United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
se petitioner Hector Velazquez Hernandez
(“Petitioner”) moves the Court to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 (“§ 2255”) and claims ineffective
assistance of counsel in relation to his acceptance of a plea
agreement with the United States (the
“Government”). For the reasons set forth below,
Petitioner's motion is DENIED.
January 6, 2015, Petitioner pleaded guilty to a two-count
Superseding Indictment, pursuant to a plea agreement.
See Mins. of Proceedings (“Mins.”), Jan.
6, 2015, ECF No. 44. The counts charged Petitioner with the
possession and distribution of 500 or more grams of cocaine
and with conspiracy thereto, in violation of 21 U.S.C.
§§ 841 and 846. See J. 1, ECF No. 49. On
April 23, 2015, this Court sentenced Petitioner to 76 months
of imprisonment. Id. at 2. Petitioner's
sentencing range fell within the proper range under the
United States Sentencing Guidelines (the
“Guidelines”). Petitioner had an initial offense
level of 28, but he received a 2-level downward adjustment in
return for his acceptance of responsibility. See
Plea Agreement 6, ECF No. 45.
21, 2016, Petitioner moved to reduce his sentence pursuant to
§ 2255. Movant's Mot. Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence
(“Pet'r's Mot.”) 1, ECF No. 1. Petitioner
claims that his sentence was enhanced by 48 months because of
his previous second degree murder conviction, and that such
enhancement is unconstitutionally void for vagueness in light
of the Supreme Court's holding in United States v.
Johnson, 135 S.Ct. 2551 (2015). See
Pet'r's Mot. at 1, 4. Petitioner also brings a second
§ 2255 claim that Amendment 794 of the Guidelines is
retroactive and applies to him because it is a
“clarifying” amendment. Movant's Supp. Mot.
Under 28 U.S.C. § 2255 (“Pet'r's Supp.
Mot.”) 3-4. Finally, on reply, Petitioner claims that
the waiver of the right to appeal in his plea agreement is
invalid due to the ineffective assistance of his counsel, who
advised him to accept the plea agreement instead of taking
the case to trial. Pet'r's Reply Br. to
Government's Resp. (“Pet'r's Reply”)
1-7, ECF No. 5.
23, 2016, Chief Judge Jerome B. Simandle issued a standing
order staying all motions filed under § 2255 in the
District of New Jersey that seek collateral relief based on
the Johnson decision. See Standing Order 3,
No. 16-mc-11, ECF No. 2. The order directed the parties of
each stayed motion to move to lift the stay when they are
ready to proceed. Id. On March 6, 2017, the Supreme
Court issued its decision in Beckles v. United
States, 137 S.Ct. 886, holding that the Guidelines
“are not subject to a vagueness challenge under the Due
Process Clause.” See 137 S.Ct. at 892.
Approximately six weeks thereafter, the Government filed a
letter in this Court arguing that Beckles
invalidated Petitioner's vagueness challenge to his
sentence under the Guidelines. See Letter, Apr. 27,
2017, ECF No. 6. In light of Petitioner's pro se
status and of the recent developments in controlling case
law, the Court accepts the Government's letter as an
acknowledgement that Petitioner's motion is ready to
proceed and lifts the stay.
pursuant to 28 U.S.C. § 2255 are the presumptive means
by which federal prisoners can challenge their convictions or
sentences that are allegedly in violation of the
Constitution.” Okereke v. United States, 307
F.3d 117, 120 (3d Cir. 2002) (citing Davis v. United
States, 417 U.S. 333, 343 (1974)). If the Supreme Court
newly recognized and made retroactive a federal
prisoner's asserted right, that prisoner “may move
the court which imposed the sentence to vacate, set aside, or
correct the sentence.” See 28 U.S.C. §
criminal defendant may knowingly and voluntarily waive many
of the most fundamental protections afforded by the
Constitution.” United States v. Mezzanatto,
513 U.S. 196, 201 (1995). A defendant may also waive
statutory rights, including his right to appeal. United
States v. Fazio, 795 F.3d 421, 425 (3d Cir. 2015).
District courts will enforce appellate waivers and decline to
address the merits of an appeal when: “(1) the issues
raised fall within the scope of the appellate waiver; and (2)
[defendant] knowingly and voluntarily agreed to the appellate
waiver; unless (3) enforcing the waiver would work a
miscarriage of justice.” See United States v.
Erwin, 765 F.3d 219, 226 (3d. Cir. 2014) (internal
Court will first address Petitioner's vagueness claim
under Johnson, before turning to the challenges of
his appellate waiver.
Petitioner's Johnson Claim
initial matter, Petitioner mistakenly believes that he
received a sentencing enhancement under 18 U.S.C. §
924(e)(2)(B) due to his prior conviction for second-degree
murder. See Pet'r's Mot. at 1-3. The
Government correctly notes that Petitioner's murder
conviction received zero criminal history points in the
calculation of his sentence under the Guidelines.
See Letter from United States in Resp. to Pet.
(“Gov't Resp.”) 4, ECF No. 4. Petitioner did
receive three criminal history points for his prior felony
weapons conviction, which was appropriate pursuant to
U.S.S.G. § 4A1.1. Id. Petitioner was never
charged under 18 U.S.C. § 924, which was the subject of
the Johnson decision.
Court liberally construes Petitioner's vagueness
challenge as directed to the definition of a “crime of
violence” found in U.S.S.G. §§ 4A1.2 and
4B1.2, which supported his sentencing
enhancement. In Beckles, however, the Supreme
Court made clear that the Guidelines are not subject to
vagueness challenges because “they merely guide the
exercise of a court's discretion in choosing an