Parkes v. United States

1

OTIS PARKES, Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. 03-cr-01364 (LAK), 16-cv-04771 (LAK)

United States District Court, S.D. New York

July 31, 2023

Otis Parkes Movant Pro se

Danielle M. Kudla Assistant United States Attorney Damian Williams United States Attorney

MEMORANDUM OPINION

Lewis A. Kaplan, District Judge.

This matter is before the Court on remand by the Second Circuit of movant Otis Parkes' successive Section 2255 motion.^[1] Parkes argues that, in view of the Second Circuit's order and the Supreme Court's decisions in United States v. Davis^[2] and United States v Taylor,^[3] this Court should grant Parkes' motion, vacate his Count Three conviction (in addition to Count Four, which this Court already has vacated^[4]), and issue an amended judgment so reflecting. For the reasons set forth below, movant's motion to vacate his conviction on Count Three is granted.

Facts

In June 2003, movant Otis Parkes agreed with Duane Beaty and Steven Young to rob a marijuana dealer, Ruben Medina. While searching the apartment for marijuana, Young shot and killed Medina. All three men fled the apartment without finding any marijuana.^[5]

Parkes was charged with five counts arising from the attempted armed robbery. Count One charged him with conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951. Count Two charged attempted Hobbs Act robbery in violation of 18 U.S.C. §§ 1951 and 2. Count Three charged using carrying, and possessing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(a)(iii) and 2. Count Four charged him with using, carrying, and possessing a firearm during and in relation to a crime of violence and causing death through the use of a firearm in violation of 18 U.S.C. §§ 924(i)(1) and 2. Count Five charged him with possessing a firearm following a felony conviction in violation of 18 U.S.C. § 922(g)(1).

The jury instructions permitted conviction on Count Three if the jury convicted Parkes either of the alleged conspiracy to commit Hobbs Act robbery charged in Count One or the alleged attempted Hobbs Act robbery charged in Count Two.^[6] The predicate offense for conviction on Count Four was a finding of guilt on the conspiracy charged in Count One. The jury convicted Parkes on all five counts. The verdict did not specify whether Count One or Count Two was the predicate offense for conviction on Count Three.^[7]

Parkes timely appealed his convictions and sentence. As relevant to the pending motion, Parkes did not raise any arguments on appeal that related to whether conspiracy to commit Hobbs Act robbery or attempted Hobbs Act robbery were crimes of violence within the meaning of 18 U.S.C. § 924(c). The Second Circuit affirmed the convictions but remanded for resentencing. It concluded that Count Three was a lesser-included offense of Count Four and that Parkes therefore could not be sentenced on both counts.^[8] On remand, this Court resentenced Parkes to concurrent terms of 240 months on Counts One and Two, a concurrent term of 120 months on Count Five, and a term of life imprisonment on Count Three, that term to run consecutively to his sentences on Counts One, Two, and Five.^[9] Parkes was not sentenced on Count Four.

On December 18, 2009, Parkes filed a pro se Section 2255 motion challenging his conviction and sentence on the basis of ineffective assistance of counsel (the “First Section 2255 Motion”).^[10] Parkes again did not raise any arguments challenging whether conspiracy to commit Hobbs Act robbery or attempted Hobbs Act robbery was a crime of violence within the meaning of 18 U.S.C. § 924(c).^[11] On January 3, 2011, this Court denied Parkes' motion for a certificate of appealability as to the First Section 2255 Motion.^[12]

On May 12, 2020, the Second Circuit granted Parkes leave to file a successive Section 2255 motion challenging Counts Three and Four in view of the Supreme Court's decisions in Johnson v. United States^[13] and United States v. Davis.^[14] In his successive 2255 motion, Parkes argued that his Section 924(c) and 924(i) convictions should be vacated because neither a conspiracy to commit Hobbs Act robbery nor attempted Hobbs Act robbery remained a valid predicate offense after Davis. The government conceded that the conviction on Count Four, which was predicated only on the Hobbs Act robbery conspiracy count, should be vacated in light of Davis, but opposed vacating Parkes' conviction on Count Three.

