Medina-Villegas v. USA
Filing
12
OPINION AND ORDER granting in part and denying in part 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 02-117). Judgment shall be entered forthwith. Signed by Judge Juan M. Perez-Gimenez on 07/29/2016. (NNR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Hernardo Medina-Villegas,
Petitioner
CIVIL NO. 14-1113 (PG)
V.
Related CRIM. NO. 02-117(PG)
United States of America,
Respondent.
OPINION AND ORDER
Before
the
court
are
Hernardo
Medina-Villegas’
(hereinafter,
“petitioner”) Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, and the Government’s opposition thereto. See Civ. No.
14-1113, D.E. 1 and D.E. 7. 1 After reviewing petitioner’s claims, the
court hereby DENIES the motion to vacate as to counts two, four, six and
eight
of
the
indictment
against
petitioner
for
the
reasons
explained
below. The court nonetheless GRANTS petitioner’s motion as to count nine.
I. BACKGROUND
On
March
22,
2005
a
jury
convicted
petitioner
on
nine
counts
stemming from conspiracy to commit robbery and the murder of a guard in
the course of a robbery. Specifically, petitioner was convicted of the
following charges:
Count 1. Conspiracy to commit robbery of an armored vehicle, in
violation of 18 U.S.C. § 1951(a).
Count 2. Aiding and abetting the use of a firearm in relation
to
count
one,
in
violation
of
18
U.S.C.
§§
2,
924(c)(1)(A)(iii).
Count 3. Aiding and abetting the robbery of an armored vehicle,
in violation of 18 U.S.C. §§ 2, 1951(a).
Count 4. Aiding and abetting the use of a firearm in relation
to
count
three,
in
violation
of
18
U.S.C.
§§
2,
924(c)(1)(A)(ii).
Count 5. Aiding and abetting a carjacking, in violation of 18
U.S.C. §§ 2, 2119(1).
Count 6. Aiding and abetting the use of a firearm in relation
to
count
five,
in
violation
of
18
U.S.C.
§§
2,
924(c)(1)(A)(ii).
Count 7. Aiding and abetting the robbery of an armored vehicle,
in violation of 18 U.S.C. §§ 2, 1951(a). (referring to a
different robbery than that in count three)
1
D.E. is an abbreviation of docket entry number.
Civil No. 14-1113 (PG)
Page 2
Count 8. Aiding and abetting the use of a firearm in relation
to count seven, resulting in the murder of a guard in the
course of a robbery, in violation of 18 U.S.C. §§ 2, 924(j). 2
Count 9. Aiding and abetting the use of a firearm in relation
to
count
seven,
in
violation
of
18
U.S.C.
§§
2,
924(c)(1)(A)(ii).
See Crim. No. 02-117, D.E. 85, D.E. 390, and D.E. 498.
Petitioner was sentenced as follows:
1. As to counts one, three and seven, petitioner was sentenced to
imprisonment
for
a
term
of
twenty
(20)
years,
to
be
served
concurrently with each other.
2. As to count two, petitioner was sentenced to imprisonment for a term
of fifteen (15) years to be served consecutively to counts one,
three and seven.
3. As to counts four and six, petitioner was sentenced to imprisonment
for a term of twenty-one (21) years to be served concurrently with
each other and with count two, but consecutively to counts one,
three and seven.
4. As to count five, petitioner was sentenced to a term of imprisonment
for a term of fifteen (15) years to be served concurrently with
counts one, three and seven.
5. As
to
count
eight,
petitioner
was
sentenced
to
life
in
prison
without the possibility of parole (“LWOP”).
6. As to count nine, petitioner was sentenced to imprisonment for a
term of thirty (30) years to be served concurrently with counts two,
four and six, but consecutively to counts one, three and seven.
See
Crim.
No.
02-117,
D.E.
519,
and
D.E.
594.
Additionally,
petitioner was fined a special assessment of $100 per each count, except
count eight.
During the count eight penalty phase of petitioner’s trial, this
court instructed the jury to recommend either the death penalty or LWOP,
and informed the jury that if they failed to reach unanimity on either,
the court would sentence petitioner to LWOP. See Crim. No. 02-117, D.E.
