VELAZQUEZ-HERNANDEZ v. UNITED STATES OF AMERICA
OPINION. Signed by Judge William J. Martini on 7/17/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:16-04512
Cr. No. 2:14-00022
UNITED STATES OF AMERICA,
WILLIAM J. MARTINI, U.S.D.J.:
Pro se petitioner Hector Velazquez Hernandez (“Petitioner”) moves the Court to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“§ 2255”) and claims
ineffective assistance of counsel in relation to his acceptance of a plea agreement with the
United States (the “Government”). For the reasons set forth below, Petitioner’s motion is
On January 6, 2015, Petitioner pleaded guilty to a two-count Superseding
Indictment, pursuant to a plea agreement. See Mins. of Proceedings (“Mins.”), Jan. 6,
2015, ECF No. 44.1 The counts charged Petitioner with the possession and distribution of
500 or more grams of cocaine and with conspiracy thereto, in violation of 21 U.S.C. §§
841 and 846. See J. 1, ECF No. 49. On April 23, 2015, this Court sentenced Petitioner to
76 months of imprisonment. Id. at 2. Petitioner’s sentencing range fell within the proper
range under the United States Sentencing Guidelines (the “Guidelines”). Petitioner had an
initial offense level of 28, but he received a 2-level downward adjustment in return for his
acceptance of responsibility. See Plea Agreement 6, ECF No. 45.
On July 21, 2016, Petitioner moved to reduce his sentence pursuant to § 2255.
Movant’s Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Pet’r’s
Mot.”) 1, ECF No. 1. Petitioner claims that his sentence was enhanced by 48 months
because of his previous second degree murder conviction, and that such enhancement is
unconstitutionally void for vagueness in light of the Supreme Court’s holding in United
States v. Johnson, 135 S. Ct. 2551 (2015). See Pet’r’s Mot. at 1, 4. Petitioner also brings
a second § 2255 claim that Amendment 794 of the Guidelines is retroactive and applies to
him because it is a “clarifying” amendment. Movant’s Supp. Mot. Under 28 U.S.C. § 2255
All documents from the record of Petitioner’s criminal case refer to docket number 14-cr-22. Petitioner’s papers,
the Government’s response and subsequent correspondence can be found under the civil docket number 16-cv-4512.
(“Pet’r’s Supp. Mot.”) 3–4. Finally, on reply, Petitioner claims that the waiver of the right
to appeal in his plea agreement is invalid due to the ineffective assistance of his counsel,
who advised him to accept the plea agreement instead of taking the case to trial. Pet’r’s
Reply Br. to Government’s Resp. (“Pet’r’s Reply”) 1–7, ECF No. 5.
On June 23, 2016, Chief Judge Jerome B. Simandle issued a standing order staying
all motions filed under § 2255 in the District of New Jersey that seek collateral relief based
on the Johnson decision. See Standing Order 3, No. 16-mc-11, ECF No. 2. The order
directed the parties of each stayed motion to move to lift the stay when they are ready to
proceed. Id. On March 6, 2017, the Supreme Court issued its decision in Beckles v. United
States, 137 S. Ct. 886, holding that the Guidelines “are not subject to a vagueness challenge
under the Due Process Clause.” See 137 S. Ct. at 892. Approximately six weeks thereafter,
the Government filed a letter in this Court arguing that Beckles invalidated Petitioner’s
vagueness challenge to his sentence under the Guidelines. See Letter, Apr. 27, 2017, ECF
No. 6. In light of Petitioner’s pro se status and of the recent developments in controlling
case law, the Court accepts the Government’s letter as an acknowledgement that
Petitioner’s motion is ready to proceed and lifts the stay.
II. LEGAL STANDARD
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal
prisoners can challenge their convictions or sentences that are allegedly in violation of the
Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Davis v.
