Barnes v. United States Of America

Filing 26

OPINION AND ORDER: The petitioner's June 15, 2016 petition for a writ of habeas corpus is denied. The defendant having made a substantial showing of a denial of a federal right, a certificate of appealability shall be granted. Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.3d 23, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915 (a) (3), any appeal from this order would be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). (Signed by Judge Denise L. Cote on 3/26/2024) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- X
:
CALIEB BARNES,
:
Petitioner,
:
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
--------------------------------------- X

16cv4521(DLC)
11cr184 (DLC)
OPINION AND
ORDER

APPEARANCES:
For the petitioner:
Barry D. Leiwant
Darrell Fields
Federal Defenders of New York, Inc.
5 2 D u a n e S t r e e t - 1 0 th F l
New York, NY 10007
For the respondent:
Damian Williams
Benjamin M. Burkett
United States Attorney
Southern District of New York
One St. Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge:
In his successive petition, Calieb Barnes seeks to vacate
his sentence on one of the counts on which he was convicted.
Barnes contends that his conviction on count 5, which charged
him with use of a firearm in connection with a crime of
violence, specifically attempted Hobbs Act robbery, relied on
the definition of a crime of violence contained in 18 U.S.C. §

924(c)(3)(B), the clause known as the residual clause.

For the

following reasons, his successive petition is denied.
Background
On February 27, 2012, Barnes and a co-defendant were
indicted in a ten-count superseding indictment in connection
with their crack cocaine business.

The charges included counts

related to a June 2006 attempted robbery in which Barnes pistolwhipped the victim, and his May 15, 2010 murder of a rival drug
dealer.

This petition concerns the defendant’s conviction on

count 5, which charged him with brandishing a firearm in
furtherance of the 2006 attempted robbery.

The attempted

robbery was charged in count 4 and the related firearm offense
was charged in count 5.
The ten counts in the indictment were as follows:
(1)

conspiracy to distribute narcotics, 21 U.S.C. §§
841(b)(1)(A) and 846;

(2)

use of a firearm during and in relation to that
narcotics conspiracy, 18 U.S.C. § 924(c)(1)(A)(i);

(3)

conspiracy to commit Hobbs Act robbery, 18 U.S.C. §
1951 (in connection with the 2006 attempted robbery);

(4)

attempted Hobbs Act robbery, 18 U.S.C. § 1951 (the
2006 attempted robbery);

(5)

brandishing a firearm in furtherance of a crime of
violence, specifically the 2006 attempted robbery, 18
U.S.C. §§ 924(c)(1)(A)(ii) and 924(c)(1)(C)(i);

2

(6)

murder while engaged in a narcotics conspiracy, 21
U.S.C. § 848(c)(1)(A)(in connection with the 2010
murder);

(7)

using a firearm in furtherance of a crime of violence,
specifically the 2010 murder, 18 U.S.C.
§§(c)(1)(A)(ii) and 924(c)(1)(C)(i);

(8)

murder through use of a firearm during a drug
trafficking crime, in connection with the 2010 murder,
18 U.S.C. § 924(j);

(9)

conspiracy to distribute a controlled substance, 21
U.S.C. §§ 841(b)(1)(D) and 846; and

(10) firearms trafficking conspiracy, 18 U.S.C. §§ 371 and
922(a)(1)(A).
The defendant proceeded to trial.

As relevant to counts 4

and 5 and relying on testimony from eyewitnesses and hospital
records, the Government proved that in June of 2006, Barnes and
two associates attempted to rob a local drug dealer of a
kilogram of cocaine.
victim.

Barnes and one of his associates beat the

Using a firearm, Barnes beat the victim on the head and

in his face.

The robbers did not succeed in obtaining any drugs

or drug proceeds.

The victim was treated at a hospital for

lacerations to his head.

On April 3, 2012, the jury found the

defendant guilty on counts 4 and 5 as well as the remainder of
the ten counts.
On August 9, 2012, the defendant was sentenced principally
to 100 years’ imprisonment.

The Court imposed concurrent

sentences of 45 years on counts 1, 6, and 8; to be followed by
3

three consecutive terms of imprisonment of five, 25 and 25 years
on counts 2, 5, and 7, respectively.

Counts 2, 5, and 7 charged

Barnes with the use of firearms and the sentences on those
counts were mandated by statute.