513. Petitioner did not object to the sentencing instructions. The jury
2
This count was certified for the death penalty.
Civil No. 14-1113 (PG)
Page 3
did not reach unanimity and, therefore, petitioner was sentenced to LWOP.
See Crim. No. 02-117, D.E. 498 and D.E. 519.
Petitioner appealed, challenging “1) the sufficiency of the evidence
supporting
the
conviction
of
count
eight
(the
murder
count),
2)
the
sufficiency of the evidence supporting counts five and six (the carjacking
counts), 3) the district court’s failure to allow him the opportunity for
allocution before being sentenced to life imprisonment on count eight, and
4) the district court’s calculation of the guideline sentencing range on
count eight.” 3 United States v. Catalan-Roman, 585 F.3d 453, 472 (1st
Cir.2009). The First Circuit Court of Appeals agreed with petitioner’s
third argument and vacated his sentence on count eight and remanded for
resentencing. However the First Circuit affirmed all other convictions and
sentences. See Catalan-Roman, 585 F.3d at 475.
In accordance, with the First Circuit’s instructions, this court
resentenced petitioner on August 18, 2011. See Crim. No. 02-117 D.E. 750.
At
the
hearing,
petitioner
argued
that
his
conviction
on
count
nine
violated the Double Jeopardy Clause. However, this court considered that
argument to fall outside the scope of the remand and dismissed it. This
court
again
imposed
LWOP
after
allowing
petitioner
to
present
his
challenged
the
allocution.
Petitioner
again
appealed.
This
time
petitioner
procedural and substantive reasonableness of this court’s LWOP sentence,
and in addition raised the Double Jeopardy claim he unsuccessfully tried
to
argue
at
the
resentencing
hearing.
The
First
Circuit
petitioner’s arguments and affirmed this court’s decision.
4
rejected
See United
States v. Medina-Villegas, 700 F.3d 580, 585 (1st Cir.2012).
Pending now before this court are petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and respondent’s
timely opposition thereto. See Civ. No. 14-1113, D.E. 1 and D.E. 7.
Petitioner submitted a memorandum of law in support of his motion and a
3
The First Circuit Court of Appeals did not consider petitioner’s pro se claims as
to the sufficiency of supporting evidence for counts one through four and seven because
petitioner’s argumentation was insufficient.
4
The double jeopardy claim was dismissed without prejudice pursuant to the law of
the case doctrine.
Civil No. 14-1113 (PG)
Page 4
reply to respondent’s opposition, as well as a supplement with additional
pleadings. See Civ. No. 14-1113, D.E. 1; D.E. 8; and D.E. 10.
In
his
§
2255
petition,
petitioner
set
forth
the
following
arguments:
1. That both trial and appellate counsel were ineffective for failing
to raise claims against an alleged error in the jury instructions
provided by this court as to petitioner’s sentencing on count eight,
which was certified for the death penalty. See Civ. No. 14-1113,
D.E. 1.
2. That petitioner’s conviction as to count nine violates the Double
Jeopardy Clause, and that both trial and appellate counsel were
ineffective for failing to raise that claim. See Civ. No. 14-1113,
D.E. 1.
3. That 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague, thus
warranting the vacation of petitioner’s convictions as to counts
two, four, six and nine. See Civ. No. 14-1113, D.E. 10.
4. That count one, a conspiracy charge, cannot be categorized as a
violent crime for the purposes of petitioner’s conviction as to
count two under 18 U.S.C. § 924(c)(3). See Civ. No. 14-1113, D.E.
10.
II. DISCUSSION
A. Count Eight
Petitioner
argues
that
the
court
committed
an
error
during
the
penalty phase of his trial, by instructing the jury to sentence him to
either the death penalty or to LWOP, and omitting the alternative of a
lesser
sentence.
