Opinion
01-CR-0619 (VM), 16-CV-4816 (VM)
07-06-2016
Julio Cesar RODRIGUEZ, Petitioner, v. UNITED STATES of America, Respondent.
Julio Cesar Rodriguez, Butner, NC, pro se. Roy Raymond Kulcsar, Roy Kulcsar Attorney at Law, Winston Lee, Winston Lee Esq., New York, NY, for Petitioner. Aitan David Goelman, Assistant United States Attorney, Joan M. Loughnane, New York, NY, for Respondent.
Julio Cesar Rodriguez, Butner, NC, pro se.
Roy Raymond Kulcsar, Roy Kulcsar Attorney at Law, Winston Lee, Winston Lee Esq., New York, NY, for Petitioner.
Aitan David Goelman, Assistant United States Attorney, Joan M. Loughnane, New York, NY, for Respondent.
DECISION AND ORDER
VICTOR MARRERO, United States District Judge
Petitioner Julio Cesar Rodriguez ("Rodriguez") filed this motion pursuant to 28 U.S.C. Section 2255 (" Section 2255") to vacate, set aside, or otherwise correct his conviction and sentence. ("Motion," Dkt. No. 323.) Rodriguez is currently serving a sentence of 230 months imprisonment after pleading guilty to one count of attempting and conspiring to commit robberies in violation of 18 U.S.C. Section 1951. (See Dkt. Minute Entry for July 14, 2006.) Rodriguez claims he was denied his Sixth Amendment right to the effective assistance of counsel and also challenges the legality of his sentence in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the United States Supreme Court decision that voided the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. Section 924 (e)(2)(B)(ii) ("residual clause"), as unconstitutionally vague. (Id. at 4-5.) For the reasons discussed below, the Court DENIES Rodriguez's Motion in its entirety. I. BACKGROUND
The Court derives the factual and procedural summary below from the (1) Superseding Information dated July 12, 2006 (Dkt. No. 134); (2) Judgment in a Criminal Case dated August 13, 2007 (Dkt. No. 198); and (3) Petitioner's Brief in Support of his Motion, dated June 22, 2016 (Dkt. No. 323). Except where specifically referenced, no further citation to these sources will be made.
--------
By superseding information S5 01-Cr-619 ("Superseding Information") filed on July 12, 2006 (Dkt. No. 134), the Government charged Rodriguez with attempting and conspiring to commit robberies, in violation of 18 U.S.C. Section 1951 ("Count One"). Winston Lee of the Law Offices of Winston Lee ("Defense Counsel") was retained as Rodriguez's counsel and subsequently represented Rodriguez in all proceedings related to this case. On July 14, 2006, Rodriguez entered a guilty plea to Count One. (See Dkt. Minute Entry for July 14, 2006.)
The Court sentenced Rodriguez on August 13, 2007 to 230 months imprisonment followed by three (3) years supervised release. (See Dkt. Minute Entry for Aug. 13, 2007; Dkt. No. 198.) Rodriguez appealed his judgment of conviction (Dkt. No. 199), and on June 15, 2009, the United States Court of Appeals for the Second Circuit affirmed Rodriguez's conviction and sentence (Dkt. No. 244).
Rodriguez filed the instant Motion on June 22, 2016. Rodriguez alleges that: (1) he did not intelligently enter his guilty plea to Hobbs Act Robbery; (2) the Government presented insufficient evidence to satisfy the interstate commerce elements of Hobbs Act Robbery; (3) this Court erred in its application of the United States Sentencing Guidelines Section 3553(a) Factors; and (4) his sentence should be "effect[ed]" in light of Johnson . (Dkt. No. 323.)
For the reasons set forth below, the Court DENIES the Motion.
II. DISCUSSION
A. SECTION 2255 : TIMELINESS AS TO INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A person in federal custody may move to vacate, set aside, or correct his sentence if it was imposed in violation of "the Constitution or laws of the United States," or "the court was without jurisdiction to impose such sentence," or "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. Section 2255(a).
The Court notes that Rodriguez is a pro se litigant. As such, his submission must be held to "less stringent standards than formal pleadings drafted by lawyers." Ferran v. Town of Nassau , 11 F.3d 21, 22 (2d Cir.1993) (internal citation omitted). The Court must construe Rodriguez's submissions "liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe , 174 F.3d 276, 280 (2d Cir.1999) (internal quotation marks and citation omitted).
A pro se litigant, however, is not exempt "from compliance with relevant rules of procedural and substantive law." Boddie v. N.Y. State Div. of Parole , 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuck , 710 F.2d 90, 96 (2d Cir.1983) ). Therefore, under Rule 4(b) of the Rules Governing Section 2255 Proceedings, the Court has the authority to review and deny a Section 2255 motion prior to directing an answer "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. Section 2255 (2004) ; see Acosta v. Artuz , 221 F.3d 117, 123 (2d Cir.2000).
To be timely, a Section 2255 Motion must be filed within one year of the latest of "the date on which the judgment of conviction becomes final," Section 2255(f)(1), or "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," Section 2255(f)(3).
The Second Circuit issued a mandate dismissing Rodriguez's appeal on June 15, 2009, and the judgment became final 90 days thereafter, when the time to petition the Supreme Court for certiorari expired. Accordingly, the Court finds that Rodriguez's conviction became final on September 14, 2009 and that, with the exception of Rodriquez's claim based on Johnson , his Motion was required to be filed by September 14, 2010. See 135 S.Ct. 2551. Therefore, Rodriguez's claims based on ineffective assistance of counsel are time barred.
B. SECTION 2255 : JOHNSON CLAIM
In Johnson , the Supreme Court held that the residual clause in ACCA was unconstitutional. See ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Under ACCA, a defendant convicted of being a felon in possession of a firearm, a violation pursuant to Section 922(g) of ACCA, faces a sentencing enhancement to a mandatory minimum of fifteen (15) years imprisonment if he has three or more previous convictions for a "violent felony." 18 U.S.C. Section 924(e)(1). A violent felony, as defined in the ACCA's residual clause, "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. Section 924(e)(2)(B). Johnson voided this residual clause as unconstitutionally vague because the clause "leaves grave uncertainty about how to estimate the risk posed by a crime," Johnson , 135 S.Ct. at 2557, and "leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony[,]" id. at 2558.
Johnson strictly applies only to a defendant who is convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g). In the instant case, Rodriguez was not convicted of being a felon in possession of a firearm pursuant to 922(g). (See Dkt. No. 198.) Therefore, Johnson does not apply, and the Supreme Court's ruling in Johnson is not relevant on that basis.
However, the Second Circuit has held that Johnson applies when a defendant is sentenced as a career offender under Section 4B1.1 of the United States Sentencing Guidelines, if at least one of the prior convictions was a "crime of violence," a phrase defined in United States Sentencing Guideline Section 4B1.2. See United States v. Maldonado , 636 Fed.Appx. 807, 810–11 (2d Cir.2016) ("[T]he operative language of Guideline § 4B1.2(a)(2)'s residual clause and the ACCA's residual clause is identical."). Again, Johnson is not applicable here because Rodriguez was not sentenced as a career offender under Section 4B1.1. (Dkt. No. 198.)
III. ORDER
For the reasons stated above, it is hereby
ORDERED that the motion (Dkt. No. 323) of petitioner Julio Cesar Rodriguez ("Rodriguez") to vacate, set aside, or otherwise correct his conviction and sentence pursuant to 28 U.S.C. Section 2255 is DENIED .
The Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States , 369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
As Rodriguez has not made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. Section 2253(c)(1)(B).
The Clerk of Court is directed to terminate any pending motions and to close this case.