Negron v. United States

• Decision Date: 18 February 2021
• Docket Number: 99-cr-1044-1 (LDH)
• Citation: 520 F.Supp.3d 296
• Court: U.S. District Court — Eastern District of New York
• Parties: Jose NEGRON, Petitioner, v. UNITED STATES of America, Respondent.

520 F.Supp.3d 296

Jose NEGRON, Petitioner,

v.UNITED STATES of America, Respondent.

99-cr-1044-1 (LDH)

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

Signed February 18, 2021

Bernadette Miragliotta, Nicole M. Argentieri, Robert Polemeni, United States Attorneys Office, Brooklyn, NY, for Respondent.

MEMORANDUM AND ORDER

LaSHANN DeARCY HALL, United States District Judge:

Petitioner Jose Negron petitions pursuant to 28 U.S.C. § 2255 for a writ of habeas corpus vacating his 18 U.S.C. § 924(c) conviction and sentence.

BACKGROUND

On June 19, 2000, Petitioner pleaded guilty before the Honorable Jack B. Weinstein pursuant to a plea agreement to Counts Twelve, Thirteen and Twenty-Five of a twenty-five count Superseding Indictment filed July 26, 2000 (the "Indictment"). (See June 19, 2020 Guilty Plea Tr. ("Tr."), ECF No. 535-1.) Count Twelve charged Petitioner with kidnapping Reina Figueroa, Gerardo Figueroa, and Adriana Figueroa, in violation of N.Y. Penal Law §§ 135.25 and 20.00, in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). (Indictment ¶¶ 55, 56, ECF No. 91.) Count Thirteen charged Petitioner with conspiracy to commit two robberies, including the robbery of Romar Check Cashing in June 1999, in violation of 18 U.S.C. § 1951. (Id. ¶ 57.) Count Twenty-Five charged Petitioner with the use of a firearm in connection with the predicate offenses charged in Counts Nine, Ten, Eleven, Twelve, and Twenty-Four, in violation of 18 U.S.C. § 924(c). (Id. ¶ 69.) Relevant to the instant petition is Count Twenty-Four, which charged Petitioner with attempted Hobbs Act robbery of Romar Check Cashing in violation of 18 U.S.C. § 1951. (Id. ¶ 68.)

During the plea colloquy, Judge Weinstein asked Petitioner, "Tell me what you did that constituted these three crimes?" (Tr. 14:15–16.) Petitioner then described his role in the "conspiracy and kidnapping of the Figueroa family," which was charged in Count Twelve. (Id. 14:17–18:19.) Several times during the colloquy, Petitioner strayed from an account of that kidnapping and referred to the separate kidnapping of Figueroa Cruz, husband of Reina Figueroa and father to Gerardo Figueroa and Adriana Figueroa, as well as the attempted robbery of Romar Check Cashing, where Figueroa Cruz worked. (See, e.g. , id. 15:5–11.) At one point, the Court asked, "why did you agree to kidnap this person?" to which Petitioner responded, "attempt a robbery," referring to the attempted robbery of Romar Check Cashing. (Id. 16:10–12.) The Government then interjected and stated, "your honor, he's pleading to Count 12, the wife, and two children." (Tr. 16:16–17.) The Court then redirected Petitioner to the kidnapping charge related to the Figueroa family:

THE COURT: How about the wife and two children, were they taken as part of the agreement you made with these others?

DEFENDANT: Yes, your honor.

...

THE COURT: And who carried the gun?

DEFENDANT: One of my defendants ... numerous of them, Gonzalez, Pratt.

(Id. 16:18–17:4.) Next, the Government asked the court to elicit an additional allocution related to the kidnapping. (Id. 17:15–17.) Petitioner then further detailed his role in the kidnapping. (Id. 17:21–18:17.) At the end of this exchange, the Government stated, "I think that satisfies Count 12 [kidnapping] and Count 25 [brandishing a firearm]." (Id. 18:18–19.) Petitioner then went on to describe the robbery conspiracy charged in Count Thirteen. (Id. 18:22–19:8.) Petitioner did not reference any firearm used in connection with the robbery conspiracy. (See id. )

On March 14, 2001, Judge Weinstein sentenced Petitioner to 319 months’ imprisonment followed by five years’ supervised release. (Judgment, ECF No. 202.) Specifically, Petitioner received 235 months’ imprisonment on Count Twelve, to run concurrent with a 235-month sentence on Count Thirteen. (Id. ) Petitioner received an additional seven years’ imprisonment (84 months) on Count Twenty-Five, to run consecutively to the sentences imposed on Counts Twelve and Thirteen. (Id. )

Petitioner's first request for a writ of habeas corpus was denied on May 14, 2008. (ECF No. 419.) On June 23, 2016, Petitioner filed the instant petition and simultaneously filed in the Second Circuit a request for permission to file a second successive § 2255 petition.¹ (Pet., ECF No. 531; see also ECF No. 489-1.)