The defendant was sentenced to

concurrent sentences of 20 years’ imprisonment on counts 3 and
4, and concurrent sentences of five years’ imprisonment on
counts 9 and 10.

Thus, twenty-five years of Barnes’s 100-year

sentence was imposed pursuant to the count 5 conviction.
The Court of Appeals affirmed the conviction on March 21,
2014.

In his appeal, the defendant did not argue that the

attempted Hobbs Act robbery charged in count 5 did not qualify
as a crime of violence.
On June 5, 2015, the defendant filed a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2255.
Similarly, in that petition, the defendant did not argue that
the attempted Hobbs Act robbery was not a crime of violence.
February 8, 2016, the petition was denied.

On

The Court did not

certify an appeal and the defendant did not file an appeal.
On June 15, 2016, the defendant filed another § 2255
petition, arguing that his § 924(c) conviction on count 5 should
be vacated in light of Johnson v. United States, 576 U.S. 591
(2015).

Johnson held that the residual clause of the Armed

Career Criminal Act (§ 924(e)(2)(B)(ii)) (“ACCA”) was void for
4

vagueness, such that imposing an increased sentence under that
clause violates due process.

Id. at 606.

On July 13, 2016, the

petition was transferred to the Court of Appeals as a successive
petition.
In 2019, while Barnes’s application to file a successive §
2255 petition was pending in the Second Circuit, the Supreme
Court held that the residual clause of § 924(c)(3)(B) is
unconstitutionally vague.
2319, 2336 (2019).

United States v. Davis, 139 S. Ct.

On August 6, 2020, Barnes supplemented his

petition, noting that several circuits had by then held that a
Davis claim satisfies the gatekeeping requirements for second or
successive § 2255 petitions because such a claim is, prima
facie, based on a new rule of constitutional law made
retroactive on collateral review by the Supreme Court.
On October 1, 2020, the Court of Appeals granted Barnes’s
motion for leave to file the petition.

It held that Barnes had

made a prima facie showing that his successive petition
satisfies the requirements of § 2255(h).

The mandate returning

jurisdiction also noted that “the issue of whether attempted
Hobbs Act robbery is a crime of violence under the §
924(c)(3)(A) force clause has been raised in several” pending
appeals and that this Court could decide whether to stay
consideration of the petition pending decisions on those
5

appeals.

The mandate further noted that the Court of Appeals

had “not examined any other arguments or claims raised by
Petitioner, including his challenge to another § 924(c)
conviction,” but that this Court would “have the preliminary
task of determining whether the claims of Petitioner’s § 2255
motion -- as to which we have only concluded that a prima facie
showing has been made as to one of those claims -- satisfy the
threshold requirements governing successive § 2255 motions.”
Upon remand, this petition was stayed.

While the petition

was stayed, the Supreme Court ruled that attempted Hobbs Act
robbery is not a crime of violence under § 924(c)(3)(A)’s force
clause, because an attempt does not categorically require the
Government to prove that the defendant used, attempted to use,
or threatened to use force against the person or property of
another.

United States v. Taylor, 596 U.S. 845, 851 (2022).

Rather, the Government need only prove that the defendant
intended to take property by force or threat and then took a
substantial step to achieve that end.

Id.

Represented by counsel, Barnes filed a memorandum in
support of his petition on September 15, 2022.

He sought to

vacate the 25-year term of imprisonment imposed on count 5
because an attempt to commit Hobbs Act robbery did not qualify

6

as a crime of violence pursuant to Taylor.

Barnes sought a de

novo sentencing.
On January 23, 2023, the Court of Appeals issued its ruling
in United States v. McCoy, 58 F.4th 72 (2d Cir. 2023).

McCoy

vacated a defendant’s § 924(c) convictions for brandishing
firearms during attempted Hobbs Act robberies in light of the
Taylor decision.

Id. at 73.

On June 12, 2023, petitioner’s counsel, relying on Taylor
and McCoy, requested that the stay be lifted.
Court lifted the stay.

On June 14, this

Petitioner’s counsel filed a second

memorandum in support of Barnes’ petition on September 15,
relying on the Taylor and Davis.
The Government opposed the petition on October 27.

Defense

counsel replied on November 27, reiterating that the conviction
on count 5 “must be vacated because it isn’t predicated on a
proper ‘crime of violence,’” and citing Johnson, Davis, and
Taylor.