Petitioner
claims
trial
counsel
was
ineffective
for
failing to object to said instruction. Petitioner further claims that
appellate counsel was ineffective for failing to raise the issue on direct
appeal.
i. Ineffective Assistance of Trial Counsel
To review a claim of ineffective assistance of counsel, a court must
assess whether counsel’s conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied upon as having
produced a just result. See Strickland v. Washington, 105 S.Ct. 2052, 2064
(1984).
To
succeed
in
a
claim
of
ineffective
assistance
of
counsel,
Civil No. 14-1113 (PG)
Page 5
petitioner must show that counsel’s representation fell below an objective
standard of reasonableness, and that there is a reasonable probability
that,
but
for
counsel’s
unprofessional
errors,
the
result
of
the
proceeding would have been more favorable to petitioner. See United States
v. Carrigan, 724 F.3d 39, 44 (1st Cir.2013). That is to say, petitioner
must
demonstrate
both
incompetence
and
prejudice.
Furthermore,
the
Strickland test is bifurcated. See Tevlin v. Spencer, 621 F.3d 59, 66 (1st
Cir.2010). Failure to prove either prong proves fatal for the other. See
United States v. Caparotta, 676 F.3d 213, 219 (1st Cir.2012).
The
court
will
assume,
arguendo,
that
the
alleged
error
was
committed in order to determine if it would have led to the prejudice
necessitated by Strickland.
Petitioner
argues
that
he
suffered
prejudice
because,
had
trial
counsel objected to the jury instructions, and had the jury been offered
the alternative of a lesser sentence, there was a reasonable probability
that the jury would have opted for a lesser sentence. Petitioner cites the
jury’s failure to reach unanimity as support for this contention. However,
a jury split between the death penalty and LWOP does not imply that the
option of a lesser sentence would have resulted in unanimity for that
alternative.
It is highly improbable that jurors who voted to sentence petitioner
to the highest penalty would have sprung for the most lenient sentencing
option. That some jurors held out against imposing the death sentence does
not create a reasonable probability that the jury would choose a lesser
sentence unanimously.
In Jones, for example, the Supreme Court observed that even in light
of an alleged error in jury instructions “it is just as likely that the
jurors, loath to recommend a lesser sentence, would have compromised on a
sentence of life imprisonment as on a death sentence.” See Jones v. United
States, 119 S.Ct. 2090, 2105 (1999). The circumstances of Jones and the
issue
before
equally
us
are
applicable.
different,
If
this
but
the
court were
Supreme
to
Court’s
reasoning
accept petitioner’s
is
flawed
claims of prejudice, it would engage in speculation and forego reasoned
judgment. See Romano v. Oklahoma, 114 S.Ct. 2004, 2013 (1994)(holding that
Civil No. 14-1113 (PG)
Page 6
inadmissible evidence would have had little, if any, effect on the jury,
and to decide otherwise would merely be a speculative exercise).
In light of the foregoing, the court concludes that petitioner fails
to show a reasonable probability that the outcome of the proceeding would
have been different in the absence of the alleged error, and thus his
claim of ineffective assistance of trial counsel fails.
ii. Ineffective Assistance of Appellate Counsel
A claim of ineffective assistance of appellate counsel must also
meet
the
standards
of
the
Strickland
test.
States, 899 F.Supp.2d 119, 134 (D.P.R.2012).
appellate
counsel,
the
relevant
test
is
5
See
Colon-Diaz
v.
United
However, in claims involving
not
whether
petitioner
would
likely prevail upon remand, but rather, whether the appellate court would
have, in fact, reversed and remanded on a given argument. See United
States v. Mannino, 212 F.3d 835, 844 (3rd Cir.2000).
Petitioner
did
not
object
to
the
allegedly
erroneous
jury
instructions at trial. Accordingly, an appellate court would have reviewed
an appeal on those grounds for plain error. See Jones, 119 S.Ct. at 2102
(noting also that, in claims of error in jury instructions, plain error
review is particularly “limited”). Similar to the prejudice prong of the
Strickland test, plain error review requires the court to determine if the
alleged
error
“affected
the
defendant’s
substantial
rights.” 6
United
States v. Bermudez-Melendez, -- F.3d --, 2016 WL 3525423, at *2 (1st Cir.
