Figueroa v. United States
| Decision Date | 06 May 2020 |
| Docket Number | 16-CV-4469 (VEC) |
| Parties | DOMINGO ROSARIO FIGUEROA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Domingo Rosario Figueroa moves, pursuant to 28 U.S.C. § 2255, to vacate his convictions on Counts Six, Seven, and Eight of the third superseding indictment, and for resentencing. See Am. Pet., Dkt. 29. The Government concedes that vacatur of the conviction on Count Six is warranted, but it opposes vacatur and resentencing on Counts Seven and Eight. Gov. Opp., Dkt. 31 at 1. For the following reasons, the Amended Petition is GRANTED in part and DENIED in part. Defendant's conviction on Count Six is VACATED. Petitioner's remaining claims are DENIED.
In December 1991, Petitioner was accused of kidnapping two sex workers and attempting to obtain ransom from one of their pimps. See Am. Pet. at 1-2; Presentence Report ("PSR") ¶¶ 12-20. On November 8, 1994, a third superseding indictment was returned charging Petitioner with eight counts: (1) conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c); (2) kidnapping of LaJoclyn Yvette Walker, in violation of 18 U.S.C. § 1201(a)(1); (3) kidnapping of Lori Cooper, in violation of 18 U.S.C. § 1201(a)(1); (4) conspiracy to make extortionate threats in violation of 18 U.S.C. § 371; (5) making extortionate threats, in violation of 18 U.S.C. § 875(b); (6) using and carrying a firearm during and in relation to the kidnapping of LaJocelyn Yvette Walker, as charged in Count Two, in violation of 18 U.S.C. § 924(c); (7) using and carrying a firearm during and in relation to the kidnapping of Lori Cooper, as charged in Count Three, and in relation to the transmission of extortionate threats, as charged in Count Five, in violation of 18 U.S.C. § 924(c); and (8) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). See Am. Pet., Dkt. 29, Ex. A.
At trial, with respect to Counts Six and Seven, the judge instructed the jury that they could not "find the defendant guilty of these firearms charges unless you find him guilty of committing or aiding and abetting one or more of the underlying offenses referred to in each firearms count." Am. Pet., Dkt. 29, Ex. B at 771. With respect to Count Eight, the jury was instructed that it was "not necessary that the government prove that the defendant knew that the crime was punishable by imprisonment for a period of more than one year." Id., Ex. F. On November 23, 1994, a jury convicted Petitioner on all eight counts; the verdict form did not indicate whether the Count Seven conviction was based on the kidnapping charge, the extortionate threats charge, or both. See id., Ex. C.
On June 15, 1995, Petitioner was sentenced to an aggregate term of 70 years imprisonment. See id., Ex. D. The trial judge determined that Petitioner was a career offender; the Sentencing Guidelines established a total offense level of 37 and a criminal history category of VI. Id. at 13. That Guidelines calculation yielded a then-mandatory guidelines range of 360 months to life imprisonment. Id. Petitioner had a prior conviction under § 924(c), which resulted in two mandatory consecutive twenty year sentences on each of Counts Six and Seven. Id.; PSR ¶¶ 26, 57. Petitioner is currently 58 years-old and has served over 28 years in prison. Am. Pet. at 3.
Petitioner seeks vacatur of his convictions on Counts Six and Seven under 18 U.S.C. § 924(c) in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019). Petitioner also argues that his conviction on Count Eight for violating 18 U.S.C. § 922(g) is void under Rehaif v. United States, 139 S. Ct. 2191 (2019).
Pursuant to 28 U.S.C. § 2255, a petitioner "may move the court which imposed [petitioner's] sentence to vacate, set aside or correct the sentence." Relief under Section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Count Six charged Petitioner with violating 18 U.S.C. § 924(c), alleging that Petitioner used a firearm during and in relation to a "crime of violence." The predicate crime of violence underlying Count Six was kidnapping, in violation of 18 U.S.C. § 1201(a)(1). See Am. Pet. at 2. Petitioner argues that conviction is void under Johnson v. United States and United States v. Davis. The Government does not object to vacatur, and the Court agrees that Petitioner's conviction on Count Six must be vacated.
