(a)(2)(B); Rules Governing Section 2255 Proceedings for the United States District Courts, R. 8(c). There is no particular need for counsel here.
Corbett raises a Johnson challenge to his conviction and sentence. The Supreme Court's decision in Johnson pertained to the Armed Career Criminal Act ("ACCA"), which created a sentencing enhancement when a violator has three or more convictions for a "serious drug offense" or a "violent felony." Johnson, 135 S. Ct. at 2555 (citing 18 U.S.C. § 924(e)(1)). The statutory definition of "violent felony" included a "residual clause" that Johnson held to violate due process. Id. at 2557.
Corbett's sentence did not include the ACCA enhancement, so Johnson does not directly apply. However, under 18 U.S.C. § 924(c) and (j)(1), either a crime of violence or a drug trafficking offense may serve as the predicate crime for felony murder through use of a firearm (count III). Judge Droney foundthe elements of felony murder to be satisfied by a crime of violence: Hobbs Act robbery under 18 U.S.C. § 1951 (count IV). Corbett argues that under the rationale of Johnson, 18 U.S.C. § 924(c)'s reference to a "crime of violence" is unconstitutional.
This argument is precluded by binding precedent. Section 924(c)(3) includes two definitions of a "crime of violence": the crime must be a felony that either (A) "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" (the "elements clause") or (B) "by its nature[] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" (the "residual clause"). The Supreme Court recently held the residual clause to be unconstitutionally vague. United States v. Davis, No. 18-431, 2019 WL 2570623, at...
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