June 28, 2016). Furthermore, “a reversal under plain error review requires
a reasonable probability that, but for the error, the district court would
have
imposed
a
different,
more
favorable
sentence.”
United
States v.
Mangual-Garcia, 505 F.3d 1, 15 (1st Cir.2007)(citations omitted).
In the instant case, it is highly unlikely that an appellate court
would have found that the alleged error constituted plain error. The
5
Although ineffective assistance of appellate counsel would occur in the competence
of an appellate court, district courts have often reviewed such claims when set forth in a
motion for habeas relief. See Jones v. Barnes, 103 S.Ct. 3308, 3311 (1983). See also
Colon-Diaz, 899 F.Supp.2d at 134. This court is aptly situated to review this claim,
seeing as petitioner’s claim of ineffective assistance of appellate counsel is derivative
of facts occurring at the district court’s level.
6
“Plain error review entails four showings: (1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public reputation of judicial
proceedings.” Bermudez-Melendez, 2016 WL 3525423, at *2.
Civil No. 14-1113 (PG)
Page 7
alleged error would not have affected the outcome of the trial. There is
no reasonable probability that, absent the alleged error, petitioner would
have received a more favorable sentence. 7
The court of appeals would have
been far more likely to deem the alleged error to be harmless, rather than
reversible.
The
court
will
assume,
arguendo,
that
the
error
alleged
by
petitioner – ineffective assistance of counsel for failure to raise error
in
the
jury
instructions
provided
as
to
count
eight
–
was
indeed
committed. In such a case, the appellate court’s review is for plain
error.
Yet,
for
the
reasons
outlined
above,
there
is
no
reasonable
probability that, absent the alleged error, the petitioner would have
received a more favorable sentence. Again, that at least one juror voted
against the death penalty on count eight does not automatically lead to
the conclusion that one or more members of the jury were inclined to
impose a lesser sentence than LWOP. Petitioner is effectively asking the
court to accept, a priori, that the error affected the outcome of his
sentence. However, even then, under plain error review, the appellate
court would deem the trial court’s error a harmless one at best.
Moreover,
the
court
finds
that
petitioner
failed
to
show
a
reasonable probability that the outcome of the proceeding on appeal would
have been different had the alleged error been raised, and thus his claim
of ineffective assistance of appellate counsel necessarily fails.
iii. Trial and Appellate Counsel’s Performance
Even if petitioner had demonstrated prejudice, he nonetheless failed
to show that counsel’s performance fell below an objective standard of
reasonableness. Petitioner’s argument to that effect is based on case law
from the Sixth Circuit that is not binding to this court. See Sanchez v.
United States, 740 F.3d 47, 56 (1st Cir.2014), cert. denied, 135 S.Ct. 54,
190 L.Ed.2d 30 (2014)(explaining that departing from circuit precedent is
justified
only
by
“‘supervening
authority’
(such
as
a
ruling
of
the
Supreme Court or this Court en banc), Muskat v. United States, 554 F.3d
183, 189 (1st Cir.2009), or ‘in those relatively rare instances in which
the authority that postdates the original decision, although not directly
7
To arrive at this conclusion, the court employed the same reasoning the court used
to consider petitioner’s claim of ineffective assistance of trial counsel.
Civil No. 14-1113 (PG)
Page 8
controlling, nevertheless offers a sound reason for believing that the
former panel, in light of fresh developments, would change its collective
mind.’”). Furthermore, the cases that petitioner cites postdate his trial.
The
court
is
challenged
required
conduct,
“to
and
to
reconstruct
evaluate
the
the
circumstances
conduct
perspective at the time.” Strickland, 105 S.Ct. at 2065.
counsel’s
the
from
of
counsel’s
Thus, trial
counsel’s failure to raise an argument that was unavailable and not based
on First Circuit precedent would not render the assistance ineffective.
Trial counsel was, as a matter of fact, under no obligation to raise such
an argument.
