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RODRIGUEZ v. U.S.

April 14, 2005.

RAUL RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: PETER LEISURE, District Judge

OPINION AND ORDER

Raul Rodriguez ("petitioner" or "movant") submits this pro se motion, pursuant to Federal Rules of Civil Procedure 60(b)(4) and 60(b)(6), to vacate the Court's judgment in movant's prior petition challenging his sentence under 28 U.S.C. § 2255. Though petitioner and his co-defendants*fn1 raised a myriad of issues in their § 2255 petition, movant confines his current motion to the Court's decision regarding his conviction for violating 18 U.S.C. § 924(c). Section 924(c) provides for a mandatory five-year term of imprisonment for any individual who "during and in relation to any . . . drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm." 18 U.S.C. § 924(c). Movant raises several arguments regarding Rule 60(b)(4) and Rule 60(b)(6), most of which are without merit and procedurally barred. However, movant's claim under United States v. Medina, 32 F.3d 40 (2d Cir. 1994), warrants thorough discussion.

  BACKGROUND

  On January 5, 1993, this Court sentenced Rodriguez to a term of 248 months imprisonment, including a mandatory consecutive five-year sentence for the § 924(c) firearm count discussed above. Rodriguez timely appealed and, on February 17, 1994, the Second Circuit affirmed his conviction. See United States v. Valdez, 16 F.3d 1324 (2d Cir. 1994), cert. denied, 513 U.S. 810 (1994). On April 10, 1997, represented by counsel, Rodriguez filed a petition pursuant to 28 U.S.C. § 2255. On July 28, 1998, this Court denied the petition in a written Opinion and Order. See Garcia v. United States, 15 F. Supp. 2d 367 (S.D.N.Y. 1998). On March 15, 2004, over sixty-eight months after this Court denied his § 2255 petition, Rodriguez filed the instant motion for reconsideration pursuant to Rule 60(b). Mindful of movant's pro se status, the Court addresses movant's specific claims in turn below. See Haines v. Kerner, 404 U.S. 519, 521 (1972) (holding a pro se complainant to a less stringent standard than that of a lawyer); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991) (same).

  DISCUSSION

  I. Rule 60(b)(4) Claims

  Movant argues that the Court "acted in a manner inconsistent with due process of law and equal protection of the law safeguards" in rendering its § 2255 decision on his § 924(c) firearms conviction, thus making that decision void under Rule 60(b)(4). (See Petitioner's Motion for Relief from Judgment Pursuant to Federal Rule of Civil Procedure 60(b) ("60(b) Mot.") at 3.) The text of Rule 60(b)(4) states that the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding if the judgment is void. See Fed.R.Civ.P. 60(b)(4). A motion to declare a judgment void pursuant to Rule 60(b)(4) may rest on a claim that the court "lacked jurisdiction over the parties, the subject matter, or both." Beller & Keller v. Tyler, 120 F.3d 21, 23 (2d Cir. 1997). A judgment may also be "void if a court with jurisdiction has acted in a manner inconsistent with due process of law." Id. (citation omitted).

  Rule 60(b)(4) motions must be made "within a reasonable time" after entry of judgment, but courts have been amply generous in defining the term "reasonable," with regard to voidness challenges. See State Street Bank & Trust Co. v. Inversiones, 374 F.3d 158, 179 (2d Cir. 2004); Beller & Keller, 120 F.3d at 24. In fact, any time is a "reasonable" time to set aside a void judgment. See 12 James Wm. Moore, et al., Moore's Federal Practice § 60.65. Thus, although petitioner filed the instant motion over sixty-eight months after this Court denied his § 2255 petition, his Rule 60(b)(4) claims are not time barred. Movant asserts three arguments justifying his prayed for relief under Rule 60(b)(4): (1) the Court erred in failing to address his argument under United States v. Medina, 32 F.3d at 40; (2) the Court erred in upholding his firearms conviction on a theory of constructive liability under Pinkerton v. United States, 328 U.S. 640 (1946); and, (3) the "use" instruction given to the jury was clearly erroneous under Bailey v. United States, 516 U.S. 137 (1995). (See generally 60(b) Mot.) The Court addresses movant's claims in turn below.

  A. Petitioner's Medina Claim

  Movant argues that this Court erred in failing to address his Medina claim in its § 2255 Opinion and Order and, that pursuant to Medina, his § 924(c) conviction under a theory of aiding and abetting should be overturned. The Court gave short shrift to petitioner's Medina argument in its § 2255 Opinion, stating that "Rodriguez's Medina claim is completely inapposite. . . . Quite simply, Rodriguez was neither charged with nor convicted of aiding or abetting a § 924(c) violation." (§ 2255 Opinion, at 18-19.) The Court found that petitioner had been directly convicted under a Pinkerton theory of co-conspirator liability rather than pursuant to the federal aiding and abetting statute, 18 U.S.C. § 2. However, this seems to conflict with the Judgment of Conviction entered after the jury's guilty verdict which cites to both sections 924(c) and 2 for Rodriguez's conviction for possession of a firearm during a drug trafficking crime. (60(b) Mot. Ex. C.) Therefore, to ensure any ambiguity is fully resolved, the Court fleshes out the Medina and Pinkerton arguments below.

