Frazer v. United States of America

Filing 32

OPINION & ORDER: For the reasons set forth above, Defendant Jamal Frazer's motion to vacate, set aside, or correct his sentence is DENIED. The Court declines to issue a certificate of appealability because Frazer has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c) (2); Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000); White, 2020 WL 5898680, at *6. Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), th at any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate the motions docketed at ECF No. 245, 284, and 294 in criminal case ll-CR-00912-JFK-5 and close civil case 16-CV-02087-JFK. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 3/31/2021) (cf)

Case 1:09-md-02013-PAC Document 57

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
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SOUTHERN OF AMERICA
UNITED STATESDISTRICT OF NEW YORK
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In re FANNIE MAE 2008 SECURITIES
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-against:
LITIGATION
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:
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JAMAL FRAZER,
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:
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Defendant.
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Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 03/31/2021

No. 11 Cr. 912 (JFK)
08 16 Civ. 2087 (JFK)
No. Civ. 7831 (PAC)
09 MD 2013 (PAC)
OPINION & ORDER
OPINION & ORDER

APPEARANCES

FOR HONORABLE JAMAL A. CROTTY, United States District Judge:
DEFENDANT PAUL FRAZER:
Jeffrey G. Pittell
MAHER PITTELL, LLP
BACKGROUND1
FOR THE UNITED STATES OF AMERICA:
The early years DiMase
Christopher J. of this decade saw a boom in home financing which was fueled, among
U.S. ATTORNEY’S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK
other things, by low interest rates and lax credit conditions. New lending instruments, such as
JOHN F. KEENAN, United States District Judge:
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Before the Court is Defendant-Petitioner Jamal Frazer’s
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
motion to vacate, set aside, or correct his sentence pursuant to
assumption that the market would continue to rise and that refinancing options would always be
28 U.S.C. § 2255. For the reasons set forth below, Frazer’s
available in the future. Lending discipline was lacking in the system. Mortgage originators did
motion is DENIED.
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
I. Background
originators sold their loans into the secondary mortgage market, often as securitized packages
On January 8, 2013, Frazer and eight others were charged
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
with a series of federal offenses for their roles in a violent
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
armed robbery crew that primarily targeted drug dealers in the
and home prices began to fall. In light of the changing housing market, banks modified their
Bronx. As relevant here, Frazer was charged with one count of
lending practices and became unwilling to refinance home mortgages without refinancing.
conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951 (“Count One”); one count of substantive Hobbs Act robbery,
1

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

in violation of 18 U.S.C. §§ 1951 and 2 (“Count Seven”); one
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count of carjacking, in violation of 18 U.S.C. §§ 2119 and 2
(“Count Eight”); and one count of brandishing a firearm during
and in relation to the substantive Hobbs Act robbery charged in
Count Seven and the carjacking charged in Count Eight, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(1)(C)(i), and
2 (“Count Nine”).

Counts Seven, Eight, and Nine stemmed from

Frazer’s armed robbery of a white BMW sedan in the Bronx on or
about July 28, 2010, during which he and one of his coconspirators approached the BMW while it was parked on the
street, pulled the occupants out of the vehicle at gunpoint,
robbed them of cash and jewelry, and then drove off with the car.
On June 4, 2013, Frazer pleaded guilty, pursuant to a plea
agreement, to Counts One and Nine.

During his plea allocution,

Frazer explained under oath that:
THE DEFENDANT:
From 2009 to 2010, in the Bronx and
elsewhere, I agreed with others to commit robberies
amongst other[] people like drug dealers. And in July
2010, amongst others, I possessed and pointed a firearm
at a man in the Bronx, stole money and jewelry and a
car.
THE COURT:

From that man?

THE DEFENDANT:

Yes, sir.

THE DEFENDANT:

Yes, sir.

THE COURT: You knew that was wrong and against the law,
is that right?
(Plea Tr. at 17:19–18:3, ECF No. 98.)

