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Medina v. United States

United States District Court, S.D. New York

February 3, 2017

FRANCISCO MEDINA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          TO THE HONORABLE ANALISA TORRES, U.S.D.J.

          REPORT AND RECOMMENDATION

          JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE

         In light of Johnson v. United States, __ U.S.__, 135 S.Ct. 2551 (2015), Francisco Medina, proceeding pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, correct, or set aside the sentence he is currently serving for murder and related crimes. For the reasons stated herein, his motion should be denied.

         Background

         On July 23, 1998, Mr. Medina pled guilty pursuant to a written plea agreement to thirteen counts of murder in aid of racketeering, one count of participation in a racketeering enterprise, one count of conspiracy to participate in a racketeering enterprise, and three counts of use and carrying of a firearm during a crime of violence.[1] (Plea Agreement at 1-5; 7/23/98 Tr. at 13-17; Amended Judgment at 1-2). On December 14, 1998, he was sentenced to a term of imprisonment of 600 months and, upon release, a term of supervised release of five years. (Transcript dated Dec. 14, 1998 (“12/14/98 Tr.”) at 28-29; Amended Judgment at 3-4).

         On June 24, 2016, Mr. Medina moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 based on the Court's holding in Johnson that the “residual clause” defining the term “violent felony” in 18 U.S.C. § 924(e)(2)(B) is unconstitutionally vague. See Johnson, 135 S.Ct. at 2557, 2563. He contends that his sentence under 18 U.S.C. § 924(c)[2] should be reconsidered because this section contains a similar “residual clause, ” which partially defines the comparable term “crime of violence.” (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion”) at 5).

         Discussion

         A. Waiver of Collateral Attack

         The Government contends that the movant is not entitled to collaterally attack his sentence under 28 U.S.C. § 2255 because he waived that right in his plea agreement. “There is no general bar to a waiver of collateral attack rights in a plea agreement.” Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002). The Second Circuit has stated:

We have long enforced waivers of direct appeal rights in plea agreements, even though the grounds for appeal arose after the plea agreement was entered into. The reasons for enforcing waivers of direct appeal in such cases lead us to the same conclusion as to waivers of collateral attack under § 2255.

Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001) (per curiam) (internal citation omitted). Indeed, “appeal waivers are applicable to issues arising subsequent to the plea agreement, including issues created by new judicial decisions. [The Second Circuit has] noted that the possibility of changes in the law is simply one of the risks allocated by the parties' agreement.” United States v. Haynes, 412 F.3d 37, 38-39 (2d Cir. 2005) (per curiam) (citations omitted). “However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement.” Frederick, 308 F.3d at 195. Additionally, if a “sentencing decision . . . was reached in a manner that the plea agreement did not anticipate, ” then an appeal waiver will not be enforced. United States v. Woltmann, 610 F.3d 37, 40 (2d Cir. 2010) (alteration in original) (quoting United States v. Liriano-Blanco, 510 F.3d 168, 174 (2d Cir. 2007)).

         The plea agreement signed by Mr. Medina contains a waiver, which reads:

It is understood that the sentence to be imposed upon the defendant is determined solely by the Court. It is understood that the defendant will have no right to withdraw his plea of guilty should the Court impose the stipulated sentence agreed upon by the parties pursuant to Rule ll(e)(1)(C).
It is further agreed (i) that the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, the sentence agreed upon by the parties, and (ii) that the Government will ...

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