United States District Court, D. Connecticut
RULING ON PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
BOND ARTERTON, U.S.D.J.
Angel Figueroa filed a Motion to Vacate, Set Aside, or
Correct Sentence ("Mot. to Vacate") [Doc. # 1]
pursuant to 28 U.S.C. § 2255 in light of the holding in
Johnson v. United States, 576 U.S.__, 135
S.Ct. 2551 (2015) ("2015 Johnson"), which
struck down the Residual Clause of the Armed Career Criminal
Act ("ACCA"), 18 U.S.C. § 942(e) as
unconstitutionally vague. Petitioner argues that his prior
Connecticut convictions for robbery in the second degree,
attempted assault in the first degree, and assault in the
second degree no longer qualify as predicate "crime[s]
of violence" and therefore that his sentence should be
vacated. Respondent United States (the
"Government") opposes the Motion, arguing that: 1)
Petitioner waived his collateral attack rights, and 2)
Petitioner's three prior convictions continue to qualify
as violent felonies and therefore he remains subject to the
ACCA's enhanced penalties. For the following reasons, Mr.
Figueroa's petition must be denied.
August 20, 2004, police responded to a citizen report that a
man named Angel was brandishing a firearm and driving a red
Ford Escort. However, as the police approached the vehicle it
sped away, prompting a chase through several city streets
that ended only after Figueroa (the driver) ran a red light,
collided with another vehicle on the road, and struck a
parked car. (PSR ¶ 5.) The police recovered a loaded
rifle and a plastic bag with additional bullets.
October 26, 2004, a federal grand jury returned a one-count
indictment charging Figueroa with unlawful possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1). (See Indictment [Doc. # 1],
No. 3:04-CR-314.) On February 24, 2005, Figueroa pleaded
guilty to this charge. (Plea Agreement [Doc. # 14] at 1, No.
3:04-CR-314.) A "felon-in-possession" conviction
normally carries a statutory maximum ten-year term of
imprisonment. 18 U.S.C. § 924(a)(2). The Government,
however, sought a sentencing enhancement under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which
calls for a 15-year mandatory minimum sentence where a
defendant has any combination of three prior convictions for
serious drug offenses or crimes of violence.
written plea agreement, the parties agreed that Figueroa
faced a mandatory minimum penalty of fifteen years of
imprisonment under the ACCA. (Plea Agreement at 2.) Moreover,
Figueroa expressly waived his right to appeal or collaterally
attack his sentence if that sentence did not exceed fifteen
years of imprisonment:
The defendant acknowledges that under certain circumstances
he is entitled to appeal his conviction and sentence. 18
U.S.C. § 3742. It is specifically agreed that the
defendant will not appeal or collaterally attack in any
proceeding, including but not limited to a motion under 28
U.S.C. § 2255 and/or § 2241, the conviction or
sentence of imprisonment imposed by the Court if that
sentence does not exceed 15 years. The defendant expressly
acknowledges that he is knowingly and intelligently waiving
his appellate rights.
(Plea Agreement at 4.)
October 4, 2005, the district court (Kravitz, J.) sentenced
Mr. Figueroa to the mandatory minimum term of imprisonment of
fifteen years. On October 11, 2005, judgment entered.
21, 2007, Mr. Figueroa filed a notice of appeal, which the
Second Circuit dismissed as untimely. Then on June 19, 2012,
Mr. Figueroa filed a motion to set aside, correct, or vacate
his sentence under 28 U.S.C. § 2255. (Mot. to Vacate
[Doc. # 1], No. 03:12-CV-897.) On November 9, 2012, this
Court denied Mr. Figueroa's § 2255 motion as
untimely and as barred by his knowing and voluntary waiver of
his collateral attack rights. (Ruling on Mot. to Vacate [Doc.
# 6], 03:12-CV-897.)
26, 2015, the Supreme Court decided 2015 Johnson,
striking down the ACCA's residual clause as
unconstitutionally vague. Relying on 2015 Johnson,
on March 22, 2016, Figueroa filed a motion seeking
authorization to file a second § 2255 motion in the
Second Circuit. Having received that authorization, Figueroa
now seeks resentencing. In the supplemental memorandum he
filed on January 11, 2017, Figueroa specifically argues that
without the ACCA's residual clause, he does not have
three ACCA predicate convictions and therefore should be
resentenced to time served.
2255 of title 28 of the United States Code provides, in
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground 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 ...