Hernandez-Favale v. USA, No. 3:2016cv02098 - Document 24 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 11 Supplemental Motion; denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 7/18/2018. (PMA)
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Hernandez-Favale v. USA Doc. 24 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Ed w in H e rn án d e z-Favale , Petitioner CIVIL NO. 16-20 98 (PG) Related Crim . No. 96-0 70 (PG) v. U n ite d State s o f Am e rica, Respon dent. OPIN ION AN D ORD ER Before the court is petitioner Edwin Hernández-Favale’s (henceforth “Petitioner” or “Hernán dez-Favale”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Dockets No. 1, 11) and the United States’ (or the “governm ent”) opposition thereto (Docket No. 19). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D On Decem ber 2, 1996, Hernández-Favale was found guilty of being a felon in possession of a firearm , in violation of 18 U.S.C. § 922(g)(1). See Crim . No. 96-0 70 (PG), Docket No. 7. On J une 4, 1997, the Presentence Investigation Report (henceforth “PSR”) was disclosed, which revealed that Petitioner had convictions for the following relevant offenses, charged under the laws of Puerto Rico: 1) two convictions for robbery on February 20 , 1979 (PSR at pp. 9 & 12); 2) three separate convictions for robbery, robbery of a m otor vehicle, and attem pted m urder on October 26, 1978 (PSR at pp. 13-14); 3) one conviction for attem pted m urder on March 23, 1979 (PSR at p. 16); and, 4) one conviction for attem pted robbery of a vehicle on February 26, 198 6 (PSR at p. 17). Based on this report, the court found that Hernández-Favale had three prior convictions for “violent felonies,” as defined by the Arm ed Career Crim inal Act (hen ceforth “ACCA”), at 18 U.S.C. § 924(e)(2)(B). As a result, the court sentenced Petitioner on J une 26, 1997 to a term of 180 Dockets.Justia.com Civ. No. 16-20 98 (PG) Page 2 of 9 m onths of im prisonm ent under the ACCA, 18 U.S.C. § 924(e). See Crim . No. 96-0 70 (PG), Docket No. 90 . Without the adjustm ent im posed by the ACCA, Petitioner would have been subjected instead to a statutory m axim um penalty of 120 m onths. II. STAN D ARD OF REVIEW Pursuant to 28 U.S.C. § 2255, a federal prisoner m ay m ove to vacate, set aside, or correct his sentence “upon the ground that the sentence was im posed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to im pose such sentence, or that the sentence was in excess of the m axim um authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 20 0 2). III. D ISCU SSION On J une 14, 20 16, Hernández-Favale presented a m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts that he can not be considered an Arm ed Career Crim inal, as defined by the ACCA, because his previous convictions, specifically attem pted m urder, robbery of a m otor vehicle, and robbery, do not qualify as “violent felonies” pursuant to 18 U.S.C. § 924(e)(2)(B). The ACCA defines a “violent felony” as any offense that is “punishable by im prisonm ent for a term exceeding one year,” and it: (i) has as an elem ent the use, attem pted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, o r o th e rw is e in vo lve s co n d u ct th at p re s e n ts a s e rio u s p o te n tial ris k o f p h ys ical in ju ry to an o th e r.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). The section’s first clause is often referred to as the “force clause,” and the bolded segm ent represents the statute’s “residual clause.” Pursuant to the ACCA, Petitioner can only be subjected to the m andatory m inim um 180 m onth sentence for violating 18 U.S.C. § 922(g) if he has th re e Civ. No. 16-20 98 (PG) Page 3 of 9 prior convictions for a “violent felony,” as defined by 18 U.S.C. § 924(e)(2)(B), or “a serious drug offense.” See 18 U.S.C. § 924(e)(1). Firstly, Hernández-Favale argues that J ohnson v. United States, 135 S.Ct. 2551 (20 15) (J ohnson II) invalidated the residual clause of the ACCA, § 924(e)(2)(B)(ii), therefore attempted m urder, robbery of a m otor vehicle and robbery cannot be considered “violent felonies” pursuant to the ACCA. The court finds that it does not need to address Petitioner’s constitutional void-forvagueness challenge regarding § 924(e)(2)(B)(ii) because he has been previously convicted of three “violent felonies” as defin ed by the ACCA’s force clause in § 924(e)(2)(B)(i). Nevertheless, Petitioner also alleges that the conducts for which he was previously convicted, n am ely, attem pted m urder, robbery of a m otor vehicle, and robbery, cannot be categorically considered “violent felonies” under the ACCA’s force clause. The court disagrees. To that effect, Hernández-Favale first argues that his two prior convictions for attem pted m urder should not be taken into consideration under the ACCA because attem pted m urder does not