Opinion
08CV2088 (JBW).
May 12, 2008
MEMORANDUM ORDER
I. Introduction
Jose Negron moves pursuant to 18 U.S.C. to convert his previously filed motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to a 28 U.S.C. § 2255 petition. The Rule 60(b) motion was filed as an initial collateral attack on the judgment and conviction. The motion was dismissed and Negron was advised that he should instead file a § 2255 petition. The dismissal was affirmed on appeal.
Counsel for the instant motion was appointed. The court conditionally converted the Rule 60(b) motion to a § 2255 petition. A non-evidentiary hearing was held on April 8, 2008. Negron participated via telephone. Negron's previously filed and dismissed Rule 60(b) motion is converted to a § 2255 petition. The § 2255 petition is dismissed on the merits. A certificate of appealability is denied.
II. Factual Background A. Crimes
Negron's conviction arises out of a series of criminal activities of a violent criminal enterprise headed by him. See Presentence Report ("PSR") ¶ 2. The first instance occurred in February 1998. Negron identified a check cashing store in Brooklyn and, with others, made several attempts to rob a particular employee of the store. Id. ¶ 8. On the third attempt, with Negron's instructions from a nearby vehicle, his associates were able to gain entry into the store but were thwarted by a burglar alarm. Id. ¶ 10-11. A firearm was brandished in connection with this attempted robbery. Id. ¶ 13.
A second robbery occurred on February 24, 1998. Id. ¶ 15. At an apartment building where Negron worked as a security guard, Negron identified a wealthy tenant and proposed that his associates execute the robbery while he was on duty. Id. ¶ 14. While his associates forcefully entered the tenant's apartment armed with handguns, Negron kept in telephone contact with them and arranged for a manual elevator to be waiting for them upon completion of the crime. Id. ¶ 16, 18. After tying up the family, the robbers took with them jewelry and a little over $5,000. Id. ¶ 17-19.
A third robbery occurred on June 2, 1998. Negron and two others entered an electronics store in Brooklyn dressed as a carpenters.Id. ¶ 21. After tying up the employees and threatening them with two firearms, the crew stole over $50,000 in consumer electronics. Id. ¶ 22.
In early 1999, Negron returned to the check cashing store targeted in the first robbery and surveyed the location. Id. ¶ 23. On February 26, 1999, Negron's associates, armed with a handgun and a stun gun, kidnapped the owner's wife and held her hostage until the owner allowed them access to the safe. Id. ¶ 24-25. The associates stole $60,000 from the safe. Id. ¶ 25.
In April 1999, Negron developed the idea of robbing another check cashing store. Id. ¶ 27. On April 26, 1999, Negron and others surveyed the location. Id. The following day, Negron drove one of his associates to the store while others traveled in a second vehicle. Id. After attacking a store employee and forcing him into their vehicle, Negron's associates drove the victim to a deserted location; Negron followed. Id. ¶ 28. The perpetrators forced the employee to open the safe at the store. Stolen was approximately $65,000 from the safe. Id. ¶ 29.
After two weeks of planning, on June 16, 1999, Negron with others kidnapped a man they believed was the owner of a third check cashing store. Id. ¶ 31. Negron and associates took the man hostage at an apartment in the building where Negron worked as a superintendent. Id. After keeping him restrained overnight and threatening him with weapons, Negron's associates retired to the kidnapped man's home and restrained his wife and two minor children. Id. ¶ 33-34. Eventually they brought the man back to the check cashing store in an attempt to force him to open the safe. Id. ¶ 36. Shortly thereafter, the crew was arrested. Id. ¶ 37-39.
B. Conviction
On June 19, 2000, Negron pled guilty to three counts — counts twelve (kidnapping in aid of racketeering), thirteen (robbery conspiracy) and twenty-five (use of a firearm during a robbery) — of a twenty-five count superseding indictment pursuant to a plea agreement. These counts charged Negron with violations of sections 1959(a)(1), 1951(a) and 924(c) of Title 18 of the United States Code. See Superseding Indictment ¶¶ 56, 57, 69, Docket Entry No. 91. Count twenty five related to Negron's knowing and intentional brandishing of firearms in furtherance of the crimes of violence charged in counts nine, ten, eleven, twelve, and twenty-four. See id. ¶ 69.