1

In the reply, Barnes represents that he has not abandoned his
claim in his June 15, 2016 petition that his conviction on count
7 should be vacated. His counsel explains that he seeks to
preserve the claim for a potential certiorari petition to the
Supreme Court although he recognizes that the law in the Second
Circuit does not currently support his claim.
1

7

In a letter of March 13, 2024, Barnes seeks to preserve his
right to argue that he does not need to show that his claim in a
successive petition “relies on” a new rule of constitutional
law.

Barnes recognizes that the law in the Second Circuit is to

the contrary.
Discussion
The Government opposes this petition on the ground that the
petition has failed to meet the requirements that apply to
successive habeas petitions.

It agrees that, pursuant to

Taylor, attempted Hobbs Act robbery no longer qualifies as a
crime of violence under § 924(c).
58 F.4th at 73.

See 596 U.S. at 853; McCoy,

As it points out, however, to succeed on a

successive petition, Barnes must show that he is relying on a
new rule of constitutional law, which Taylor is not.
As relevant here, 28 U.S.C. § 2255(h)(2) requires
successive habeas petitions to be certified “as provided in
section 2244 by a panel of the appropriate court of appeals to
contain . . . a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.”

(Emphasis supplied.)

Where, as here,

the Court of Appeals grants preliminary authorization of the
successive petition, a district court must “independently

8

consider if the motion in fact relies on a ‘new rule of
constitutional law.’”

Savoca v. United States, 21 F.4th 225,

230 (2d Cir. 2021), vacated in part, 2022 WL 17256392 (2d Cir.
Nov. 29, 2022).

For this statement of petitioner’s burden,

Savoca cites 28 U.S.C. § 2244(b), which requires a successive
petition to be dismissed unless “the applicant shows that the
claim relies on a new rule of constitutional law.”
2244(b)(2)(A).

(Emphasis supplied.)

Id. at

The district court must

engage in “a searching inquiry, pursuant to which [the court]
shall dismiss any claim presented in a second or successive
application unless the applicant shows that the claim satisfies
AEDPA’s requirements.”

Savoca, 21 F.4th at 230 (citation

omitted) (emphasis in original).
As Savoca explains, “without a factual determination as to
whether Savoca’s § 924(c) conviction was based on the elements
clause or the residual clause” the court cannot decide whether
the habeas petition relies on a new rule of constitutional law.
Savoca, 2022 WL 17256392, at *3.

To determine this issue of

“historical fact,” the district court may look at a wide range
of materials.

Id.

If the record is unclear, the court may

consider “background legal conditions” at the time of
sentencing.

Id.

Finally, if, “after conducting this factual

inquiry . . . the district court determines that the record is
9

inconclusive, then it may confront the question whether a habeas
motion relies on a new rule of constitutional law when the
record does not reveal the basis of the sentence.”

Id.

In

Savoca, because the question had not yet been squarely
presented, the Court of Appeals did not decide on the nature of
the petitioner’s burden, that is, whether a petitioner would
have to show only that his sentence “may have been predicated”
on the now-void residual clause or whether he must establish
that it is “more likely than not” that it was.

Id. at *3 n.1.

Savoca thus lays out a three-step process: first, determine
whether as a matter of historical fact the record indicates
which § 924(c)(3) clause was the basis of the conviction.
Second, if the record is inconclusive, consider the background
legal conditions.

Finally, if the background legal conditions

do not elucidate the question, a court may reach the question of
the petitioner’s burden and whether it has met that burden.
The question presented for this successive petition
therefore is which clause of § 924(c)(3) was responsible for
defining count 4 -- the attempted robbery count -- as a crime of
violence.

Under § 924(c)(3), the term “crime of violence” means

an offense that is a felony and either (A) “has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another” (the “force clause”)
10

or (B) “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”)
(emphasis supplied).

The parties agree that if the residual

clause was responsible, then a constitutional violation occurred
and if the force clause was responsible, then a statutory
violation occurred.

2

The trial and sentencing in this case took place in 2012.
At that time, neither counsel nor the Court was focused on the
constitutionality of the definition of a crime of violence
contained in § 924(c)(3)(B).

And, of course, it is nigh

impossible to remember one’s thought process over a decade ago.
Nonetheless, the charge given to the jury demonstrates that this
Court relied, in connection with count 5, on its understanding
that the force clause applied to count 5 and built a charge
based on that understanding.