Petitioner seeks to vacate his conviction and sentence for the § 924(c) charge (Count Twenty-Five) pursuant to the Supreme Court's decisions in Johnson v. United States , 576 U.S. 591, 593, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and Welch v. United States , 578 U.S. 120, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016). (Pet. 5.) Section 924(c) imposes a mandatory consecutive term of imprisonment when a defendant uses or carries a firearm during and in relation to, or possesses a firearm in furtherance of, inter alia , a "crime of violence." 18 U.S.C. § 924(c)(1)(A). As defined by § 924(c)(3), a "crime of violence" is a federal felony that:

(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 "Force Clause"], or

(B) that 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"].

Id. § 924(c)(3). In Johnson , the Supreme Court ruled that the residual clause of the Armed Career Criminal Act ("ACCA"), which defined the term "violent felony" to include any felony that "involves conduct that presents a serious potential risk of physical injury to another," was unconstitutionally vague. 576 U.S. at 593, 596–99, 135 S.Ct. 2551. In Welch , the Supreme Court subsequently held that Johnson "has retroactive effect in cases on collateral review." Welch v. United States , 578 U.S. 120, 136 S. Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

The instant petition was stayed for approximately four years. (USCA Mandate, ECF No. 527.) In that time, the Supreme Court decided United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). In Davis , the Court extended the rationale of Johnson and Welch to § 924(c)(3)(B), holding that § 924(c) ’s residual clause was also unconstitutionally vague. Davis , 139 S. Ct. 2319, 2326–27. Accordingly, a predicate crime is a "crime of violence" under § 924(c) only if it qualifies under the statute's Force Clause.

On June 12, 2020, the Second Circuit found that Petitioner made a prima facie showing that the proposed § 2255 motion satisfied the requirement of § 2255(h) and granted his motion for leave to file a successive § 2255 motion. (USCA Mandate.) In granting Petitioner's motion for leave to file a successive petition, the Second Circuit directed that:

The district court should determine, in addition to all other relevant issues, what predicate crime(s) supported the § 924(c) conviction. Although the indictment listed five predicates, Petitioner's guilty plea colloquy strongly suggests that there ultimately was only a single predicate, the kidnapping charged in count 12 (although a related robbery was also mentioned).

(Id. 1) The Second Circuit went on to state:

Assuming the § 924(c) predicate is determined to be kidnapping in violation of New York Penal Law § 135.25, the district court also should consider United States v. Praddy , 729 F. App'x 21, 23-24 (2d Cir. 2018) (summary order) when reviewing Petitioner's challenge, in light of case law suggesting that kidnapping by deception, as defined in New York law, has actually been prosecuted in New York, see People v. Valero , 134 A.D.2d 635, 636 (2d Dep't 1987) ("The crime of kidnapping in the first degree requires that there be an abduction[,] which is merely a serious form of restraint [that] can be accomplished by means of deception." (citations omitted)); People v. Valero , 466 N.Y.S.2d 600, 602 (Suffolk Cty. Ct. 1983), and recent case law analyzing whether the similar federal definition of kidnapping, under 18 U.S.C. § 1201(a), satisfies the § 924(c) force clause ....

(Id. 2.)

STANDARD OF REVIEW

Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, permits a prisoner who was sentenced in federal court to move the court which imposed the sentence to vacate, set aside, or correct the sentence on the grounds that the sentence: (1) "was imposed in violation of the U.S. Constitution or the laws of the United States;" or (2) "was entered by a court without jurisdiction to impose the sentence;" or (3) "exceeded the maximum detention authorized by law;" or (4) "is otherwise subject to collateral attack." 28 U.S.C. § 2255 ; see also Adams v. United States , 372 F.3d 132, 134 (2d Cir. 2004) (quoting same). A § 2255 movant bears the burden to prove the claims in his § 2255 motion by a preponderance of the evidence. See Triana v. United States , 205 F.3d 36, 40 (2d Cir. 2000) (citing Harned v. Henderson , 588 F.2d 12, 22 (2d Cir. 1978) ) ("It is, of course, well settled that in federal habeas corpus proceedings the burden of proving a constitutional claim lies with the petitioner and that the nature of that burden is the customary civil one of a preponderance of the evidence.").

DISCUSSION

I. Waiver of Appealability

A defendant's knowing and voluntary waiver of the right to collaterally attack his conviction and/or sentence is presumed enforceable. Sanford v. United States , 841 F.3d 578, 580 (2d Cir. 2016) (per curiam). Indeed, the Second Circuit has noted that "exceptions to the presumption of the enforceability of a waiver ... occupy a very circumscribed area of ... jurisprudence." United States v. Gomez–Perez , 215 F.3d 315, 319 (2d Cir. 2000). The Government argues Petitioner knowingly and voluntarily waived his right to appeal or collaterally attack his sentence, to which no exception applies. (Gov't’s Opp'n Pet. ("Gov't’s Opp'n") 7–8, ECF No. 538.) The Court disagrees.

"A violation of a fundamental right warrants voiding an appeal waiver." United States v. Riggi , ...