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