United States District Court, D. New Jersey
WILLIAM HERNANDEZ, USP McCREARY, Pine Knot, KY, Petitioner Pro Se.
STEPHEN D'AGUANNO, Assistant U.S. Attorney OFFICE OF THE UNITED STATES ATTORNEY, Camden, NJ, Attorney for Respondents.
JEROME B. SIMANDLE, Chief District Judge.
Petitioner's initial motion for relief under 28 U.S.C. § 2255 was filed in 2010 and denied in 2013. Before the Court is Petitioner William Hernandez's ("Petitioner") motion for leave to amend his motion to vacate, set aside, or correct his sentence, filed to 28 U.S.C. § 2255. (Docket Entry 82). Respondent United States filed an objection. (Docket Entry 85). This motion is being decided on the papers pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth below, the motion shall be denied as this Court lacks jurisdiction over the petition as it is a second or successive § 2255 motion.
Petitioner was arrested in connection with a home invasion and robbery in Erial, New Jersey, which included terrorizing children in the home with a firearm, and which culminated in a high-speed chase that led police from New Jersey into Philadelphia, Pennsylvania. A jury convicted Petitioner, along with three codefendants, of conspiracy to interfere with commerce by threats of violence in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a), (b)(1), and (b)(3), as well as interstate and foreign travel or transportation in aid of racketeering enterprise in violation of the Travel Act, 18 U.S.C. §§ 1952(a)(2), (a)(3)(B), (b) and (2).
Petitioner also was convicted of aiding and abetting the brandishing of a firearm in connection with a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) and (2). See United States v. Hernandez, 306 F.Appx. 719, 720-21 (3d Cir. 2009) (summarizing the crime, charges and sentences); see also Cr. No. 06-126, Docket Item 125 ("Judgment in a Criminal Case") (enumerating the charges for which Petitioner was found guilty). He received a prison sentence of 480 months. (Cr. No. 06-126, Docket Item 145). Petitioner timely appealed, and the Third Circuit affirmed his convictions and sentence. Hernandez, 306 F.Appx. at 721-22. The Supreme Court denied certiorari. Hernandez v. United States, 558 U.S. 872 (2009).
Petitioner filed a timely motion in 2010 pursuant to 28 U.S.C. § 2255. Petitioner asserted several claims, each of which allegedly supported a finding that his trial attorney provided him with ineffective assistance of counsel in violation of the U.S. Constitution, including trial counsel's alleged failure to object to an erroneous application of § 924(c). Later, Petitioner filed an "Addendum" to his memorandum, asserting that counsel was ineffective for not seeking a Rule 29 motion for acquittal on the ground that Petitioner was actually innocent of the § 924(c) claim. (Docket Item 12). Moreover, Petitioner's reply brief asserted for the first time that he was "actually innocent" of the § 924(c) charge, stating he neither "constructively possessed" nor "aided and abetted the carrying, use, or brandishing of a gun" during the crime. (Docket Item 70 at 10-11).
On September 23, 2013, this Court issued an Opinion and Order denying all of Petitioner's raised grounds for relief, including his late-raised claim of actual innocence of the § 924(c) charge, ( see Docket Entry 72 at 38-39), and denying a certificate of appealability. (Docket Entries 72 and 73). Petitioner filed a motion for reconsideration on October 24, 2013. (Docket Entry 74). By Order and Opinion dated August 22, 2014, this Court denied Petitioner's motion. (Docket Entries 76 and 77). Petitioner filed a Notice of Appeal regarding both orders with the Third Circuit. (Docket Entry 78; 81). The appeal was docketed at William Hernandez v. United States, App. No. 14-4254 (3d Cir.)
On March 2, 2015, while his appeal was pending, Petitioner filed the instant motion, which he captioned a Motion to Amend or Correct the Petition pursuant to Federal Rule of Civil Procedure 15. (Docket Entry 82). Petitioner argues that the Supreme Court's decision in Rosemond v. United States, 134 S.Ct. 1240 (2014) (holding a defendant must have advance knowledge Government must prove advance knowledge of the presence of a firearm in order to secure a conviction for aiding and abetting a § 924(c) violation) requires an evidentiary hearing as to whether he had actual, prior knowledge of the presence of a weapon. Petitioner states: "the jury was never informed that aiding and abetting had a mens rea element, and, like in Rosemond, the jury was never required to determine when the unarmed [defendant] knew about the firearm, or whether he knew about it in enough time to make a decision to walk away." (Docket Entry 82 at 3). Respondent filed its objection to the motion on April 20, 2015, arguing that the motion is in reality a second or successive § 2255 motion. (Docket Entry 85).
On June 19, 2015, the Third Circuit issued a certified order in lieu of mandate affirming the denial of Petitioner's § 2255 motion and certificate of appealability. (Docket Entry 86). William Hernandez v. United States, App. No. 14-4254 (3d Cir. June 19, 2015).
This Court must first determine whether the instant motion is a second or successive motion under § 2255, thereby depriving this Court of jurisdiction to entertain it in the absence of an ...