United States, 417 U.S. 333, 343 (1974)). If the Supreme Court newly recognized and
made retroactive a federal prisoner’s asserted right, that prisoner “may move the court
which imposed the sentence to vacate, set aside, or correct the sentence.” See 28 U.S.C. §
“A criminal defendant may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution.” United States v. Mezzanatto, 513
U.S. 196, 201 (1995). A defendant may also waive statutory rights, including his right to
appeal. United States v. Fazio, 795 F.3d 421, 425 (3d Cir. 2015). District courts will
enforce appellate waivers and decline to address the merits of an appeal when: “(1) the
issues raised fall within the scope of the appellate waiver; and (2) [defendant] knowingly
and voluntarily agreed to the appellate waiver; unless (3) enforcing the waiver would work
a miscarriage of justice.” See United States v. Erwin, 765 F.3d 219, 226 (3d. Cir. 2014)
(internal quotation omitted).
The Court will first address Petitioner’s vagueness claim under Johnson, before
turning to the challenges of his appellate waiver.
A. Petitioner’s Johnson Claim
As an initial matter, Petitioner mistakenly believes that he received a sentencing
enhancement under 18 U.S.C. § 924(e)(2)(B) due to his prior conviction for second-degree
murder. See Pet’r’s Mot. at 1–3. The Government correctly notes that Petitioner’s murder
conviction received zero criminal history points in the calculation of his sentence under the
Guidelines. See Letter from United States in Resp. to Pet. (“Gov’t Resp.”) 4, ECF No. 4.
Petitioner did receive three criminal history points for his prior felony weapons conviction,
which was appropriate pursuant to U.S.S.G. § 4A1.1. Id. Petitioner was never charged
under 18 U.S.C. § 924, which was the subject of the Johnson decision.
The Court liberally construes Petitioner’s vagueness challenge as directed to the
definition of a “crime of violence” found in U.S.S.G. §§ 4A1.2 and 4B1.2, which supported
his sentencing enhancement.2 In Beckles, however, the Supreme Court made clear that the
Guidelines are not subject to vagueness challenges because “they merely guide the exercise
of a court’s discretion in choosing an appropriate sentence within the statutory range.” See
137 S. Ct. at 892. Petitioner’s vagueness challenge, therefore, must fail.
B. Petitioner’s Appellate Waiver
In addition to his Johnson claim, Petitioner argues that the appeal waiver in his plea
agreement is invalid due to the ineffective assistance of his counsel. See Pet’r’s Reply at
1–7. This claim must also fail. The record of Petitioner’s criminal case clearly shows that
he knowingly and voluntarily waived his right to appeal.
On January 6, 2015, District Court Judge Faith Hochberg held a plea colloquy with
Petitioner pursuant to Federal Rule of Criminal Procedure 11, during which Petitioner
clearly indicated that he wished to plead guilty to the charges against him. See Mins., ECF
No. 44. The Court provided a Spanish interpreter, who interpreted the proceedings for
Petitioner in his first language, and Petitioner was duly represented by counsel. Id.
The Plea Agreement unequivocally states that Petitioner waived “certain rights to
file an appeal, collateral attack, writ, or motion after sentencing, including but not limited
to an appeal . . . under 28 U.S.C. § 2255.” See Plea Agreement at 3. Furthermore, contrary
to Petitioner’s claim, the Agreement expressly reserves Petitioner’s right to claim
ineffective assistance of counsel. Id. at 4. The waiver, therefore, is valid.
Petitioner’s ineffective assistance of counsel claim rests solely on the fact that his
counsel advised him to accept the Government’s offer instead of taking the case to trial.
See Pet’r’s Reply at 1–7. “[D]efense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable to the
accused.” Missouri v. Frye, 566 U.S. 133, 145 (2012). As previously stated, Petitioner
received a 2-level downward adjustment in return for his guilty plea and his ineffective
assistance claim, therefore, fails. Accordingly, Petitioner’s valid appellate waiver bars all
other claims raised in his moving papers.
“A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of
tolerance.” Torres v. United States, No. 10-cv-4949, 2011 WL 2148308, at *2 (D.N.J. May 31, 2011).
For the reasons stated above, Petitioner’s motion is DENIED. An appropriate
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: July 17, 2017
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