The charge relied on its

description of the elements of robbery and attempted robbery to
charge the jury on the elements of a crime of violence contained
in the force clause, to wit, an offense that has as an element
the attempted use of physical force.

If the Court had concluded

Section 924(c)(3)(A) has been referred to as either the force
clause or the elements clause. This Opinion refers to it as the
force clause.
2

11

that Barnes’ conviction for using a firearm in connection with a
crime of violence hinged on the definition in the residual
clause, it would have included in its jury instructions the
requirement that, in order to convict the defendant on count 5,
the jury must find that the Government had proven beyond a
reasonable doubt that the attempted Hobbs Act robbery involved a
substantial risk that the defendant may use force against the
person or property of another.

Such language does not appear in

the charge.
Some background may be helpful here.

The firearms count

which Barnes faced in count 5 stemmed from a classic attempted
Hobbs Act robbery in which actual force, indeed the weapon
itself, was used by Barnes to physically attack the victim.

The

Government’s theory at trial was that the defendant committed
the crime charged in count 5 by using his weapon in an attempted
robbery.

This was a charge that appeared to fall within the

heartland of a crime of violence, as defined by the force clause
in § 924(c)(3)(A).

The Government called witnesses who

testified that the defendant struck the robbery victim
repeatedly in the head and face with the firearm in an effort to
obtain drugs and introduced medical records to corroborate the
victim’s injury.

Therefore, the charge to the jury and thus the

defendant’s conviction reflect a conviction for a crime of
12

violence as defined in the force clause in § 924(c)(3)(A).
Nothing in the nature of the proof the Government offered at
trial or relied upon in its summation required the Court or the
parties to consider that the attempted Hobbs Act robbery was
not, in fact, a traditional crime of violence encompassed by the
force clause and that they had to analyze instead whether would
qualify as a crime of violence as defined by the more expansive
residual clause in § 924(c)(3)(B).

3

Therefore, the charge to the

jury and even the parties’ requests to charge reflect that
Barnes’ conviction was premised on the classic definition of a
crime of violence contained in the force clause.

4

In United States v. Medina, 32 F.3d 40 (2d Cir. 1990), the
Court of Appeals observed in dicta that an attempted robbery is
a violent felony within the meaning § 924(e)(2)(B)(i), which is
very similar to § 924(c)(3)’s force clause. Id. at 45.
3

The defendant’s request to charge included in Request 68 the
following:
Now the first question, as to Count Five, is whether
the defendant is guilty of the crime of violence,
which is the attempted robbery of the drug dealer
charged in Count Four. As before, this element
essentially turns on the decision you have to make
anyway regarding Count Four. Count Five relates to
the attempted robbery charged in Count Four. If you
found the defendant guilty on Count Four, then this
element of Count Five is satisfied and you may go on
to consider the second element. If you find that the
government has not proved Count Four beyond a
reasonable doubt, for any reason, then you need not
consider Count Five at all because a defendant can’t
4

13

The relevant jury charges are as follows.

5

The count 3

charge for conspiracy included a definition of the object of
that conspiracy, that is, Hobbs Act robbery.

That definition

includes elements contained within the force clause of §
924(c)(3) by focusing on the use of actual or threatened force,
violence or fear of injury to take the drugs or drug proceeds.
It does not include language required by the residual clause,
that is, that the conviction could be based on conduct posing a
substantial risk that physical force may be used.

The charge

includes the following language:
The government must prove beyond a reasonable doubt,
therefore, that it was an objective of the conspiracy
to take or obtain narcotics or narcotics proceeds from
the suspected narcotics dealer or in the presence of
that person; and that the ‘taking’ or ‘obtaining’ was
to be against the victim’s will, by means of actual or
threatened force, violence or fear of injury, whether
immediately or in the future, to the victim’s person
or property. It is not necessary that the government
prove that force, violence and fear would all have
been used or threatened. The government satisfied its
burden of proving an unlawful taking if it proves
beyond a reasonable doubt that any of these methods
was to be employed by the conspiracy. The words
force, violence, and fear have their common and

be guilty of Count Five unless he is guilty of Count
Four.
Each juror was provided with a copy of the jury charge to read
along as the Court read the charge aloud and to take with them
into the jury room for their deliberations. The written charge
was marked as a Court Exhibit.
5

14

ordinary meaning. A threat may be made verbally or by
a physical gesture.
Trial Transcript at 1746.

