Patterson v. United States

MARLON PATTERSON, Petitioner, v. UNITED STATES, Respondent.

No. 3:16-cv-1052 (SRU)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

June 29, 2020

RULING AND ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT CONVICTION

Marlon Patterson, currently confined in United States Penitentiary Allenwood, filed the instant motion to vacate, set aside, or correct his conviction ("habeas petition") pursuant to 28 U.S.C. § 2255. Patterson contends that his conviction and sentence for violating 18 U.S.C. § 924(c) should be vacated because the offense on which that conviction is predicated—Hobbs Act Robbery under 18 U.S.C. § 1951(a)—does not qualify as a crime of violence as defined in 18 U.S.C. § 924(c)(3), and because his counsel rendered constitutionally defective assistance by failing to raise that argument.

Based on the entire record and for the reasons that follow, I conclude that Patterson's arguments are without merit and that there is no need to hold a hearing. Patterson's habeas petition is therefore denied.

I. Legal Standard

Section 2255 provides a prisoner in federal custody an opportunity to challenge the legality of his or her sentence. To obtain relief under section 2255, a petitioner must show that his or her prior sentence was invalid because: (1) it was imposed in violation of the Constitution or the laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) it exceeded the maximum detention authorized by law; or (4) it is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

The standard is stringent; even constitutional errors will not be redressed through a section 2255 petition unless they have had a "substantial and injurious effect" that results in "actual prejudice" to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623, 637 (1993) (internal citations omitted); see also Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht's harmless error standard to section 2255 petitions). The petitioner bears the burden of proving that he or she is entitled to relief by a preponderance of the evidence. Blackmon v. United States, 2019 WL 3767511, at *4 (D. Conn. Aug. 9, 2019) (citing Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000)).

A federal prisoner may not use a section 2255 petition to relitigate questions that were expressly or impliedly resolved during a direct appeal, unless there is "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2013) (internal citations omitted); see also United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998) ("A motion under § 2255 is not a substitute for an appeal."). A petitioner is also barred from raising a claim on habeas review that was not properly raised on direct review unless the petitioner is able to show "cause and actual prejudice" or "actual innocen[ce]." See Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations and quotation marks omitted). A petitioner may, however, bring a claim of ineffective assistance of counsel that was not raised previously at trial or on appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003).

Under section 2255, a petitioner is entitled to a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. §2255(b). "Mere generalities or hearsay statements will not normally entitle the applicant to a hearing . . . The petitioner must set forth specific facts which he is in a position to establish by competent evidence." Dalli v. United States, 491 F.2d 758, 760-61 (2d Cir. 1974) (citations omitted). In the absence of supporting facts, the court may resolve a petitioner's claims without a hearing. See id. at 760-62.

II. Background

On May 12, 2014, a grand jury returned a fourteen-count indictment charging Patterson, among others, with various narcotics, firearms, and Hobbs Act Robbery offenses. United States v. Patterson, No. 13-cr-146 ("Criminal Action"), Second Superseding Indictment, Doc. No. 119.¹

On May 1, 2015, Patterson pled guilty to Counts Two, Three, and Six of the indictment, charging him, respectively, with:

(1) Interference with commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and Section 2 (Hobbs Act Robbery) [Count Two];²

(2) Use of a firearm during and in relation to a crime of violence—namely, interference with commerce by robbery as charged in Count Two—in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and Section 2 [Count Three]; and

(3) Attempted Hobbs Act Robbery, in violation of 18 U.S.C. §§ 1951(a) and Section 2 [Count Six].

Id., Plea Agreement, Doc. No. 488.

Under the plea agreement, Patterson waived his rights to appeal or collaterally attack his conviction. Id. at 6. Patterson also waived his rights to appeal or collaterally attack his sentence if the sentence did not exceed 240 months, a five-year term of supervised release, a $300 special assessment, a $125,000 fine, and restitution as determined by the court. Id.

