Velasquez v. United States of America, No. 1:2018cv06139 - Document 13 (S.D.N.Y. 2019)

Court Description: ORDER AND OPINION GRANTING PETITION FOR HABEAS CORPUS: In several recent orders, I rejected arguments substantially the same as those put forth by the government here. See Camacho v. United States, 17-cv-5199, ECF No. 675; Roman v. United States, 16-cv-4829, ECF No. 12; Jimenez v. United States, 16-cv-4653, ECF No. 6. For the reasons set forth in those decisions, and in light of the fact that petitioner's plea allocution did not address any potential predicate offense aside from Hobbs Act robbery conspiracy, I grant the instant petition. Petitioner shall appear for resentencing on December 5, 2019 at 11:30 am. The Clerk shall terminate the open motion (16-cr-233, ECF No. 77). SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 10/31/2019) (jca)

Download PDF
Velasquez v. United States of America Doc. 13 •"'-...•:v-,, V "~· r.:r:::=u=sn=c=s=n=N=v======-=-_r.< )J UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------ X ANGEL VELASQUEZ, Petitioner, -againstUNITED STATES OF AMERICA ' Respondent. DOCUMENT ELECTRONICALLY FILED DOC#: _ _ _ _+--+---- DATE FILED: II /t /2 J ORDER AND OPINION GRANTING PETITION FOR HABEAS CORPUS 18 Civ. 6139 (AKH) 16 Cr. 233 (AKH) -------------- \ ---------------------------------------------- X ALVIN K. HE!fERSTEIN, U.S.D.J.: Pe\tioner Angel Velasquez filed this petition on July 2, 2018, pursuant to 28 \ U.S.C. § 2255 to v~ate his conviction for possession of a firearm in connection with a crime of r violence or drug trtcking crime, in violation· of I 8 U.S. C. § 924(c) (Count Four). For the reasons that follow, 't~e petition is granted. "';, I stayed the petition in September 2018, in anticipation of ongoing Second Circuit \ ,I and Supreme Court cases- expected to bear on the outcome of petitioner's claim. After the . Supreme Court's decisip_n in United States v. Davis, 139 S. Ct. 2319 (2019), which held that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague, and the Second Circuit's decision in United \ States v. Barrett, 937 F.3d 126 (2d Cir. 2019), which held that Hobbs Act robbery conspiracy is "-. ·" not a "crime of violence" predicate offense capable of satisfying § 924(c), I lifted the stay. " The government concedes that under Davis and Barrett, petitioner's guilty plea to \ a Hobbs Act robbery conspiracy (Count One) can no longer serve as a§ 924(c) predicate offense for Count Four. See ECF No. 12. The government instead argues that (a) petitioner procedurally \ . defaulted on his present argument by failing to raise it on direct appeal, and (b) Count Four need not rely on the Hobbs Act robbery conspiracy, because the indictment also charged petitioner with attempted Hobbs Act robbery (Count Two) and conspiracy to distribute narcotics (Count Three), both of which the government argues are viable predicates. See id. at 4, 6. Dockets.Justia.com In several recent orders, I rejected arguments substantially the same as those put forth by the government here. See Camacho v. United States, 17-cv-5199, ECF No. 675; Roman v. United States, 16-cv-4829, ECF No. 12; Jimenez v. United States, 16-cv-4653, ECF No. 6. For the reasons set forth in those decisions, and in light of the fact that petitioner's plea allocution did not address any potential predicate offense aside from Hobbs Act robbery conspiracy, I grant the instant petition. Petitioner shall appear for resentencing on ~A1Liu \2LJl:1 @{('?()qrvt ' The Clerk shall terminate the open motion (16-cr-233, ECF No. 77). SO ORDERED. Dated: Octobe~ 2019 New y~'New York 4A-fr·~t'.'.'.~ ALVINK.HELLERSTEIN United States District Judge 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.