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Forman v. United States

United States District Court, S.D. New York

April 20, 2017

ZAY FORMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          PAUL A. CROTTY United States District Judge.

         Petitioner 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.

         BACKGROUND

         On 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.

         On 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.

         This Court sentenced Forman to 84 months' imprisonment. See ECF 25. Forman did not file a direct appeal.

         Forman 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.

         DISCUSSION

         I. Waiver of Collateral Attack

         As an 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 omitted).

         Forman 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 barred.

         II. Procedural Bar

         Moreover, 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 procedure.").

         III. Forman's ...


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