On March 24, 2016, I sentenced Patterson to a total of 192 months of imprisonment: a term of 108 months on Counts Two and Six, to run concurrently, and a term of 84 months on Count Three, to run consecutive to his sentence on Counts Two and Six. Criminal Action, Judgment, Doc. No. 505. I also imposed supervised release for a total term of three years on Counts Two and Six, and for a term of five years on Count Three, all to run concurrently, as well as a special assessment of $300. Id. Patterson did not pursue an appeal.

On June 24, 2016, Patterson filed a pro se motion to vacate his sentence based, in part, on the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II"),³ which struck down the "residual clause" of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B), as unconstitutionally vague.⁴ See Mot., Doc. No. 1, at 6, 8. Patterson argued that Johnson II's holding should be extended to the "residual clause" of 18 U.S.C. § 924(c), which defines a "crime of violence" as a felony "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." See id. Without that clause, Patterson averred, his Hobbs Act Robbery offense—on which his section 924(c) conviction rested—was not a "crime of violence" undersection 924(c). See id. According to Patterson, his section 924(c) conviction and sentence therefore could not stand. See id.

On June 14, 2017, Patterson's counsel filed an amended motion, reiterating Patterson's argument that the residual clause of section 924(c) is unconstitutionally vague under Johnson II. See Am. Mot., Doc. No. 9. In the motion, Patterson acknowledged that the Second Circuit in United States v. Hill, 832 F.3d 135 (2d Cir. 2016) ("Hill I"), amended and superseded by United States v. Hill, 890 F.3d 51 (2d Cir. 2018), held that Hobbs Act Robbery categorically qualifies as a crime of violence under section 924(c)'s "elements clause,"⁵ and that the residual clause was not void for vagueness based on Johnson II. Id. at 2. Patterson maintained, however, that the Hill I decision was not yet final in light of a petition for rehearing filed on September 16, 2016, and that, in any event, the Hill I decision was wrong on both issues. Am. Mot., Doc. No. 9-1, at 3-13.

On September 5, 2017, the parties filed a motion to stay pending the outcome of Sessions v. Dimaya, a case in which the Supreme Court would decide whether the residual clause set forth in 18 U.S.C. § 16(b) is unconstitutionally vague. Mot. to Stay, Doc. No. 10. I granted the motion on September 13, 2017. Order, Doc. No. 11. In April 2018, the Supreme Court ruled that section 16(b) was indeed unconstitutionally vague, Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and the stay was thereafter lifted, doc. no. 14.

The legal landscape continued to evolve following Dimaya. In August 2018, the Second Circuit issued an amended decision in United States v. Hill, 890 F.3d 51 (2d Cir. 2018) ("Hill II"), which reached the same holding as the original decision: that Hobbs Act Robbery "has as an element the use, attempted use, or threatened use of physical force against the person or propertyof another" and thus is a categorical crime of violence under section 924(c)'s elements clause. Significantly, however, the Court declined to express a view regarding whether the statute's residual clause was void for vagueness as applied to Hobbs Act Robbery. Id. at 53 n.2.

In September 2018, the Second Circuit took up the question of whether section 924(c)'s residual clause is unconstitutionally vague in United States v. Barrett. See 903 F.3d 166 (2d Cir. 2018), cert. granted, judgment vacated, 139 S. Ct. 2774 (2019), and abrogated by United States v. Davis, 139 S. Ct. 2319 (2019). Reasoning that the determination of whether a predicate offense is a crime of violence under the residual clause can be a conduct-specific rather than categorical inquiry, the Court held that Dimaya and Johnson II did not compel a conclusion that the residual clause was void for vagueness. Id. at 178-85. In so holding, the Second Circuit deepened a dispute among circuit courts regarding the constitutionality of the residual clause.

In December 2018, the government filed an opposition to Patterson's amended motion. Opp. to Am. Mot., Doc. No. 16. The government principally argued that: (1) Patterson waived his rights to challenge his conviction and sentence under the plea agreement; (2) Hobbs Act Robbery qualifies as a predicate crime of violence under section 924(c)'s elements clause, which renders it unnecessary to address Patterson's constitutional challenge to the residual clause, and (3) Patterson's constitutional challenge is foreclosed by Barrett in any event. See generally id.

Two months later, on February 12, 2019, the...