Fernandez v. United States

569 F.Supp.3d 169

Joe FERNANDEZ, Petitioner

v.UNITED STATES of America, Respondent.

United States of America,

v.Joe Fernandez, Defendant.

20 Civ. 5539 (AKH)

10 Cr. 863 (AKH)

United States District Court, S.D. New York.

Signed November 3, 2021

John Peter Cronan, Russell Capone, United States Attorney Office, Todd Blanche, Cadwalader Wickersham & Taft LLP, New York, NY, for United States of America.

OPINION & ORDER GRANTING MOTION TO VACATE SENTENCE ON COUNT TWO OF INDICTMENT

ALVIN K. HELLERSTEIN, U.S.D.J.:

Petitioner Joe Fernandez moves under 28 U.S.C. § 2255 to vacate his conviction under Count Two of the indictment, which charges him with the crime of using a firearm in furtherance of a crime of violence causing the death of a person, in violation of 18 U.S.C. § 924(j). See 10 Cr. 863, ECF No. 229. The crux of his claim is that, following the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), his conviction of a conspiracy to commit murder for hire no longer qualifies as a "crime of violence" under 18 U.S.C. § 924(c)(3), and thus his conviction under Count Two of the indictment must be vacated. The Government opposes the motion, arguing that Petitioner's claim is procedurally defaulted and fails on the merits. For the reasons discussed below, Petitioner's motion is granted and his life sentence on Count II is vacated.

BACKGROUND

On February 6, 2013, Petitioner Joe Fernandez was charged with one count of conspiracy to use interstate commerce facilities in the commission of murder for hire resulting in death, in violation of 18 U.S.C. § 1958 (Count One), and one count of using a firearm in furtherance of a crime of violence resulting in death, in violation of 18 U.S.C. §§ 924(j)(1)–(2) (Count Two). See 10 Cr. 863, ECF No. 74. The charges arose from the double murders of Ildefonso Vivero Flores and Arturo Cuellar on February 22, 2000. Flores and Cuellar were couriers of a Mexican narcotics trafficking organization that had exported a 274-kilogram shipment of cocaine to Jeffrey Minaya, the leader of a New York drug ring. To avoid paying the suppliers the money owed, Minaya recruited Patrick Darge to kill Flores and Cuellar, the two narcotics couriers, in exchange for $180,000. Tr. at 98–135.¹ Darge, a cooperating witness, testified that he recruited his cousin, Petitioner Joe Fernandez, to back him up, in exchange for $40,000, and that he recruited Luis Rivera to obtain weapons, ammunition, and a car, and to act as the getaway driver, in exchange for $20,000. Tr. at 149–54, 188–89, 255–57, 266–87, 616–18.

Petitioner's trial commenced on February 19, 2013. The Government's key evidence against him was the testimony of Patrick Darge, the only witness to identify Petitioner as a member of the murder-for-hire conspiracy or to place him at the crime scene. Darge testified that he asked Petitioner to participate because Petitioner was his cousin, had a gun that could be used in the murders, and was trustworthy. Tr. at 273–74. Darge testified that he told Petitioner that he had been "hired to murder two guys," offered to pay Petitioner $40,000 to assist him in the murders, and instructed Petitioner to bring his own gun. Tr. at 276–77. Darge testified that he told Petitioner that the killing was necessary to protect members of the family and that Petitioner agreed to participate. Tr. at 277. The plan, according to Darge, was to commit the murders in the lobby of an apartment building in the Bronx on February 22, 2000. A member of the Minaya gang was to lure Cuellar and Flores to the building, telling them that drugs and drug money were stashed in an upstairs apartment and that they would be paid there. The plan was to kill the victims while they waited for the elevator in the lobby.

In the morning of February 22, 2000, Cuellar and Flores were brought to the Bronx apartment building. Darge testified that he and Petitioner lurked in a concealed area in the lobby, that a Minaya gang member brought the two victims to the lobby where they waited for the building's elevator, and that he (Darge) emerged behind the victims with Petitioner following. Darge testified that he shot one of the Mexican couriers in the back of his head, that his gun jammed, and that he fled from the scene to the get-away car, a block-and-a-half away. Darge testified that he heard two or three shots while he was running away. Tr. at 328.

Darge testified that Luis Rivera was parked, waiting for him, and that Petitioner arrived minutes later and said that he "had to make sure they were both dead." Tr. at 332. Rivera drove away on a pre-planned route.

Cuellar and Flores, the Mexican couriers, were found dead in the lobby of the apartment building, lying in a pool of their blood. Shell casings of spent bullets were scattered on the lobby floor. Tr. at 35. Darge testified that he was paid $180,000 for the murders later that day and gave $40,000 to Petitioner. Tr. at 335.