necessarily require the use, attem pted use, or threaten ed use of violent physical force against another. According to First Circuit precedent, if a statute does not contain in all of its m anifestations elem ents requiring the use, attem pted use, or threatened use of violent and intentional force again st a person, then it is not a “violent felony.” See United States v. Martinez, 762 F.3d 127, 133 (1st Cir. 20 14). Therefore, according to Petitioner’s claim , m urder as defin ed by Puerto Rico law at the tim e does not categorically qualify as a violent felony under the ACCA’s force clause. Specifically, Petitioner states that, under the Puerto Rico law that existed when he was originally charged, “attem pted m urder occurs when a person com m its acts or incurs om ission s unequivocally directed to cause the death of a hum an being with m alice aforethought.” People v. Civ. No. 16-20 98 (PG) Page 4 of 9 Bonilla-Ortiz, 23 P.R. Offic. Trans. 393 (1989)(brackets om itted). Hernández-Favale believes that com m itting acts or om issions unequivocally directed to cause the death of a hum an being does not necessarily require the use, attem pted use, or threaten ed use of violent physical force against another person. In support of his contention, Hernández-Favale presents a series of hypothetical scenarios in which a m urder could be com m itted or attem pted without the use of violent force, such as death by poisoning, the laying of a trap, locking or attem pting to lock som eone on a car in a hot day, and starving and attem pting to starve som eone to death. Contrary to Petitioner’s argum ent, however, Puerto Rico case law establishes that m urder and attem pted m urder categorically fit the requirem ents set forth by the ACCA’s force clause. The Puerto Rico Penal Code of 1974, under which Petitioner was originally charged, defined m urder as the killing of a hum an being with m alice aforethought. See P.R. LAWS ANN . tit. 33, § 40 0 1 (repealed 20 0 4). Additionally, the Suprem e Court of Puerto Rico defined “m alice aforethought” as the intent to realize an act or produce a grave injury that will probably result in the death of a person. See Pueblo v. Rosario, 160 P.R. Dec. 592, 610 (20 0 3). If “m alice aforethought” is the intent to a ct in such a way that causes grave bodily harm or death to another person, and “m alice aforethought” is an elem ent of m urder, then the court can logically infer that m urder requires violent acts capable of causing injury to another person. Petitioner’s argum ent stating that one can com m it acts unequivocally directed at causing the death of a hum an being without em ploying physical force should be rejected because it is extrem ely unlikely, if not downright im possible, to find a realistic situation in which this claim holds true. Hernández-Favale cites death by poisoning as an exam ple of a violent act that does not require physical force, but this argum ent was expressly rejected by the Suprem e Court of the United States in U.S. v. Castlem an, 134 S.Ct. 140 5 (20 14). In Castlem an, the Suprem e Court states that the “use of force” em ployed in a death by poisoning does not consist of the act of sprinkling Civ. No. 16-20 98 (PG) Page 5 of 9 the poison, “it is the act of em ploying poison knowingly as a device to cause physical harm . That the harm occurs indirectly, rather than directly (as with a kick or a punch), does not m atter.” Id. at 1415. The sam e logic applies to Petitioner’s alternative hypothetical scenarios. Therefore, m urder under the existing laws of Puerto Rico at the tim e when Petitioner was previously convicted required the use, attem pted use, or threatened use of physical force against a person, thereby qualifying as a “violent felony” under the ACCA’s force clause at 18 U.S.C. § 924(e)(2)(B)(i). Furtherm ore, Petitioner alleges that m urder under Puerto Rico law at the tim e of his convictions did not differentiate between the different form s of participation. That is to say, the acts of aiding and abetting m urder, instigating m urder, and accessory to a m urder were all indistinguishable from principal m urder. See P.R. LAWS ANN . tit. 33, § 3171-72. Therefore, Hernán dez-Favale could have been convicted of attem pted m urder as a principal, an aider and abettor, an in stigator, or as a cooperator. According to Petitioner, participating in an attem pted m urder as anything other than the principal is allegedly too far rem oved from the violent com ponent of the offense and would not require the use, attem pted use, or threatened use of violent force necessary for the felony to qualify as a “violent felony” under the ACCA’s force clause. Hernán dez-Favale’s argum ent does not hold water because “one who aids and abets an offense ‘is punishable as principal’ [… and the acts of the principal becom e those of the aider