Hardy v. United States

JAMES HARDY a/k/a "J Rock," Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

11 Civ. 8382, 10 Cr. 1123 (JSR) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DATED: March 14, 2012

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Jed S. Rakoff, United States District Judge:

James Hardy has filed a pro se petition under 28 U.S.C. § 2255 to vacate his sentence of 156 months imprisonment for conspiracy to commit a Hobbs Act robbery, commission of a Hobbs Act robbery, and conspiracy to distribute marijuana. (Dkt. No. 1: Pet. ¶¶ 1-4.)¹ Hardy asserts that: (1) "the District Court lacked subject-matter jurisdiction to enter judgement against Hardy for his Hobbs Act convictions" because there was no allegation that the marijuana moved in interstate commerce (Pet. ¶ 12(A)) and (2) his "attorney provided ineffective assistance for allowing him to plead guilty before assuring that the Court's jurisdiction was proper" (Pet. ¶ 12(B)). (See generally Dkt. No. 2: Hardy Br.; Dkt. No. 13: Hardy Reply Br.)

For the reasons set forth below, Hardy's petition should be DENIED.

FACTS

On November 9, 2010, a grand jury indicted and charged Hardy in Count One with conspiring to commit Hobbs Act robbery that "would and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce"; Count Two with committing a Hobbs Act robbery affecting commerce by stealing $1,000, "one-half kilogram of marijuana, and a flat-screen television"; Count Three with conspiring to distribute marijuana; and Count Four with using a firearm in connection with the crimes charged in Counts One through Three. (10 Cr. 1123, Dkt. No. 6: Indictment.)

Hardy's Plea Agreement

On March 17, 2011, Hardy entered into a plea agreement with the Government to plead guilty to Counts One, Two and Three of the indictment. (Dkt. No. 10: Gov't Opp. Br. Ex. B: Plea Agmt. at 1.) The plea agreement stipulated that "the Government will move to dismiss any open Counts against the defendant," i.e. Count Four. (Plea Agmt. at 2.) Hardy and the Government stipulated to a Sentencing Guidelines range of 135 to 168 months. (Plea Agmt. at 4.) The plea agreement further provided that Hardy would "not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 and/or Section 2241; nor seek a sentence modification pursuant to Title 18, United States Code, Section 3582(c), of any sentence within or below the Stipulated Guidelines Range of 135 to 168 months of imprisonment." (Plea Agmt. at 5-6.) Hardy also "acknowledge[d] that he has accepted this Agreement and decided to plead guilty because he is in fact guilty." (Plea Agmt. at 6.)

Guilty Plea Allocution and Sentencing

On March 21, 2011, Hardy pled guilty to Counts One, Two and Three of the indictment before Judge Jed S. Rakoff. (10 Cr. 1123, Dkt. No. 18: 3/21/11 Plea Transcript ["P."].) Judge Rakoff asked, "Now, you are represented by Mr. Komaroff. Are you satisfied with his representation?" (P. 6.) Hardy replied, "Yes, sir." (P. 6.) Judge Rakoff inquired further: "Have you had a full opportunity to discuss this matter" with attorney Komaroff and "have you told him everything you know about this matter?" (P. 6.) Hardy replied, "Yes, sir" to both questions. (P. 6.) Hardy confirmed that he wanted to withdraw his prior not guilty plea and plead guilty to Counts One, Two and Three. (P. 6.) Hardy stated that he understood that he was waiving his right to a jury trial and related rights. (P. 6-8.)

Judge Rakoff described the crimes charged in Counts One through Three, and Hardy affirmed that he understood the charges (and penalties), as follows:

Q. Now, Count 1 of the indictment charges you with conspiring, in other words, agreeing with at least one other person, to commit robbery that had an effect on interstate commerce in that you and others agreed to rob someone believed to be in possession of narcotics or narcotics proceeds.

. . . .

Q. Mr. Mr. [sic] Hardy, you have gone over Count 1 with your counsel; yes.

A. Yes.

Q. You understand the charge against you in Count 1?

A. Yes, sir.

. . . .Q. Now, Count 2 charges that in around May of 2010, in the Southern District of New York, you, in fact, did, along with others, commit a robbery with interstate implications in that you and others robbed at gunpoint a marijuana dealer in the Bronx and took from him or actually in that robbery about a thousand dollars, half a kilogram of marijuana and a flat screen television, and that part of that involved handcuffing and beating the victim on the face and the head with guns.

And you have gone over Count 2 with your attorney?

A. Yes, sir.

Q. And you understand the charge against you in Count 2?

A. Yes, sir.

. . . .

Q. Now, finally, Count 3 charges you with, again, a conspiracy, an agreement with one or more other persons, in this case to distribute and possess with intent to distribute a detectable amount of marijuana.

And you have gone over that charge with your counsel; yes?