Appellate counsel is not ineffective for merely failing to raise an
issue on appeal. See Smith v. Murray, 106 S.Ct. 2661, 2667-2668 (1986).
Counsel need not raise every possible argument, but is instead expected to
choose, amongst all possible arguments, those with the highest potential
for success. See Evitts v. Lucey, 105 S.Ct. 830, 834 (1985). See also
Alicea-Torres v. United States, 455 F.Supp.2d 32, 57 (D.P.R.2006). Courts
regard appellate counsel’s discretion in selecting what issues to bring
upon appeal with a strong presumption of competence. See Strickland, 105
S.Ct.
at
2065.
Here,
petitioner
has
failed
to
show
that
appellate
counsel’s choices do not hold up to these standards. It is worth noting
that petitioner’s counsel on appeal successfully represented his client
given
that
the
First
Circuit
Court
of
Appeals
vacated
petitioner’s
sentence as to count eight and remanded for resentencing. See CatalanRoman 585 F.3d at 475.
In light of the foregoing, this court finds that petitioner did not
demonstrate that either trial or appellate counsel’s performance fell
below an objective standard of reasonableness. As such, his claims of
ineffective assistance of counsel fail.
Accordingly, habeas corpus relief as to count eight is on these
grounds DENIED. 8
B. Count Nine
8
Furthermore, because petitioner raised the alleged error neither at trial nor on
direct appeal, he is barred from raising the issue on collateral review pursuant to 28
U.S.C. § 2255 without first showing both “cause and prejudice.” See United States v.
Frady, 102 S. Ct. 1584, 1593-1594 (1982). Petitioner evidently failed to do so.
Civil No. 14-1113 (PG)
Page 9
Next, petitioner argues that count nine is a lesser included offense
of count eight, and, as such, the count nine conviction violates the
Double Jeopardy Clause. 9 Double Jeopardy “forbids successive prosecution
and
cumulative
Consequently,
punishment
courts
may
for
not
a
greater
impose
and
multiple
lesser
included
punishments
for
offense.
what is
essentially the same offense.” Medina-Villegas, 700 F.3d at 585.
This court now considers the exact same controversy reviewed in
Catalan-Roman. 10 See Catalan-Roman 585 F.3d at 472. In that case, the
First Circuit concluded that “count nine was a lesser included offense of
count eight, as it did not require proof of any fact not required for
conviction on count eight.” Catalan-Roman 585 F.3d at 472.
In its opposition to petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, the government concedes
that count nine is in violation of the Double Jeopardy Clause. See Civ.
No. 14-1113 D.E. 7. The court agrees. Accordingly, habeas corpus relief as
to count nine is GRANTED.
C. Counts Two, Four and Six
11
On September 26, 2015 the Supreme Court of the United States held
that
the
residual
clause
of
18
U.S.C.
§
924(e)(2)(B)(ii)
was
unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551,
2557 (2015). Petitioner claims that 18 U.S.C. 924 (c) is plagued by an
analogous
provision,
and
“as
such,
any
implications
governed
by
the
Supreme Court’s Jhonson’s [sic] ruling equally applies to both residual
clauses in 924(c) and 924(e).” Civ. No. 14-1113, D.E. 11, at p. 2.
In Johnson, the Supreme Court explicitly stated that it was only
declaring the residual clause of § 924(e) unconstitutionally vague, while
leaving the rest of the statute intact, and significantly limiting the
ruling’s encroachment on seemingly similar statutes. See Johnson, 135
9
This claim is not procedurally barred from being raised on collateral review.
Although petitioner raises this claim underneath the umbrella of ineffective assistance of
counsel, it is not necessary for him to do so. Petitioner raised this issue on direct
appeal, where it was dismissed without prejudice on procedural grounds. See MedinaVillegas, 700 F.3d at 585. Thus, petitioner need demonstrate neither cause nor prejudice
for this court to consider the merits of this claim.
10
11
Catalan-Roman was one of petitioner’s co-defendants.
Petitioner includes count nine in his discussion of this issue. However, count
nine has already been resolved on double jeopardy grounds.