The government calculated that Negron would not receive a five-level adjustment for brandishing a firearm in connection with count twelve because the kidnapping conduct was included in the § 924(c) violation charged in count twenty five. See Plea Agreement executed June 19, 2000 ¶ 2, attached as Ex. B to Government's Response to Negron's Motion, Docket Entry No. 401. Instead, he would receive the five-level adjustment for brandishing a firearm in connection with each of the six robberies charged in count thirteen. Id. The government predicted Negron's criminal history category to be at level I and the applicable guidelines range of imprisonment to be between 210 and 262 months for counts twelve and thirteen, to be followed by a mandatory minimum consecutive term of imprisonment of seven years on count twenty five. Id.
On March 14, 2001, Negron was sentenced to 316 months' imprisonment. He received 232 month concurrent sentences on counts twelve and thirteen, and a seven years' sentence for count twenty five, to run consecutively to the 232 month sentences on other counts. See Transcript of March 14, 2001 Sentencing ("Tr. Sentencing"), Docket Entry No. 407. This sentence was within the range predicted by the government in the plea agreement. Id. Negron's conviction was affirmed by the Court of Appeals for the Second Circuit on June 17, 2004. See Mandate of the Court of Appeals for the Second Circuit dated Mar. 16, 2004, Docket Entry No. 302.
C. Initial Collateral Attack
On January 11, 2005, Negron filed a pro se motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See Negron's Motion under Rule 60(b) dated Jan. 11, 2005, Docket Entry No. 317 ("Negron's Rule 60(b) Motion"). He alleged ineffective assistance of trial and appellate counsel and improper application of sentencing enhancements in violation of the Sixth Amendment and the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004). Id. By order dated May 9, 2005, the court dismissed the Rule 60(b) motion on grounds that the matter was incorrectly brought under a federal rule of civil procedure. See Order dated May 9, 2005, Docket Entry No. 327. The court noted that "the only avenue to address these claims is apparently a habeas petition under section 2255 of title 28 of the United States Code." Id.
The Court of Appeals for the Second Circuit upheld the dismissal of Negron's Rule 60(b) motion. See Negron v. United States, 164 F. App'x 158 (2d Cir. 2006) (summary order). The court noted that:
Negron's Rule 60(b) motion was correctly dismissed because the Federal Rules of Civil Procedure 'govern the procedure in the United States district courts in all suits of a civil nature. . . .' Fed.R.Civ.P. 1 (emphasis added). Thus, Rule 60(b) cannot afford Negron relief from his judgment of conviction in a criminal case. While Rule 60(b) may be employed in certain narrow circumstances to attack the integrity of a civil proceeding that denies a petition to vacate a judgment of conviction under 28 U.S.C. § 2255, see, e.g., Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004), Negron's Rule 60(b) motion does not challenge the denial of his Section 2255 motion, which, in fact, he voluntarily withdrew.Id. at 158-59.
D. Instant Motion
Negron did not pursue a § 2255 petition as this court had suggested. Instead, on October 15, 2007, he filed a pro se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). See Negron's § 3582 motion dated Oct. 15, 2007, Docket Entry No. 398. Negron argued that the federal sentencing guidelines were inappropriately applied in the sentencing proceedings in this court. Id. at 3-4. Counsel was appointed on October 30, 2007.
Negron argued that section 2K2.4 of the United States Sentencing Guidelines ("U.S.S.G.") was not applied properly. See Negron's § 3582 motion dated Oct. 15, 2007, Docket Entry No. 398. Application note 2 provides that "if the defendant is convicted for an 18 U.S.C. § 924(c) offense corresponding to the underlying offense, any specific offense characteristic for possession, use or discharge of a firearm is not applied in respect to the underlying offense." On November 1, 2000, the following language was added:
If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characterisitic for possession, brandishing, use or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guidelines accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under 1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. 924(c).
