United States District Court, S.D. New York
April 14, 2005.
RAUL RODRIGUEZ, Petitioner,
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.
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).
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
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
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 unique argument.
Bousley, 523 U.S. at 622. In light of this analysis, and with
an abundance of caution, the Court assumes for the purpose of
this Opinion that movant has shown cause for not raising his
Medina claim on direct appeal.
However, movant must also show prejudice in order to overcome
the procedural bar. Prejudice exists where movant demonstrates
that "the alleged constitutional error worked to movant's `actual and substantial disadvantage.'" Ayala,
2003 U.S. Dist. LEXIS 13724, at *22 (citing Frady, 456 U.S. at 170).
Movant was not actually disadvantaged because the evidence
overwhelmingly supported a jury finding that Rodriguez was guilty
of violating § 924(c) based on a Pinkerton theory of liability
which requires a lesser degree of culpability than the aiding and
Specifically regarding § 924(c), the Court instructed the jury
that it could convict petitioner of violating that section in
either of two ways: (1) by finding that the particular petitioner
"actually carried a firearm in connection with his narcotics
activities"; or, (2) by finding that the particular petitioner
"satisfied the requirements for constructive liability under
Pinkerton v. United States, 328 U.S. 640, 646-47
(1946)."*fn4 (§ 2255 Order at 16; see also Trial
Transcript ("Tr.") 1903-04.) These jury instructions are
inapposite to a Medina challenge because they provide guidance
for convicting Rodriguez directly of the § 924(c) count rather
than for aiding and abetting a violation of § 924(c).
However, the Court also gave a general aiding and abetting
instruction referencing the two drug possession charges and the
gun use and carrying charge. Though this instruction arguably
would not meet Medina's required level of culpability, it did
not result in prejudice to movant because the instruction
required a greater showing by the Government than that required
pursuant to the Pinkerton charge. The Court instructed the jury
that, in order to find a defendant guilty of aiding and abetting
felony gun possession, the defendant must have "willfully and knowingly sought by some act to help make the crime succeed."
(Tr. 1902 (emphasis added).) Further, the Court cautioned that,
[t]he mere presence of a defendant where a crime is
being committed, even coupled with knowledge by the
defendant that a crime is being committed, is not
sufficient to establish aiding and abetting.
Similarly, the mere acquiescence by a defendant in
the criminal conduct of others, even with guilty
knowledge, is also not sufficient to establish aiding
(Id. (emphasis added).) This instruction required that the jury
find Rodriguez participated in the crime to a greater extent than
the Pinkerton charge, on which the jury could convict defendant
even if he had no knowledge of his co-conspirator's crime. Under
Pinkerton, a co-conspirator's carrying of the gun must merely
have been foreseeably in furtherance of the conspiracy. Thus, as
stated in this Court's § 2255 Order, based on the evidence at
trial, a reasonable jury could have found Rodriguez guilty of
violating § 924(c) under Pinkerton, the least demanding theory
of culpability on which they were instructed.*fn5
Movant can also overcome the procedural bar if he can
demonstrate that a failure to review his claims would result in a
"fundamental miscarriage of justice." Ayala, 2003 U.S. District
LEXIS 13724, *20-21. The fundamental miscarriage of justice
exception requires a showing of actual innocence. Id. at
*22.*fn6 Rodriguez cannot make such a showing of actual
innocence. As noted above, the evidentiary record is more than
sufficient to uphold Rodriguez's § 924(c) conviction on a
Pinkerton theory of liability. Finally, movant may overcome the procedural bar if he alleges
ineffective assistance of counsel. Perez, 129 F.3d at 260.
Movant has made no such allegation. However, even if movant had
alleged ineffective assistance of his appellate counsel based on
a failure to raise the Medina claim, when Medina had not yet
been decided, such failure does not rise to the level of
ineffectiveness that the Supreme Court set out in Strickland v.
