Hinnant v. United States
| Decision Date | 23 October 2020 |
| Docket Number | Case No. 2:19-cv-19028 (BRM) |
| Parties | WALLACE HINNANT, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of New Jersey |
Before this Court is Petitioner Wallace Hinnant's ("Petitioner" or "Hinnant") pro se motion to vacate, set aside or correct his federal sentence pursuant to 28 U.S.C. § 2255. (See ECF 1.) For the reasons set forth below and for good cause appearing, Petitioner's § 2255 motion is DENIED and a certificate of appealability shall not issue.
The factual background giving rise to Petitioner's federal convictions is from retired Judge Cavanaugh's opinion which denied Petitioner's first § 2255 motion in 2008. Judge Cavanaugh recited the facts underlying Petitioner's crimes as follows:
Petitioner was a member of the "Sex, Money, Murder" unit within the "United Blood Nation" gang (the "Gang"). On May 30, 2003, Petitioner and a co-member of the Gang agreed and proceeded to rob two individuals ("Victim 1," and "Victim 2," and collectively, "Victims"). Petitioner withdrew his firearm as he approached the Victims. Petitioner shot Victim 1 as Victim 1 attempted to escape and Petitioner ordered Victim 2 to the ground and demanded that Victim 2 remove his clothes and shoes. Petitioner then repeatedly struck Victim 2's head and face with a handgun. Once Victim 2 complied by removing his clothes and shoes, Petitioner took Victims 2's paraphernalia and fled the scene. Petitioner was promoted to third in command of the Gang as a result of the attacks.
Hinnant v. United States, No. 07-1783, 2008 WL 2705003, at *1 (D.N.J. July 8, 2008). Petitioner pled guilty to three counts and was sentenced in April 2006 to 207 months imprisonment. Petitioner received a sentence of 87 months imprisonment on Count I and II for attempted murder and assault with a dangerous weapon, both in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(3) and (5) ("Count I" and "Count II"), and a 120-month consecutive for discharging a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) ("Count III"). The crime of violence connected to Count III was Petitioner's violent crime in aid of racketeering ("VICAR") attempted murder conviction in Count I. (See ECF No. 10-3 at 9.)
Thereafter, Petitioner filed a notice of appeal in October 2006. (See Crim. No. 05-17 ECF 20.) The Third Circuit ultimately determined the notice of appeal was untimely, but remanded the matter back to the District Court to determine whether it should be considered as a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. (See id. ECF 24.) On August 6, 2007, Judge Hochberg construed the notice of appeal as a § 2255 motion.1 (See id. ECF 25.) Nevertheless, prior to Judge Hochberg's August 6, 2007, Petitioner had filed a § 2255 motion in April 2007, which was assigned to Judge Cavanaugh. (See No. 07-1783.) Subsequently, the matter before Judge Hochberg (No. 07-3690) was terminated as duplicative, and the matter proceeded before Judge Cavanaugh.
Judge Cavanaugh denied Petitioner's § 2255 motion in August 2008. See Hinnant, 2008 WL 2705003. Petitioner did not appeal Judge Cavanaugh's decision to the United States Court of Appeals for the Third Circuit.
In August 2019, Petitioner filed an application for leave to file a second or successive § 2255 motion with the Third Circuit. (See C.A. No. 19-2908.) On October 9, 2019, the Third Circuit granted Petitioner's request and this matter was opened in this Court on the same day.
Petitioner seeks to have Count III of his judgment of conviction reversed. More specifically, Petitioner states this conviction is unconstitutional pursuant to United States v. Davis, 139 S. Ct. 2319 (2019) because 18 U.S.C. § 924(c)(3)(B) has been determined by the United States Supreme Court to be void for vagueness. (See ECF 1 at 4.) Respondent filed a response in opposition to Petitioner's § 2255 motion. (See ECF 10.) Respondent argues Petitioner's Davis claim is: (1) procedurally defaulted; and/or (2) fails on the merits. Thereafter, Petitioner filed a reply in support of his § 2255 motion. (See ECF 11 & 12). The matter is now ready for a decision.