Application Note 2, U.S.S.G. § 2K2.4 (as amended Nov. 1, 2000).
The government raised both procedural and substantive arguments opposing Negron's § 3582 motion. See Response in Opposition dated Nov. 20, 2007, Docket Entry No. 401. In papers dated December 21, 2007, Negron conceded that amendments to U.S.S.G. § 2K2.4 were in effect at the time of his sentencing. See Letter dated Dec. 21, 2007, Docket Entry No. 408, at 5. Instead, he requested that the court convert his previously filed Rule 60(b) motion to a petition pursuant to § 2255 of Title 28 of the United States Code. Id.
Negron's § 3582 motion was denied by order dated December 28, 2007. See Order dated Dec. 28, 2007, Docket Entry No. 409. The court conditionally granted Negron's request to convert his previously filed 60(b) motion, subject to argument by the parties. Id.
A non-evidentiary hearing was held on April 8, 2008. Negron participated via telephone.
III. Conversion of Rule 60(b) Motion to § 2255 Petition
"Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize [it] in order to place it within a different legal category." Castro v. United States, 540 U.S. 375, 381 (2003); United States v. Detrich, 940 F.2d 37, 38 (2d Cir. 1991) ("[T]he pleadings of a pro se inmate are to be construed liberally."). District courts may construe such motions liberally in order to "avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis." Castro, 540 U.S. at 381-82.
Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "district courts routinely converted post-conviction motions of prisoners who unsuccessfully sought relief under some other provision of law into motions made under 28 U.S.C. § 2255" and then considered the § 2255 petition on its merits. Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998). Converting post-conviction motions frequently occurred when a pro se litigant sought relief under a statute that could not accord such relief. Id.; see e.g., Detrich, 940 F.2d at 38 (construing a motion under Fed.R.Crim.P. 35(a) as a § 2255 petition). The conversion avoided frustrating pro se petitioners with legal formalities forcing them to replead their motions.Adams, 155 F.3d at 583.
The enactment of the AEDPA restricted a petitioner's ability to file second or successive writs of habeas corpus. Second or successive applications may be heard only if certified by the court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255(h); see also 28 U.S.C. § 2244(b)(2). Construing a motion as a § 2255 petition may adversely impact the petitioner's ability to later file a § 2255 motion if he so desires. See Adams, 155 F.3d at 583 ("[A] conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated.").
The Supreme Court and the Court of Appeals for the Second Circuit have imposed some procedural obligations upon district courts prior to converting a pleading to a § 2255 motion because of the potentially detrimental consequences to the petitioner. In construing a pro se pleading as a request for relief under 28 U.S.C. § 2255, a district court is required to:
[N]otify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.Castro, 540 U.S. at 383; see also Adams, 155 F.3d at 584 ("[D]istrict courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized.").
While Rule 60(b) has an "unquestionably valid role to play in habeas cases," Gonzales v. Crosby, 545 U.S. 524, 534 (2005), it cannot afford relief from a criminal conviction because the Federal Rules of Civil Procedure "govern the procedure in the United States district courts in all suits of a civil nature." Fed.R.Civ.P. 1; see also Negron v. United States, 164 Fed. App'x. 158-59 (2d Cir. 2006). This court denied, and the court of appeals affirmed the denial of, Negron's pro se Rule 60(b) motion on the ground that it was not the appropriate venue of relief in this case.
In this instance, Negron, as a pro se litigant, filed a Rule 60(b) motion that alleged ineffective assistance of trial and appellate counsel and improper sentencing enhancements. He did not appear to be aware of the impropriety of filing a Rule 60(b) motion:
[The petitioner] is aware that there are similarities of a 60(b) Motion and a Title 28 U.S.C. § 2255 (sic), however, the Petitioner would like to advise the Honorable court that he believes that the Motion under 60(b) is to challange (sic) the errors committed at trial during the sentencing phase and further to argue against a judgment that is no longer equitable . . .
