United States District Court, S.D. New York
Habib Assistant Federal Defender New York, New York Counsel
Andrews Assistant United States Attorney White Plains, New
York Counsel for Respondent
the Court is Petitioner Raheem Vilar's motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. §
2255. (Doc. 35.) 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.
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.).
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.
Government raises only one procedural barrier: that
Petitioner did not raise this issue on direct appeal.
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).
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.
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.
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.
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 ...