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United States v. Holmes

United States District Court, Second Circuit

April 29, 2013



JOHN G. KOELTL, District Judge.

Curtis Holmes, proceeding pro se, brings two motions purportedly pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure and the All Writs Act, 28 U.S.C. § 1651, seeking to vacate or set aside his conviction and sentencing. For the reasons explained below, the motions are denied.


On April 26, 2010, Holmes pleaded guilty pursuant to a Plea Agreement (the "Plea Agr.") to Counts One and Five of a ten-count Superseding Indictment. (Plea Tr. 27, Apr. 26, 2010). Count One charged Holmes with participating in a conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951, and alleged as overt acts in furtherance of the conspiracy the robbery of six businesses in Manhattan and Westchester County, New York. (Plea Tr. 10-11; Plea Agr. at 1-2.) The lesser included offense in Count Five to which Holmes pleaded guilty charged him with brandishing a firearm during one of the robberies alleged in Count One, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, which carries a mandatory minimum consecutive sentence of seven years imprisonment. (Plea Tr. 12-13; Plea Agr. at 1.)[1]

As part of the Plea Agreement, the parties agreed that under the United States Sentencing Guidelines the stipulated Guidelines Range for Holmes, as a career offender, was 262 to 327 months. (Plea Agr. at 8.) The Agreement included a waiver provision by which Holmes agreed not to appeal or otherwise litigate under 28 U.S.C. § 2255 and/or § 2241 any sentence within or below this stipulated range. (Plea Agr. at 9.)

Before accepting the plea, this Court conducted a thorough allocution, advising Holmes of each of the constitutional rights he would be waiving by pleading guilty. (Plea Tr. 3-9.) Holmes indicated his understanding and his desire to plead guilty. (Plea Tr. 9-12.) He further indicated that he was satisfied with his attorney, and that he had discussed the indictment and his guilty plea with her. (Plea Tr. 6.) This Court questioned Holmes specifically about his waiver of his right to appeal. (Plea Tr. 20-21.) This Court also advised Holmes of the substance of the charges in Counts One and Five of the Superseding Indictment. (Plea Tr. 10-13.) Holmes then admitted his guilt, and explained the factual basis for the plea. (Plea Tr. 22-25.)

After considering the various sentencing factors set forth in 18 U.S.C. § 3553(a), this Court sentenced Holmes on September 2, 2010 principally to a term of 181 months imprisonment, to be followed by a five year term of supervised release. (Sentencing Tr. ("Sent'g Tr.") 16-21, Sept. 2, 2010.) The term of imprisonment was to be imposed as follows: 97 months on Count One to be followed by a consecutive term of 84 months on Count Five. (Sent'g Tr. 16.) Judgment was entered on September 15, 2010, and Holmes filed no direct appeal.

Holmes now brings two motions collaterally attacking his conviction and sentencing. One motion is purportedly filed pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. Holmes argues that under United States v. Whitley , 529 F.3d 150 (2d Cir. 2008), it was plain error to impose the mandatory minimum sentence of seven years imprisonment on Count Five when a longer sentence was imposed on Count One. Holmes filed his second motion pursuant to the All Writs Act, 28 U.S.C. § 1651.[2] In that motion, Holmes argues that the jurisdictional nexus of Hobbs Act robbery was not met because the facilities that he and his co-conspirators robbed were not insured by the Federal Deposit Insurance Corporation ("FDIC") and there is no evidence that interstate commerce was affected. Holmes also argues that, due to ineffective assistance of counsel, he was not informed adequately of the consequences of entering into the Plea Agreement.


Because Holmes is proceeding pro se, this Court "read[s] his supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994). For reasons explained below, the motions under Rule 52(b) of the Federal Rules of Criminal Procedure and 28 U.S.C. § 1651 are without merit.

Rule 52(b) of the Federal Rules of Criminal Procedure is an improper device for Holmes's first motion. The Rule provides that "[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Fed. R. Crim. P. 52(b). The Rule provides a standard of review and does not purport to be a procedural basis for vacating a conviction. In any event, the plain error standard is "intended for use on direct appeal, " and its application "is out of place when a prisoner launches a collateral attack against a criminal conviction after society's legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review...." United States v. Frady , 456 U.S. 152, 164 (1982); see also Graziano v. United States , 83 F.3d 587, 589-90 (2d Cir. 1996) (collecting cases establishing that a collateral attack on a final judgment pursuant to 28 U.S.C. § 2255 is generally available only for a constitutional error, a lack of jurisdiction, or a miscarriage of justice). Because Holmes chose not to appeal, the plain error standard has no application to this collateral challenge and is not a procedural basis for challenging the conviction.

The All Writs Act, 28 U.S.C. § 1651, is likewise an improper procedure for Holmes's second motion. Section 1651 is inapplicable where "a statute specifically addresses the particular issue at hand...." Carlisle v. United States , 517 U.S. 416, 429 (1996). For example, a petitioner cannot proceed under § 1651 when he "could have sought earlier relief through another mechanism such as a direct appeal or Section 2255." Eisa v. Immigration & Customs Enforcement, No. 08 Civ. 6204 , 2008 WL 4223618, at *5 (S.D.N.Y. Sept. 11, 2008) (quoting Calvert v. United States, No. 06 Civ. 1722, 2007 WL 160918, at *13 (E.D.N.Y. Jan. 17, 2001)) (quotation marks omitted). When a petitioner has not made use of such procedural alternatives, applications under § 1651 must demonstrate that "sound reasons exist for failure to seek appropriate earlier relief." Fleming v. United States , 146 F.3d 88, 90 (2d Cir. 1998) (quoting Foont v. United States , 93 F.3d 76, 79 (2d Cir. 1996)). Here, Holmes could have presented his arguments on direct appeal or in a motion pursuant to 28 U.S.C. § 2255. He has failed to present any reason for not doing so. Thus, his use of § 1651 as a vehicle for his collateral attack is precluded.


In any event, the arguments Holmes asserts to vacate his conviction or ...

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