and abetter ] as a m atter of law.” United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994)(quoting United States v. Sim pson, 979 F.2d 1282, 1285 (8th Cir. 1992)). Aiding and abetting is not considered a separate offense from the underlying substantive crim e. See Mitchell, 23 F.3d at 2 (quoting United States v. Sánchez, 917 F.2d 60 7, 611 (1st Cir. 1990 )). The fact that aiding and abetting, instigatin g, and cooperating with a m urder are all prosecuted indistinctly from m urder com m itted as a principal dem onstrates that anyone who participates in a m urder com m its all of the elem ents of the crim e Civ. No. 16-20 98 (PG) Page 6 of 9 that render it a “violent felony.” In this case, it is im m aterial whether Hernández-Favale participated as an aider and abettor in his 1979 conviction for attem pted m urder because anyone who participates in a m urder, in any capacity, com m its a “violent felony” pursuant to 18 U.S.C. 924(e)(2)(B)(i). The court concludes that Hernández-Favale’s argum ents questioning whether m urder an d attem pted m urder are “violent felonies” pursuant to the ACCA’s force clause are inapposite, and are therefore D EN IED . Hernán dez-Favale also contends that robbery of a m otor vehicle is not a “violent felony” under the ACCA’s force clause. Robbery of a m otor vehicle, as prescribed by Article 173B of Puerto Rico’s 1974 Penal Code, requires the sam e elem ents as robbery, specifically the em ploym ent of violence or intim idation, plus two additional essential elem ents, n am ely, the 1) u s e of a deadly weapon in 2) the taking a m otor vehicle. See P.R. LAWS ANN . tit. 33, § 4279B (repealed 20 0 4). Petitioner argues that even though the Suprem e Court of Puerto Rico has never discussed at length Art. 173B, the statute’s violence or intim idation requirem ent should be in terpreted sim ilarly to those required by the robbery statute due to their sim ilar wording. As will be discussed m ore thoroughly infra, Petitioner alleges that since the violen ce or intim idation elem ent of the robbery statute does not m eet the physical force requirem ent of the ACCA’s force clause, neither does the violen ce or intim idation elem ent of the robbery of a m otor vehicle statute. More im portantly, Petitioner contends that the Puerto Rico robbery of a m otor vehicle statute’s additional elem ent should be interpreted sim ilarly to a Massachusetts arm ed robbery statute held by the Ninth Circuit to not m eet the requirem ents of a “violent felony” under the ACCA. See U.S. v. Parnell, 818 F.3d 974 (9th Cir. 20 16)(holding that “whoever, be in g arm e d with a dangerous weapon, assaults another an d robs, steals or takes from his person m oney or other property which m ay be subject to larceny […]” will have com m itted arm ed robbery pursuant to M ASS. GEN . LAWS ANN . tit. 265, § 17 (am ended 1998)(em phasis ours)). The Parnell court reasons that just because a person is arm ed, Civ. No. 16-20 98 (PG) Page 7 of 9 it does not m ean that he or she has u s e d the weapon, or threaten ed to use it. See Parnell, 818 F.3d at 98 0 . For that reason, the Parnell court concludes that the aforem entioned arm ed robbery statute does not require the use of physical force, and thus, it is not a “violent felony” pursuant to the ACCA’s force clause. Petitioner asks that the court interpret Puerto Rico’s robbery of a m otor vehicle statute identically in finding that the crim e does not constitute a “violent felony” insofar as it does not require that the weapon be specifically used or displayed. Som e controversy exists regarding whether or not the violence or intim idation elem ent of the robbery an d robbery of a m otor vehicle statutes require violent physical force. Nevertheless, the present controversy can be resolved by analyzing the additional elem ents of Puerto Rico’s robbery of a m otor vehicle statute. Article 173B of Puerto Rico’s Penal Code at the tim e of Petitioner’s conviction expressly requires the u s e of an object capable of causin g grave bodily injury in order to effect robbery of a motor vehicle. See P.R. LAWS ANN . tit. 33, § 4279B. The Massachusetts arm ed robbery statute at issue in Parnell m erely required that the person be arm e d with a dangerous weapon, thus it did not require the u s e of the weapon, contrary to the statute at issue in this case. The Ninth Circuit in Parnell states that “there is a m aterial differen ce between the presen ce of a weapon, which produces a risk of violent force, an d the actual or threatened use of such force. Only the latter falls within the ACCA’s force clause.” Parnell, 818 F.3d at 980 . In the absence of any decision by the Suprem e Court of Puerto Rico stating otherwise, the language of the statute in question m ust be taken at face value. Therefore, by requiring as an elem ent of the offense the use of a