Austin v. United States of America
Filing
14
MEMORANDUM ORDER: For the foregoing reasons, the Government's motion to remand Mr. Austin is granted, and the defendant is directed to voluntarily surrender to the custody of the Bureau of Prisons by no later than 2 PM on April 30, 2020. (Signed by Judge Jed S. Rakoff on 2/21/2020) (jwh)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ELECTRONICALLY Fil..E
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JOEL AUSTI1:J,
DOC#:
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Petitioner.
16-cv-4446 &
06-cr-991 (JSR)
-vMEMORANDUM ORDER
UNITED STATES OF AMERICA,
Respondent.
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JED S. RAKOFF, U.S.D.J.
The Government moves to remand Joel Austin to the custody
of the Bureau of Prisons pending adjudication of the merits of
his petition under 28 U.S.C. § 2255. Dkt. 49 (Jan. 29, 2020).
Despite the Court's sympathy for Mr. Austin's current situation,
the Court is obliged to grant the Government's motion.
Mr. Austin has been at liberty since this Court granted his
§ 2255 petition in 2017. Opinion and Order, Dkt. 42
(Dec. 4,
2017). At that point, Mr. Austin had served eleven years of a
fifteen-year sentence fo~ being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g) (1). In its 2017
opinion, this Court concluded that three state crimes for which
Mr. Austin was convicted in the 1980s and 1990s were not
"violent felonies" for the purposes of the Armed Career Criminal
Act (ACCA), 18 U.S.C.
§
924(e)(2)(B), thus rendering Mr. Austin
subject to a maximum prison sentence of ten years, rather than a
1
mandatory minimum sentence of fifteen years. Compare 18 U.S.C. §
924 (a) (2) with 18 U.S.C.
§
924 (e) (1). The Government appealed
this decision, however, and in January 2020, the Second Circuit
vacated this Court's 2017 opinion and remanded Mr. Austin's case
for further proceedings in light of United States v. Thrower,
914 F.3d 770
(2d Cir. 2019), which held that certain New York
state robbery offenses are ACCA "violent felonies." Order of
United States Court of Appeals, 0kt. 48
(Jan.
9, 2020).
During his two years of release, Mr. Austin has
successfully reintegrated into society. He has s.ecured temporary
employment and is applying for full-time jobs. He has obtained
housing, and he helps to care for his elderly mother. He is, in
the words of his counsel, a "clear reentry success."
Nevertheless, the Government's position is that it must seek Mr.
Austin's remand so that he may begin serving the roughly four
years that remain on his sentence.
The Court has no option but to grant the Government's
motion. First, the Court adheres to its earlier conclusion that
the inevitable effect of the Second Circuit's order is to
reinstate Mr. Austin's original, fifteen-year sentence. Mr.
Austin's motion for the Court to reconsider this holding, Dkt.
52
(Feb. 13, 2020), is accordingly denied.
To be sure, defense counsel is correct that the posture of
this case is unusual. Here, the Second Circuit vacated and
2
remanded this Court's earlier judgment, while also expressly
denying the Government's motion for summary reversal, and
without including any language in its order that directs this
Court to reinstate Mr. Austin's original sentence. By far the
more common scenario is for the appellate court either to
reverse the district court or to vacate and remand with clear
instructions to reinstate the original sentence. See e.g.,
United States v. Diaz, 768 Fed. App'x 57, 58
(2d Cir. 2019)
("[W]e REVERSE the district court's grant of Diaz's§ 2255
motion, VACATE the amended judgment, and REMAND for the district
court to reinstate Diaz's original sentence."); Brown v. United
States, 752 Fed. App'x 108, 109 (2d Cir. 2019)
("We therefore
REVERSE the District Court's grant of Brown's§ 2255 motion,
VACATE the amended judgment, and REMAND.
for the District
Court to reinstate Brown's original sentence."); United States
v. Rutigliano, 887 F.3d 98, 111 (2d Cir. 2018)
district court's November 1, 2016 order.
("[W]e VACATE the
. , and we REMAND
with directions to reinstate the original judgments
• II) •
Moreover, the Government cites no on-point authority for the
proposition that vacatur of a judgment granting a§ 2255
petition automatically reinstates the earlier sentence even
without any language in the appellate court's order to that
effect. The Government relies on the dictum in United States v.
Maldonado, 996 F.2d 598, 599 (2d Cir. 1993) that "when a
3
sentence has been vacated, the defendant is placed in the same
position as if he had neve~ been sentenced," but this language
is taken entirely out of its context. 1
Nevertheless, basic legal principles compel the conclusion
that the Second Circuit's order vacating this Co~rt's 2017
opinion must have reinstated Mr. Austin's original sentence.
Because "[a] vacated judgment has no effect," Fort Knox Music
Inc. v. Baptiste, 257 F.3d 108, 110 (2d Cir. 2001), the only
logical reading of the Second Circuit's order is that it places
Mr. Austin in the same position as he would be if this Court had
never issued its 2017 opinion, i.e., subject to his original,
fifteen-year sentence.