Civil No. 14-1113 (PG)
Page 10
S.Ct. at 2561. The controversy at hand refers to § 924(c)(3), which reads
as follows:
(3) For purposes of this subsection the term “crime of violence”
means an offense that is a felony and-(A) has as an element the use, attempted use, or threatened use
of physical force against the person or property of another, or
(B) that 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.
18 U.S.C. § 924(c)(3). Subsection (A) is often called the “force clause,”
while subsection (B) is commonly referred to as the “residual clause.”
After careful review of petitioner’s arguments, the court finds that
petitioner is seeking a new constitutional rule declaring §924(c)(3)(B)
unconstitutional. A court can only declare a new constitutional rule on
habeas corpus collateral review if that rule is retroactive. See Teague v.
Lane, 109 S.Ct. 1060, 1078 (1989). The new constitutional rule set forth
in Johnson is substantive, and thus, retroactive. See Welch v. United
States, 136 S.Ct. 1257, 1265 (2016). It would follow that the new rule
petitioner seeks is substantive and retroactive. Petitioner successfully
passes
the
test
set
forth
in
Teague,
and
this
court
may
therefore
entertain his claim.
The First Circuit Court of Appeals has yet to consider this issue.
Other Circuit Courts of Appeal have, but are split on the matter. See
United States v. Taylor, 814 F.3d 340, 375-379 (6th Cir.2016)(outlining
the multiple differences between § 924(c)(3)(B) and § 924(e)(2)(B)(ii),
and determining that § 924(c)(3)(B) is not unconstitutionally vague);
United
States
v.
Vivas-Ceja,
808
F.3d
719,
721-723
(7th
Cir.2015)
(declaring 18 U.S.C. § 16(b), which appears identical to § 924(c)(3)(b),
unconstitutionally vague under Johnson’s reasoning); Dimaya v. Lynch, 803
F.3d 1110, 1119-1120 (9th Cir.2015)(invalidating 18 U.S.C. § 16(b) as
well). District courts in the Seventh and Ninth Circuits have extended
their
appellate
courts’
interpretation
of
18
U.S.C.
§
16(b)
to
§
924(c)(3)(B). See United States v. Thongsouk Theng Lattanaphom, -- F.
Supp. --, 2016 WL 393545 (E.D.Cal. Feb. 2, 2016). See also Richard Lee
Eldridge v. United States, -- F. Supp. --, 2016 WL 3556997 (C.D.Ill. June
24, 2016).
Civil No. 14-1113 (PG)
Page 11
Our sister district courts from the First Circuit, not bound by
those precedents, have refused to invalidate § 924 (c)(3)(B) in light of
Johnson. See United States v. Tsarnaev, -- F. Supp. --, 2016 WL 184389, at
*12 (D.Mass. Jan. 15, 2016)(applying Johnson’s reasoning to § 924 (c)
would entail an unduly expansive reading of that ruling). This court is
inclined to agree, seeing as § 924 (c)(3)(B) is distinctively narrower
than § 924 (e)(2)(B)(ii). On the other hand, this court need not consider
the constitutionality of § 924 (c)(3)(B). It is well settled that judicial
review should refrain from declaring laws unconstitutional when it can be
avoided. See Regan v. Time, Inc., 104 S.Ct. 3262, 3269 (1984).
Petitioner does not call into question the constitutionality of §
924 (c)(3)(A), and that clause is clearly unaffected by Johnson. See
Johnson, 135 S.Ct. at 2561. However, counts two, four, and six can all be
categorized as violent crimes under this “force clause.” That is to say,
even
if
§
924
(c)(3)(B)
was
held
invalid
due
to
unconstitutional
vagueness, petitioner’s conviction of violent crimes under § 924 (c)(3)(A)
would still stand.
