United States v. Reyes, CRIMINAL ACTION NO. 06-654-1

UNITED STATES OF AMERICA v. THOMAS REYES

CRIMINAL ACTION NO. 06-654-1

CIVIL ACTION NO. 11-6234

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 8, 2013

MEMORANDUM

Padova, J.

Before the Court is Defendant Thomas Reyes's: (1) Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255; and (2) Motion for Leave to File an Amended § 2255 Motion. For the following reasons, we deny both Motions. At the same time, we grant a certificate of appealability limited to the following issue: whether the decision of the United States Supreme Court in Alleyne v. United States, 133 S. Ct. 2151 (2013), applies retroactively to cases on collateral review.

I. BACKGROUND

On September 4, 2007, Thomas Reyes was convicted by a jury of attempted interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count One); using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two); and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Three). The charges arose from an incident that occurred on July 16, 2006, at the Gomez Grocery store in Philadelphia, Pennsylvania. The evidence admitted at trial established that Reyes entered the Gomez Grocery wearing gloves and a bandana over his face. (N.T. 08/29/07 at 113; N.T. 08/30/07 at 38.) He locked the door behind him, drew a semi-automatic firearm, announced a robbery, and ordered the employees and customers to the floor. (N.T. 08/29/07 at 116-18; N.T. 08/30/07 at 6, 37.) He jumped onto the front counter, and was then grabbed from behind by astore employee, Tomas Santana, who wrestled him to the floor. (N.T. 08/29/07 at 121-23; N.T. 08/30/07 at 40-41.) During the ensuing struggle with Santana and another employee, Eddie Cruz, Reyes fired at least two rounds from the gun. (N.T. 08/29/07 at 130; N.T. 08/30/07 at 42.) Reyes was ultimately subdued when Santana struck him on the head with an applesauce jar. (N.T. 08/29/07 at 130; N.T. 08/30/07 at 45-46.)

On August 12, 2008, Reyes filed a post-verdict motion asking us to vacate the jury's verdict and grant him a new trial pursuant to Federal Rule of Criminal Procedure 33, on the grounds that: (1) the Government failed to prove that he intended to affect interstate commerce; (2) the jury instructions were inadequate because they failed to address his intent to affect interstate commerce; (3) there was a variance between the Indictment and the evidence at trial because no evidence was produced showing that he intended to affect interstate commerce; and (4) the evidence at trial was insufficient to establish that his actions affected interstate commerce. United States v. Reyes, Crim. A. No. 06-654, 2008 WL 4950006, at *1-2 (E.D. Pa. Nov. 18, 2008). We rejected all of Reyes's arguments, concluding that the Government was not required to prove that Reyes had the specific intent to interfere with interstate commerce in order to prove that he violated 18 U.S.C. § 1951(a), and that the evidence at trial established that the attempted robbery had the requisite effect on interstate commerce. Id. at *2-3. We therefore denied Reyes's post-verdict motion in its entirety.

Reyes was sentenced on December 3, 2008, to a total of 180 months of imprisonment, five years of supervised release, a fine of $1,000.00, and a special assessment of $300.00. Reyes appealed his conviction to the United States Court of Appeals for the Third Circuit. He raised three issues on direct appeal: (1) there was insufficient evidence at trial to convict him ofattempted robbery; (2) Section 1951(a) was unconstitutional as applied to his conduct; and (3) the Indictment and jury instructions were inconsistent because the Indictment suggested that § 1951(a) required an intent to affect interstate commerce, but the jury was instructed that it did not have to find that he intended to affect interstate commerce. United States v. Reyes, 363 F. App'x 192, 194-97 (3d Cir. 2010). The Third Circuit rejected those arguments and affirmed Reyes's conviction on January 27, 2010. Id. at 197. Reyes filed a petition for writ of certiorari to the United States Supreme Court, which was denied on October 4, 2010. Reyes v. United States, 131 S. Ct. 252 (2010).

