United States v. Fender

1

United States, v. Kensil Dexter Fender, Defendant.

No. 16-cr-124 (KAM)

United States District Court, E.D. New York

May 25, 2023

MEMORANDUM AND ORDER

KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE

On July 29, 2016, Defendant Kensil Dexter Fender ("Defendant") was charged in a two-count Superseding Indictment with Count One, firearm-related murder during a crime of violence, in violation of 18 U.S.C. § 924(j)(1), and Count Two, conspiracy to distribute and possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b) (1) (B) (vii) . (ECF No. 23, Superseding Indictment). The underlying crime of violence identified for Count One was attempted Hobbs Act robbery. (Id.) Defendant pleaded guilty to Count One of the Superseding Indictment pursuant to a plea agreement with the Government. (ECF Nos. 47, 50.) On June 25 2018, the Court sentenced Defendant on Count One to 300 months imprisonment, a $100 special assessment, and $35,000 in restitution.^[1] (ECF Nos. 60-61; 69, 72.)

On December 13, 2022, Defendant, acting pro se, moved to vacate his conviction under 28 U.S.C. § 2255 based on the Supreme Court's decision in United States v Taylor, 142 S.Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not a crime of violence for purposes of 18 U.S.C. § 924(c). (ECF No. 76, § 2255 Motion.) On February 6, 2023, the Government served Defendant with a Restraining Notice forbidding Defendant from selling or transferring any property - with a value of more than $5, 000 - in which he had an interest until the judgment of restitution was satisfied; the Government also served Defendant with a letter informing Defendant that payment of the remaining $34,700 in restitution was due in full within 10 days. (ECF No. 79-1) . On March 7, 2023, Defendant, acting pro se, moved to vacate or modify the Restraining Notice. (ECF No. 79, Motion to Vacate). On April 25, 2023 the Government filed its response to Defendant's pro se § 2255 petition.

For the reasons set forth below, Defendant's § 2255 motion is GRANTED; Defendant's firearm-related murder conviction and sentence are VACATED; and the Government's motion to reinstate Count Two of the Superseding Indictment is GRANTED. The Court declines to decide Defendant's motion to vacate or modify the Restraining Notice at this time.

I. Section 2255 Motion

a. Count One: Section 924(c) conviction

In Defendant's § 2255 motion, he asserts the following: (1) the Supreme Court in Taylor held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c); and therefore (2) this Court must vacate Defendant's firearm-related murder conviction under 18 U.S.C. § 924(j) - which increases the penalty for § 924 (c) violations when a defendant "causes the death of a person" - because the conviction was predicated on attempted Hobbs Act robbery as a crime of violence. (ECF No. 76 at 1-8); 18 U.S.C. § 924(j). The Government concedes that the Supreme Court held in Taylor that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c) and does not dispute that Defendant's firearm-murder conviction should be vacated.

Under § 924(c), "a federal felony qualifies as a 'crime of violence' if it meets either of two definitions." Taylor, 142 S.Ct. at 2019. The first definition, as stated in § 924(c)(3)(A), is known as the elements clause and "covers offenses that have as an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. (alteration and internal quotation marks omitted). The second definition, as stated in § 924 (c) (3) (B) and which is known as the residual clause, was determined by the Supreme Court in United States v. Davis to be unconstitutionally vague. 139 S.Ct. 2319 (2019). This Court agrees with Defendant that "after Taylor, attempted Hobbs Act robbery no longer qualifies as a crime of violence" under § 924(c)(3)(A), or the elements clause. United States v. McCoy, 58 F.4th 72, 73 (2d Cir. 2023) (reversing convictions under § 924(c) where the predicate crime of violence was attempted Hobbs Act robbery).

Because Defendant filed his § 2255 motion pursuant to 18 U.S.C. § 2255(f)(3), which creates an exemption to the usual 1-year statute of limitations for § 2255 motions, there is a threshold issue as to whether the Supreme Court's change in law in Taylor was "made retroactively applicable to cases on collateral review." 18 U.S.C. § 2255 (f) (3). If Taylor does not apply retroactively under § 2255(f)(3), then Defendant's petition could be time-barred, as he filed his motion more than 1 year after his conviction. 18 U.S.C. § 2255 (f) (1) - (4) .