Washington, 466 U.S. 668 (1984). In order to successfully assert
an ineffective assistance of counsel claim, movant must show that
his attorney was "not functioning as the `counsel' guaranteed the
defendant by the Sixth Amendment," and made errors "so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable." Id. at 687. The reviewing court must assess an
attorney's actions in the context of all the surrounding
circumstances to determine if those actions were reasonable
"under prevailing professional norms." Id. at 688. Appellate
counsel's actions were reasonable, given that the Second Circuit
had not yet decided Medina. See Paese v. United States,
927 F. Supp. 667, 671 (S.D.N.Y. 1996) (holding that counsel was not
ineffective because the case law before Medina would have
foreclosed any argument of the kind).
Therefore, the Court must deny movant's Rule 60(b)(4) Medina
claim because movant is unable to show (1) both cause and
prejudice for not raising his Medina claim on appeal; (2) his
actual innocence; or (3) ineffective assistance of appellate
B. Petitioner's Pinkerton Claim
Petitioner also alleges that the Court erred in upholding his
firearms conviction under Pinkerton v. United States,
328 U.S. 640 (1946). (60(b) Mot. at 4.) As set out above, the evidence was
more than sufficient to convict defendant under § 924(c) on a
theory of Pinkerton vicarious liability. See supra note 5
and accompanying text. In addition, movant's Pinkerton argument is procedurally
barred as a second or successive habeas petition. See
28 U.S.C. § 2241. Relief under Rule 60(b) is available "only when the Rule
60(b) motion attacks the integrity of the habeas proceeding and
not the underlying criminal conviction." Harris v. United
States, 367 F.3d 74, 77 (2d Cir. 2004) (citing Rodriguez v.
Mitchell, 252 F.3d 191, 198 (2d. Cir. 2001)). In addition, Rule
60(b) motions do not have the effect of invalidating the
underlying conviction, but, if granted, merely reinstate the
previously dismissed petition for habeas relief, thus, "opening
the way for further proceedings seeking ultimately to vacate the
conviction." Rodriguez, 252 F.3d at 198; Grullon v. United
States, No. 99 Civ. 1877, 2004 U.S. Dist. LEXIS 16878, *10
(S.D.N.Y. Aug. 24, 2004) ("Rule 60(b) does not provide relief
from judgment in a criminal case.").
Movant presents several arguments as to why his Pinkerton
conviction should be overturned, however all of these arguments
attack movant's underlying conviction. Specifically, movant
argues that the Court and the Government misrepresented the facts
of the case, denying movant of a fair proceeding and causing the
Court to err in giving a Pinkerton instruction. (See 60(b)
Mot. at 5.) Because movant has not attacked the validity of the
Court's habeas opinion, but rather has attacked his underlying
conviction, movant's Rule 60(b)(4) Pinkerton claim is denied.
See Harris, 367 F.3d at 77.
C. Petitioner's Bailey Claim
Petitioner further alleges that the "use" instruction given to
the jury was clearly erroneous under Bailey v. United States,
516 U.S. 137 (1995). (60(b) Mot. at 7.) As stated above, movant
cannot use a Rule 60(b) motion to attack his underlying
conviction. In addition, the arguments which movant raises under
Bailey in his Rule 60(b) motion are virtually identical to the arguments he raised in his § 2255 petition which the Court
rejected.*fn7 Such maneuvering to avoid the bar on
successive habeas petitions is not permitted. See generally
Grullon, 2004 U.S. Dist. LEXIS 16878, at *12 (denying movant's
Rule 60(b) motion because he did "not challenge the civil habeas
proceeding or offer any evidence that the proceeding was tainted"
but rather, "simply recast? the same arguments he raised in his
petition pursuant to 28 U.S.C. § 2255"); see also Felker v.
Turpin, 101 F.3d 657, 661 (11th Cir. 1996), cert. denied,
518 U.S. 651 (1996) ("Rule 60(b) cannot be used to circumvent
restraints on successive habeas petitions. That was true before
the Antiterrorism and Effective Death Penalty Act was enacted,
and it is equally true, if not more so, under the new act.").
Accordingly, movant's Rule 60(b)(4) Bailey claim is denied.