On February 24, 2014, this

Court sentenced Frazer to a 154-month term of incarceration to be
followed by three years of supervised release and granted the
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Government’s motion to dismiss all remaining open counts against
Frazer, including Counts Seven and Eight.

(Sent. Tr. at 9:12–

12:11, ECF No. 169.)
On March 21, 2016, Frazer filed a pro se motion to vacate
his convictions based on ineffective assistance of counsel and
other grounds.

(ECF No. 245.)

The Court ordered Frazer’s trial

counsel to provide sworn testimony and set a briefing schedule
for Frazer’s motion.

On June 23, 2016, however, the Court

received a letter from the Federal Defenders of New York
requesting leave to amend Frazer’s habeas petition to include
claims arising out of the United States Supreme Court’s decisions
in Johnson v. United States, 576 U.S. 591 (2015), and Welch v.
United States, 136 S. Ct. 1257 (2016), which held the so-called
“residual clause” of the Armed Career Criminal Act, 18 U.S.C. §
924(e), to be unconstitutionally vague.

(ECF No. 277.)

Consistent with Chief Judge McMahon’s standing order, In re
Petitions Under 28 U.S.C. §§ 2255 and 2241 in Light of Johnson v.
United States, 16 Misc. 217 (S.D.N.Y. Jun. 8, 2016), the Court
granted Frazer’s request for leave to amend his initial habeas
petition.
On August 29, 2016, the Court granted Frazer’s subsequent
request for appointment of counsel and directed his newly
appointed counsel, Jeffrey G. Pittell, to review Frazer’s pro se
§ 2255 filings and submit one petition that adopted, amended, or
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withdrew Frazer’s pro se claims and added any new Johnson-related
claims.

(ECF Nos. 285, 295.)

On December 19, 2016, Frazer

(through his newly appointed counsel) withdrew his pro se § 2255
motions and submitted a replacement § 2255 motion.
294.)

(ECF No.

Frazer’s replacement motion argued that his § 924(c)

conviction under Count Nine was unconstitutional in light of
Johnson.

In the alternative, Frazer requested the Court stay

consideration of his petition pending the disposition of certain
cases addressing the constitutionality of § 924(c).
following day, the Court stayed this case.

The

(ECF No. 295.)

On April 22, 2020, Frazer (through his counsel) filed a
supplemental memorandum of law in further support of his habeas
petition.

(ECF No. 320.)

Frazer’s supplemental filing argued

that his conviction and sentence under Count Nine should be
vacated because his plea allocution does not support the
predicate offense of carjacking and Hobbs Act robbery cannot be
deemed a “crime of violence” following the Supreme Court’s
decision in United States v. Davis, 139 S. Ct. 2319 (2019),
which, similar to Johnson, ruled that the residual clause of §
924(c) was unconstitutionally vague.
On June 3, 2020, the Court denied a request by Frazer for
appointment of new counsel.

(ECF No. 326.)

At the same time,

the Court lifted the stay in this case, and on June 12, 2020, the
Government opposed Frazer’s motion arguing that his § 924(c)
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conviction remains valid in light of the Second Circuit’s
decision in United States v. Hill, 890 F.3d 51 (2d Cir. 2018),
cert. denied, 139 S. Ct. 844 (2019), which ruled that Hobbs Act
robbery is a crime of violence under the so-called “force clause”
of 18 U.S.C. § 924(c)(3)(A).

Accordingly, the Government argued,

Frazer’s allocution to the completed Hobbs Act robbery charged in
Count Seven—which was subsequently dismissed as part of Frazer’s
plea agreement—constitutes a valid predicate offense for his §
924(c) conviction in Count Nine.

(ECF No. 340.)

The Government

also argued that Frazer’s plea allocution is sufficient to
support a carjacking offense.

On July 15, 2020, Frazer filed a

letter in reply arguing that Hill is outdated in light of the
Supreme Court’s decision in Davis.
II.

(ECF No. 343.)

Discussion
A.

Legal Standard

Pursuant to 28 U.S.C. § 2255, a prisoner sentenced in
federal court “may move the court which imposed the sentence to
vacate, set aside or correct the sentence” if the prisoner claims
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.” 28 U.S.C. § 2255(a).