Negron's Rule 60(b) Motion, at 1A (emphasis added). Negron was clearly aware that the two motions were similar but different. Without any legal training or expertise, he was unable to select the appropriate label to characterize his claims. Construing this motion liberally in order to "create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis," Castro, 540 U.S. at 382, it would have been appropriately converted to a § 2255 motion. Negron should not be penalized for his misinterpretation of formal procedural requirements. He also did not appear to be aware that he could convert his motion to a § 2255 petition after this court denied the motion.
Since Negron has moved to convert his Rule 60(b) motion to a § 2255 petition, the notice requirements of Adams, 155 F.3d at 584 do not apply here; nonetheless, the procedural requirements were followed. This court conditionally granted conversion of the Rule 60(b) motion giving Negron over months of notice with ample time to withdraw his request. In his letter dated March 26, 2008, Negron explicitly recognized the hazards associated with recharacterizing his Rule 60(b) motion. See Letter dated Mar. 26, 2008, at 2, Docket Entry No. 416 ("[I]f the Court elects to treat the motion as a § 2255 petition, and then denies it, any subsequent motion brought by the defendant under § 2255 will be subject to the restrictions on second or successive motions set forth in Title 28 U.S.C. § 2255.").
The government argues that conversion would be inappropriate because AEDPA requires that a § 2255 petition must be filed within one year from the latest of the following:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255(f). Subsections two, three, and four do not apply here. The only date to consider is the date pursuant to subsection one — the date on which the judgment of conviction has become final.
The Supreme Court has held that the date on which the judgment of conviction becomes final is "when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). An "unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires." Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). A petition for a writ of certiorari "to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals . . . is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment." Sup. Ct. R. 13.
Negron's previously filed Rule 60(b) motion is converted to a § 2255 petition, nunc pro tunc, to the date of the filing of the Rule 60(b) motion. Conversion of the Rule 60(b) motion, therefore, does not implicate the one-year statute of limitations. Negron's judgment was affirmed by the Court of Appeals for the Second Circuit on June 17, 2004. Negron had until September 17, 2004, ninety days from the judgment, to petition for a writ of certiorari — a step he failed to take. His conviction became final on September 17, 2004. He filed his Rule 60(b) motion on January 11, 2005, well before the statute of limitations expired.
Unconvincing is the government's argument that because the denial of the Rule 60(b) motion was affirmed on appeal, this court has no discretion to convert a previously dismissed motion to a § 2255 application. The Court of Appeals' affirmance of the Rule 60(b) motion was based on the ground that Negron could not collaterally attack his criminal conviction utilizing Rule 60 of the Federal Rules of Civil Procedure. Neither the district court nor the appellate court reached the merits of Negron's claims. Converting Negron's Rule 60(b) motion to a § 2255 petition would give the Court of Appeals for the Second Circuit an opportunity to evaluate Negron's claims on the merits should it decide to grant a certificate of appealability. Dismissal of a prisoner's applications on procedural grounds is neither conducive to efficiency nor does it serve the interests of justice.
IV. Negron's § 2255 Petition on Merits
In papers dated March 26, 2008, Negron requested that if the court converted his previously filed Rule 60(b) motion to a § 2255 petition, the following claims should be reviewed:
1) Mr. Negron's prior counsel did not adequately challenge the enhancements at the sentencing hearing;
2) Mr. Negron's prior counsel filed an Anders brief without his client's consent, after the attorney received notice that Mr. Negron filed a complaint with the New York Bar Association about the attorney's ineffective assistance.See Letter dated Mar. 26, 2008 at 4; see also Rule 60(b) Motion, at 9.
With regard to the first issue, Negron argues that trial counsel was ineffective at sentencing because of his failure to adequately challenge the sentencing enhancements. Claims of ineffective assistance of counsel are governed by the criteria set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). In order to prevail on such a claim, petitioner must prove that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms,"id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. at 694.
Negron was sentenced by this court on March 14, 2001. Tr. Sentencing at 161-162. The record does not support Negron's claim that his counsel did not adequately challenge the sentencing enhancements:
The Court: Does either side wish to contest anything in the presentence report as amended?