28 U.S.C. § 2106, which grants the courts of appeals broad
discret~on in crafting a remedy, is not to the contrary.
Although the Second Circuit could no doubt have remanded this
case with express instructions not to reinstate the original
judgment pending a re-adjudication on the merits, it did not do
so. For this Court to read the order as though it had would
impermissibly contravene the appeals court's mandate. See United
States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001)
1
("The mandate
Maldonado addressed the question of whether a defendant has a
right of allocution in a resentencing following the vacatur of
an earlier sentence by the court of appeals. But this case is
inapposite to a situation where, as here, the higher court never
vacated the earlier sentence.
4
rule 'compels compliance on remand with the dictates of the
superior court .
.'")
(quoting United States v. Bell, 5 F.3d
64, 66 (4th Cir. 1993)). And neither does the fact that the
Second Circuit denied the Government's motion for summary
reversal -
indeed, after spending much of the oral argument
discussing the distinction between summary reversal and vacatur
and remand - allow this Court to delay reinstating Mr. Austin's
original judgment. The Second Circuit's decision to vacate and
remand simply allows this Court a second look at the merits of
Mr. Austin's petition, whereas a summary reversal would not have
done so. The distinction between these two remedies has nothing
to do, however, with the question of whether Mr. Austin's
original judgment continues to apply in the meantime. It
undoubtedly does.
The question therefore arises of whether the Court may
grant Mr. Austin bail, which would allow his continued release
while the Court considers the merits of his claim. But as this
Court has previously written, the standard for granting bail to
a§ 2255 petitioner "is a difficult one to meet," and is even
higher than the standard for bail pending direct appeal. United
States v. Whitman, 153 F. Supp. 3d 658, 660 (S.D.N.Y. 2015)
(quoting Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001)).
Specifically, to obtain bail in these circumstances, a defendant
must meet a two-prong test, showing, first, that the habeas
5
petition "raises substantial claims" and, second, that
"extraordinary circumstances exist that make the grant of bail
necessary to make the habeas remedy effective." Mapp, 241 F.3d
at 226 (alterations omitted).
Mr. Austin clearly meets the second prong. His lengthy
period of release and his commendable success at rebuilding his
life over the last two years present an extraordinary
circumstance. Further, the Court fears that, even if Mr.
Austin's§ 2255 motion ultimately succeeds, reincarcerating him
in the meantime may threaten his job and his housing, thereby
reducing the effectiveness of the habeas remedy.
The defendant founders, however, on the first prong. To
raise a "substantial claim," a defendant must show "a
demonstrated likelihood that the petition will prevail, based
upon claims of a substantial nature upon which the petitioner
has a high probability of success .
. so that victory for
petitioner can be predicted with confidence." Whitman, 153 F.
Supp. 3d at 660 (quoting United States v. Yarmoluk, No. 96-cr863 (JSR), 1997 WL 642564, at *l (S.D.N.Y. Oct. 17, 1997)). Mr.
Austin's§ 2255 petition raises claims that seem, at first
impression, to be colorable, and nothing in this order precludes
defense counsel from making any argument in her forthcoming
merits brief. But the Court is not nearly so confident in Mr.
Austin's ultimate success that it is willing to grant him bail.
6
Mr. Austin's original ground for habeas relief, that his
prior convictions were not for ACCA violent felonies, appears
foreclosed by Thrower (though again, defense counsel is invited
to respond). Austin's claim for relief under Rehaif v. United
States, 139 S. Ct. 2191 (2019), appears somewhat more viable,
and his plea allocution admits of some ambiguity on this issue.
See, e.g., Transcript, 0kt. 17, at 14:21-15:4 (May 3, 2007). But
even aside from the procedural objections that the Government
has raised, the Court is initially skeptical that Mr. Austin did
not know that "he belonged to the relevant category of persons
barred from possessing a firearm," 139 S. Ct. at 2200, given
that the defendant was sentenced to 18 to 36 months'
imprisonment for his 1997 attempted robbery conviction.
Moreover, defense counsel's earlier argument that the
indictment's failure to allege the Rehaif knowledge element
deprives this Court of subject matter jurisdiction over Mr.
Austin's prosecution has since been rejected by the Second
Circuit. United States v. Balde, 943 F.3d 73, 90-91 (2d Cir.
2019) . 2 The Court therefore cannot avoid the conclusion that,
Mr. Austin also argues that there are no Shepard documents
establishing that his two 1987 convictions were for different
crimes. But the defendant appears to have conceded this point in
his plea allocution, see Transcript, 0kt. 17, at, 14:7-11.
Nevertheless, the Court will again await further briefing on
this issue.
2
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while far from frivolous, Mr. Austin's habeas petition is not so
likely to succeed as to warrant a grant of bail.
For the foregoing reasons, the Government's motion to
remand Mr. Austin is granted, and the defendant is directed to
voluntarily surrender to the custody of the Bureau of Prisons by
no later than 2 PM on April 30, 2020.
SO ORDERED.
Dated:
New York, NY
February
ll_,
2020
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