United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
Loretta A. Preska, Senior United States District Judge
Javier Robles ("Petitioner"), proceeding pro
se, filed the instant petition for a writ of habeas
corpus pursuant to Title 28, United States Code, Section
2255, (Pet., Nov. 18, 2014, No. 14 Civ. 9311 (LAP), dkt. no.
1), and an accompanying memorandum of law. (Pet. Mem., Nov.
18, 2014, dkt. no. 2). In response, the Government filed an
opposition. (Opp., Mar. 19, 2014, dkt. no. 9). For reasons
set forth below, Petitioner's motion is denied.
January 10, 2006, Petitioner's trial commenced before
Judge Gerard E. Lynch. Petitioner was charged in the
following counts: conspiring to commit Hobbs Act robberies of
narcotic traffickers from in or about December 2001 through
in or about December 2003 in violation of Title 18, United
States Code, Section 1951(b)(3), (Count One)(Indictment
¶¶ 1-2, Feb. 9, 2004, No. 04 Cr. 1036, dkt. no. 1);
robbery and attempted robbery of drug dealers in the
metropolitan New York area in violation of Title 18, United
States Code, Section 1951(b)(3), (Counts Two, Three, Four,
and Five)(id. ¶¶ 2-3); carrying,
possessing, and branding firearms during the robberies
charges in Counts Two, Three, and Four in violation of Title
18, United States Code, Sections 924(c) (1) (A) (ii), (Counts
Nine, Ten, and Eleven)(id. ¶ 4); and conspiring
to distribute narcotics in violation of Title 21, United
States Code Section 846, (Count Fourteen) . (Id.
¶¶ 6-7) .
ended on February 3, 2006, when the jury returned a verdict
of guilty against Robles on Counts One and Two and acquitted
Robles on all other counts. (Opp. at 4). On October 13, 2006,
Judge Lynch sentenced Robles to concurrent 240-month terms of
imprisonment for Counts One and Two. (Id.)
filed a Notice of Appeal. (Notice of Appeal, Oct. 16, 2005,
dkt. no. 145). On Appeal, the Court of Appeals found that the
jury instruction stating that all drug trafficking is
presumed to have an effect on interstate commerce was
erroneous due to an intervening change in the law. (2d Cir.
Op., Aug. 31, 2010, dkt. no. 170). The Court of Appeals
therefore reversed Petitioner's conviction on Count Two,
which concerned the robbery of a marijuana dealer, finding
that there was insufficient proof of an interstate effect
because the marijuana was grown in New York State.
(Id. at 19). The Court affirmed Petitioner's
conviction of Count One, which concerned conspiracy to rob
cocaine and heroin dealers, because those drugs were not made
in New York State and thus involved an interstate element.
(Id.) The Court remanded the case for further
proceedings consistent with its opinion. (Id.)
9, 2013, this Court held a de novo resentencing
proceeding of Petitioner. (Resentencing Tr., May 9, 2013,
dkt. no. 223). The Court accepted the findings in the
presentence report ("PSR") that calculated an
offense level of 35 and determined that petitioner's
criminal conduct placed him in Criminal History Category IV.
Accordingly, Petitioner's sentencing guidelines range was
235 to 293 months' imprisonment. (Id. at 9-11) .
After hearing arguments from both parties and considering
each of the factors under Title 18, United States Code,
Section 3535(a), the Court indicated that it intended to
sentence petitioner to 24 0 months imprisonment, running from
October 25, 2004, the date on which Petitioner initially
appeared in the Southern District of New York. (Id.
21, 2013, the Court issued an amended judgment, sentencing
petitioner to 236 months of imprisonment. (Amended Judgment,
May 21, 2013, dkt. no. 220). This judgment took into account
the Court's intention that the sentence began to run on
October 25, 2004. (Id.) Robles filed a Notice of
Appeal the same day. (Notice of Appeal, May 21, 2013, dkt.
September 27, 2013, Robles' appellate counsel filed a
motion pursuant to Anders v. California, 386 U.S.
738 (1967), stating that after review of the record counsel
had concluded that there were no non-frivolous arguments that
could be raised on appeal. (Anders Mot., Sept. 27, 2013, No.
13-2029, dkt. no. 24). In response, the Government made a
motion for summary affirmance. (Summary Aff. Mot., Jan. 30,
2014, No. 13-2029, dkt. no. 47). The Government's motion
was granted on June 30, 2014, by the Court of Appeals.
(Order, June 30, 2014, No. 13-2029, dkt. no. 66). In
response, Robles filed the instant habeas petition.
well settled that a § 2255 petition is not a substitute
for a direct appeal. United States v. Frady, 456
U.S. 152. 165 (1982); United States v. Vilar, 645
F.3d 543, 548 (2d Cir. 2011). A federal prisoner cannot use a
§ 2255 petition to litigate questions that could have
been raised on direct appeal but were not. Sapia v.
United States, 433 F.3d 212, 217 (2d Cir. 2005) .
However, a claim of ineffective assistance of counsel is a
permissible basis for bringing a Section 2255 motion.
Tavarez v. Larkin, 814 F.3d 644, 650 (2d Cir. 2016).
Supreme Court has instructed that to prevail on a claim of
ineffective assistance of counsel, a petitioner must show
that (1) counsel's representation fell below an objective
standard of reasonableness and (2) there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been
different. Strickland v. Washington, 466
U.S. 668, 688, 694 (1984). Habeas courts must "indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Id. at 689. "Strategic choices" made by
appellate counsel "after thorough investigation of law
and facts relevant to plausible options" are
"virtually unchallengeable." Id. at