United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT.
1]
Hon.
Vanessa L. Bryant, United States District Judge.
Jose
Roque (“Roque”), petitions for his sentence to be
vacated pursuant to 28 U.S.C. § 2255. On October 1,
2014, this Court sentenced Roque to 180 months in prison for
one count of unlawful possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) and 18
U.S.C. § 924(a)(2) in United States v. Roque,
case number 3:11-cr-35. The Court determined that Roque was a
career criminal under the Armed Career Criminal Act
(“ACCA”). [Dkt. 4 at 2-3]. Therefore, Roque was
subject to an enhanced Guidelines range of 262 to 327 months,
and a mandatory minimum of 180 months. Id. The Court
sentenced Roque to 180 months of incarceration. Id.
at 3. Roque remains incarcerated.
Roque
now argues that his sentence is unconstitutional because the
residual clause of the ACCA clause defining a violent felony
is void for vagueness under the new rule announced in
Johnson v. United States 135 S.Ct. 2551 (2015) and
made retroactively applicable to cases on collateral review
in Welch v. United States, 136 S.Ct. 1257, 1268
(2016).
Roque’s
§ 2255 Petition is DENIED for two independent reasons:
because of Roque’s procedural default and because the
petition fails on its merits.
I.
Legal Standard for Habeas Review
Under
Section 2255, a prisoner in federal custody may petition the
court which imposed the sentence to vacate, set aside, or
correct the sentence. 28 U.S.C. § 2255. Relief under
Section 2255 is generally available “only for 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.” Graziano v. United
States, 83 F.3d 587, 590 (2d Cir. 1996) (internal
quotation marks and citations omitted) (cited in United
States v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018)).
Section 2255 provides that a district court should grant a
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C.§ 2255(b).
“In
general, a claim may not be presented in a habeas petition
where the petitioner failed to properly raise the claim on
direct review.” Zhang v. United States, 506
F.2d 162, 166 (2d Cir. 2007) (“A motion under §
2255 is not a substitute for an appeal.”). “An
exception applies, however, if the defendant establishes (1)
cause for the procedural default and ensuring prejudice or
(2) actual innocence.” U.S. v. Thorn, 659 F.3d
227, 231 (2d Cir. 2011); see Bousley v. United
States, 523 U.S. 614, 622 (1998) (“Where a
defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas
only if the defendant can first demonstrate either cause and
actual prejudice, or that he is actually innocent.”)
II.
Background
A.
Legal Developments
The
ACCA statutorily increases the sentences of felons in
possession who have been previously convicted of three or
more crimes are either “violent felonies” or
“serious drug offenses.” The sentence enhancement
provision of the ACCA provides:
In the case of a person who violates section 922(g) of this
title and has three previous convictions… for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen
years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).
18 U.S.C. §924(e)(1). The ACCA defines “violent
felony” for purposes of the sentence enhancement
provision as follows:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
adult, that--
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential ...