Stuckey v. United States, 16–CV–1787 (JPO)

224 F.Supp.3d 219

Sean STUCKEY, Petitioner,

v.UNITED STATES, Respondent.

16–CV–1787 (JPO)

06–CR–339 (BSJ)

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

Signed December 1, 2016

David E. Patton, Matthew B. Larsen, Colleen P. Cassidy, Federal Defenders of New York Inc., New York, NY, for Petitioner.

Nicholas Folly, United States Attorney's Office, New York, NY, for Respondent.

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

Pursuant to 28 U.S.C. § 2255, Petitioner Sean Stuckey seeks relief from a sentence imposed under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The applicability of the ACCA's fifteen-year mandatory minimum sentence to Stuckey hinges on whether his two prior convictions for Robbery in the First Degree under New York law, N.Y. Penal Law § 160.15, constitute "violent felonies" under the ACCA. Because the Court concludes that they do, the petition is denied.

I. Background

On January 10, 2008, Sean Stuckey was sentenced to imprisonment for 188 months plus ten days (that is, fifteen years, eight months, and ten days) after he was convicted of being a felon in possession of a firearm in violation 18 U.S.C. § 922(g)(1). (Dkt. No. 1 at 1, 7–8.) See United States v. Stuckey , 317 Fed.Appx. 48, 49 (2d Cir. 2009). The crime for which Stuckey was convicted carries a statutory maximum penalty of ten years. 18 U.S.C. § 924(a)(2). But an ACCA sentencing enhancement requires a mandatory minimum of fifteen years where a defendant has three prior convictions for a "violent felony" or a "serious drug offense." Id. § 924(e)(1). Stuckey has already served more than ten years: he has been in custody since April 2006. (Dkt. No. 5 at 3.)

At the time he was sentenced, Stuckey had four prior convictions. The parties agree that one of these crimes—second-degree assault in violation of New York Penal Law § 120.05(2) —is a violent felony under the ACCA and that another—second-degree robbery in violation of New York Penal Law § 160.10(1) —is not. (Dkt. No. 5 at 1, 3; Dkt. No. 10 at 7 n.4.) The parties disagree about whether the remaining two convictions—for Robbery in the First Degree in violation of New York Penal Law § 160.15(3) and § 160.15(4) —are violent felonies under the ACCA. If they are, then a fifteen-year mandatory minimum applies. If not, then a mandatory maximum of ten years, which Stuckey has already served, applies.

This case thus requires the Court to determine whether the first-degree robbery felonies defined by New York Penal Law § 160.15(3) and § 160.15(4) are violent felonies under the ACCA. To do so, the Court must consider the language of the ACCA together with relevant precedent interpreting it, the categorical approach that is used to consider whether a crime is violent under the ACCA, and the particularities of New York's robbery statute.

A. The ACCA, Johnson , and Leocal

The ACCA provides for a fifteen-year mandatory minimum sentence for a person convicted under 18 U.S.C. § 922(g) who has "three previous convictions ... for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The statute defines "violent felony" to mean "any crime punishable by imprisonment for a term exceeding one year" that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B).¹

Two recent Supreme Court decisions shed light on the meaning of the terms "use" and "force" in this provision of the ACCA.

In Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Johnson 2010 "), the Supreme Court clarified that "physical force," as used in § 924(e)(2), "means violent force—that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265. The Court thus refused to treat the Florida felony offense of battery, which required as an element only " ‘[a]ctually and intentionally touch[ing]’ another person," as a crime of violence under the ACCA, as the common-law definition of battery could be satisfied with less than violent force. Id. at 137, 130 S.Ct. 1265.

In Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the Supreme Court interpreted the word "use," in 18 U.S.C. § 16, a provision analogous to § 924(e)(2) of the ACCA.² The Court in Leocal held that " ‘use’ requires active employment," and, in particular, that "use ... of physical force ... most naturally suggests a higher degree of intent than negligent or merely accidental conduct." Leocal , 543 U.S. at 9, 125 S.Ct. 377 (internal quotation marks omitted). The Court thus refused to treat the Florida felony offense of driving under the influence as a crime of violence, as it did not require any intentional conduct. Id. at 10, 125 S.Ct. 377.