deadly weapon, Puerto Rico’s robbery of a m otor vehicle statute clearly requires the use, attem pted use, or threatened use of physical force against the person of another, and said offense falls within the m eaning of a “violent felony” pursuant to 18 U.S.C. 924(e)(2)(B)(i). As a result, Petitioner’s argum ents regarding his prior convictions for robbery of a m otor vehicle an d attem pted robbery of a m otor vehicle are hereby D EN IED . Civ. No. 16-20 98 (PG) Page 8 of 9 Hernán dez-Favale proceeds to argue that his prior convictions for robbery should not be taken into account as one of the three prior “violent felony” convictions needed to receive the increased penalty im posed by § 924(e)(1) of the ACCA, as robbery is not categorically a “violent felony.” Petitioner believes that the robbery statute’s violence or intim idation elem ent is overinclusive after the Suprem e Court of Puerto Rico’s decision in People v. Batista Montañez, 13 P.R. Offic. Trans. 40 1 (1982). In Batista, the Suprem e Court of Puerto Rico held that even the slightest use of force, such as the sudden snatching of a necklace, is sufficient to com m it the crim e of robbery. Id. at 410 . The statute only requires that the use of force or aggression have the effect of forcing a person to give up his property. Id. (quoting Pueblo v. Diaz Diaz, 10 2 P.R. Dec. 535, 539 (1974)). In J ohnson v. United States, 599 U.S. 133 (20 10 ) (J ohnson I), the Suprem e Court of the United States held that a battery statute that m erely requires the “slightest offensive touching” does not rise to the level of “physical force” required by the ACCA. Id. at 140 . Because Puerto Rico’s robbery statute does not distin guish between degrees of force, Petitioner in fers that said felony can be com m itted via the “slightest offensive touching” and does not categorically require the “physical force” specified by the ACCA’s force clause. 1 Despite the foregoing, the court need not rule on the m atter, as Hernández-Favale’s conviction requires a finding of th re e previous violent felony convictions in order for him to be subjected to the enhan ced sentence im posed by 18 U.S.C. § 924(e)(1). Since Petitioner has been previously convicted of fo u r violent felonies, to wit, two convictions for attem pted m urder, one conviction 1 This district has arrived at different conclusions on the issue of whether robbery pursuant to the Puerto Rico Penal Code is or is not a crim e of violence for sentencin g enhancem ent purposes. In United States v. Castro Vazquez, 176 F.Supp.3d 13 (D.P.R. 20 16), J udge Fusté held that Puerto Rico robbery is not a crim e of violence. Furtherm ore, in United States v. Saéz-Quiles, Crim . No. 14-564 (PAD), J udge Delgado found that a Puerto Rico conviction for attem pted robbery did not trigger a sentence en hancem ent under U.S.S.G. § 2K2.1(a)(3), thereby findin g that it is not a crim e of violence. On the other hand, in Un ited States v. Avila-Rodriguez, Crim . No. 15-442 (FAB), Docket No. 156 at 37, J udge Besosa held that Puerto Rico robbery does fall within the force clause of the sentencin g guidelines. In addition, in United States v. Gonzalez-Fournier, Crim . No. 13-698 (DRD), Docket No. 10 1 at 20 -23, J udge Dom in guez held that Puerto Rico arm ed robbery is a crim e of violence under the ACCA. In conclusion, no consensus exists as to whether robbery requires the use of violent physical force as defin ed in J ohnson I. Civ. No. 16-20 98 (PG) Page 9 of 9 for robbery of a m otor vehicle, and one conviction for attem pted robbery of a m otor vehicle, he is autom atically exposed to the aforem entioned enhanced sentence without having to consider his prior conviction for robbery. Based on the above, the origin al sentence of 180 m onths of im prison m ent under the ACCA, 18 U.S.C. § 924(e)(1), is valid because Petitioner was convicted of being a felon in possession of a firearm under § 922(g) having three prior violent felony convictions, as defined by the Act’s force clause at § 924(e)(2)(B)(i). As a result, his request for habeas relief on these grounds is D EN IED . IV. CON CLU SION Based on the above, the court finds that Petitioner’s request for habeas corpus relief under 28 U.S.C. § 2255 (Dockets No. 1, 11) is D EN IED AN D D ISMISS ED W ITH PREJ U D ICE. J udgm ent shall be entered accordingly. V. CERTIFICATE OF APPEALABILITY It is further ordered that no certificate of appealability should be issued in the event that the Petitioner files a notice of appeal because there is no substantial showing of the denial of a constitutional right within the m eaning of 28 U.S.C. § 2253(c)(2). IT IS SO ORD ERED . In San J uan, Puerto Rico, J uly 18 , 20 18 . S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PEREZ-GIMEN EZ SEN IOR U .S. D ISTRICT JU D GE
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