In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act was "unconstitutionally vague." 135 S. Ct. 2551, 2557 (2015). Similarly, in Davis, the Supreme Court invalidated as unconstitutionally vague the "residual clause" of 18U.S.C. § 924(c)(3)(B), leaving only the "elements clause" intact. 139 S. Ct. 2319, 2336 (2019). As a result, a § 924(c) conviction survives only if the predicate offense was a "crime of violence" under the remaining definition of § 924(c)(3). An offense is a "crime of violence" if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Here, the parties agree that kidnapping is not a crime of violence, because the statute can be violated without the use of force, such as by "inveigl[ing]" or "decoy[ing]." Gov. Opp. at 4.
Accordingly, because Count Six of the indictment relied solely on kidnapping as the predicate offense, Petitioner's conviction on Count Six must be vacated.
Count Seven also charged a violation of 18 U.S.C. § 924(c), but the alleged predicate crimes of violence were kidnapping, in violation of 18 U.S.C. § 1201(a)(1), and making extortionate threats in violation of 18 U.S.C. § 875(b). Petitioner reiterates his argument that the conviction is void under Johnson and. Davis. The Court disagrees.
Petitioner raises several arguments in his Amended Petition and supplemental briefs as to why the Court must vacate his conviction on Count Seven. At the outset, Petitioner argues that his claim is not procedurally defaulted; Petitioner claims that there is cause and prejudice sufficient to excuse his failure to raise the claim on direct appeal. Am. Pet. at 9-11. Next, Petitioner argues that, even if the Court finds that Petitioner has failed to demonstrate cause and prejudice, Petitioner is "actually innocent" of the offense charged in Count Seven. Id. at 11-19. In arguing that he is "actually innocent," Petitioner argues that making extortionate threats is not a crime of violence. Id. at 12-19. In the alternative, Petitioner claims that, even if it is a crime of violence, his mere reference to a gun during a telephone conversation does not constitute "use"of a weapon "during and in relation to a crime of violence" within the meaning of 18 U.S.C. § 924(c) as it existed at the time of the crime. Id. at 13. Finally, Petitioner argues that, even assuming making extortionate threats is a crime of violence and his reference to a gun constitutes "use" of a weapon during such a crime, because the jury could have relied instead on kidnapping as the underlying predicate offense, Count Seven must be vacated. See Pet. Letter, Dkt. 36. The Court will address these arguments in turn.
A defendant is generally barred from "collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal." United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011). When a defendant has procedurally defaulted a claim by failing to raise it on direct review, however, the claim may still be raised in a habeas petition if the defendant can "demonstrate either cause and actual prejudice, or that he is actually innocent." Gupta v. United States, 913 F.3d 81, 84 (2d Cir. 2019) (). Here, Petitioner does not dispute that he failed to raise his Johnson claim on direct appeal. Although the Court agrees that Petitioner has established cause for his failure, the Court finds that Petitioner cannot demonstrate actual prejudice.
Cause exists when the Supreme Court "'overturns a longstanding and wide practice to which th[e] Court ha[d] not spoken, but which a near unanimous body of lower court authority had expressly approved.'" Reed v. Ross, 468 U.S. 1, 17 (1984) (quoting United States v. Johnson, 457 U.S. 537, 551 (1982)). The Supreme Court's decisions in Johnson and Davis announced a "new constitutional rule, representing a clear break with the past," such that Petitioner's failure to have "pressed such a claim [earlier] is sufficiently excusable to satisfy the cause requirement. Ross, 468 U.S. at 17 (internal quotation marks omitted); see also Camacho v.United States, No. 17-CV-5199, 2019 WL 3838395, at *2 (S.D.N.Y. Aug. 15, 2019) (). As such, the Court finds that the Petitioner has sufficiently demonstrated cause for his failure to raise the claim on direct appeal.
Petitioner has not, however, demonstrated actual prejudice sufficient to excuse the procedural default. In order to establish prejudice, Petitioner must show "not merely [that] the [jury] instruction [was] undesirable, erroneous, or even universally condemned, but rather whether the ailing...
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