Defendant-Appellant moves to recall the mandate in this case, which the Court issued in 2002. We construe the motion as an application for leave to file a successive motion to vacate Defendant-Appellant's sentence pursuant to 28 U.S.C. § 2255. Because Defendant-Appellant has failed to meet the standard for permission to file a successive § 2255 motion, the motion is denied.
Motion Decided: February 9, 2009
Before: McLAUGHLIN and POOLER, Circuit Judges.*fn1
Defendant-Appellant Wayne Fabian moves, pro se, to recall the December 2002 mandate affirming his conviction. The motion is DENIED.
Fabian was convicted after a jury trial in the Eastern District of New York on two counts of conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951; one count of attempted Hobbs Act robbery; and one count of brandishing a weapon during a crime of violence. The Hobbs Act prohibits robberies that "obstruct, delay, or affect [interstate] commerce." 18 U.S.C. § 1951(a). Evidence at trial showed that Fabian robbed people he believed to be loan sharks and drug dealers. The district court instructed the jury that loansharking and drug trafficking affected interstate commerce and that, if the jury found the purpose of the conspiracies was to obtain proceeds from loansharking and drug trafficking, it should find the interstate-commerce element of the Hobbs Act to be satisfied.
In December 2002, we affirmed Fabian's conviction, rejecting his argument that the Government failed to prove that his crimes affected interstate commerce. We held that, as a matter of law, drug dealing and loansharking have an effect on interstate commerce. See United States v. Fabian, 312 F.3d 550, 555-56 (2d Cir. 2002). That same month, we issued the mandate affirming Fabian's conviction.
In May 2004, Fabian, pro se, moved to vacate his sentence pursuant to 28 U.S.C. § 2255. Fabian argued, among other things, that the jury instructions that drug trafficking and loansharking affected interstate commerce violated his rights to due process and a jury trial. While that motion was pending in the district court, this Court held that the Government must prove beyond a reasonable doubt that a defendant's conduct affected interstate commerce under the Hobbs Act, abrogating in part our decision affirming Fabian's conviction. See United States v. Parkes, 497 F.3d 220, 229-30 (2d Cir. 2007). Shortly after the Court decided Parkes, the district court denied Fabian's § 2255 motion, holding that Parkes did not entitle Fabian to relief. In February 2008, we denied Fabian's motion for a certificate of appealability.
Fabian now moves to recall the 2002 mandate affirming his conviction.
We have held that when a defendant moves to recall the mandate based on intervening precedent that calls into question the merits of the decision affirming his conviction, we construe the motion as one to vacate the defendant's sentence pursuant to 28 U.S.C. § 2255. See Bottone v. United States, 350 F.3d 59, 63 (2d Cir. 2003). The defendant in Bottone had previously filed an unsuccessful § 2255 motion, and we denied the motion to recall the mandate because it did not satisfy the standard for filing a second or successive motion. See id. at 62-63. Section 2255 "is generally the proper vehicle for a federal prisoner's challenge to his conviction and sentence," Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001), and it prevents a defendant from filing a second collateral challenge unless we determine that the motion is based on newly discovered evidence demonstrating that no ...