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Robles v. United States

United States District Court, S.D. New York

March 16, 2017

JAVIER ROBLES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Loretta A. Preska, Senior United States District Judge

         Petitioner 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.

         I. BACKGROUND

         On 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) .

         Trial 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.)

         Petitioner 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.)

         On May 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. at 30-33).

         On May 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. no. 221).

         On 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.

         II. HABEAS MOTION

         a. Legal Standard

         It is 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).

         The 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 690-91. ...


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