United States v. Godfrey

• Decision Date: 21 July 2022
• Docket Number: 17-Cr-511 (SHS),21-Cv-4071 (SHS)
• Parties: UNITED STATES OF AMERICA, v. TAVON GODFREY, Defendant
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, v. TAVON GODFREY, Defendant

Nos. 17-Cr-511 (SHS), 21-Cv-4071 (SHS)

United States District Court, S.D. New York

July 21, 2022

OPINION & ORDER

SIDNEY H. STEIN, U.S. DISTRICT JUDGE

I Background...................................................................................................2

A. Charges and Plea.........................................................................................2

B. Post-Conviction Motions..............................................................................3

II. Required Fact Finding on 2014 Shooting......................................................3

A. Elements of Assault......................................................................................3

B. Godfrey's Allocutions...................................................................................5

III. Motion for Relief Under 28 U.S.C. § 2255..................................................6

A. Procedural Bar.............................................................................................6

1. Actual Innocence to the Sole Count of the Superseding Information................7

2. Actual Innocence to Charges Dropped Pursuant to the Plea Agreement..........10

B. Merits...........................................................................................................11

1. Standard........................................................................................................12

2. Analysis.........................................................................................................13

IV. Conclusion...................................................................................................16.

Tavon Godfrey has moved under 28 U.S.C. § 2255 to vacate his conviction for violating 18 U.S.C. § 924(c), which prohibits the use or possession of a firearm during a crime of violence or drug trafficking offense. He relies on the U.S. Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), that invalided the residual clause of Section 924(c) and separately asserts that the sole predicate offense underlying the conviction-assault with a deadly weapon in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(3)-cannot form the basis of his conviction under Section 924(c) because the 2014 shooting he allocuted to cannot meet the elements of assault under New York law. The government opposes Godfrey's motion, urging that his claims are procedurally defaulted and that Godfrey's claims would, in any event, fail on the merits. The Court finds that Godfrey has overcome the barrier of procedural default because he is actually innocent; he has also carried his burden on the merits of his Section 2255 claim. Accordingly, the Court grants Godfrey's motion and vacates his conviction.

I. Background

A. Charges and Plea

In January 2018, Godfrey was indicted on charges of racketeering conspiracy and a firearms offense. (ECF No. 119.) Count One charged Godfrey and eleven others with racketeering conspiracy in violation of 18 U.S.C. 1962(d). Under Count One, Godfrey allegedly engaged in the following six acts:

[1] "On or about July 8, 2011 ... TAVON GODFREY ... shot and injured an individual in a rival gang." (ECF No. 119, at 6.)

[2] "In or about 2012, ... GODFREY fired multiple shots at Victim-4." (id. at 7.)

[3] "In or about 2012, ... DAMAR MORALES, GODFREY, CC-1, CURTIS CLARK, GOODWIN, and CASTILLO, the defendants, shot and aided and abetted the shooting of rival gang members." (id. at 7.)

[4] "In or about 2014, in the vicinity of 308 East 145th Street, Bronx, New York, GODFREY' fired shots at rival gang members while riding on a bicycle operated by MORALES." (id. at 8.)

[5] "In or about late 2014, in the vicinity of the Mitchel Houses in the Bronx, New York, CC-1, GODFREY, and SABLE shot and aided and abetted the shooting of a rival gang member." (id. at 8.)

[6] "In or about June 2015, ... GODFREY engaged in a shootout with rival gang members." (id. at 9.)

Count Three charged Godfrey and ten others with a firearms offense covering the period of 2010 through August 2017 in violation of 18 U.S.C. §§ 924(c)(1)(A). (ECF No. 119, 11-12.) The count included two predicate offenses: (i) a "crime of violence" of the "racketeering conspiracy charged in Count One of this Indictment"; and (ii) "a conspiracy to distribute and possess with intent to distribute marijuana and cocaine based in a form known as 'crack" in violation of 21 U.S.C. §§ 841, 846. (ECF No. 119, at 11.)

On April 24, 2018, in connection with a plea agreement, the government filed a Superseding Information that charged Godfrey with a single count: violating 18 U.S.C. § 924(c)(1)(A)(i), (ii), (iii) and 2 as follows:

In or about 2014, in the Southern District of New York, TAVON GODFREY, the defendant, during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, namely an assault with a deadly weapon committed for the purpose of maintaining and increasing his position in Square Gang, an enterprise engaged in racketeering activity, which assault with a deadly weapon was in violation of Title 18, United States Code, Section 1959(a) (3), knowingly did use and carry a firearm, and in furtherance of such crime, did possess a firearm, and did aid and abet the use, carrying, and possession of a firearm, which was brandished and discharged.

