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RODRIGUEZ v. U.S.

United States District Court, S.D. New York


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 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 abetting theory.

  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 and abetting.
(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 counsel.

  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.

  CONCLUSION

  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.

  SO ORDERED.


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