United States v. Luis
| Docket Number | 16-cv-2405 (JMA),04-cr-939 (JMA) |
| Decision Date | 06 July 2023 |
| Parties | UNITED STATES OF AMERICA, v. JOSE DAVID LUIS, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Defendant Jose David Luis (“Defendant”) has filed a pro se petition that seeks to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C § 2255. See Motion to Vacate, ECF No. 496 (the “Petition”). For the reasons set forth below, the Petition is DENIED.
On September 10, 2007, Defendant entered a guilty plea to Count Nine of the second superseding indictment, which charged that Defendant, along with several other MS-13 members, caused the death of Genaro Venegas through the use of a firearm, in violation of 18 U.S.C. §§ 924(j)(1) and (2). (See Minute Entry, ECF No. 249; September 10, 2007 Transcript (“Plea Tr.”), ECF No. 252.) In the plea agreement, Defendant waived any challenge to his sentence or conviction on appeal or by collateral attack if the sentence imposed was three hundred twentyseven (327) months or less. (Plea Tr. at 11:18-21.)
On March 8, 2011, District Judge Leonard D. Wexler sentenced Defendant to two hundred sixty-two (262) months imprisonment and imposed a five (5) year term of supervised release to commence following his release from prison. (See Minute Entry, ECF No. 442; Judgment, ECF No. 446; March 8, 2011 Transcript ( ), ECF No. 519.) Defendant did not appeal his sentence or conviction. (Sent. Tr. At 9:6-12.)
On December 23, 2014, Defendant filed a petition to re-open his case in light of the Supreme Court's ruling in Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240 (2014). (See ECF No. 491.) On April 6, 2016, the Court determined that his petition lacked a procedural posture and construed it as a writ of habeas corpus made pursuant to 28 U.S.C. § 2255. (See ECF No. 495.) The Court denied Defendant's petition because he had “knowingly and voluntarily waived his right to collaterally attack his conviction and sentence pursuant to 28 U.S.C. § 2255” as part of his plea agreement. (Id.)
Defendant then filed the instant Petition on May 9, 2016, through which he seeks to collaterally attack and vacate his conviction and sentence pursuant to § 2255, the Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551 (2015). Defendant appears to argue that the conduct for which he was convicted has been retroactively rendered non-criminal by Johnson, thus requiring vacatur of his conviction and sentence. (See generally Petition.) The Government contends that the Petition should be denied because: (1) Defendant waived his right to collaterally attack his conviction and sentence; and (2) Johnson is inapplicable to Defendant's conviction and instant claim. (See ECF No. 497 (“Gov't Opp.”) at 2.)
After the parties briefed the instant motion, the Supreme Court handed down its decision in United States v. Davis,U.S. __, 139 S.Ct. 2319 (2019), where it struck down Section 924(c)'s residual clause as unconstitutional. As such, while not briefed by the parties, the Court considers Davis in its analysis of the Petition.
Section 2255 permits a prisoner in custody to move to vacate, set aside, or correct the sentence on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). To merit relief under Section 2255, a petitioner must demonstrate “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.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (internal quotation marks and citation omitted). The petitioner must also show that the constitutional error had “substantial and injurious effect” that caused “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks and citation omitted). Moreover, to “obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982); see also Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)).
Defendant challenges his conviction and sentence, arguing that his underlying conduct has been retroactively rendered non-criminal by Johnson, thus requiring its vacatur. The Government argues that: (1) Defendant waived his right to collaterally attack his conviction and sentence; and (2) even if he did not waive this right, Johnson is inapplicable to Defendant's instant claim.
As explained below, the Court finds that the collateral attack waiver in Defendant's plea agreement precludes a challenge to his conviction and sentence under Johnson and Davis. The Court also finds that, even absent this waiver, Defendant's claims based on Davis fail on the merits.
“Waivers of the right to appeal a sentence are presumptively enforceable.” United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). Waivers are found to be unenforceable “only in very limited situations, such as when the waiver was not made knowingly, voluntarily, and competently,” or “when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases...” Id. (internal quotation marks and citation omitted). The Second Circuit has also generally stated that waivers may be voided where there has been “[a] violation of a fundamental right,” such, for example, where “the sentence imposed was based on unconstitutional factors.” United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011).
The Government argues that Defendant's petition is barred by the plea agreement's collateral attack waiver. (ECF No. 497 at 9.) Defendant does not suggest that the waiver was not knowing or voluntary,[2] but maintains that he has a due process right to challenge his conviction and sentence based on the Supreme Court's ruling in Johnson. (ECF No. 496 at 2.)
The Second Circuit has held that collateral attack waivers preclude challenges to sentences based on Johnson. See Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016) (quoting United States v. Lee, 523 F.3d 104, 107 (2d Cir. 2008); United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005)) ( that “a defendant's ‘inability to foresee [a change in the law] does not supply a basis for failing to enforce an appeal waiver” and that “the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements'”). The Second Circuit, however, has not ruled on whether a plea agreement that waives appeal and collateral attacks is enforceable where a petitioner raises a Davis challenge to a Section 924(c) conviction.
District courts in the Second Circuit are divided over whether collateral attack waivers preclude challenges to convictions based on Davis and Johnson. Some have enforced collateral attack waivers and dismissed challenges to Section 924(c) convictions under Davis and Johnson based on such waivers, see United States v. Mazara, No. 10-cr-281, 2023 WL 144128, at *3-5 (E.D.N.Y. Jan. 10, 2023); Richardson v. United States, No. 3:19-cv-1499, 2021 WL 736416, at *11, n. 9 (D. Conn. Feb. 25, 2021); United States v. Welch, No. 17-cr-126, 2020 WL 6200168, at *3 (E.D.N.Y. Oct. 22, 2020), while others have refused to enforce such waivers where a defendant challenges a Section 924(c) conviction under Davis. See, e.g., United States v. Rivera, No. 08-cr-115, 2023 WL 1766209, at *1 (E.D.N.Y. Feb. 3, 2023) (collecting cases); Scalisi v. United States, No. 10-cr-46, 2022 WL 4058946, at *4 (E.D.N.Y. Sept. 2, 2022); United States v. McCarron, No. 15-cr-257, 2020 WL 2572197, at *3 .
Although the petitioner in Sanford only sought vacatur of his sentence under Johnson, the Court did not indicate that its reliance on a voluntary and knowing waiver to bar that challenge was limited to challenges to sentences. To the contrary, it cited, without limitation, prior case law for the proposition that “[a] defendant's knowing and voluntary waiver of the right to appeal or collaterally attack his conviction and/or sentence is enforceable.” Sanford, 841 F.3d at 580 ().
This Court concludes that Defendant's collateral attack waiver precludes a Davis challenge to his Section 924(c) conviction. This conclusion is supported by both Sanford and the district court decisions cited above that found such waivers barred challenges to convictions, as well as decisions from multiple circuits that have enforced collateral attack waivers to bar challenges to convictions based on Davis. See, e.g., Portis v. United States, 33 F.4th 331, 334 (6th Cir. 2022); United States v. Moore, No. 22-1899, 2022 WL 4361998, at *1 (8th Cir. Sept. 21, 2022); United States v. Brooks, No. 20-10401, 2022 WL 2871200, at *2 (5th Cir. July 21, 2022) (per curiam); King v. United States, 41 F.4th 1363, 1365 (11th Cir. 2022).
Additionally five justices of the Supreme Court-in a recent opinion denying a writ of certiorari-agreed that collateral attack waivers bar challenges to convictions based on Davis. See Grzegorczyk v. United States, 142 S.Ct. 2580 (2022) (...
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