On May 4, 2021, the Court entered an order vacating Parkes' conviction on Count Four.^[15] It denied Parkes' motion to vacate Count Three “substantially for the reasons set forth in the government's opposition and March 26, 2021 letter” and, in particular, in view of the Second Circuit's decision in United States v. McCoy,^[16] which had held that attempted Hobbs Act robbery qualified as a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A).^[17] It did so essentially because Parkes was found guilty on both Counts One and Two, and Count Two remained a valid predicate offense at that time. Finally, the Court entered an amended judgment reflecting the vacatur of Count Four and denied a certificate of appealability.^[18]

On May 18, 2021, Parkes appealed the Court's order.^[19] The Second Circuit stayed Parkes' appeal pending the Supreme Court's decision in United States v. Taylor,^[20] which ultimately held that attempted Hobbs Act robbery is not a Section 924(c)(3)(A) crime of violence. Following Taylor, Parkes moved on July 11, 2022 to vacate the stay and sought a certificate of appealability with respect to the validity of Count Three. In sum, he asked the Circuit to vacate this Court's denial of the Section 2255 motion on that issue and to remand for further proceedings.^[21] The government consented to Parkes' requested relief “without prejudice to its right to address on remand whether Parkes's motion satisfies any other applicable requirements of relief, including the requirements applicable to second or successive Section 2255 motions pursuant to 28 U.S.C. §§ 2255(h) and 2244(b).”^[22]

On October 14, 2022, the Second Circuit terminated the stay of Parkes' appeal, granted a certificate of appealability on the issue of whether Parkes' 18 U.S.C. § 924(c) conviction remains supported by any valid crime-of-violence predicate, and remanded for further proceedings.^[23]It directed that this Court on remand “should decide in the first instance [i] whether the case law underlying Appellant's claim may be applied retroactively to cases on collateral review and [ii] whether Appellant's § 924(c) conviction is still supported by any valid crime-of-violence predicate.”^[24]

Discussion I. Section 2244

The parties agree that United States v. Davis and United States v. Taylor apply retroactively to cases on collateral review and invalidate both potential crime-of-violence predicates for Count Three. The government nevertheless argues that Parkes' Section 924(c) conviction should be sustained on a single procedural basis his motion does not satisfy the threshold requirements for a successive Section 2255 motion pursuant to 28 U.S.C. § 2244(b)(2)(A). Specifically, it argues that Parkes' motion does not rely on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”^[25] The government's argument is without merit.

As an initial matter, the government's procedural argument fails under the law of the case doctrine, which “forecloses reconsideration of issues that were decided-or that could have been decided-during prior proceedings. It applies both to that which is expressly decided as well as to everything decided by necessary implication.”^[26] Here, the Court already implicitly decided that Parkes' challenge to Count Three meets the gatekeeping requirements of Section 2244 by denying that claim on the merits rather than dismissing it pursuant to 28 U.S.C. § 2244(b)(4) as requested by the government.^[27]

In all events, the government's procedural argument fails also on the merits. To determine whether Parkes' motion relies on a new rule of constitutional law, the Court first must “engage in a searching inquiry” to determine whether, as “a question of historical fact,” his conviction was based on the elements clause or the residual clause of Section 924(c).^[28] The operative question is “whether [Parkes] was sentenced in violation of the new constitutional rule announced in [Davis], which held that [Section 924(c)'s] residual clause was unconstitutionally vague.”^[29] If the sentencing record is “unclear as to the clause on which [the] original sentencing court had, in fact, relied,” the Court may consider “background legal conditions” at the time of sentencing.^[30] Finally, after conducting this factual inquiry, if the record is inconclusive as to which clause was the basis for Parkes' sentence, the Court will determine whether he has shown that his Section 924(c) conviction may have relied on Section 924(c)(3)(B)'s invalid residual clause.

First, the sentencing record is unclear as to the clause on which the Court relied in imposing the original sentence. As noted above, the jury instructions permitted conviction on Count Three if the jury convicted Parkes either of the alleged conspiracy to commit Hobbs Act robbery charged in Count One or the alleged attempted Hobbs Act robbery charged in Count Two.^[31]The jury convicted Parkes on all counts, and there is no evidence in the record specifying whether Parkes' Count Three conviction was predicated on his conviction under Count One or Two.^[32]

The government acknowledges that, at the time of Parkes' trial and sentencing, Hobbs Act robbery conspiracy...