Acosta v. United States

197 F. Supp. 3d 553, 2016 WL 3866377
CourtDistrict Court, S.D. New York
DecidedJuly 6, 2016
Docket07-CR-1150 (VM); 16-CV-4525 (VM)
StatusPublished
Cited by1 cases

This text of 197 F. Supp. 3d 553 (Acosta v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acosta v. United States, 197 F. Supp. 3d 553, 2016 WL 3866377 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Ramon Acosta (“Acosta”), currently incarcerated at Yazoo City USP, brings this successive pro se motion under 28 U.S.C. Section 2255 (“Section 2255”) challenging the legality of his sentence. (“Motion,” Dkt. No. 131.) He bases his challenge on 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 set forth below, the Court DENIES the Motion. Because the Motion is without merit, the Court also declines to transfer it to the United States Court of Appeals for the Second Circuit (“Second Circuit”) for certification under Sections 2255(h) and 2244(b)(3).

I. STANDARD OF REVIEW

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,” “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 Acosta 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 Acosta’s submissions “liberally and interpret them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 [555]*555(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. foil. Section 2255 (2004); see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir.2000).

II. DISCUSSION

A. JOHNSON CLAIM

On March 9, 2009, this Court sentenced Acosta to 294 months imprisonment to be followed by three (3) years of supervised release. (Dkt. No. 77.) Acosta appealed his judgment of conviction (Dkt. No. 81), and on March 1, 2010, the Second Circuit affirmed Acosta’s conviction and sentence (Dkt. No. 92).

Acosta filed his first motion under Section 2255 on September 14, 2010, asserting: (1) violation of his Sixth Amendment right to trial by jury in connection with sentencing enhancements for obstruction of justice based on the Court’s findings of fact; (2) prosecutorial misconduct by procurement of a witness’s testimony which Acosta asserts was false, and by failure to disclose evidence favorable to Acosta; (3) failure by the Court to consider sentencing factors relating to the Sentencing Guidelines for illegal reentry and their effect on Acosta because he became deportable upon conviction; and (4) ineffective assistance of counsel. (“First Section 2255 Motion,” 10-CV-6945, Dkt. No. 1.) The Court denied that motion on December 20, 2010. (Dkt. No. 98.)

Acosta appealed the denial of his First Section 2255 Motion (Dkt. No. 103), and on February 1, 2012, the Second Circuit dismissed the appeal for failure to show a denial of a constitutional right (Dkt. No. 121).

Acosta now brings his second motion under Section 2255 and argues that Johnson should be extended to the “residual clause” in 18 U.S.C. Section 924(c)(1)(A) which prohibits the use, carrying, or possession of a firearm in the furtherance of a violent crime or drug trafficking crime. (Dkt. No. 131.)

In Johnson, the Supreme Court held that the residual clause in ACCA was unconstitutional. See 135 S.Ct. 2551 (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 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 those defendants who are convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g). In the instant ease, Acosta was not convicted of being a felon in possession of a firearm pursuant to Section 922(g). (See Dkt. No. 77.) Therefore, Johnson would not apply, and the [556]*556Supreme Court’s ruling in Johnson would not be relevant on that basis.

However, the Second Circuit has held that Johnson applies when a defendant is sentenced as a eareer offender under Section 4B1.1 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, 809 (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 Acosta was not sentenced as a career offender under Section 4B1.1. (Dkt. No. 77.)

Finally, Acosta argues that pursuant to Johnson, Hobbs Act Robbery does not qualify as a “crime of violence,” and therefore his conviction for the 18 U.S.C. Section 1951 offense must be vacated. (Dkt. No. 131.)

To determine whether a predicate offense is a “crime of violence” under 18 U.S.C. Section 924

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197 F. Supp. 3d 553, 2016 WL 3866377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acosta-v-united-states-nysd-2016.