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Vilar v. United States

United States District Court, S.D. New York

January 3, 2020

RAHEEM VILAR, Petitioner,

          Daniel Habib Assistant Federal Defender New York, New York Counsel for Petitioner

          Mathew Andrews Assistant United States Attorney White Plains, New York Counsel for Respondent


          CATHY SEIBEL, U.S.D.J.

         Before the Court is Petitioner Raheem Vilar's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 35.)[1] He argues that his conviction for using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), cannot stand because it was predicated on two possible underlying offenses, only one of which qualifies as a crime of violence following the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019). (Doc. 55 (“P's Br.”) at 1-2.) Davis held that the residual or “risk of force” clause of § 924(c) was void for vagueness, 139 S.Ct. at 2326-27, 2336, and thus only offenses fitting the force or “elements” clause can support convictions under that statute.

         The Government concedes that Petitioner's jury was instructed that it could convict on the § 924(c) charge if it found that Petitioner used or carried the firearm during and in relation to either a conspiracy to commit carjacking under 18 U.S.C. § 371 or an attempted carjacking under 18 U.S.C. § 2119. It further concedes that under Davis, the conspiracy count does not qualify as a crime of violence and therefore cannot serve as a § 924(c) predicate. But it argues both that Petitioner's claim is procedurally defaulted and that the claim survives in any event because the record is clear that the jury would have convicted Petitioner of the § 924(c) count if properly instructed. (Doc. 56 (“Gov't Br.”) at 1-2, 10.).

         Familiarity with the procedural history of the case, the 1997 trial before the Honorable Charles L. Brieant, the standards governing § 2255 petitions, and the evolution of the Johnson/Dimaya/Davis line of cases is presumed.

         I. Procedural Default

         The Government raises only one procedural barrier: that Petitioner did not raise this issue on direct appeal.

         “In general, a defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal.” United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011). “An exception applies, however, if the defendant establishes (1) cause for the procedural default and ensuing prejudice or (2) actual innocence.” Id. “A change in substantive law usually does not constitute ‘cause' to overcome procedural default, ” Graham v. United States, No. 09-CV-5586, 2010 WL 2730649, at *2 (E.D.N.Y. July 8, 2010), nor does the fact that the claim was “unacceptable to that particular court at that particular time, ” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted). But “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim . . . .” Reed v. Ross, 468 U.S. 1, 16 (1984).

         The Government argues that “Vilar cannot show cause for the default, because he cannot seriously contend that a vagueness challenge to Section 924(c)'s residual clause was unavailable to him where other defendants had challenged the constitutionality of a similarly drafted provision . . . .” (Gov't Br. at 11.) To show that others had challenged a similar provision at the time of Petitioner's conviction and appeal in 1997-98, the Government cites only United States v. Santos, No. 91-CR-724, 1992 WL 232057, at *8 (S.D.N.Y. Sept. 2, 1992). But in that case the defendant challenged for vagueness the terms “firearm silencer” and “firearm muffler.” See Id. To suggest that that case foreshadowed Davis in any respect is disingenuous.

         In the absence of any indication that Davis (or its predecessors Sessions v. Dimaya, 138 S.Ct. 1204 (2018), or Johnson v. United States, 135 S.Ct. 2551 (2015)) was even close to anybody's radar screen in 1997 or 1998, I will assume that the claim here is so novel that it was not reasonably available to counsel at the time.

         But Petitioner founders on the remainder of the test. “[T]he prejudice that must be shown is not merely whether the instruction is undesirable, erroneous, or even universally condemned, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Gupta v. United States, 913 F.3d 81, 85 (2d Cir. 2019) (internal quotation marks omitted). This burden “is even greater than the showing required to establish plain error on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982) (internal quotation marks omitted). “And in order to demonstrate his actual innocence, a defendant must prove his factual innocence, not mere legal insufficiency, and demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Gupta, 913 F.3d at 85 (internal quotation marks omitted). For the reasons discussed at pages 6-7 below, which show that the jury surely would have convicted Petitioner under § 924(c) if properly instructed, he can show neither prejudice nor actual innocence. In other words, because on this record it is plain that the improper instruction could not have affected the outcome, the trial was not seriously infected by the error and the facts still support the conviction. There is thus no prejudice or actual innocence to excuse the procedural default.

         II. Merits

         The Government does not dispute that the carjacking conspiracy does not qualify as a crime of violence that can support a § 924(c) conviction, and Petitioner does not dispute that the attempted carjacking does so qualify. Petitioner argues that in that situation, the Court must assume that the jury based its § 924(c) conviction on the invalid basis. In Hedgpeth v. Pulido, however, the Supreme Court held that where a jury is instructed on multiple theories of guilt, one of which is invalid, the question is “whether the flaw in the instructions had substantial and injurious effect or influence in determining the jury's verdict.” 555 U.S. 57, 58 (2008) (per curiam) (internal quotation marks omitted). Under this standard the verdict will be upheld ...

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