On cross-examination, Darge admitted that he had lied during a previous cooperation with the Government and that his lies enabled him to receive a sentence of two years instead of a minimum sentence of 12-and-a-half years. Tr. at 386–87. He also admitted that he had failed to disclose to the Government numerous shootings in which his younger brother, Alain Darge, had participated, Tr. at 405, and that he and his brother fled to the Dominican Republic after the murders of Cuellar and Flores. Tr. at 417. Petitioner exercised his constitutional right not to testify. Tr. at 1031.

On March 7, 2013, after a nine-day jury trial, the Jury convicted Petitioner of both Counts One and Two, the murder-for-hire conspiracy² and the crime of using a firearm in furtherance of a crime of violence causing death to a person,³ respectively. See 10 Cr. 863, ECF No. 106. On October 7, 2014, Petitioner was sentenced to two mandatory, consecutive life sentences. As of this writing Petitioner has served approximately 120 months of his term, counting from the date of his detention on October 18, 2011.

Luis Rivera, who, according to Patrick Darge, procured the guns and drove the getaway car, was not called as a witness. On September 7, 2012, well after Darge's sentencing, Rivera pled guilty only to conspiracy to distribute heroin and was sentenced to 24 months' imprisonment. See 10 Cr. 863-6, ECF No. 60. The Government dismissed the conspiracy to murder and the firearm charges against Rivera.⁴

Petitioner directly appealed his conviction and sentence claiming that: (i) the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he knowingly joined the conspiracy with the specific intent to commit murder for hire; and (ii) the Court improperly denied his motion for a new trial based on the Government's failure to disclose Brady material, and on newly discovered evidence concerning the credibility of Government witnesses. By Summary Order dated May 2, 2016, the Second Circuit affirmed Petitioner's convictions. See United States v. Fernandez , 648 Fed. App'x. 56 (2d Cir. 2016), cert. denied , ––– U.S. ––––, 138 S. Ct. 337, 199 L.Ed.2d 225 (2017).

On June 27, 2017, Petitioner sought a writ of habeas corpus under 28 U.S.C. § 2255, challenging my jury instructions regarding aiding and abetting liability and the term "use" of a firearm under 18 U.S.C. § 924(c). Petitioner claimed also that his trial and appellate lawyers were constitutionally inadequate for not having raised these issues. I denied the petition but granted a certificate of appealability. See 17 Civ. 4806, ECF No. 6. By Summary Order on December 4, 2018, the Second Circuit denied Petitioner's appeal. See Fernandez v. United States , 757 Fed. App'x. 52 (2d Cir. 2018), cert. denied , ––– U.S. ––––, 140 S. Ct. 337, 205 L.Ed.2d 190 (2019).

On June 22, 2020, the Second Circuit granted Petitioner leave to file the instant motion under 28 U.S.C. § 2255. See 20 Civ. 1130, ECF No. 9. Here, Petitioner argues that his Count Two firearm conviction is no longer valid after Davis , 139 S. Ct. 2319, because conspiracy is not a crime of violence. See 20 Civ. 1130, ECF No. 19. I grant Petitioner's motion.

DISCUSSION

The Supreme Court in Davis held that Section 924(c)(3)'s "residual" clause, clause (B), which defines a "crime of violence" as a crime that, "by its nature, involves a substantial risk that physical force against the person or property of another may be used," was unconstitutionally vague as a basis of enhanced punishment for a firearms offense. See Davis , 139 S. Ct. at 2336 (quoting 18 U.S.C. § 924(c)(3)(B) ). After Davis , an offense may serve as a predicate crime of violence only if the elements of the crime categorically involved "the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Petitioner argues that the crime of conspiracy, even a conspiracy to commit murder for hire when death occurs, of which he was found guilty in Count One, is not a crime of violence under Section 924(c)(3)(A). The Government argues in opposition that Petitioner's claim was procedurally defaulted, fails on the merits, and is not cognizable under 28 U.S.C. § 2255.

I. Procedural Default.

The Government argues that Petitioner's claim is procedurally defaulted because he failed to raise his challenge on direct appeal. Petitioner responds that there is "cause" and "actual prejudice" for not then raising the issue. I hold that Petitioner's procedural default is excused.

A. Legal Standard.

A procedurally defaulted claim cannot be entertained unless the movant "can first demonstrate either [1] ‘cause’ and ‘actual prejudice,’ or [2] that he is ‘actually innocent.’ " See Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Murray v. Carrier , 477 U.S. 478, 485, 496, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986) ).

To show "cause" for failure to raise a challenge on direct appeal, a defendant must demonstrate that ...