Reyes filed his timely pro se § 2255 Motion on October 4, 2011. The Motion raises the following grounds for relief: (1) he was not put on proper notice of the charges against him because the Indictment led him to believe that proof of an intent to interfere with interstate commerce was an element of § 1951(a); (2) there was a constructive amendment of the Indictment because it alleged that the attempted robbery potentially affected interstate commerce, whereas the proof at trial showed an actual effect; (3) the Indictment was insufficient because it did not identify the interstate party with whom the Gomez Grocery was in business; and (4) his trial counsel was ineffective for: (a) failing to brief his post-verdict motion; (b) making a "deal" with the Government not to present evidence of his version of the events at the Gomez Grocery; (c) failing to adequately meet with him before trial; and (d) failing to conduct adequate pretrial investigations. We appointed Reyes counsel and held evidentiary hearings on his § 2255 Motion on September 14, 2012, October 18, 2012, and April 4, 2013. On July 1, 2013, Reyes filed a Motion for Leave to File an Amended § 2255 Motion seeking to assert six newly-stated claims, including four based on Alleyne v. United States, 133 S. Ct. 2151 (2013).

II. LEGAL STANDARD

Reyes has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). "Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors." United States v. Perkins, Crim. A. No. 03-303, Civ. A. No. 07-3371, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting United States v. Rishell, Crim. A. No. 97-294-1, Civ. A. No. 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001)). In order to prevail on a § 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).

III. DISCUSSION

A. Grounds One, Two, and Three

Reyes did not raise any of his first three grounds for relief on direct appeal. "Because collateral review under § 2255 is not a substitute for direct review, a movant ordinarily may only raise claims in a 2255 motion that he raises on direct review." Hodge v. United States, 554 F.3d 372, 378-79 (3d Cir. 2009) (citing Bousley v. United States, 523 U.S. 614, 621 (1998)). This means that a movant has "procedurally defaulted all claims that he neglected to raise on directappeal." Id. at 379 (citing Bousley, 523 U.S. at 621). However, the movant may raise his claims in a motion brought pursuant to § 2255 "if he can prove either that he is actually innocent of the crime for which he was convicted, or that there is a valid cause for the default, as well as prejudice resulting from the default." Id. (citing Bousley, 523 U.S. at 622).

Reyes argues that his counsel's ineffectiveness was cause for his failure to raise Grounds One, Two, and Three on direct appeal. Cause necessary to excuse a procedural default must be an occurrence beyond a defendant's control that cannot be fairly attributed to him. See McCleskey v. Zant, 499 U.S. 467, 493 (1991) ("In procedural default cases, the cause standard requires the petitioner to show . . . 'some objective factor external to the defense . . . .'" (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))). Prejudice necessary to excuse a procedural default means that any alleged error worked to a defendant's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982)). "Ineffective assistance of counsel that rises to the level of a Sixth Amendment violation constitutes cause for a procedural default." Hodge, 554 F.3d at 379 (citations omitted). However, there is "no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument." United States v. Sanders, 165 F.3d 248, 253-54 (3d Cir. 1999) (citations omitted).

1. Ground One: Notice of the Charges in the Indictment

In Ground One, Reyes argues that he was not put on proper notice of the charges against him because the Indictment led him to falsely believe that the Government would have to prove that he specifically intended to interfere with interstate commerce in connection with the § 1951(a) charge. "Generally, each count of the indictment must set forth a sufficient description of the crime charged." United States v. Werme, 939 F.2d 108, 111 (3d Cir. 1991). To determinewhether an indictment puts a defendant on notice of the charges against him, "we look at the entire indictment" and consider "'whether the indictment contains the elements of the offense intended to be charged and sufficiently appraises the defendant of [the crime] he should be prepared to meet.'" Id. at 112 (alteration in original) (quoting United States v. Wander, 601 F.2d 1251, 1258 (3d Cir. 1979)) (other citation omitted). In other words, an indictment need only put a defendant on notice of the charged offense. See id.

Section 1951(a) reads, in pertinent part: "Whoever in any way or degree...