U.S. v. Fabian, No. 01-1471 (2d Cir. 2009)

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01-1471-cr U.S. v. Fabian 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2001 5 6 7 8 (Argued: March 6, 2002 9 Decided: December 5, 2002 Motion Decided: February 9, 2009) Docket No. 01-1471-cr 10 11 12 13 14 15 16 17 18 19 20 21 22 23 -----------------------------------------------------------X UNITED STATES OF AMERICA, 24 case, which the Court issued in 2002. 25 an application for leave to file a successive motion to vacate 26 Defendant-Appellant s sentence pursuant to 28 U.S.C. § 2255. 27 Because Defendant-Appellant has failed to meet the standard for Appellee, - v. WAYNE FABIAN, Defendant-Appellant. -----------------------------------------------------------X Before: McLAUGHLIN and POOLER, Circuit Judges.* Defendant-Appellant moves to recall the mandate in this * We construe the motion as This motion has been assigned to the same panel that decided the original appeal in this case. The third member of that panel, the Honorable Fred I. Parker, died in 2003. The two remaining members of the panel decide the motion pursuant to Second Circuit Local Rules § 0.14. 1 permission to file a successive § 2255 motion, the motion is 2 denied. 3 1 2 3 4 5 MOTION DENIED. Wayne Fabian, pro se, Defendant-Appellant. PER CURIAM: Defendant-Appellant Wayne Fabian moves, pro se, to recall 6 the December 2002 mandate affirming his conviction. 7 The motion is DENIED. 8 BACKGROUND 9 Fabian was convicted after a jury trial in the Eastern 10 District of New York on two counts of conspiracy to commit 11 robbery in violation of the Hobbs Act, 18 U.S.C. § 1951; one 12 count of attempted Hobbs Act robbery; and one count of 13 brandishing a weapon during a crime of violence. 14 prohibits robberies that obstruct[], delay[], or affect[] 15 [interstate] commerce. 16 showed that Fabian robbed people he believed to be loan sharks 17 and drug dealers. 18 loansharking and drug trafficking affected interstate commerce 19 and that, if the jury found the purpose of the conspiracies was 20 to obtain proceeds from loansharking and drug trafficking, it 21 should find the interstate-commerce element of the Hobbs Act to 22 be satisfied. 18 U.S.C. § 1951(a). The Hobbs Act Evidence at trial The district court instructed the jury that 2 1 In December 2002, we affirmed Fabian s conviction, rejecting 2 his argument that the Government failed to prove that his crimes 3 affected interstate commerce. 4 drug dealing and loansharking have an effect on interstate 5 commerce. 6 Cir. 2002). 7 Fabian s conviction. 8 9 We held that, as a matter of law, See United States v. Fabian, 312 F.3d 550, 555-56 (2d That same month, we issued the mandate affirming In May 2004, Fabian, pro se, moved to vacate his sentence pursuant to 28 U.S.C. § 2255. Fabian argued, among other things, 10 that the jury instructions that drug trafficking and loansharking 11 affected interstate commerce violated his rights to due process 12 and a jury trial. 13 court, this Court held that the Government must prove beyond a 14 reasonable doubt that a defendant s conduct affected interstate 15 commerce under the Hobbs Act, abrogating in part our decision 16 affirming Fabian s conviction. 17 F.3d 220, 229-30 (2d Cir. 2007). 18 Parkes, the district court denied Fabian s § 2255 motion, holding 19 that Parkes did not entitle Fabian to relief. 20 we denied Fabian s motion for a certificate of appealability. 21 22 While that motion was pending in the district See United States v. Parkes, 497 Shortly after the Court decided In February 2008, Fabian now moves to recall the 2002 mandate affirming his conviction. 3 1 DISCUSSION 2 We have held that when a defendant moves to recall the 3 mandate based on intervening precedent that calls into question 4 the merits of the decision affirming his conviction, we construe 5 the motion as one to vacate the defendant s sentence pursuant to 6 28 U.S.C. § 2255. 7 (2d Cir. 2003). 8 unsuccessful § 2255 motion, and we denied the motion to recall 9 the mandate because it did not satisfy the standard for filing a See Bottone v. United States, 350 F.3d 59, 63 The defendant in Bottone had previously filed an 10 second or successive motion. 11 generally the proper vehicle for a federal prisoner s challenge 12 to his conviction and sentence, Jiminian v. Nash, 245 F.3d 144, 13 146-47 (2d Cir. 2001), and it prevents a defendant from filing a 14 second collateral challenge unless we determine that the motion 15 is based on newly discovered evidence demonstrating that no 16 reasonable factfinder would have found the defendant guilty, or 17 a new rule of constitutional law, made retroactive to cases on 18 collateral review by the Supreme Court, that was previously 19 unavailable. 20 See id. at 62-63. Section 2255 is 28 U.S.C. § 2255(h). Bottone is controlling here. Fabian relies on this Court s 21 decision in Parkes to argue that his conviction was wrongly 22 upheld. 23 decision affirming his conviction. 24 Because this motion would be Fabian s second under § 2255, he He therefore questions the merits of the underlying 4 Bottone, 350 F.3d at 63. 1 must demonstrate that it is based on newly discovered evidence or 2 a new rule of constitutional law made retroactive by the Supreme 3 Court. 4 presents no new evidence, and, even assuming Parkes established a 5 new constitutional rule, the Supreme Court has not made any such 6 new rule retroactive to cases on collateral review. 7 Fabian cannot file a second § 2255 motion. 8 defendant cannot evade the successive petition restrictions of 9 28 U.S.C. § 2255 . . . by framing his claims as a motion to 10 See 28 U.S.C. § 2255(h). recall the mandate. He has done neither. Fabian Therefore, As we have said, a Bottone, 350 F.3d at 63. CONCLUSION 11 12 For the foregoing reasons, the motion to recall the mandate, 13 construed as an application to file a second or successive § 2255 14 motion, is DENIED. 5

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