A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds . . . [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "In considering a motion to vacate a defendant's sentence, 'the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (citing R. Governing § 2255 Cases R. 4(b)). A District Court "is required to hold an evidentiary hearing 'unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (quoting Forte, 865 F.2d at 62). The Third Circuit has stated this standard creates a "reasonably low threshold for habeas petitioners to meet." Id. (quoting United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001))). Accordingly,this Court abuses its discretion "if it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to whether the movant is entitled to relief." Id. (citing McCoy, 410 F.3d at 134). Nevertheless, a District Court need not hold an evidentary hearing on a motion to vacate where "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
Respondent argues Petitioner's Davis claim is procedurally defaulted because he could have, but did not raise this claim on direct appeal. "A petitioner's failure to raise a particular error either at trial or on direct appeal generally precludes the assertion of that error for the first time in a collateral attack under Section 2255." Kikumura v. United States, 978 F. Supp. 563, 574 (D.N.J. 1997); see also Oelsner v. United States, 60 F. App'x 412, 414 (3d Cir. 2003) (). Indeed, the United States Supreme Court has held a collateral attack under § 2255 is not a substitute for a direct appeal. See Foster v. Chatman, 136 S. Ct. 1737, 1758 (2016) (Alito, J. concurring) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). If a § 2255 motion "rests on issues not raised at trial or on direct appeal, the petitioner bears the burden of demonstrating both 'cause' to excuse the procedural default and that 'actual prejudice' will result from the errors at issue." Kikumura, 978 F. Supp. at 574-75 (citing Frady, 456 U.S. at 167). As one court in this District has noted:
To show "cause," a petitioner must demonstrate "'some objective factor external to the defense' that impeded his or her ability to raise the issue [on direct appeal]." Salcedo v. United States, No. 04-4527, 2005 WL 2654083, at * 3 (D.N.J. Oct. 13, 2005) (quoting Coleman v. Thompson, 501 U.S. 722, 753, 111 S .Ct. 2546, 115 L. Ed. 2d 640 (1991)) (internal quotation marks omitted). For example, "a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . , or that some interference by officials . . .made compliance impracticable, would constitute cause under this standard." Coleman, 501 U.S. at 753 (internal quotation marks and citations omitted); cf. Murray v. Carrier, 477 U.S. 478, 486, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) ().
Rudow v. United States, No. 11-5741, 2012 WL 2891075, at *2 (D.N.J. July 16, 2012). "To show actual prejudice, a defendant must 'demonstrate that the error worked to his 'actual and substantial disadvantage,' not merely that the error created a 'possibility of prejudice.''" United States v. Jimenez-Segura, No. 16-805, 2020 WL 4514584, at *8 (E.D. Va. Aug. 4, 2020) (quoting Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494, 106 S. Ct. 2639, 91 L .Ed. 2d 397 (1986))). Alternatively, a petitioner can also overcome procedural default if he can establish "actual innocence." See Bousley v. United States, 523 U.S. 614, 622-23 (1998).
Petitioner did not argue on direct appeal his conviction under Count III should be vacated because § 924(c)(3)(B) is void for vagueness. As to whether Petitioner has shown "cause" to overcome this, many courts have noted a petitioner adequately establishes cause in this circumstance because Davis (and relatedly Johnson v. United States, 576 U.S. 591 (2015)) was decided well after a petitioner's judgment of conviction became final. See, e.g., Hammoud v. United States, No. 19-2541, 2020 WL 3440649, at *2-3 (M.D. Fla. June 23, 2020); United States v. Harris, 205 F. Supp. 3d 651, 658-59 (M.D. Pa. 2016). In these cases then, a void for vagueness argument was not reasonably available at the time of a petitioner's direct appeal. This Court will presume arguendo Petitioner has adequately established cause for similar reasons as those courts. Nevertheless, for the reasons described below, even if Petitioner has established cause for his procedural default, he fails to show actual prejudice.
In Count III, Petitioner was convicted of discharging a firearm in connection with a crime of violence, a violation...
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