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Vazquez v. United States

United States District Court, W.D. New York

January 8, 2020

JUSTIN VAZQUEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Proceeding 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.

         II. Factual Background and Procedural History

         On May 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.

         On 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.

         For 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 Information.

         Meanwhile, 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 conviction.

         Sentencing 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.

         Vazquez 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).

         Vazquez 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.

         The Government filed a Memorandum of Law in Opposition (ECF #45), arguing that Vazquez's claims are factually and legally without support.

         Vazquez did file any reply papers.

         III. Scope of Review ...


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