II. Petitioner's Rule 60(b)(6) Claims
Petitioner also argues that the Court's § 2255 judgment on his
firearms conviction should be vacated under Rule 60(b)(6) as this
case presents an "extraordinary, unusual and extreme situation
where principals of `equity' mandate relief in order to serve
interests of `substantial justice.'" (60(b) Mot. at 9.) Rule
60(b)(6) allows the Court to "relieve a party or a party's legal
representative from a final judgment, order, or proceeding for"
any reason "justifying relief from the operation of the
judgment." Fed.R.Civ.P. 60(b)(6). The Second Circuit has
interpreted Rule 60(b)(6) to justify relief only in cases
presenting "extraordinary circumstances." See Pichardo v. Ashcroft, 374 F.3d 46, 56 (2d Cir. 2004); First
Fidelity Bank, N.A. v. Gov't of Antigua & Barbuda, 877 F.2d 189,
196 (2d Cir. 1989).
Rule 60(b) requires that any motions made pursuant to
subsection 6 "be made within a reasonable time . . . after the
judgment, order, or proceeding was entered or taken."
Fed.R.Civ.P. 60(b). In considering whether a Rule 60(b) motion is made
within a "reasonable time," a court must consider the "particular
circumstances of the case, and balance the interest in finality
with the reasons for delay." PRC Harris, Inc. v. Boeing Co.,
700 F.2d 894, 897 (2d Cir. 1983). Delays of eighteen months or
more, absent mitigating circumstances, have been deemed
unreasonable. See Kellogg v. Strack, 269 F.3d 100, 104 (2d
Cir. 2001) (finding a delay of twenty-six months before filing a
Rule 60(b) motion to be "a patently unreasonable delay absent
mitigating circumstances") (citing Truskoski v. ESPN, Inc.,
60 F.3d 74, 77 (2d. Cir. 1995) (finding that a Rule 60(b) motion
made 18 months after judgment was not made within a reasonable
period of time)).
Here, movant has filed his Rule 60(b) motion over sixty-eight
months after the denial of his habeas petition. Movant does not
attempt to show good cause to excuse his delay, nor can the Court
divine any such cause. Movant offers neither new case law nor new
evidence to excuse his delay. In fact, it appears that movant has
filed his Rule 60(b) motion attacking his § 924(c) conviction
because he has recently begun serving the final five years of his
sentence, specifically, the mandatory five-year consecutive term
for the § 924(c) conviction. While the Court understands movant's
desire to be released from prison, the mere fact that movant is
now serving his § 924(c) sentence does not excuse him from the
requirement to petition the Court within a reasonable time.
Movant's Rule 60(b)(6) claims are thus time barred. However, in
the interest of completeness, the Court briefly addresses the merits
of movant's Rule 60(b)(6) claims below.
Petitioner argues that this Court's judgment should be vacated
under Rule 60(b)(6) for the following reasons: (1) there is no
evidence that petitioner was aware of the presence of the
firearm, thus there is no evidence to hold him accountable under
Pinkerton; (2) the Court's Pinkerton instruction to the jury
did not mention the word "carry" and petitioner should not be
convicted on a theory that was not presented to the jury; and (3)
the Court's § 2255 Opinion and Order misstated and misrepresented
the facts and the record of the case. (60(b) Mot. at 10.) In
addition to being time barred, movant's Rule 60(b)(6) arguments
are without merit because none attack the validity of the § 2255
judgment. See Discussion infra Parts I.B-C. Though movant
couches these arguments under Rule 60(b)(6), they are essentially
the same arguments that he raised in his § 2255 petition. As
these arguments have been given full treatment in the Court's §
2255 Opinion and Order, and thoroughly explicated above, the
Court declines to address them once again. Accordingly,
petitioner's claims for relief under Rule 60(b)(6) are denied.
For the reasons stated above, petitioner Raul Rodriguez's
motion for relief from judgment, pursuant to Federal Rule of
Civil Procedure 60(b), is hereby DENIED.