United States District Court, S.D. New York
OPINION & ORDER
A. CROTTY United States District Judge.
Zay Forman ("Forman") pled guilty to the use,
carrying and possession of a firearm brandished during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). He now petitions, pro se,
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence, arguing that he was not convicted of a
predicate crime of violence. For the reasons stated herein,
his motion is DENIED.
April 16, 2015, a grand jury returned a two-count indictment
charging Forman with Hobbs Act robbery of a videogame store
on December 29, 2014, in violation of 18 U.S.C. § 1951
(Count One); and with using and brandishing a firearm in
furtherance of that Hobbs Act robbery, in violation of 18
U.S.C. § 924(c)(1)(A)(ii) (Count Two). ECF 9.
October 6, 2015, pursuant to a written plea agreement, Forman
pled guilty to Count Two, which has a statutory mandatory
minimum sentence of 84 months' imprisonment. See
Gov't Ex. A ("Plea Agm't"); Gov't Ex. B
("Plea Tr."). Under the terms of the agreement, the
Government agreed that it would move to dismiss any open
counts at sentencing; it did so at Forman's sentencing on
January 14, 2016. See Plea Agm't at 1; ECF 25 at
8. Forman's plea agreement provides not only for a guilty
plea, but also for a waiver of his right to appeal or
initiate a collateral attack. See Id. The agreement
states: "[i]t is agreed (i) that the defendant will not
file a direct appeal; nor bring a collateral challenge,
including but not limited to an application under Title 28,
United States Code, Section 2255 . . . of any sentence at or
below the Stipulated Guidelines Sentence of 84 months'
imprisonment." Plea Agm't at 3.
Court sentenced Forman to 84 months' imprisonment.
See ECF 25. Forman did not file a direct appeal.
filed the instant petition on June 29, 2016. ECF 27. He
contends that under Johnson v. United States, 135
S.Ct. 2551 (2015), the Hobbs Act robbery charged in Count One
no longer qualifies as a "crime of violence" as
defined by 18 U.S.C. § 924(c)(3). See Id. at 5.
Forman also argues that because he did not plead guilty to
Count One, there is no predicate crime on which to base his
Section 924(c) conviction. See id.
Waiver of Collateral Attack
initial matter, Forman waived his right to file a Section
2255 petition when he voluntarily and knowingly entered into
his plea agreement. See United States v. Arevalo,
628 F.3d 93, 98 (2d Cir. 2010) ("Waivers of the right to
appeal a sentence are presumptively enforceable.");
see also Fernandez v. United States, No. 12-CR-445
(JMF), 2016 WL 4735370, at *3 (S.D.N.Y. Sept. 12, 2016)
("The Second Circuit has repeatedly - and emphatically -
held that a defendant's knowing and voluntary waiver of
the right to appeal a sentence is generally valid and
enforceable." (citing cases)); United States v.
Martinez, No. 09-CR-1022 (KMK), 2014 WL 7146846, at *5
(S.D.N.Y. Dec. 12, 2014) ("A knowing and voluntary
waiver of the right to litigate pursuant to Section 2255 is
also valid and enforceable.") (quotations and citations
and his counsel signed the agreement. Plea Agm't at 5.
This Court advised Forman that in agreeing to plead guilty to
Count Two pursuant to the agreement, he was waiving certain
rights, including his right to move under Section 2255, if he
were sentenced to 84 months' imprisonment. See
Plea Agm't at 3; Plea Tr. at 8. Forman voluntarily and
knowingly agreed to the waiver. See Plea Tr. at 8.
He does not allege that his sentence "was imposed based
on constitutionally impermissible factors" nor that his
waiver was "not made knowingly, voluntarily, and
competently." Arevalo, 628 F.3d at 98 (quoting
United States, v. Gomez-Perez, 215 F.3d 315, 319 (2d
Cir. 2000)). The Court sentenced Forman to 84 months. ECF 25.
Forman's collateral attack on his sentence is thus
Forman's alleged claim of constitutional error is
procedurally barred by his failure to raise such claim on
direct appeal. See Graziano v. United States, 83
F.3d 587, 590-91 (2d Cir. 1996). He does not identify any
good cause excusing this failure, nor allege any consequent
prejudice; nor could he, as the claim is meritless. See
id; see also Campino v. United States, 968 F.2d 187, 190
(2d Cir. 1992) ("[Procedural default of even a
constitutional issue will bar review under § 2255,
unless the defendant can meet the 'cause and
prejudice' test... [and] failure to raise a claim on
direct appeal is itself a default of normal appellate