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