B. The Categorical Approach and the Modified Categorical Approach

In determining whether a crime constitutes a violent felony under the ACCA, courts do not look at the particular facts underlying a defendant's prior conviction. Rather, courts use what is referred to as the "categorical approach," focusing only on "the elements of the statute forming the basis of the defendant's conviction," to determine whether the minimum conduct necessary for a conviction amounts to a violent felony. Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). If the minimum conduct necessary for conviction is not sufficiently violent, the crime cannot be deemed a violent felony, regardless of the facts underlying any particular defendant's conviction.

However, this "focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ " Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684–85, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas–Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).

Where a prior conviction is under a "divisible statute," that is, one which "sets out one or more elements of the offense in the alternative," a court may apply a "modified categorical approach." Descamps , 133 S.Ct. at 2281. This approach allows the court to "consult a limited class of documents," known as " Shepard documents," "to determine which alternative formed the basis of the defendant's prior conviction," and then requires the court to apply the categorical approach to the elements of the specific alternative under which the defendant was convicted. Id. ; see Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (describing documents that courts may consider). Where the government fails to produce Shepard documents, a court determines whether the "least of [the] acts" described in the statute can serve as a predicate offense. Johnson 2010 , 559 U.S. at 137, 130 S.Ct. 1265.

C. New York First–Degree Robbery

This case requires the Court to determine whether first-degree robbery in New York constitutes a violent felony under the ACCA. The New York first-degree robbery statute provides:

A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime :

1. Causes serious physical injury to any person who is not a participant in the crime; or

2. Is armed with a deadly weapon; or

3. Uses or threatens the immediate use of a dangerous instrument; or

4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm ....

N.Y. Penal Law § 160.15 (emphasis added).

New York courts have interpreted the first-degree robbery statute to require proof of intent only as to the "forcible stealing," not as to any of the four enumerated aggravating factors elevating it to robbery in the first degree. People v. Miller , 87 N.Y.2d 211, 217, 638 N.Y.S.2d 577, 661 N.E.2d 1358 (N.Y. Ct. App. 1995). To obtain a conviction under the statute, the government must only prove robbery (with the requisite intent) plus the existence one of the four aggravators; the government need not, however, prove the defendant's intent as to any applicable aggravator. Thus, when an individual commits the crime along with another participant, "strict liability for an aggravating circumstance attaches to an accomplice, regardless of the latter's degree of intent, knowledge or conduct with respect to the aggravating circumstance." People v. Gage , 259 A.D.2d 837, 687 N.Y.S.2d 202, 204 (3rd Dep't 1999) (citing Miller , 87 N.Y.2d at 217, 638 N.Y.S.2d 577, 661 N.E.2d 1358 ); see also, e.g. , People v. Fingall , 24 N.Y.S.3d 704, 705, 136 A.D.3d 622 (2d Dep't 2016) ("[T]he prosecution was not required to prove that the defendant had prior knowledge of another perpetrator's intent to display an operable firearm, because such knowledge was not an element of robbery in the first degree."); In re Angel V. , 247 A.D.2d 343, 669 N.Y.S.2d 211, 211 (1st Dep't 1998) ("The presentment agency was not required to prove that [the defendant] intended or knew that the accomplice would threaten the immediate use of a dangerous instrument.").

D. Stuckey's Motions

Stuckey filed with this Court a Motion for Judgment Ordering Immediate Release on August 3, 2016, following the Second Circuit's (subsequently vacated) decision in United States v. Jones . (Dkt. No. 5.) See United States v. Jones , 838 F.3d 296 (2d Cir. 2016). Stuckey had previously filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on March 9, 2016 (Dkt. No. 1), following the Supreme Court's invalidation of the ACCA's residual clause in Johnson 2015 , which applies retroactively to cases on collateral review. See Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).³

Stuckey initially argued that because the government had failed to produce documents identifying the...