Roque v. United States

          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 ...