(ECF No. 175.)

That same day, U.S. Magistrate Judge Stewart Aaron presided over Godfrey's plea allocution and recommended that this Court accept the plea of guilty. (Apr. 24, 2018 Hr'g Tr., ECF No. 205.) However, on May 17, 2018, before the Court had accepted Godfrey's plea, his attorney wrote that Godfrey "wishe[d] to withdraw his guilty plea." ECF No. 197; Fed. R. Crim. P. 11(d)(1). That letter was followed by another from Ms. Walsh five days later, which stated that her earlier letter was "premature, albeit in good faith" and that "Mr. Godfrey does not wish to withdraw his April 24, 2018 plea but wishes to proceed with sentencing should this Court accept the plea and recommendation" of the magistrate judge. (ECF No. 208.)

Two days later-on May 24-the Court held a proceeding in which it questioned Godfrey under oath as to (i) whether he genuinely wanted to enter, and have the Court accept, his guilty plea and (ii) the specifics of what he had done that made him guilty of Count One of the Superseding Information. (May 24, 2018 Hr'g Tr., ECF No. 244.) At the conclusion of that proceeding, the Court accepted Godfrey's guilty plea. (May 24, 2018 Hr'g Tr.; ECF No. 211.)

In October 2018, this Court sentenced him to 120 months imprisonment-the mandatory minimum-to be followed by 48 months of supervised release for "Possessing, Brandishing and Discharging a Firearm in F Lirtherance of a Crime of Violence" under 18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 1959(a)(3). (ECF No. 312.)

B. Post-Conviction Motions

In September 2019, Godfrey moved in the U.S. Court of Appeals for the Second Circuit for leave to file a successive 28 U.S.C. § 2255 motion to vacate his conviction under 18 U.S.C. § 924(c) on grounds of the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319, 2336 (2019), even though he had never previously filed a Section 2255 petition. (ECF No. 382-1.) The Second Circuit denied this motion as "unnecessary," since Godfrey had not filed a previous Section 2255 motion and transferred the matter to this Court, noting that "it is not clear from the transcripts of Petitioner s guilty plea hearings that Petitioner admitted to committing a consummated assault. The district court, in the first instance, should do any necessary factfinding." See Mandate of U.S.C. A, ECF No. 382 (citing Apr. 24, 2018 Hr'g Tr.; May 24, 2018 Hr'g Tr.) (internal citations omitted)

Assisted by counsel, Godfrey has now moved to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. (ECF No. 395.)

II. Required Fact Finding on 2014 Shooting

As delineated by the Second Circuit, the initial inquiry for this Court is whether Godfrey "admitted to committing a consummated assault." Mandate of U.S.C.A, at 2.

A. Elements of Assault

The sole predicate for the 18 U.S.C. § 924(c) conviction was assault under 18 U.S.C. § 1959(a)(3) and "[a]s the Second Circuit has noted, a violation of Section 1959(a) requires proof that the 'predicate acts constitute state law crimes.'" Dejesus v. United States, No. 11 CR 974-03 (CM), 2019 WL 6711478, at *3 (S.D.N.Y. Dec. 10, 2019) (quoting United States v. Carillo, 229 F.3d 177,185 (2d Cir. 2000)). Therefore, in Godfrey's case, a crime of "assault" under 18 U.S.C. § 1959(a)(3) requires evidence that defendant committed an assault as defined by New York law.

New York recognizes three degrees of assault, each with distinct subdivisions that contain a unique combination of elements. See N.Y Penal L. §§ 120.10,120.05,120.00. In Godfrey's case, the charging instruments do not identify which type of assault Godfrey allegedly committed. Cf. United States v. White, Docket No. 1:17-cr-00611, ECF No. 169 (charging defendant with a 18 U.S.C. § 1959(a) violation, in part, due to an alleged second degree assault under N.Y. Penal L. § 120.05). Moreover, at Godfrey's plea allocution before Magistrate Judge Aaron, the government did not reference either (i) one or more New York assault statutes or (ii) the required elements to prove assault under any of New York's three assault statutes. (Apr. 24, 2018 Hr'g Tr. 10.) Rather, the government outlined three elements to prove the crime charged;

First, that the defendant committed a crime of violence that could be prosecuted in federal court. Here, an assault with a deadly weapon in aid of racketeering.

Second, that the

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