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B.

Analysis

18 U.S.C. § 924(c) imposes a mandatory, consecutive sentence
for “any person who, during and in relation to any crime of
violence . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm.” 18 U.S.C.
§ 924(c)(1)(A).

As relevant here, § 924(c)’s so-called “elements

clause” or “force clause” defines “crime of violence” as a felony
offense that “has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.” 18 U.S.C. § 924(c)(3)(A).

“Hobbs Act robbery is a

crime of violence under 18 U.S.C. § 924(c)(3)(A).” Hill, 890 F.3d
at 53; see also United States v. Barrett, 937 F.3d 126, 128 (2d
Cir. 2019) (decided post-Davis and explaining that substantive
Hobbs Act robbery is a valid predicate offense for a § 924(c)
conviction).
As explained in Johnson v. United States, 779 F.3d 125, 126
(2d Cir. 2015), “a conviction under 18 U.S.C. § 924(c) requires
legally sufficient proof that the predicate crime of violence . .
. was committed[; it] does not require a conviction for that
predicate crime.”

Therefore, “Hobbs Act robbery may serve as a

predicate for Petitioners’ § 924(c) convictions even though
Petitioners . . . were not convicted of robbery.” United States
v. White, No. 16 Cr. 82 (VEC), 2020 WL 5898680, at *3 (S.D.N.Y.
Oct. 5, 2020).
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Frazer acknowledges that Hill remains controlling precedent
in the Second Circuit, but he urges the Court to follow the
reasoning of a district court in another circuit. See United
States v. Chea, No. 98 Cr. 20005 (CW), 2019 WL 5061085, at *13
(N.D. Cal. Oct. 2, 2019) (holding Hobbs Act robbery is not
categorically a crime of violence under the elements clause of §
924(c)).

The Court cannot do so.

“Although Hill was decided

before Davis, the Second Circuit has repeatedly reaffirmed the
vitality of Hill post-Davis,” White, 2020 WL 5898680, at *3
(collecting cases), and on March 31, 2021, the Second Circuit
again ruled that Hill remains binding precedent, see United
States v. Felder, --- F.3d ---, No. 19-897, 2021 WL 1201340, at
*15–16 (2d Cir. Mar. 31, 2021) (explaining Hobbs Act robbery is a
categorical crime of violence).
Based on the record before the Court, there is legally
sufficient proof that Frazer committed Hobbs Act robbery while
brandishing a firearm; the Court need not resolve whether the
record also establishes that he committed a carjacking offense.
Accordingly, because Hobbs Act robbery is a valid predicate
offense for a § 924(c) conviction, Frazer’s motion to vacate his
§ 924(c) conviction and sentence must be denied. See Felder, 2021
WL 1201340, at *15 (rejecting challenge to § 924(c) conviction);
White, 2020 WL 5898680, at *5–6 (denying petitions to vacate §
924(c) convictions where “[e]ach Petitioner, during his plea
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allocution, admitted using, discharging, or possessing a firearm
(or aiding and abetting the use, discharge, or possession
thereof) in connection with or in furtherance of at least one
Hobbs Act robbery").
III.

Conclusion

For the reasons set forth above, Defendant Jamal Frazer's
motion to vacate, set aside, or correct his sentence is DENIED.
The Court declines to issue a certificate of appealability
because Frazer has not made a "substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2); Krantz v.
United States, 224 F.3d 125, 127 (2d Cir. 2000); White, 2020 WL
5898680, at *6.

Further, the Court certifies, pursuant to 28

U.S.C. § 1915(a)(3), that any appeal from this Order would not be
taken in good faith. See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
The Clerk of Court is directed to terminate the motions
docketed at ECF No. 245, 284, and 294 in criminal case ll-CR00912-JFK-5 and close civil case 16-CV-02087-JFK.
SO ORDERED.

Dated:

New York, New York
March 31, 2021

John F. Keenan
United States District Judge

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