Counts two and four refer to Hobbs Act violations under 18 U.S.C. §
1951(a), which the First Circuit has explicitly categorized as violent
crimes under § 924 (c)(3)(A). See United States v. Morales-Machuca, 546
F.3d 13, 21 (1st Cir.2008). Count six refers to a carjacking under 18
U.S.C. § 2119. While the First Circuit has not explicitly categorized
carjacking as a violent crime under § 924 (c)(3)(A), other circuits have
done so. See Tsarnaev, 2016 WL 184389 at *16. More importantly, a reading
of § 2119 strongly suggests that carjacking requires, at least, the threat
of the use of physical force, and would thus be a violent crime under §
924 (c)(3)(A). See id.
This court thus concludes that petitioner’s convictions as to count
two, four and six are unaffected by the Supreme Court’s ruling in Johnson.
See
Johnson,
135
unconstitutional,
S.Ct.
at
petitioner’s
2561.
Even
argument
if
would
§
be
924
moot.
(c)(3)(B)
12
were
Petitioner
is
misguided in believing his convictions rely on § 924 (c)(3)(B), when his
12
At any rate, petitioner lacks standing to challenge the constitutionality of any
statute except those pursuant to which he was convicted.
Civil No. 14-1113 (PG)
Page 12
violations could more readily be categorized as violent crimes under § 924
(c)(3)(A).
Accordingly, habeas corpus relief as to counts two, four and six is
DENIED.
D. Count Two 13 (second claim regarding count two)
Petitioner argues that the court erred in categorizing count one, a
conspiracy charge, as a “violent crime” for the purposes of count two.
While petitioner supports his argument with relevant case law, 14 this
court will not reach the merits of his argument, nor decide whether a
conspiracy crime can be deemed a violent crime, because petitioner is
procedurally barred from bringing this claim in a motion pursuant to 28
U.S.C. § 2255.
The matter petitioner now raises could have been argued at trial or
on direct appeal. Petitioner’s argument does not rely on a new retroactive
rule. Yet, petitioner did not raise the issue until now.
In order for a court to consider an issue not raised in trial or on direct
appeal, and raised for the first time on habeas corpus collateral review,
petitioner must demonstrate both “cause and prejudice.” See Wainwright v.
Sykes, 97 S.Ct. 2497, 2506-2507 (1977). See also Frady, 102 S.Ct. at 15931594
(1982)(making
Wainwright
applicable
to
habeas
corpus
relief
for
federal prisoners as well as for state prisoners). See also Bucci v.
United States, 662 F.3d 18, 29 (1st Cir.2011). Petitioner does not even
attempt to do so, thus failing to surmount the Wainwright test. 15 See
Vega-Colon v. United States, 463 F.Supp.2d 146, 155 (D.P.R.2006).
Petitioner did not demonstrate cause nor prejudice to excuse his
failure to raise this claim at trial or on direct appeal.
16
Accordingly,
habeas corpus relief as to count two is again DENIED.
13
This is the second argument regarding count two.
14
However, petitioner cites case law from other circuits that is merely persuasive
and is contrary to First Circuit precedent. See Footnote 16.
15
16
Petitioner shoulders the burden of proving cause and prejudice.
Even if he had, the petition would still be denied because the First Circuit
considers that conspiracy to commit a crime of violence is also a crime of violence in
terms of § 924(c). See United States v. Turner, 501 F.3d 59, 67 (1st Cir.2007).
Civil No. 14-1113 (PG)
Page 13
III. CONCLUSION
For the foregoing reasons, this court finds that petitioner HERNARDO
MEDINA-VILLEGAS is only entitled to federal habeas relief on his claim
that his conviction on count nine violates the Double Jeopardy Clause.
Petitioner is not entitled to federal habeas relief on any of his other
claims. Accordingly, the court hereby orders that petitioner’s request for
federal habeas relief pursuant to 28 U.S.C. § 2255 be GRANTED IN PART, his
conviction and sentence as to count nine be vacated, and the $100 special
assessment fine returned to him. All other claims in petitioner’s Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 are
hereby DENIED AND DISMISSED WITH PREJUDICE.
CERTIFICATE OF APPEALABILITY
It is further ordered that no certificate of appealability should be
issued in the event that petitioner files a notice of appeal, because
there is no substantial showing of a denial of a constitutional right
under 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, July 29, 2016.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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