The Second Circuit has not yet decided whether Taylor applies retroactively to cases, such as the instant one, involving a collateral attack under the elements clause of § 924 (c) against a conviction based on attempted Hobbs Act robbery. The Second Circuit, however, recently held in Hall v. United States that the Supreme Court's decision in Davis - holding that § 924(c)'s residual clause was void for vagueness - was a new substantive rule that applied retroactively on collateral review. 58 F.4th 55, 60-62 (2d Cir. 2023). The Second Circuit also observed in dicta in Hall that "Taylor possibly raises a new rule of constitutional law" for the elements clause, which could apply retroactively. 58 F.4th 55, 63 (2d Cir. 2023); cf. United States v. Washington, No. 20-2333, 2023 WL 2945902, at *2 (3d Cir. Apr. 14, 2023) (granting a certificate of appealability where defendant was convicted under § 924(c) because "attempted Hobbs Act robbery cannot satisfy the elements clause, and [therefore] that conviction can stand only under the unconstitutional residual clause"); but cf. In re Williams, No. 22-13997-B, 2022 WL 18912836, at *3 (11th Cir. Dec. 15, 2022) (holding that Taylor did not create a substantive rule to be retroactively applied). Indeed, multiple district courts have suggested that Taylor can be applied retroactively on collateral review. See, e.g., Pedro v. United States, No. 03-CR-0346-1 (SHS), 2022 WL 17418529, at *1 (S.D.N.Y. Nov. 30, 2022) (finding that petitioner had access to § 2255 review under § 2255(f)(3) because he relied on a right newly recognized in Taylor); United States v. Craig, No. 14-CR-0032 (MW) (HTC), 2022 WL 1413717, at *2 n.4 (N.D. Fla. Sept. 26, 2022) ("Taylor would be retroactively applicable to a challenge to [a] . . . § 924 (c) sentence, because in that context the case would be a new substantive rule under Teague [v. Lane, 489 U.S. 288 (1989)]."), report and recommendation adopted, 2022 WL 14151821 (N.D. Fla. Oct. 24, 2022), vacated on other grounds by United States v. Craig, No. 14-CR-32 (MW) (HTC), 2022 WL 18401186, at *1 (N.D. Fla. Nov. 7, 2022); cf. Bousley v. U.S., 523 U.S. 614 (1998) ("Petitioner's conviction and punishment on the § 924(c) charge are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice and presents exceptional circumstances' that justify collateral relief under 28 U.S.C. § 2255.'" (alterations, citation, and internal quotation marks omitted)).

In any event, the Government does not raise timeliness or dispute that Defendant's conviction should be vacated. Accordingly, this Court assumes, without deciding, that Defendant's § 2255 motion is timely.^[2] Day v. McDonough, 547 U.S. 198, 209 (2006) ("[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition." (emphasis added)).

Further, this Court agrees with the parties that "after Taylor, attempted Hobbs Act robbery no longer qualifies as a crime of violence under . . . [§] 924 (c) (3) (A) McCoy, 58 F.4th at 73. Accordingly, this Court vacates Defendant's conviction on Count One for firearm-related murder under § 924(c) based on the predicate crime of violence of attempted Hobbs Act robbery.

b. Count Two: Narcotics Distribution Conspiracy

Although the Government concedes that Defendant's § 924(c) conviction should be vacated, the Government asserts that it has the right to reinstate Count Two of the Superseding Indictment under the terms of Defendant's plea agreement. (ECF No. 84, Government Response, at 3.) The Court dismissed Count Two at the conclusion of Defendant's sentencing proceeding, after the Government moved to dismiss the then-pending count. (ECF No. 72 at 40, 72.) The Government now argues that although the Government agreed in the plea agreement to dismiss Count Two with prejudice at the time of sentencing, Defendant agreed in the plea agreement to waive "all defenses based on the statute of limitations and venue with respect to any prosecution that [was] not time-barred on the date that the agreement [was] signed in the event that . . . [Defendant's] conviction [was] later vacated for any reason." (ECF No. 84 at 2.) The Government also argues, implicitly, that it has the authority to reinstate a previously dismissed count under 18 U.S.C. § 3296, which requires courts to instate counts dismissed pursuant to a plea agreement when several conditions are met. Therefore, the Government moves to have the Court "reinstate the still-valid drug distribution conspiracy charge" against Defendant. (Id. at 3.) The Government also requests a 60-day delay for any status conference regarding Count Two, for transporting Defendant from Florida to New York, to reproduce discovery to Defendant's attorney, and for the Government to "evaluate the evidence" and determine what it might use at trial. (Id.)

Defendant acting pro se, opposes the Government's motion as follows. (ECF No. 85, Def. Reply.) He argues that the only waivers...