United States District Court, S.D. New York
OPINION AND ORDER DENYING PETITION FOR A WRIT OF
K. HELLERSTEIN, UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
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).
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
Petitioner's Challenge to the Aiding and Abetting Jury
Instruction Is Procedurally Defaulted
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).
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
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.
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 ...