  In United States v. Medina, the Second Circuit held that:
A defendant cannot be convicted as an aider and abettor under § 924(c) merely because he knew that a firearm would be used or carried and, with that knowledge, performed an act to facilitate or encourage [the violent felony] itself. Rather, the language of the statute requires proof that he actually performed some act that directly facilitated or encouraged the use or carrying of a firearm.*fn2
32 F.3d at 45. Petitioner argued in his § 2255 petition that, "because there is no evidence to support a conviction based on a theory of aiding and abetting, the conviction on [the § 924(c) count] must be set aside, and the sentence vacated." (Petitioner's Petition to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("§ 2255 Pet.") at 4.) However, petitioner failed to raise this claim on direct appeal. A petitioner is procedurally barred from asserting new claims in his § 2255 petition that were not raised on appeal. This bar may only be overcome where petitioner demonstrates "cause and prejudice or that failure to review such claims would result in a fundamental miscarriage of justice," or where petitioner alleges ineffective assistance of counsel. Ayala v. United States, No. 02 Civ. 0298, 2003 U.S. Dist. LEXIS 13724, *20-21 (S.D.N.Y. July 9, 2003) (citations and quotation omitted); see Massero v. United States, 538 U.S. 500, 503-04 (2003); United States v. Perez, 129 F.3d 255, 260-261 (2d Cir. 1997).

  Cause is shown where petitioner demonstrates that, "(1) the factual or legal basis for a claim was not reasonably available to counsel, (2) some interference by [government] officials made compliance [with the procedural rule] impracticable, or (3) the procedural default is the result of ineffective assistance of counsel." Ayala, 2003 U.S. Dist. LEXIS 13724, at *21-22 (quoting Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994)). Prejudice exists where petitioner demonstrates that "the alleged constitutional error worked to petitioner's `actual and substantial disadvantage.'" Ayala, 2003 U.S. Dist. LEXIS 13724, at *22 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). The fundamental miscarriage of justice exception requires a showing of actual innocence. Id. Actual innocence is demonstrated when, "`in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.' This means `factual innocence, not mere legal insufficiency.'" Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Procedural defaults can be overcome only in narrowly defined circumstances. Ciak v. United States, 59 F.3d 296, 302 (2d Cir. 1995). Petitioner offered no explanation in his § 2255 petition, or in his present motion before the Court, as to why he did not question the validity of his aiding and abetting conviction under § 924(c) on direct appeal. Moreover, petitioner cannot assert the invalidity of the Court's § 2255 Opinion and Order pursuant to any of the three exceptions outlined above.

  However, movant can argue an intervening change in the law constitutes cause. Petitioner argued his appeal before the Second Circuit on September 2, 1993, and the Court rendered judgment on February 17, 1994. The Second Circuit decided Medina on August 10, 1994. The Second Circuit has generally recognized that a change in the substance of a law constitutes "cause" because a petitioner cannot be expected to raise a claim that did not exist at the time of appeal. See United States v. Munoz, 143 F.3d 632, 635 (2d Cir. 1998). This Circuit has also held that cause is shown where petitioner demonstrates that "the factual or legal basis for a claim was not reasonably available to counsel." Bossett, 41 F.3d at 829. However, in Bousley v. United States, 523 U.S. 614, 622-23 (1998), the Supreme Court held that a § 2255 petitioner who had pleaded guilty to "using" a firearm under § 924(c) was procedurally defaulted from raising a claim under Bailey v. United States, 516 U.S. 137 (1995),*fn3 because neither the novelty of the claim, nor its apparent futility at the time of Bousley's appeal, constituted "cause" that could overcome the bar to collateral review. The Court noted that at the time of Bousley's appeal, "the Federal Reporters were replete with cases involving challenges to the notion that `use' is synonymous with mere `possession.'" Id. (citing United States v. Cooper, 942 F.2d 1200, 1207 (7th Cir. 1991), cert. denied, 503 U.S. 923 (1992) (appealing a plea of guilty to "use" of a firearm in violation of § 924(c)(1)). Moreover, the Court reasoned that the "futility [of a particular challenge] cannot constitute cause if it means simply that a claim was unacceptable to a particular court at a particular time." Id. (quoting Engle v. Isaac, 456 U.S. 107, 130 n. 35 (1982)).

  It is unclear in this Circuit whether, in light of Bousley, petitioner should be procedurally defaulted from asserting a Medina-type aiding and abetting argument for the first time on collateral attack. The holding that the language of § 924(c) "requires proof that [the defendant] actually performed some act that directly facilitated or encouraged the use or carrying of a firearm" appears to have been a novel one at the time. Medina, 32 F.3d at 45. In fact, in examining the cases of several other circuits, the Court wrote, "to the extent that these cases imply that a defendant can aid and abet the use or carrying of a firearm without performing some affirmative act relating to that firearm, we disagree." Id. at 46. Unlike Bousley, where "the federal reporters were replete with cases involving challenges to the notion that `use' is synonymous with mere `possession,'" Medina appears to have addressed a more ...


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