Castellano v. United States

190 F. Supp. 3d 354, 2016 WL 3277279
CourtDistrict Court, S.D. New York
DecidedJune 3, 2016
Docket01-CR-619 (VM); 16-CV-3513 (VM)
StatusPublished

This text of 190 F. Supp. 3d 354 (Castellano 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
Castellano v. United States, 190 F. Supp. 3d 354, 2016 WL 3277279 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Alberto Castellano (“Castellano”), currently-incarcerated at USP Lewisburg, Pennsylvania, brings this successive pro se motion under 28 U.S.C. Section 2255 (“Section 2255”) challenging the legality of his sentence. (“Motion,” Dkt. No. 319.) 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 [356]*356reasons 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 Castellano 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 Castellano’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. foil. Section 2255 (2004); see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir.2000).

II. DISCUSSION

A. JOHNSON CLAIM

On April 2, 2008, the Honorable Robert Carter of this Court sentenced Castellano to life in prison plus 105 years of imprisonment. (Dkt. Nos. 216,221.)

Castellano appealed his judgment of conviction (Dkt. No. 220), and on April 1, 2009, the Second Circuit affirmed the conviction and his sentence on thirteen of the fourteen counts of conviction. (Dkt. No. 243.) Accordingly, the Second Circuit vacated Castellano’s sentence pursuant to count thirteen and affirmed his conviction and sentence of life plus 100 years. Id

On May 14, 2010, Castellano filed his first motion under Section 2255, asserting ineffective assistance of counsel. (10 Civ. 4000, Dkt. No. 1.) The Court denied that motion on the merits on June 24, 2011. (10 Civ. 4000, Dkt. No. 26.)

Castellano appealed the denial of his motion (Dkt. No. 280), and on April 30, 2012, the Second Circuit affirmed the denial. (Dkt. No. 285.)

On February 5, 2013, Castellano filed a memorandum of law in support of his motion to vacate his sentence under Section 2255(f),. (3) in which he argued that the United States Supreme Court cases, Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), present new constitutional rules of law that allow him to successfully submit a “second or successive” habeas petition. (10 Civ. 4000, Dkt. No. 32.) In.his reply brief, Castellano applied the same argument to the Supreme Court decisions in Alleyne v. United States, — [357]*357U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). (Dkt. Nos. 308, 309.) At the time, Castellano did not have a Section 2255 motion pending before the Court, and accordingly the Court treated the Section 2255(f) (3) memorandum as a motion.

The Court denied Castellano’s second motion under Section 2255 on August 20, 2013. (Dkt. No. 312.)

Castellano appealed the denial of his motion (10 Civ. 4000, Dkt. No. 37), and on March 24, 2014, the Second Circuit affirmed the denial. (10 Civ. 4000, Dkt. No. 38.)

Castellano now brings his third 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. 319.) Castellano cites United States v. Fuertes, 805 F.3d 485 (4th Cir.2015) for the proposition that “[s]ome Courts are now applying Johnson to 18 U.S.C. Section 924(c) crimes that rely on the ‘residual clause’ of Section 924(c)(3).” (Dkt. No. 319.)

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 (2 015). 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 felonyt,]” 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).

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Related

Coppedge v. United States
369 U.S. 438 (Supreme Court, 1962)
Lafler v. Cooper
132 S. Ct. 1376 (Supreme Court, 2012)
Sackett v. Environmental Protection Agency
132 S. Ct. 1367 (Supreme Court, 2012)
Missouri v. Frye
132 S. Ct. 1399 (Supreme Court, 2012)
Ferran v. Town Of Nassau
11 F.3d 21 (Second Circuit, 1993)
Miguel Dejesus Liriano v. United States
95 F.3d 119 (Second Circuit, 1996)
Mcpherson v. Coombe
174 F.3d 276 (Second Circuit, 1999)
Acosta v. Artuz
221 F.3d 117 (Second Circuit, 2000)
Peugh v. United States
133 S. Ct. 2072 (Supreme Court, 2013)
Alleyne v. United States
133 S. Ct. 2151 (Supreme Court, 2013)
Boddie v. New York State Division of Parole
285 F. Supp. 2d 421 (S.D. New York, 2003)
Johnson v. United States
576 U.S. 591 (Supreme Court, 2015)
United States v. Kevin Fuertes
805 F.3d 485 (Fourth Circuit, 2015)
United States v. Maldonado
636 F. App'x 807 (Second Circuit, 2016)

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Bluebook (online)
190 F. Supp. 3d 354, 2016 WL 3277279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castellano-v-united-states-nysd-2016.