(Emphasis supplied.)

The charge for count four (attempted Hobbs Act robbery)
included a definition of attempt.

It instructed the jury that

it did not need to find that the defendant actually committed a
robbery.

Instead, in order to find the defendant guilty of

attempted robbery as charged in count 4, the Government had to
prove beyond a reasonable doubt three elements, including that
“the defendant had the intent in June 2006 to rob a person in
the Bronx whom he believed to be in possession of narcotics or
narcotics proceeds” and that “the defendant engaged in conduct
amounting to a substantial step toward the commission of that
robbery.”

Id. at 1748.

(Emphasis supplied.)

A substantial

step was defined as “something more than mere preparation.
Evidence of verbal agreement alone is not enough.

Yet a

substantial step must be less than the last act necessary before
the actual commission of the attempted crime.”

Id. at 1749.

Again, this portion of the charge did not include an instruction
that the jury could convict the defendant of attempting to
commit robbery because there was a substantial “risk” that
physical force “may” be used.

15

The jury charge for count 5 (the firearms count) was, in
pertinent part, the following:
Count Five charges the defendant with the crime of
using, carrying, or possessing a firearm during and in
relation to the attempted robbery charged in Count
Four. In order to find the defendant guilty of this
charge, the government must prove each of the
following elements of the crime beyond a reasonable
doubt:
First, that the defendant is guilty of the charge in
Count Four.
Second, that the defendant knowingly used or carried a
firearm during and in relation to the attempted
robbery charged in Count Four, or knowingly possessed
a firearm in furtherance of the attempted robbery
charged in that count.
Trial Transcript at 1749.

(Emphasis supplied.)

The final section of the charge that is relevant to these
issues is the charge asking for a special verdict on whether the
defendant brandished a firearm during the attempted robbery.
The verdict sheet instructed the jury to answer the following
question only if it had found the defendant guilty on count 5,
the firearms count.

The question was: “Has the Government

proven beyond a reasonable doubt that a firearm was brandished
during the attempted robbery?”

The charge defined the word

brandish as meaning “to display all or part of it, or to
otherwise make its presence known to another person in order to
intimidate or advise that person that violence is imminently and

16

immediately available, regardless of whether the firearm is
directly visible.”

Id. at 1750.

The jury convicted Barnes of

brandishing a firearm in connection with the attempted robbery,
confirming that the defendant was convicted of committing
attempted robbery through the actual or threatened use of force,
and not because the Government had only proved that there was a
substantial risk that physical force may be used, that is, for a
crime of violence as defined in the residual clause.
Given this determination of historical fact it is
unnecessary to explore either the background legal conditions
for this conviction or to determine the standard the petitioner
must meet to obtain habeas relief.

Whether the petitioner has

the burden to show that it is more likely than not that his
conviction was premised on the residual clause or that it may
have been so predicated, the petitioner has failed to meet that
burden.
In his reply memorandum, Barnes acknowledges that his
challenge to the conviction on count 5 “implicates” Taylor.

It

allows him to establish that attempted Hobbs Act robbery is not
a crime of violence under the force clause of § 924(c)(3).

He

contends, however, that his petition nonetheless “relies on”
Davis because the Davis decision is necessary to the success of
his claim.

He reasons that the decision in Davis is necessary
17

for him to argue that count 5 lacks a valid crime-of-violence
predicate.

According to Barnes, until Davis issued, and struck

down the residual clause in § 924(c)(3), his claim did not
“accrue”.

This argument is insufficient to resolve the factual

inquiry demanded by Savoca.

2022 WL 17256392, at *2.

Barnes next argues (on the assumption that it is necessary
for this Court to determine as a historical matter which clause
of § 924(c)(3) –- the force clause or the residual clause –supported his conviction on count 5) that he need only show that
his conviction “may have” based on the residual clause and that
he has met that burden.

To carry that burden, Barnes relies on

the following evidence from the 2012 trial.
First, he points out that there was no discussion at the
sentencing proceeding of whether the attempted Hobbs Act robbery
conviction qualified as a crime of violence because everyone
assumed that it did.

He points out that the Court of Appeals

had ruled in 1996 in U.S. v. Elder, 88 F.3d 127 (2d Cir. 1996),
that a conspiracy to commit robbery qualified as a crime of
violence under the residual clause.

