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Fernandez v. United States

United States District Court, S.D. New York

November 13, 2017

JOE FERNANDEZ, Petitioner,



         Joe Fernandez ("Petitioner") filed a timely pro se petition for a writ of habeas corpus on June 28, 2017, see 28 U.S.C. § 2255(f), challenging his conviction for conspiracy to commit murder for hire and using a firearm to commit murder. Petitioner alleges that the Court's jury charge was defective and that his counsel was constitutionally deficient for failing to raise these issues on direct appeal. For the reasons stated herein, the petition is denied.


         Pursuant to a superseding indictment filed on February 6, 2013, petitioner was charged with conspiracy to commit murder-for-hire, in violation of 18 U.S.C. § 1958, and using a firearm to commit murder in the course of that conspiracy, in violation of 18 U.S.C. § 924(j). Following a trial that concluded on March 7, 2013, the jury found petitioner guilty on both counts. On October 7, 2014, the Court sentenced petitioner to two consecutive life terms of imprisonment, followed by a five-year term of supervised release, and imposed a $200 special assessment. Petitioner's direct appeal was denied on May 2, 2016, see United States v. Fernandez, 648 Fed.Appx. 56, 59 (2d Cir. 2016), and the Supreme Court denied the petition for a writ of certiorari, see Fernandez v. United States, No. 17-5760, 2017 WL 4506869 (Oct. 10, 2017).

         At trial, the government introduced evidence that Patrick Darge, Fernandez's coconspirator, contracted with Alberto Reyes, Jose Rodriguez-Mora, and Manuel Suero to murder two agents of Mexican drug suppliers, Cuellar and Flores, for $180, 000, thereby enabling Reyes and company to renege on a large drug debt. According to Darge, testifying as a government witness, he agreed to commit the murders and recruited his cousin, petitioner, Joe Fernandez, to act as the backup shooter. Trial Tr. at 255-56. Darge testified that he asked petitioner to participate because he knew him to be trustworthy, and he knew that petitioner had a gun that could be used in the murders. Trial Tr. at 273-74. Darge further testified that he told petitioner that he had been "hired to murder two guys, " offered to pay petitioner $40, 000 to assist him in the murders, and instructed petitioner to bring his own gun. Trial Tr. at 276-77. Darge testified that petitioner agreed to participate. Trial Tr. at 277.

         The plan, according to Darge, was to commit the murders in the lobby of an apartment building in the Bronx on February 22, 2000, the site of an apartment used as a storehouse for drugs and money. Reyes was to bring the two victims to the elevator of the Bronx apartment while Darge and Fernandez lurked in a concealed area nearby. Darge testified that after he shot the first victim in the head, his gun jammed and he fled from the scene, but heard shots fired behind him. Trial Tr. at 328. According to Darge's testimony, petitioner arrived at the getaway car minutes later, parked a block away, stating that he "had to make sure they were both dead." Trial Tr. at 332. Cuellar and Flores, the victims, were later found dead in the apartment lobby, lying in a pool of their blood, the shell casings of the spent bullets lying on the lobby floor. Darge testified that Reyes paid him $ 180, 000 for the murders later that day, and that he gave $40, 000 to petitioner. Trial Tr. at 335.


         Petitioner filed this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. As relevant here, § 2255 allows federal prisoner to collaterally attack a sentence on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). However, it is well settled that "[a] habeas action is not intended to substitute for a direct appeal." Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004). Therefore, a claim not raised on direct appeal is procedurally barred unless "the defendant establishes (1) cause for the procedural default and ensuing prejudice or (2) actual innocence." United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011).

         Petitioner raises two challenges to the jury instructions in his case: (1) that the Supreme Court's decision in Rosemond v. United States, 134 S.Ct. 1240 (2014), decided after the trial in this case, changed the law governing aiding and abetting liability under 18 U.S.C. § 924(c); and (2) that the Court erroneously instructed the jury with respect to the term "use" of a firearm under the § 924(c). Relatedly, petitioner claims that his trial and appellate lawyers were ineffective, thereby excusing petitioner's failure to raise these issues on direct appeal. Because petitioner is appearing pro se, I must construe the petition liberally and interpret it "to raise the strongest arguments that [it] suggest[s]." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.2006)).

         A. Petitioner's Challenge to the Aiding and Abetting Jury Instruction Is Procedurally Defaulted

         Petitioner first claims that the jury instructions failed to adequately explain aiding and abetting liability under 18 U.S.C. § 924(c), which indirectly formed the basis for Count Two of the Indictment. Petitioner was convicted of violating 18 U.S.C. § 924(j), which criminalizes causing "the death of a person through the use of a firearm" "in the course of a violation of § 924(c). § 924(c), in turn, makes it unlawful to use a firearm in connection with "any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c).

         Petitioner specifically focuses on Rosemond v. United States, 134 S.Ct. 1240 (2014), which held that a defendant can be convicted of aiding and abetting under § 924(c) only upon a showing that the defendant had "advance knowledge of a firearm's presence." Rosemond, 134 S.Ct. at 1251. When petitioner was convicted on March 7, 2013, Rosemond had not yet been decided. However, even prior to Rosemond, the Second Circuit required more than "advanced knowledge" that a firearm would be used under § 924(c) to sustain a conviction. See United States v. Medina, 32 F.3d 40, 45-47 (2d Cir. 1994) (holding that "the language of the statute requires proof that [the defendant] performed some act that directly facilitated or encouraged the use or carrying of a firearm, " and rejecting the view of other Circuits that required only "knowledge that a firearm will be used").[1]

         Petitioner is correct that under Rosemond (or the Second Circuit's prc-Rosemond rule), my jury instructions did not explain the requirements of the Second Circuit rule. At petitioner's trial, the jury was given a standard charge on aiding and abetting, instructing the jury to consider whether petitioner "participate[d] in the crime charged as something he wished to bring about or associate himself with ... or [sought] by his actions to make the criminal venture succeed." Trial Tr. at 1017-19. Neither party objected to the charge. Indeed, in their proposed charge submissions, neither party mentioned anything other than the aiding and abetting charge that I gave.

         However, this does not entitle petitioner to the relief he seeks. Petitioner did not raise this issue on direct appeal, and therefore his claims are procedurally defaulted unless he can show either: (1) cause for the procedural default and actual prejudice, or (2) that he is actually innocent. See Thorn, 659 ...

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