United States District Court, S.D. New York
HONORABLE ANALISA TORRES, U.S.D.J.
REPORT AND RECOMMENDATION
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
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.
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. (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
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) 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).
Waiver of Collateral Attack
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
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)).
plea agreement signed by Mr. Medina contains a waiver, which
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 ...