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Stevenson v. United States

United States District Court, W.D. New York

August 25, 2017

ROBERT STEVENSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE.

         Petitioner Robert Stevenson seeks relief pursuant to 28 U.S.C. § 2255. For the reasons stated below, Petitioner's motion is transferred to the U.S. Court of Appeals for the Second Circuit.

         BACKGROUND

         On January 24, 2014, Petitioner pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). At sentencing, the Court found that Petitioner was a “career offender” under Sentencing Guideline § 4B1.1 and sentenced him principally to 132 months' imprisonment.

         Two years later, Petitioner-represented by counsel-filed his first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Docket No. 35. Petitioner argued that, after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his bank robbery conviction was no longer a “crime of violence, ” as the Sentencing Guidelines define that term. See U.S.S.G. § 4B1.2(a). Likewise, Petitioner argued, his prior convictions for bank robbery and New York State third-degree robbery (the convictions on which his “career offender” designation was based) were not “crime[s] of violence.” The crux of Petitioner's motion was that the so-called residual clause in the Guidelines' since-amended definition of the term “crime of violence” (U.S.S.G. § 4B1.2(a)(2)) was void for vagueness in light of Johnson, which had found “that the identical residual clause” in the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)) was unconstitutionally vague. Docket No. 35 at 2.

         Several months later, on March 6, 2017, the Supreme Court decided Beckles v. United States, 137 S.Ct. 886 (2017). Beckles rejected the premise on which Petitioner's first § 2255 motion was based: that the Sentencing Guidelines are subject to vagueness challenges. See Id. at 895 (“[W]e hold that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)'s residual clause is not void for vagueness.”)

         Three weeks after the Supreme Court decided Beckles, Petitioner-still acting through counsel-filed a stipulation withdrawing his § 2255 motion without prejudice. Docket No. 40. Judge Michael A. Telesca, to whom this case had been transferred, approved Petitioner's withdrawal and transferred this case to the undersigned.

         Petitioner, now proceeding pro se, then filed his second § 2255 motion, which is presently before the Court.

         DISCUSSION

         The Antiterrorism and Effective Death Penalty Act (AEDPA) limits the ability of federal prisoners to file “second or successive” habeas petitions by requiring prisoners to obtain authorization from the appropriate Court of Appeals before doing so. See 28 U.S.C. § 2255(h). For a § 2255 motion to be “second or successive” within the meaning of § 2255(h), a prisoner must, of course, have filed a prior § 2255 motion. And for a prior § 2255 motion to “count” as a prisoner's first under § 2255(h), the prior motion must have been “adjudicated on the merits.” Villanueva v. United States, 346 F.3d 55, 60 (2d Cir. 2003) (emphasis omitted). See also Thai v. United States, 391 F.3d 491, 494 (2d Cir. 2004) (“For a petition to be second or successive, ‘it must at a minimum be filed subsequent to the conclusion of a proceeding that counts as the first.'”) (quoting Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002)).

         This case presents the question whether Petitioner's withdrawn § 2255 motion “counts” as his first § 2255 motion for purposes of AEDPA's second-or-successive rule.[1]If Petitioner's withdrawn § 2255 motion counts as his first for purposes of § 2255(h), Petitioner's current § 2255 motion is “second or successive” and must be transferred to the Second Circuit. If Petitioner's withdrawn motion does not count as his first § 2255 motion, then the Court may consider the pending § 2255 motion.

         The Second Circuit has held that, when a habeas petitioner voluntarily withdraws a prior § 2255 petition, “the reasons for which [he] withdraws [the] § 2255 [motion] should govern the analysis of whether that [motion] counts for successive purposes, at least where the reasons for withdrawal are reasonably discernable.” Id. at 495. This requires the Court to examine “the circumstances surrounding the withdrawal.” Id. If those circumstances “clearly and objectively indicate that the petitioner knows his or her motion is meritless, ” then the prior § 2255 motion counts as a first motion for purposes of § 2255(h). See also Id. (“[I]f a petitioner clearly concedes upon withdrawal of a § 2255 petition that the petition lacks merit, the withdrawal is akin to a dismissal on the merits and subsequent petitions will count as successive under AEDPA.”)

         The objective circumstances surrounding Petitioner's withdrawal of his first § 2255 motion “suggest that [he] knew [that the] petition lacked merit.” Id. at 496. Specifically, and most importantly, Petitioner voluntarily withdrew his first § 2255 petition three weeks after the Supreme Court decided Beckles, a case which unequivocally rejected the basis for Petitioner's first § 2255 motion. And second, Petitioner was represented by counsel when he withdrew his first § 2255 motion. See Id. (“The fact that [petitioner] withdrew his motion after the government had filed a response might have weighed against him had he been assisted by counsel because it would have suggested that [petitioner] knew his petition was doomed.”) (quotation marks omitted). These facts raise a fair inference that Petitioner's decision to withdraw his first § 2255 motion was based on his understanding that Beckles left him with no avenue for relief.

         At the same time, Petitioner's stipulation of withdrawal provides no reason for his decision to withdraw his first § 2255 motion. In relevant part, it states only that “[i]t is . . . stipulated and agreed by and between the parties that this motion is voluntarily dismissed, without prejudice, by [Petitioner].” Docket No. 40. Thus, Petitioner's notice of withdrawal does not “acknowledge . . . that there were significant problems with his initial petition, ” nor does the notice, or ...


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