The opinion of the court was delivered by: Trager, J
Movant Wayne Fabian ("Fabian" or "movant") brings this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth below, the motion is denied.
Movant participated in two robberies in February and March of 2000. On February 11, 2000, Fabian and co-conspirators Alex Taveras ("Taveras") and Luis Ramirez ("Ramirez") forced their way into the home of Emilio Veraz ("Veraz"), beat Veraz with a pistol, restrained two children in the house with duct tape and stole several thousand dollars and jewelry. Evidence adduced at trial established that Fabian and his co-conspirators targeted Veraz because they believed him to be a loan shark and intended to steal monies they believed to be the proceeds of his loan sharking business.
On March 7, 2000, Fabian, Taveras, Reynaldo Perez ("Perez") and other co-conspirators staged a home invasion of Juan Carlos Montoya ("Montoya") and Yessenia Gomez ("Gomez"). Evidence adduced at trial established that Fabian and his co-conspirators targeted the home because Perez had told them that Montoya was a drug dealer and that Montoya had hidden $300,000 in illegal drug trafficking proceeds, which Montoya had previously stolen from Miami drug dealers, inside either his Queens residence or inside Gomez's mother's home in Manhattan.*fn1 After forcibly entering the home, Fabian and Taveras restrained Gomez and her children and searched the house. When the money was not discovered, Fabian kidnaped Gomez, making Gomez take Fabian to her mother's house to look for the money there. Fabian was apprehended after a police chase on the way to Gomez's mother's residence.
In connection with these robberies, movant was charged with two counts of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951,*fn2 one count of attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and one count of possessing and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c).*fn3 After a jury trial, movant was convicted of all counts before this Court.
At his sentencing on August 9, 2001, movant argued for a downward departure based on the fact that the objects of both robberies were proceeds from "illegitimate businesses" and, therefore, outside the heartland of Hobbs Act cases. This Court denied movant's motion and sentenced him to 168 months' imprisonment on each of the Hobbs Act charges, to be served concurrently, and to 84 months' imprisonment on the firearm charge, to be served consecutively to the other terms. Fabian was also sentenced to five years of supervised release, ordered to pay $6,085.00 in restitution and further ordered to pay $400.00 in special assessments.
Fabian appealed his convictions under the Hobbs Act to the Second Circuit, arguing, inter alia, that: 1) proof at trial was legally insufficient to establish an adequate connection between Fabian's crimes and interstate commerce to support federal jurisdiction under the Hobbs Act; and 2) the jury charge as it related to the elements for a Hobbs Act conviction was erroneous and prejudicial because it relieved the government of its burden of establishing a nexus to interstate commerce.*fn4 See generally Affirmation of Roger Bennet Adler ("Adler Affirmation"), Ex. F, Appellant's Br. at 41. In a published opinion, the Second Circuit affirmed Fabian's convictions and sentence. See United States v. Fabian, 312 F.3d 550 (2d Cir. 2002). It specifically held that the evidence adduced at trial was legally sufficient to support Hobbs Act jurisdiction, noting that "both drug dealing and loan sharking, while illegal, have an effect on interstate commerce," id. at 555, and that the legally relevant inquiry was "whether at the time of the crime, Fabian believed he was robbing a loan shark and the proceeds of a drug deal,*fn5 not whether the crimes actually involved a loan shark and the proceeds of a drug deal." Id. It also found the challenged jury instructions to be proper. Id. at 558. Fabian's Petition for a Writ of Certiorari to the Supreme Court was denied on May 5, 2003. Fabian v. United States, 538 U.S. 1025 (2003).
On May 4, 2004, Fabian filed the present pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on the following grounds: (1) the jury instructions concerning the interstate commerce element violated Fabian's right to due process and right to a jury trial and Fabian's counsel rendered ineffective assistance of counsel at trial and on appeal by failing to object to the deficient jury instructions; (2) the district court lacked jurisdiction to impose judgment because the government failed to establish the interstate commerce element; (3) Fabian's counsel rendered ineffective assistance of counsel at trial by failing to adequately cross-examine witnesses; and (4) there was an impermissible variance between the indictment and the government's proof at trial and Fabian's counsel rendered ineffective counsel on appeal by failing to raise this issue on appeal. Fabian's § 2255 Motion ("Mot.") at 5. See also Mem. of Law in Supp. of Wayne Fabian's Pet. for a Writ of Habeas Corpus ("Mem. in Supp.").*fn6
On October 18, 2004, the government filed its opposition to Fabian's motion. Government's Mem. of Law in Opp. to Fabian's § 2255 Pet. ("Mem. in Opp."). On April 27, 2005, movant filed a pro se reply. Petr.'s Resp. to Government's Mem. of Law in Opp. to Fabian's § 2255 Pet. ("Reply"). On August 16, 2005, Fabian, by counsel, filed a memorandum of law, supplementing claims (1) and (2), as set out supra. Supplemental Mem. of Law in Supp. of § 2255 Petition for Habeas Corpus Relief ("Supplemental Mem. in Supp.") at 1. On July 19, 2007, the government responded to Fabian's Supplemental Memorandum of Law. Government's Letter Response to Supplemental Mem. of Law in Supp. of § 2255 Pet. for Habeas Corpus Relief ("Response to Supplemental Mem. in Supp.").
Recently, the Second Circuit abrogated, in part, its decision in United States v. Fabian, 312 F.3d 550 (2d Cir. 2002), in United States v. Parkes, -- F.3d. ----, 2007 WL 2317395, at *1-8 (2d Cir. Aug. 15, 2007). In Parkes, the Second Circuit held that the Hobbs Act requires proof that the charged conduct affected or would have affected interstate commerce in some de minimis way and that any charge instructing the jury that interstate commerce is affected as a matter of law is violative of the Fifth and Sixth Amendments. Parkes, -- F.3d. ----, 2007 WL 2317395, at *5-8. Specifically, Parkes held that jury instructions which allow congressional findings to substitute for proof beyond a reasonable doubt of the jurisdictional element of a Hobbs Act offense violate a defendant's right to due process and to a jury trial. Id. at *6-7 ("findings recited by Congress" in the Controlled Substances Act, 21 U.S.C. § 801 et. seq., cannot "dispense with the need for a jury finding that each element of the Hobbs Act has been proven beyond a reasonable doubt . . . To the extent that Fabian conflicts with this holding, it is no longer good law."). It should be noted that the Parkes court only overturned its decision in Fabian as to the constitutionality of the jury instructions insofar as they relied on congressional findings to establish the required effect on interstate commerce. The court, however, did not overturn its holding in Fabian that the defendant's belief as to the goal of the robberies at the time of the crime is sufficient to establish a Hobbs Act violation, whether or not there is proof that the actual circumstances of the robbery involved narcotics dealings or loan sharking.
For the reasons explained below, the Parkes decision does not alter the outcome of Fabian's section 2255 motion.
a. Law Governing Section 2255 Motions
It is well established in the Second Circuit that "a § 2255 motion cannot be used to 'relitigate questions which were raised and considered on direct appeal.'" United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)). In addition, a movant may not assert a claim in a section 2255 motion that he or she failed to raise on direct appeal unless the movant can show "cause" for the omission and actual "prejudice," or that movant is "actually innocent." See Bousley v. United States, 523 U.S. 614, 622 (1998). However, this rule of procedural default does not encompass ineffective assistance of counsel claims, which "may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
b. Standard for Ineffective Assistance of Counsel Claims
In order to prevail on an ineffective assistance of counsel claim, the movant must show that: (1) "counsel's representation was deficient"; and (2) "this deficient performance prejudiced the defense." ...