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FELIZ v. U.S.

September 20, 2005.

ANTHONY FELIZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

OPINION and ORDER

PRELIMINARY STATEMENT

  Before the Court is Anthony Feliz's pro se motion for relief, pursuant to Federal Rule of Civil Procedure 60(b) (6), from an order denying his motion to vacate, set aside, or correct his sentence under 18 U.S.C. § 2255. For the reasons stated herein, the motion is denied.

  BACKGROUND

  In January 2000, Feliz was indicated for obstructing, delaying, and affecting commerce and the movement of articles and commodities in commerce by robbery, in violation of 18 U.S.C. § 1951 (the Hobbs Act). Specifically, Feliz was charged with robbing a person engaged in the business of television repair.

  Pursuant to a written plea agreement with the Government dated December 15, 2000, Feliz pleaded guilty to the charge. The plea agreement contained a provision waiving Feliz's right to appeal or collaterally attack a sentence within the stipulated range of 121 to 130 months' imprisonment. Government's Brief, Exhibit C at 4-5. During the December 18, 2000, plea allocution, Feliz confirmed that he understood the plea agreement, including its waiver provision, and that he was entering the plea voluntarily. Plea Transcript at 12-14. Feliz admitted his participation in the charged conduct, and also admitted that the "location was chosen for the robbery because we had been told that its occupant repaired televisions and we believed he would have cash there." Id. at 16. The Court accepted Feliz's plea. Id. at 17.

  On May 1, 2001, the Court sentenced Feliz to 121 months' imprisonment. Sentencing Transcript at 10. The Court of Appeals for the Second Circuit subsequently dismissed Feliz's appeal. United States v. Feliz, 286 F.3d 118, 118 n. 1 (2d Cir. 2002).

  In June 2001, Feliz filed a pro se motion, pursuant to 18 U.S.C. § 2255, to vacate, set aside, or correct his sentence on the grounds that he was denied effective assistance of counsel. Feliz claimed, inter alia, that counsel failed to investigate the victim's business to determine if it was legitimate for purposes of the Hobbs Act. By Order dated August 22, 2002, the Court denied this motion, ruling that the plea agreement waived Feliz's right to attack his sentence through a Section 2255 motion. Alternatively, the Court held that Feliz failed to show that his Sixth Amendment right to effective assistance of counsel had been deprived. Feliz v. United States, No. 01 Civ. 5544 (JFK), 2002 WL 1964347 at *4, 7 (S.D.N.Y., Aug. 22, 2002). With regard to Feliz's claim of counsel's failure to investigate, the Court observed,
The Hobbs Act prohibits conduct that affects commerce "in any way or degree." Thus, "it is well established that the burden of proving such a nexus is `de minimis.'" Indeed, the "possibility or potential of an effect on interstate commerce, not an actual effect," is all that is necessary to prosecute under the Hobbs Act. Given the "de minimis" standard and the facts of this case, it is indisputable that the Government could have successfully satisfied the interstate commerce element of the Hobbs Act, and [defense counsel] was not ineffective for failing to challenge the Government's ability to do so.
Id. at *5 (citations omitted) (alteration added).

  THE INSTANT MOTION

  Feliz now seeks relief, pursuant to Federal Rule of Civil Procedure 60(b) (6), from the order denying his Section 2255 motion. He relies upon United States v. Perrotta, 313 F.3d 33 (2d Cir. 2002), a decision of the Court of Appeals for the Second Circuit issued after the denial of his Section 2255 motion, for the proposition that proof of a victim's occupation is insufficient to establish an effect on interstate commerce as required for Hobbs Act jurisdiction. Feliz further claims that his attorney failed to investigate whether this jurisdictional requirement could be met, and that this deficiency led him to "accept? a plea for a crime which did not federally conform to statutory law." Petitioner's Brief at 7.

  The Government opposes the motion on two grounds. First, the Government contends that the Perrotta decision did not change the decisional law with regard to Hobbs Act jurisdiction. Government's Brief at 3-5. Rather, the Perrotta court merely held that "a robbery victim's employment at a company engaged in interstate commerce was not adequate, standing alone, to satisfy the interstate nexus requirement for prosecution under the Hobbs Act." Id. at 4. The Government asserts that evidence beyond the employment of Feliz's victim existed to establish the required interstate commerce nexus. Id. at 5. Specifically, the Government contends that:
1) the Victim directly participated in interstate commerce through his television repair business; 2) the Victim was targeted because of his status as the operator of a business participating in interstate commerce; 3) the harm to the Victim depleted the assets of a business engaged in interstate commerce; and 4) the crime targeted the assets of the business rather than the Victim.
Id.

  Second, the Government alleges that, even if decisional law is changed under Perrotta, such a change does not provide a basis for relief from a final judgment under Rule 60(B)(6). Id. at 5-6.

  Feliz filed a reply letter to the Government's brief in which he acknowledges that the Perrotta decision did not change the standard for Hobbs Act jurisdiction. See Petitioner's Response to Government's Motion to Deny at 2. Feliz maintains that (1) for the Hobbs Act to be constitutional, it requires more than mere evidence that a crime affects commerce "in any way or degree"; and (2) the Government submitted no evidence that the victim operated a business engaged in interstate commerce. Id. at 2-4. He asserts that the interstate ...


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