Opinion
08 Civ. 6765 (JSR) (KNF), 06 Crim. 991 (JSR).
January 5, 2009
REPORT and RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE
In May 2007, Joel Austin ("Austin") pleaded guilty to possessing a firearm that had been shipped or transported in interstate or foreign commerce, after having been convicted previously for a crime punishable by a term of imprisonment exceeding one year. See 18 U.S.C. § 922(g)(1). Thereafter, in August 2007, Austin was sentenced to 180 months imprisonment, to be followed by a term of post-release supervision, of three years. He was also directed to pay a special assessment of $100.
Austin, proceeding pro se and in forma pauperis, has moved, pursuant to 28 U.S.C § 2255, to vacate, set aside, or correct his sentence, based upon a claim that his counsel rendered ineffective assistance to him by failing to object to the Pre-Sentence Report's finding that his 1997 conviction, for third-degree attempted robbery, constituted a predicate offense for enhancing his sentence, pursuant to the Armed Career Criminal Act ("ACCA"). See 18 U.S.C. § 924(e)(1). The Government moved for an extension of time to file a response to Austin's 28 U.S.C. § 2255 motion, and the application was granted; however, the Government failed to file a response. Austin's motion is addressed below.
Ineffective Assistance of Counsel
The Supreme Court has explained that the right to counsel guaranteed by the Sixth Amendment is the "right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14 [1970]). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland, 466 U.S. at 687-696, 104 S. Ct. at 2064-2069. First, a criminal defendant must show that counsel's performance was deficient; that is, that it fell below an "objective standard of reasonableness" measured under "prevailing professional norms." Id. at 687-688, 2064-2065. Second, the criminal defendant must affirmatively demonstrate prejudice, by showing that "there is a reasonable probability that, but for counsel's [error], the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. See also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.),cert. denied, 506 U.S. 979, 113 S. Ct. 477 (1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance; counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066.
ACCA's 15-year mandatory minimum term of incarceration applies "[i]n the case of a person who violates section 922(g) of [Title 18] and has three previous convictions . . . for a violent felony. . . ." 18 U.S.C. § 924(e)(1). In relevant part, ACCA defines a "violent felony" as: "any crime punishable by imprisonment for a term exceeding one year" that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B). In determining whether a conviction for robbery constitutes a "violent felony" within the meaning of § 924(e)(2)(B), courts look to the "generic" meaning of the offense. See Taylor v. United States, 495 U.S. 575, 590-602, 110 S. Ct. 2143, 2154-2160 (1990). "The generic meaning of 'robbery' is reflected in the statutory definitions of that crime:" (1) New York Penal Law ("NYPL") § 160.00 defines robbery as "forcible stealing" and explains that "[a] person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person. . . ."; and (2) 18 U.S.C. § 1951(b)(1) defines "robbery" as "the unlawful taking or obtaining of personal property from the person or in the presence of another . . . by means of actual or threatened force . . . to his person or property. . . ."United States v. Brown, 52 F.3d 415, 425-26 (2d Cir. 1995). At the time of Austin's conviction, third-degree robbery was classified a D felony in New York, see NYPL § 160.05 (McKinney 1997), and "[a]n attempt to commit a crime is a . . . [c]lass E felony when the crime attempted is a class D felony." NYPL § 110.05(6) (McKinney 1997). A class E felony, in 1997, was punishable by an indeterminate sentence that could not exceed four years, and had to be at least one year. See NYPL §§ 70.00(2)(d), 70.00(3) (McKinney 1997).
Austin's challenge to the ACCA enhancement that was triggered by his conviction for third-degree attempted robbery is meritless, since this crime satisfies the definition of a "violent felony:" (1) it is punishable by a term of imprisonment exceeding one year; (2) it involves the use or attempted use of force against the person of another; and (3) it has been determined previously, by the Second Circuit Court of Appeals, to be a predicate offense supporting an enhancement pursuant to ACCA. See e.g., Brown, 52 F.3d at 425-26 (2d Cir. 1995) (finding that third-degree attempted robbery qualified as a "violent felony" under ACCA "and was a correctly regarded predicate offense for the purpose of enhancing [the] sentence"); Danielson v. United States, Nos. 01 Civ. 1182, 97 CR. 295, 2001 WL 863416, at *1, n. 1 (S.D.N.Y. July 30, 2001) (noting that, at sentencing, it was determined that third-degree attempted robbery is a violent felony within the meaning of ACCA). Therefore, Austin's claim, that his counsel was ineffective for failing to challenge the finding that third-degree attempted robbery constituted a predicate offense for his ACCA sentencing enhancement, is baseless. Accordingly, since Austin has not demonstrated his counsel's performance was deficient, he is not entitled to the relief he seeks through the instant motion.
For the reasons set forth above, I recommend that Austin's motion, pursuant to 28 U.S.C. § 2255, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).