Regis v. United States

• Court: District Court, S.D. New York
• Decided: January 11, 2022
• Docket: 1:16-cv-04528
• Status: Unknown

Opinion

| USDC □□□ UNITED STATES DISTRICT COURT DOCUME □□ SOUTHERN DISTRICT OF NEW YORK ! S ONICALLY FILED a DOC #: □ □ RICHARD RECS | [pare ue: I Petitioner, h6 CV 4528 (GM) 4! -against- 0S CR 1331-01 (C ) UNITED STATES OF AMERICA, : .

Respondent. | | ' HS ‘| : ORDER DENYING MOTION TO VACATE PURSUANT TO 28 S. g 2255 McMahon, J.: ! ' |

A five count Information $1 05 Cr. 1331 (CM) was filed on June 2B, 20 6, charging Regis with: conspiring to commit armed bank robbery and aimed credit ss cbt bery, in violation of 18 U.S.C. § 371, (Count 1); attempted armed blank robbery, tion of 18 U.S.C. §§ 2113(a) and 2, (Count 2); possessing a firearm inl furtherance of lan sthémpted bank robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (Count 3); stlmp armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d) and 2, (Count 4); and ca spi i, to violate

the Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a}, (Count 5). . On June 28, 2006, Regis pled guilty to all five counts of the infomptio ‘pursuant toa written plea agreement in which he stipulated that he would not appeal or the ise challenge a sentence that was within or below the range of 181 to 21 i months =f Le On November 13, 2006, the Court sentenced Regis fo a term of 21 i ont imprisonment, to be followed by a five-year term of supervised release anf ord red Registo 4

pay $301,900 in restitution as well as a mandatory $500 special ssessmet | On June 9, 2020, Regis was released from custody of the Bureau Pri ;ons and began | PE

‘ | ; ’ ‘I i ‘ i it I serving his term of supervised release. i ‘ | fe Regis had taken a direct appeal following his sentencing and, on J 3 2008, the Court of Appeals dismissed the appeal as, inter alia, untimely filed. See United Regis, No. 06-

5650 (2d Cir.). | I On or about November 17, 2008, Regis filed his first petition ane 2 5 5 to vacate, set hood! aside, or correct sentence. See Regis v. United States, No! 08 Cv. 9904 (S.D.N.Y.). On September 30, 2009, the Court denied that petition and declined to itsue certificate of ' | Ly

appealability. Dkt. No. 46. On or about May 3, 2010, Regis filed a os for relief from pO, ihe judgment pursuant to Rule 60(b) of the Federal Rules of Criminal Procedure.’ , kt. No. 48. On I i December 13, 2010, the Court denied that motion. Dkt. No, 51. ' fd) On or about June 14, 2016, Regis filed a motion in the Second ‘Cirguit for an order ; authorizing this Court to consider a second petition to vacate, set wed or eprrect sentence 1 pursuant to 28 U.S.C. § 2255(h). See Regis v. United States, No. 16-1887 (bd Ht) The Second | 4 Circuit has granted Regis’ application for leave to file a second or successi e€ petition. Regis v. United States, No. 16-1887 (2d Cir.), ECF No. 16. Accordingly, the petition|is now properly ' i I i : before this court. hf Regis Motion to Vacate his Section 924(c) Conviction | □ i Regis latest § 2255 motion challenges his conviction on Count ‘Three, arguing that Ho “under Johnson v. United States, 135 S. Ct. 2551 (2015), the predicate o fen: | for that count (attempted bank robbery) no longer qualifies as a ‘crime of violence,” an, bss tial element of | the charged 924(c) crime.” Petition at 5. yd A defendant violates Section 924(c) when he uses or carries a fitea | during and in : | Pe relation to, or possesses a firearm in furtherance of, a “crime of violence” or ‘drug trafficking bo tote bo oy) 4 odd | ckoUOT AS

Ho | |: crime.” 18 | Hoody: Lodi; U.S.C. § 924(c)(1)(A). The term “crime of violence” is defined, in relevant pa as a crime that . tl is a federal felony offense and either: “(A) has an element the use, sco e, or threatened oda. use of physical force against the person or property of another, or (B) that y it tite involves

a substantial risk that physical force against the person or;property of athe ri ay be used in ' i i the course of committing the offense.” 18 U.S.C. § 924(c)(3). Subsection 924(c)(3)(A) is commonly known as the “Force Clause” or “Elements Clause,” and Subs¢¢tio \924(c)(3)(B) is yoodte commonly known as the “Risk-of-Force Clause.” In United States v. Divs, 39 S. Ct. 2319 : Ly (2019), the Supreme Court declared the Risk-of-Force Clause to be unconst □□ tionally vague i, : i fe and therefore unenforceable. i thf “To determine whether an offense is a crime of violence [under the ft ore Clause], courts employ what has come to be known as the categorical approach.” United sues | il 890 F.3d | j i | 7 : 51, 55 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019). Under this approach ‘courts identify the minimum criminal conduct necessary for conviction under a particular ban by reviewing | } + i □ the elements of the offense in the context of “reality, logic, and precedent, hot ights of fancy.” In Id. at 55-56. “[T]o show a predicate conviction is not a crime of violence dires more than if the application of legal imagination to the statute’s language.” Id. at 56 i ig Gonzales v. | ele Duenas- Alvarez, 549 U.S. 183, 193 (2007)). Rather, “there must be ‘a reali tic obability, not a

theoretical possibility,’ that the statute at issue could be applied to ots | that does not i at | I constitute a crime of violence.” Jd. (quoting Gonzales, 549 US. at 193). More fer, a defendant “must at least point to his own case or other cases in which the... op fe ct did apply the t noo I : | | statute in the ... manner for which he argues.” /d. (quoting:in part Gonzal, U.S. at 193). ! ye j ; A defendant violates the bank robbery statute when he “by force, and ' iolence, or by : {

i ‘t po iPod

ow OEE □ intimidation, takes, or attempts to take, from the person or presence of nother, or obtains or

attempts to obtain by extortion any property or money or any other thing I. value belonging to, or in the care, custody, control, management, or possessidn of, any va cr i union, or any savings and loan association.” 18 U.S.C. § 2113(a).* The Second Ciropit as' held that both | i substantive bank robbery and attempted bank tobbery ar¢ categorically ‘cri les of violence” | : ts i} fe within the meaning of the Force Clause of § 924(c)(3)(A). United States lricks, 921 F.3d | i ' 320, 326- 28 (2d Cir. 2019) (substantive bank robbery); United States v. Colli "989 F.3d 212, 3 yh das 220-22 (2d Cir. 2021) (attempted bank robbery). | Vee Ji Accordingly, Regis’s Petition is denied. I ' fee t if Top The Court declines to issue a certificate of appealability because t re has been n ib “substantial showing of the denial of a constitutional right.? 28 U.S.C. § fi 53 (2); see Unite i States v, Perez, 129 F.3d 255, 260 (2d Cir. 1997). Further, the Court finds,: ur. i to 28 U.S.C 5 ‘ Hood! § 1915(a)(3) that any appeal from an order denying Regis’, motion would |not ’e taken in goo i hoot) faith. See Feliz v. United States, No. 01-cv-5544, 2002 WL 1964347, at *7 (S -N.Y. Aug. 22, i 4 □ 2002). ip This constitutes the order of the Court. | 1 g i| Dated: January 11, 2022 ble Hiikh . | |; ! i, Colleen McMahon : VE, District Court Judge | □□□ i |} rode. ! ff po! +f ' oa □ : 1 | | : t i ' I, io yo : 1) le,