A. Yes, sir.

Q. And you understand that charge as well; yes?

A. Yes.

(P. 8-10.)

Hardy acknowledged that he read the plea agreement, discussed it with his lawyer, understood its terms and signed it to indicate his agreement. (P. 13-14.) Hardy further acknowledged that, in signing the plea agreement, he had agreed that if Judge Rakoff sentenced him "to 168 months or less [he would] not appeal or otherwise attack [his] sentence." (P. 15.)

Hardy admitted that he knowingly agreed with another individual to commit a robbery and committed the robbery with that individual in the Bronx. (P. 16-17, 19.) He admitted to using a gun, stealing approximately half a kilogram of marijuana and a flat screen television, and handcuffing and beating the victim with a gun. (P. 18-19.) Hardy also admitted to possession with intent to distribute the stolen marijuana. (P. 19.) Hardy stated that he knew his actions were illegal and wrong at the time he committed them. (P. 17, 19.)

Regarding the interstate commerce element of the Hobbs Act robbery, the following colloquy occurred between Judge Rakoff and Assistant U.S. Attorney Laurie Korenbaum:

THE COURT: Does the government represent that if this case would go to trial it would through competent evidence prove every essential element of each of these three offenses beyond a reasonable doubt?

[AUSA] KORENBAUM: Yes, the government could do that.

. . . .

THE COURT: And does the government represent that it could show that the contemplated robbery would obstruct, delay and affect interstate commerce?

MS. KORENBAUM: Yes, your Honor, we do.

THE COURT: How would you do that?

MS. KORENBAUM: Well, we would present testimony, your Honor, through persons who have knowledge of the illegal drug trade, which is marijuana. We would also present testimony of a victim that was stolen from him and also a TV. We would also present laboratory results proffering what the substance was.

THE COURT: I'm talking just about the interstate aspect.

MS. KORENBAUM: That's what I'm talking about, your Honor. Through those type --THE COURT: Laboratory results proving what the substance was would prove interstate commerce?

MS. KORENBAUM: Yes, because it is narcotics, your Honor, is relevant as to whether interstate commerce would be affected, so through those types of evidence we would show the interstate element.

(P. 16, 17.)

Hardy entered a plea of guilty. (P. 20-21.) Judge Rakoff accepted the plea, directed the preparation of a pre-sentence report, and set a date for sentencing. (P. 21-22.)

Sentencing occurred before Judge Rakoff on July 11, 2011. (10 Cr. 1123, Dkt. No. 21: 7/11/11 Sentencing Transcript ["S."].) Hardy's counsel and the Probation Office had recommended a sentence at the low end of the guidelines, 135 months, while the Government recommended a sentence at the top end of the guidelines, 168 months. (S. 3.) Noting the "seriousness of the crime, the viciousness of the crime, and the history of the defendant," Judge Rakoff sentenced Hardy to 156 months imprisonment. (S. 21-22; see also 10 Cr. 1123, Dkt. No. 20: 7/19/11 Judgment.)

Hardy's Current § 2255 Petition

Hardy's § 2255 petition asserts that: (1) "the District Court lacked subject-matter jurisdiction to enter judgement against Hardy for his Hobbs Act convictions" (Dkt. No. 1: Pet. ¶ 12(A); see Dkt. No. 2: Hardy Br. at 5-10) and (2) "Hardy's attorney provided ineffective assistance" as he knew, or should have known that Hardy's conduct did not interfere with interstate commerce (Pet. ¶ 12(B); Hardy Br. at 11-15).

ANALYSIS

To prevail on a 28 U.S.C. § 2255 petition, a petitioner must show that: (1) "the sentence was imposed in violation of the Constitution or laws of the United States," or (2) "the court was without jurisdiction to impose such sentence," or (3) "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).²

I. HARDY'S CLAIMS THAT THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION AND THAT THERE WAS NOT A FACTUAL BASIS FOR HIS PLEA SHOULD BE DENIED

Hardy asserts that "the District Court lacked subject-matter jurisdiction to enter judgement against [him] for his Hobbs Act convictions." (Dkt. No. 1: Pet. ¶ 12(A); Dkt. No. 2: Hardy Br. at 5-10; Dkt. No. 13: Hardy Reply Br. at 3-11.) Specifically, Hardy claims that the Government's proffer regarding the interstate commerce element during the plea allocution was insufficient, and thus failed to confer federal jurisdiction (Hardy Br. at 5-7; Hardy Reply Br. at 3-6), and that his plea lacked an adequate factual basis (Hardy Br. at 7-9; Hardy Reply Br. at 6-11). The Government argues that Hardy's claim is barred because he specifically waived his right to collaterally attack his conviction by pleading guilty to these offenses. (Dkt. No. 10: Gov't Opp. Br. at 13-15.) In addition, the Government argues that Hardy cannot raise his claim for the first time...