United States District Court, S.D. New York
OPINION & ORDER
WILLIAM H. PAULEY III, District Judge:
Shawn McCoy moves to vacate his conviction and correct his
sentence pursuant to 28 U.S.C. § 2255. For the reasons
that follow, McCoy's petition is denied.
a jury trial, McCoy was convicted on four counts: (1)
conspiracy to distribute and to possess with the intent to
distribute fifty grams and more of crack cocaine, in violate
of 21 U.S.C. § 846; (2) intentional murder while engaged
in a continuing criminal enterprise in violation of 21 U.S.C
§ 848(e)(1)(A); (3) murder in the course of using and
carrying a firearm, in violation of 18 U.S.C. §
924(j)(1) and (2); and (4) discharging a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(iii) and (2). District Judge
Barbara Jones sentenced McCoy principally to 276 months
imprisonment on each of Counts I, II, and III to run
concurrently with each other, and 120 months imprisonment on
Count IV to run consecutively to the sentences imposed on
Counts I, II, and III, for a total of 396 months. See
United States v. McCoy, 02-CR-1372, ECF No. 268. The
Second Circuit affirmed McCoy's conviction and sentence.
See United States v. McCoy, 06-5497, ECF No. 16 (2d
Cir. Nov. 24, 2008).
28 U.S.C. § 2255, a petitioner “may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” But “[a] motion under § 2255
is not a substitute for an appeal.” United States
v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). Collateral
challenges conflict with “society's strong interest
in the finality of criminal convictions” and defendants
are, therefore, subject to a higher bar “to upset a
conviction on a collateral, as opposed to direct,
attack.” Yick Man Mui v. United States, 614
F.3d 50, 53 (2d. Cir. 2010). To prevail, a petitioner must
show “constitutional error . . . or an error of law or
fact that constitutes a fundamental defect which inherently
results in a complete miscarriage of justice.”
Nnebe v. United States, 534 F.3d 87, 90 (2d Cir.
2008) (internal quotation marks omitted).
Guerrero is proceeding pro se, his submissions are
held to “less stringent standards than [those] drafted
by lawyers.” Bey v. City of White Plains, No.
10-CV-1887, 2011 WL 6019360 at *3 (S.D.N.Y. Nov. 15, 2011)
(quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). This Court “liberally construes” his
pleadings “to raise the strongest arguments they
suggest.” Bey, 2011 WL 6019360, at *3 (quoting
Berlin v. United States, 478 F.3d 489, 491 (2d Cir.
Johnson v. United States, the Supreme Court held
that the Armed Career Criminal Act's (“ACCA”)
residual clause is impermissibly vague and imposing an
increased sentence under that clause “violates the
Constitution's guarantee of due process.” 135 S.Ct.
2551, 2563 (2015). Later, the Supreme Court determined that
its ruling in Johnson is retroactive. Welch v.
United States, 136 S.Ct. 1257, 1264-68 (2016).
seeks to apply Johnson and Welch to vacate
his 120-month consecutive sentence. Relying on ACCA's
residual clause, McCoy argues that § 924(c)(3)(B) is
also impermissibly vague. However, McCoy was convicted of
discharging a firearm during a “drug trafficking
crime” under § 924(c)(2), not a “crime of
violence” under § 924(c)(3). Thus, even if
McCoy's argument was correct, he was not convicted under
the ruling in Johnson does not extend to §
924(c)'s definition of “drug trafficking
crime.” Section 924(c) provides:
For purposes of this subsection, the term “drug
trafficking crime” means any felony punishable under
the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et
seq.), or chapter 705 of title 46.
18 U.S.C. § 924(c)(1)(D)(2). Unlike the residual clause
in Johnson, § 924(c)'s definition of
“drug trafficking crime” is not impermissibly
vague and contains no residual clause. Indeed, other courts
have “likewise determined that the reasoning in
Johnson does not apply to § 924(c) enhancements
based on drug trafficking crimes.” Thomas v. ...