[Defense counsel]: The only thing I want to contest, Judge, is that what I previously said to you that based — for two of the robberies there's a two point increase for over $50,000 loss. You heard from [the government] today that in two of the check cashing robberies it is his recollection today that the loss was over $60,000 but it was brought out on cross-examination that in initial statements to the police that he had made one as 26 and one as 30,000. It is in the position of the defense that the amount of loss is in excess of 10,000 and less than 50,000 and if that's the case, there would be a one point reduction in the guidelines. Right now the government's position is that the guidelines range is I believe 38 with a criminal history of one which would place him in a 235 to 293. It is my position that would be one step down. My argument at worst is 210 to 262 months, that's just on the loss.
And then in addition to that I argued in my papers about brandishing a firearm. There's been a five point increase in brandishing of a firearm with several of the robberies because there were other — and there were other 924(c)'s in the indictment. He only pled to one. I understand the position of the Probation Department in those findings. It is just my position, whether I'm on weak ground or not, that it is a violation of due process and an equivalent of extra punishment in a sense to have him receive an additional seven years on a 924(c) and also a five point increase in the guideline range as well. That's my argument.
The Court: You're contending it is double counting?
[Defense counsel]: Right, in a sense, right.Id. at 161-162. Counsel challenged both the two-point enhancement for the amount of loss as well as the five-point enhancement for brandishing a firearm in connection with the robberies. See id.
Unfounded is Negron's contention that his attorney was ineffective at the sentencing hearing by failing to challenge the sentencing enhancements. Counsel argued at the sentencing that the five point increase for brandishing a firearm in connection with the robberies acted as double counting. The record supports the conclusion that the trial counsel did not "[fall] below an objective standard of reasonableness," as required by Strickland. 466 U.S. at 688. Negron has conceded that the change in the guidelines was in effect at the time of sentencing, and that even if the five point increase would have lowered the guideline range for the robbery charged in count thirteen, Negron's combined offense level would have remained the same. See Letter dated Dec. 21, 2007, at 4. Even if counsel did not adequately challenge the five-point sentencing enhancement, which he did do, there is no reasonable "probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694.
Negron's second argument — that counsel filed an Anders brief without his consent after receiving notice that Negron had filed a complaint with the New York State Bar Association — is also without merit. Appellate counsel filed a motion to be relieved pursuant to Anders v. California, 386 U.S. 738 (1967). "UnderAnders, court-appointed appellate counsel may move to be relieved from his or her duties if 'counsel is convinced, after conscientious investigation, that the appeal is frivolous.'"United States v. Hall, 499 F.3d 152, 155 (2d Cir. 2007) (quotingUnited States v. Williams, 475 F.3d 468, 478 (2d Cir. 2007)). The Court of Appeals of the Second Circuit "will not grant an Anders motion unless it is satisfied that (1) 'counsel has diligently searched the record for any arguably meritorious issue in support of his client's appeal,' and (2) 'defense counsel's declaration that the appeal would be frivolous is, in fact, legally correct.'" Id. at 156 (quoting United States v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993)).
On March 30, 2004, the Court of Appeals for the Second Circuit granted appellate counsel's Anders motion. See Mandate of the Court of Appeals for the Second Circuit dated Mar. 16, 2004. The brief apparently sufficiently met the standards as described inUnited States v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993). Negron has no valid claim that the filing of an Anders brief constituted ineffective assistance of counsel. Counsel has no duty to receive consent from his client when filing an Anders brief; the client only needs to be informed, which was done in this case. See United States v. Santiago, 495 F.3d 27, 29 (2d Cir. 2007). There is no merit in Negron's argument that his lack of consent to appellate counsel's Anders brief constitutes ineffective assistance of counsel.
V. Conclusion
In view of the violent criminal conduct of defendant, even were this court to resentence defendant, its sentence would be the same as the one actually imposed. See 18 U.S.C. § 3553. This court's conditional conversion of the Rule 60(b) motion to a 28 U.S.C. § 2255 petition is sustained. The § 2255 petition is dismissed on the merits.
A certificate of appealability is denied. Petitioner may apply to the Court of Appeals for the Second Circuit for a certificate of appealability.
SO ORDERED.