Myton v. United States of America

Filing 18

MEMORANDUM & ORDER: Petitioner's motion 14 to vacate and motion 15 to amend are denied. Because he has not made a substantial showing of a denial of his constitutional rights, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c). A copy of this memorandum and order will be mailed to the pro se petitioner by regular mail from chambers. Ordered by Judge Frederic Block on 10/28/2015. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------x
RASENE MYTON,
Petitioner,
-against-

MEMORANDUM AND ORDER
Case No. 12-CV-1235 (FB)

UNITED STATES OF AMERICA,
Respondent.
-----------------------------------------------x
Appearances:
For the Petitioner:
RASENE MYTON, pro se
No. 554885 - 053
c/o U.S.P. Lee County
P.O. Box 305
Jonesville, Virginia 24263
BLOCK, Senior District Judge:
Rasene Myton is currently incarcerated pursuant to a judgment convicting him
of various violations of the Hobbs Act, 18 U.S.C. § 1951, and 18 U.S.C. § 924(c). His
convictions and sentence were affirmed on direct appeal, see United States v. Myton,
224 F. App’x 125 (2d Cir.), cert. denied, 552 U.S. 968 (2007), and the Court denied
his § 2255 motion on December 23, 2009. Since then, Myton has filed numerous
motions pursuant to Federal Rules of Civil Procedure 59(e) and 60(b); in each, he has
undertaken to convince the Court that it overlooked or misconstrued one or more
aspects of his original § 2255 motion.

Myton’s latest attempt is a Rule 60(b) motion for relief from judgment. Myton
has also moved to amend that motion, and has filed a “supplemental brief” in support
of both the motion to amend and the Rule 60(b) motion. From these filings, the Court
has culled two claims, which it has liberally construed “to raise the strongest
arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999).
1. Sentencing Enhancement
First, Myton argues that a recent Supreme Court case, Burrage v. United States,
134 S. Ct. 881 (2014), casts doubt on the Court’s prior rejection of his challenge to a
sentencing enhancement holding him accountable for the death of Orland Davis, a
victim of the attempted robbery underlying one of Myton’s Hobbs Act convictions.
In Burrage,the Supreme Court held that a provision of the Controlled Substances Act
imposing a 20-year prison sentence for distribution of a controlled substance when
“death or serious bodily injury results from the use of such substance” required proof
of but-for causation. See id. at 884 (quoting 21 U.S.C. § 841(b)(1)(A-C)).
The Second Circuit held in this case that Davis’s death “was the foreseeable
result of an attempted robbery in which Myton was involved.” Myton, 224 F. App’x
at 132. Burrage in no way detracts from the longstanding interpretation of the
sentencing enhancement at issue to include the concept of felony murder, and any

2

argument that the attempted robbery was not a but-for cause of Davis’s death would
be frivolous.
2. Interstate Commerce
Second, Myton argues that the Court overlooked an aspect of his challenge to
the interstate commerce element of another of his Hobbs Act convictions—the
attempted robbery of George Pessoa. Specifically, he argues that the Court has failed
to address United States v. Parkes, 497 F.3d 220 (2d Cir. 2007), which was decided
before the Supreme Court denied certiorari in his case.
The Court did not mention Parkes because it is irrelevant. Receding from
earlier cases embracing the notion that a robbery of drugs or drug proceeds affects
interstate commerce ipso facto, the Second Circuit held in Parkes that “the Hobbs Act
requires the jury to find that a robbery of drugs and drug proceeds affects interstate
commerce.” 497 F.3d at 223. It then approved the district court’s jury instruction that
“the government must show that if the [attempted] robbery occurred, interstate
commerce would have been affected in some way,” id. at 230, and concluded that
there was sufficient evidence to support the jury’s finding that the attempted robbery
at issue “would have affected interstate commerce.” Id. at 231.
The Court’s jury instructions were entirely in keeping with those subsequently
approved in Parkes. With respect to the sufficiency of the evidence, the Second
Circuit plainly held that “[t]here was ample evidence in the record . . . to support the
3

jury’s conclusion that Myton and his co-conspirators attempted to rob Pessoa because
he was a drug dealer and that his marijuana traveled in interstate commerce.” Myton,
224 F. App’x at 130. Parkes does not require anything more.
Myton’s motion is denied. Because he has not made a substantial showing of
a denial of his constitutional rights, a certificate of appealability will not issue. See
28 U.S.C. § 2253(c).
SO ORDERED.

Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 28, 2015

4