Opinion
16cv5226 02cr1372
04-07-2017
SHAWN MCCOY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER
:
Petitioner Shawn McCoy moves to vacate his conviction and correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, McCoy's petition is denied.
BACKGROUND
Following a jury trial, McCoy was convicted on four counts: (1) conspiracy to distribute and to possess with the intent to distribute fifty grams and more of crack cocaine, in violate of 21 U.S.C. § 846; (2) intentional murder while engaged in a continuing criminal enterprise in violation of 21 U.S.C § 848(e)(1)(A); (3) murder in the course of using and carrying a firearm, in violation of 18 U.S.C. § 924(j)(1) and (2); and (4) discharging a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (2). District Judge Barbara Jones sentenced McCoy principally to 276 months imprisonment on each of Counts I, II, and III to run concurrently with each other, and 120 months imprisonment on Count IV to run consecutively to the sentences imposed on Counts I, II, and III, for a total of 396 months. See United States v. McCoy, 02-CR-1372, ECF No. 268. The Second Circuit affirmed McCoy's conviction and sentence. See United States v. McCoy, 06-5497, ECF No. 16 (2d Cir. Nov. 24, 2008).
STANDARD
Under 28 U.S.C. § 2255, a petitioner "may move the court which imposed the sentence to vacate, set aside or correct the sentence." But "[a] motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). Collateral challenges conflict with "society's strong interest in the finality of criminal convictions" and defendants are, therefore, subject to a higher bar "to upset a conviction on a collateral, as opposed to direct, attack." Yick Man Mui v. United States, 614 F.3d 50, 53 (2d. Cir. 2010). To prevail, a petitioner must show "constitutional error . . . or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Nnebe v. United States, 534 F.3d 87, 90 (2d Cir. 2008) (internal quotation marks omitted).
Because Guerrero is proceeding pro se, his submissions are held to "less stringent standards than [those] drafted by lawyers." Bey v. City of White Plains, No. 10-CV-1887, 2011 WL 6019360 at *3 (S.D.N.Y. Nov. 15, 2011) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This Court "liberally construes" his pleadings "to raise the strongest arguments they suggest." Bey, 2011 WL 6019360, at *3 (quoting Berlin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)).
DISCUSSION
In Johnson v. United States, the Supreme Court held that the Armed Career Criminal Act's ("ACCA") residual clause is impermissibly vague and imposing an increased sentence under that clause "violates the Constitution's guarantee of due process." 135 S. Ct. 2551, 2563 (2015). Later, the Supreme Court determined that its ruling in Johnson is retroactive. Welch v. United States, 136 S. Ct. 1257, 1264-68 (2016).
McCoy seeks to apply Johnson and Welch to vacate his 120-month consecutive sentence. Relying on ACCA's residual clause, McCoy argues that § 924(c)(3)(B) is also impermissibly vague. However, McCoy was convicted of discharging a firearm during a "drug trafficking crime" under § 924(c)(2), not a "crime of violence" under § 924(c)(3). Thus, even if McCoy's argument was correct, he was not convicted under that statute.
Moreover, the ruling in Johnson does not extend to § 924(c)'s definition of "drug trafficking crime." Section 924(c) provides:
For purposes of this subsection, the term "drug trafficking crime" means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.18 U.S.C. § 924(c)(1)(D)(2). Unlike the residual clause in Johnson, § 924(c)'s definition of "drug trafficking crime" is not impermissibly vague and contains no residual clause. Indeed, other courts have "likewise determined that the reasoning in Johnson does not apply to § 924(c) enhancements based on drug trafficking crimes." Thomas v. United States, No. 05-CV-205, 2016 WL 7187838, at *3 (W.D. Pa. Dec. 12, 2016) (collecting cases).
CONCLUSION
For the foregoing reasons, McCoy's petition is denied. Because McCoy has not made a substantial showing of the denial of his constitutional right, a certificate of appealability will not be issued. See 28 U.S.C. § 2253(c). In addition, this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
The Clerk of Court is directed to terminate all pending motions, mark this case as closed, and mail a copy to McCoy. Dated: April 7, 2017
New York, New York
SO ORDERED:
/s/_________
WILLIAM H. PAULEY III
U.S.D.J.