United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE
pro se, Justin Vazquez (“Vazquez”) has
filed a Motion to Vacate the Sentence pursuant to 28 U.S.C.
§ 2255 (“§ 2255”), alleging that he is
being detained in the custody of respondent, the United
States of America (“the Government”), pursuant to
an unconstitutionally imposed sentence. For the reasons
discussed below, Vazquez's § 2255 Motion is denied.
Factual Background and Procedural History
6, 2015, a criminal complaint was filed against Vazquez
charging him with being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). See United
States v. Vazquez, 1:15-cr-00156-FPG-HKS (W.D.N.Y. May
6, 2015) (“Vazquez I”). During the
course of this criminal proceeding, Vazquez committed the
crime that is the basis of the instant § 2255 Motion.
October 20, 2016, during a court appearance in Vazquez
I regarding his former defense attorneys's motion to
withdraw as counsel based upon irreconcilable differences,
Vazquez carved the words “fuck you” into the top
of the table at which he was seated in the courtroom.
Deputies with the United States Marshals Service had searched
the courtroom before Vazquez was brought in, and the carvings
were not there. The carvings were not noticed until after
Vazquez had already been brought out of the courtroom. Nobody
else was sitting in the seat where the carvings were made
other than Vazquez.
this conduct, Vazquez was charged separately, in a
Misdemeanor Information (ECF #1), with one count of Damaging
Government Property in violation of 18 U.S.C. § 1361.
See United States v. Vazquez, No.
1:16-cr-00181-FPG-HKS (W.D.N.Y. Dec. 27, 2016)
(“Vazquez II”). The case proceeded to
trial, and on June 2, 2017, a jury returned a verdict (ECF
#22) convicting him as charged in the Misdemeanor
in Vazquez I, a jury trial was conducted over three
days in January and February 2017. On February 2, 2017, the
jury returned a verdict convicting Vazquez of violating 18
U.S.C. § 922(g)(1) as charged. On May 11, 2017, the
Court (Geraci, D.J.) sentenced Vazquez to 72 months'
imprisonment plus 2 years of supervised release on this
in Vazquez II was held on October 19, 2017 (ECF
#31). At that time, Judge Geraci sentenced Vazquez on the
Damaging Government Property conviction to 10 months'
imprisonment to run consecutively to the 72-month sentence he
was currently serving on the felon-in-possession conviction.
appealed, arguing that the 10-month consecutive sentence
imposed in Vazquez II was procedurally unreasonable
because Judge Geraci did not consider all the required
factors when deciding whether to impose a consecutive or
concurrent sentence. He also argued that the sentence was
substantively unreasonable. The Second Circuit rejected both
arguments and affirmed the judgment of conviction. United
States v. Vazquez, 17-3670 (2d Cir. Sept. 12, 2019)
(summary order) (ECF #44).
filed his § 2255 Motion on September 4, 2019 (ECF #41).
He asserts that trial counsel did not provide effective
assistance “in all aspects, ” “[m]ost
importantly, ” trial counsel did not file a timely
notice of appeal or perfect an appeal. § 2255 Motion at
2-3 (ECF #41). As his second ground for relief, Vazquez
asserts a Sixth Amendment Confrontation Clause error based on
the Government's use of “the actions and statements
of an inmate/witness” who “was never presented at
trial for confrontation/cross-examination, and assigned
counsel never explored this avenue when prompted by Movant,
giving even greater weight to” his ineffective
assistance claim. Id. at 3. As his third ground for
relief, Vazquez claims that he possesses newly discovered
evidence that “said inmate/witness” referenced in
ground two “was found ‘guilty' of the
crime(s) for which he faced” and that these
“crime(s) may have a statute or element of dishonesty,
deception, perjury or fraudulent act, calling into
question” this individual's validity and
truthfulness. Id. at 3-4. The fourth ground for
relief in the § 2255 Motion is labeled “due
process clause” but Vazquez does not articulate any
independent factual or legal bases for a due process claim.
Id. at 4.
Government filed a Memorandum of Law in Opposition (ECF #45),
arguing that Vazquez's claims are factually and legally
did file any reply papers.
Scope of Review ...