HERNANDEZ v. UNITED STATES

Filing 14

OPINION. Signed by Judge Robert B. Kugler on 9/18/2019. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MOISES HERNANDEZ,
:
:
Petitioner,
:
Civ. No. 17-4582 (RBK)
:
v.
:
:
UNITED STATES OF AMERICA,
:
OPINION
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
Petitioner, Moises Hernandez, is a federal prisoner proceeding, through counsel, with a
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons
set forth below, Petitioner’s motion will be denied and a certificate of appealability shall not issue.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 7, 2008, Petitioner pleaded guilty to Conspiracy to Distribute and Possess with

Intent to Distribute Cocaine Base, contrary to 21 U.S.C. §§ 841(a) and (b)(1)(C), in violation of
21 U.S.C. § 846 and Use of a Firearm in Furtherance of a Drug Trafficking Offense that Caused
Death, in violation of 18 U.S.C. §§ 924(c) and (j). (ECF No. 12-2, at 1.) On December 20, 2008,
Petitioner was sentenced by this Court to 330 months incarceration. (Id.)
Petitioner appealed to the United States Court of Appeals for the Third Circuit. See United
States v. Hernandez, 378 F. App’x 145 (3d Cir. 2010). On May 6, 2010, the Third Circuit denied
Petitioner’s appeal, affirming both his conviction and sentence. See id. at *7. The United States
Supreme Court denied Petitioner’s writ of certiorari. See Hernandez v. United States, 562 U.S.
398 (2010). In 2017, Petitioner filed the instant motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. (ECF No. 9.) Petitioner’s sole ground for relief is that, pursuant to

Johnson v. United States, 135 S. Ct. 2551 (2015), his conviction under 18 U.S.C. § 924(c) should
be invalidated as unconstitutionally vague. (ECF No. 9, at 4.) Respondent filed an answer
opposing the petition. (ECF No. 12.)
II.

LEGAL STANDARD
Under 28 U.S.C. § 2255, a motion to vacate, set aside or correct a sentence of a person in

federal custody entitles a prisoner to relief if “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.” 28 U.S.C. § 2255(a). When considering a § 2255 motion, a district
court “ ‘must accept the truth of the movant’s factual allegations unless they are clearly frivolous
on the basis of the existing record.’ ” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015)
(quoting United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)). Additionally, a district court
must hold an evidentiary hearing on the motion if “ ‘the files and records do not show conclusively
that [the movant] was not entitled to relief.’ ” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir.
2015) (alteration in original) (quoting Solis v. United States, 252 F.3d 289, 294 (3d Cir. 2001)).
III.

DISCUSSION
Petitioner argues that the statute he was convicted under for his use of a firearm during a

drug trafficking offense, 18 U.S.C. § 924(c), should be rendered unconstitutionally vague because
it contains a residual clause that is similar to the one invalidated by the Supreme Court in Johnson.
(ECF No. 9, at 4.) Petitioner argues that § 924(c)’s crime of violence residual clause is “similar if
not equivalent” to the Armed Career Criminal Act’s (“ACCA”) violent felony residual clause
which was determined to be unconstitutionally vague in Johnson. (Id.) The Government,
however, argues that Johnson’s holding does not apply to convictions, such as Petitioner’s, which

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were predicated upon drug crimes and not upon § 924(c)’s residual clause. (ECF No. 12, at 2.)
The Government asserts that Petitioner’s argument is without merit and falls outside the purview
of Johnson. (Id.)
Under 18 U.S.C. § 924(c), it is a crime for an individual to use or carry a firearm during,
or in relation to, a drug trafficking crime or a crime of violence. See 18 U.S.C. § 924(c). Section
924(c) defines a drug trafficking crime as any felony punishable under the Controlled Substances
Act (21 U.S.C. et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.),
or Chapter 705 of Title 46. See 18 U.S.C. § 924(c)(2). Section 924(c) separately defines a crime
of violence as any felony which:
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another [the
“elements clause”], or
(B) 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 [the “residual clause”].
18 U.S.C. § 942(c)(3).
In Johnson, the Supreme Court held a similarly worded residual clause in the ACCA’s
definition of a “violent felony” was unconstitutionally vague. See Johnson, 135 S. Ct. at 2557.
Under that residual clause, a violent felony was defined as, “any crime punishable by
imprisonment for a term exceeding one year” that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.” See id. at 2555-56. The Supreme Court held
that individuals are entitled to fair notice of what conduct is punishable and the “wide-ranging
inquiry” required by the residual clause to determine what conduct is encompassed results in
unpredictable and arbitrary enforcement. See id. at 2557. Three years after Johnson, the Supreme
Court issued its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which invalidated the

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residual clause of 18 U.S.C. § 16(b)’s crime of violence definition. This clause is identical to
§ 924(c)’s crime of violence residual clause. Compare id. at 1211 (defining 18 U.S.C. § 16(b)’s
residual clause as “any other offense that is a felony and 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”) with 18 U.S.C. § 942(c)(3)(B).
Most recently, during the pendency of Petitioner’s § 2255 motion, the Supreme Court
issued its opinion in United States v. Davis, 139 S. Ct. 2319 (2019), which invalidated another
residual clause – the residual clause of § 924(c)(3)(B). The Supreme Court held that, like the
residual clauses in Johnson and Dimaya, § 924(c)(3)(B)’s crime of violence residual clause was
also unconstitutionally vague. See id. at 2336. Importantly, however, Davis only invalidated §
924(c)(3)(B) and not the entirety of § 924(c). See id. (“We agree … that § 924(c)(3)(B) is
unconstitutionally vague.”). Accordingly, convictions based upon a defendant’s use or carrying
of a firearm in relation to a drug trafficking crime or upon a crime of violence defined under
§ 924(c)(3)(A) are still valid. See In re Navarro, 931 F.3d 1298, 1302-03 (11th Cir. 2019) (holding
that a petitioner’s § 924(c) conviction fully supported by drug trafficking offenses was outside the
scope of Davis); see also United States v. Thomas, 933 F.3d 685, 695 n.5 (7th Cir. 2019)
(upholding conviction under § 924(c) where predicate crime was a bank robbery which fell under
§ 924(c)(3)(A)’s crime of violence elements clause); Kidd v. United States, 929 F.3d 578, 581 (8th
Cir. 2019) (“Because § 924(c)(3)(A) [the crime of violence elements clause] applies in this case,
the Supreme Court’s recent decision in United States v. Davis does not afford [petitioner] the relief
he seeks.”).
Here, Petitioner’s argument overlooks that his conviction under § 924(c) was based solely
upon a drug trafficking offense.

Petitioner’s indictment, plea agreement, and judgment of

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conviction all state his crime as “Use of a Firearm in Furtherance of a Drug Trafficking Offense
that Caused Death.” (ECF Nos. 12-1, 12-2; see also Crim. No. 06-736, ECF No. 113 (emphasis
added).) Therefore, although Davis invalidated § 924(c)(3)(B), Petitioner’s conviction was not
based upon the residual clause and was not implicated by the decisions in Davis or Johnson. See
Thomas, 933 F.3d 695 n.5. Accordingly, Petitioner is not entitled to relief on his claim.
IV.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas

proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003);
see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not
disagree with this Court’s conclusion that Petitioner has failed to make a substantial showing of
the denial of a constitutional right insomuch as Petitioner’s claim is without merit, Petitioner’s
habeas petition is inadequate to proceed further and therefore, a certificate of appealability shall
not issue.
V.

CONCLUSION
For the reasons stated above, the Petitioner’s habeas petition is DENIED and a certificate

of appealability shall not issue.

DATED: September 18, 2019

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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