Id. at 129.

Therefore,

Barnes asserts, everyone assumed that an attempt to commit a
robbery would also qualify as a crime of violence.

This

argument fails to show that the Court, or indeed the parties,
had concluded that the count 5 conviction relied on the
18

definition of a crime of violence contained in the residual
clause.
A judge must instruct the jury on every element of the
offense.

Indeed, a trial court must charge the jury on each

element of the crime even when an element is not in dispute.
United States v. Natale, 526 F.2d 1160, 1167 (2d Cir. 1975).
Barnes was indicted in count 5 with knowingly using or carrying
a firearm in relation to a crime of violence, or knowingly
possessing a firearm in furtherance of such a crime.

That crime

of violence was identified as the attempted robbery charged in
count 4.

The charge on count 4 required the jury, essentially,

to find those elements of a crime of violence that are listed in
the force clause of § 924(c)(3).

It did not include any charge

regarding a crime of violence as it is defined in the residual
clause.
Second, Barnes argues that the failure of defense counsel
to make any objection at the charging conference is irrelevant
since the determination of whether an offense is a crime of
violence is determined by the categorical approach or at least
the modified categorical approach when there is a divisible
statute.

As already discussed, Savoca requires a searching

inquiry to determine as a matter of historical fact what the
record indicates.

21 F.4

th

at 230.
19

In any event, this Opinion

has relied on an analysis of the jury charge, which as Barnes
acknowledges, is permitted even if the categorical approach
should ever be determined to govern this inquiry.
Third, Barnes points to the charge itself as evidence that
the conviction may have been based on the residual clause.

He

does not identify any passage that instructed the jury that it
could convict the defendant if it found that there was a
substantial “risk” that physical force “may” have been used in
the attempted robbery, as would have been necessary if the Court
had relied on the residual clause.

He does rely, however, on

the following passages as suggesting that he could have been
convicted without the jury finding that there was the attempted
use or threatened use of physical force, as required by the
force clause.
Barnes first argues that a “risk” that force “may” be used
was suggested by that portion of the charge on the crime of
robbery, given in connection with count 3, that the taking or
obtaining of the narcotics against the victim’s will could be by
means of a “fear of injury” to the victim’s person or property
“in the future”.

This portion of the charge, however, is

entirely consistent with the traditional definition of a crime
of violence contained in the force clause of § 924(c)(3)(A),
which requires that an element of the offense include the
20

attempted or threatened use of physical force against the person
or property of another.

The force clause does not require, for

instance, that the threat to use force be restricted to a threat
to use the force immediately.
Next, Barnes argues that the charge on attempt –- that
there be a “substantial step” toward committing the robbery -–
did not require that step to be violent.

But the force clause

does not require that force actually be used.

The force clause

includes the “attempted use” and “threatened use” of physical
force.

Under federal law, an attempt requires proof of a

substantial step, as charged here, and the crime of attempt at
issue was to commit Hobbs Act robbery, which requires proof that
the taking was against the victim’s will by means of “actual or
threatened force, violence or fear of injury.”

Accordingly,

this argument fails as well to show that the count 5 conviction
may have relied on the residual clause.
Finally, Barnes argues that Taylor itself explained that an
intention combined with a substantial step does not require the
Government to prove that a crime of violence occurred as defined
in the force clause of § 924(c)(3).
argument is inapposite.

140 S.Ct. at 2020.

This

It is undisputed here that the count 5

conviction would have to be vacated if challenged on direct
appeal.

The question is whether it must be vacated on a
21

successive habeas petition because it is constitutionally
infirm.

Taylor is a decision based on a statutory construction

and will not support a finding that the firearms conviction is
constitutionally infirm.
Conclusion

The petitioner's June 15, 2016 petition for a writ of
habeas corpus is denied.

The defendant having made a

substantial showing of a denial of a federal right, a
certificate of appealab ility shall b e granted.

Hoffler v.

Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski,
135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.3d
23, 24 (2d Cir. 1990).

Pursuant to 28 U.S.C. § 1915 (a) (3), any

appeal from this order would be taken in good faith.

Coppedge

v. United States, 369 U.S. 438, 445 (1962).

Dated:

New York, New York
March 26, 2024

DENISE COTE
United St��es District Judge

22