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United States v. Reyes

United States District Court, Third Circuit

August 8, 2013

UNITED STATES OF AMERICA
v.
THOMAS REYES Civil Action No. 11-6234

MEMORANDUM

JOHN R. PADOVA, District Judge.

Before the Court is Defendant Thomas Reyes's: (1) Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255; and (2) Motion for Leave to File an Amended § 2255 Motion. For the following reasons, we deny both Motions. At the same time, we grant a certificate of appealability limited to the following issue: whether the decision of the United States Supreme Court in Alleyne v. United States , 133 S.Ct. 2151 (2013), applies retroactively to cases on collateral review.

I. BACKGROUND

On September 4, 2007, Thomas Reyes was convicted by a jury of attempted interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count One); using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two); and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Three). The charges arose from an incident that occurred on July 16, 2006, at the Gomez Grocery store in Philadelphia, Pennsylvania. The evidence admitted at trial established that Reyes entered the Gomez Grocery wearing gloves and a bandana over his face. (N.T. 08/29/07 at 113; N.T. 08/30/07 at 38.) He locked the door behind him, drew a semi-automatic firearm, announced a robbery, and ordered the employees and customers to the floor. (N.T. 08/29/07 at 116-18; N.T. 08/30/07 at 6, 37.) He jumped onto the front counter, and was then grabbed from behind by a store employee, Tomas Santana, who wrestled him to the floor. (N.T. 08/29/07 at 121-23; N.T. 08/30/07 at 40-41.) During the ensuing struggle with Santana and another employee, Eddie Cruz, Reyes fired at least two rounds from the gun. (N.T. 08/29/07 at 130; N.T. 08/30/07 at 42.) Reyes was ultimately subdued when Santana struck him on the head with an applesauce jar. (N.T. 08/29/07 at 130; N.T. 08/30/07 at 45-46.)

On August 12, 2008, Reyes filed a post-verdict motion asking us to vacate the jury's verdict and grant him a new trial pursuant to Federal Rule of Criminal Procedure 33, on the grounds that: (1) the Government failed to prove that he intended to affect interstate commerce; (2) the jury instructions were inadequate because they failed to address his intent to affect interstate commerce; (3) there was a variance between the Indictment and the evidence at trial because no evidence was produced showing that he intended to affect interstate commerce; and (4) the evidence at trial was insufficient to establish that his actions affected interstate commerce. United States v. Reyes, Crim. A. No. 06-654, 2008 WL 4950006, at *1-2 (E.D. Pa. Nov. 18, 2008). We rejected all of Reyes's arguments, concluding that the Government was not required to prove that Reyes had the specific intent to interfere with interstate commerce in order to prove that he violated 18 U.S.C. § 1951(a), and that the evidence at trial established that the attempted robbery had the requisite effect on interstate commerce. Id. at *2-3. We therefore denied Reyes's post-verdict motion in its entirety.

Reyes was sentenced on December 3, 2008, to a total of 180 months of imprisonment, five years of supervised release, a fine of $1, 000.00, and a special assessment of $300.00. Reyes appealed his conviction to the United States Court of Appeals for the Third Circuit. He raised three issues on direct appeal: (1) there was insufficient evidence at trial to convict him of attempted robbery; (2) Section 1951(a) was unconstitutional as applied to his conduct; and (3) the Indictment and jury instructions were inconsistent because the Indictment suggested that § 1951(a) required an intent to affect interstate commerce, but the jury was instructed that it did not have to find that he intended to affect interstate commerce. United States v. Reyes , 363 F.Appx. 192, 194-97 (3d Cir. 2010). The Third Circuit rejected those arguments and affirmed Reyes's conviction on January 27, 2010. Id. at 197. Reyes filed a petition for writ of certiorari to the United States Supreme Court, which was denied on October 4, 2010. Reyes v. United States , 131 S.Ct. 252 (2010).

Reyes filed his timely pro se § 2255 Motion on October 4, 2011. The Motion raises the following grounds for relief: (1) he was not put on proper notice of the charges against him because the Indictment led him to believe that proof of an intent to interfere with interstate commerce was an element of § 1951(a); (2) there was a constructive amendment of the Indictment because it alleged that the attempted robbery potentially affected interstate commerce, whereas the proof at trial showed an actual effect; (3) the Indictment was insufficient because it did not identify the interstate party with whom the Gomez Grocery was in business; and (4) his trial counsel was ineffective for: (a) failing to brief his post-verdict motion; (b) making a "deal" with the Government not to present evidence of his version of the events at the Gomez Grocery; (c) failing to adequately meet with him before trial; and (d) failing to conduct adequate pretrial investigations. We appointed Reyes counsel and held evidentiary hearings on his § 2255 Motion on September 14, 2012, October 18, 2012, and April 4, 2013. On July 1, 2013, Reyes filed a Motion for Leave to File an Amended § 2255 Motion seeking to assert six newly-stated claims, including four based on Alleyne v. United States , 133 S.Ct. 2151 (2013).

II. LEGAL STANDARD

Reyes has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). "Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors." United States v. Perkins, Crim. A. No. 03-303, Civ. A. No. 07-3371, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting United States v. Rishell, Crim. A. No. 97-294-1, Civ. A. No. 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001)). In order to prevail on a § 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States , 368 U.S. 424, 428 (1962).

III. DISCUSSION

A. Grounds One, Two, and Three

Reyes did not raise any of his first three grounds for relief on direct appeal. "Because collateral review under § 2255 is not a substitute for direct review, a movant ordinarily may only raise claims in a 2255 motion that he raises on direct review." Hodge v. United States , 554 F.3d 372, 378-79 (3d Cir. 2009) (citing Bousley v. United States , 523 U.S. 614, 621 (1998)). This means that a movant has "procedurally defaulted all claims that he neglected to raise on direct appeal." Id. at 379 (citing Bousley , 523 U.S. at 621). However, the movant may raise his claims in a motion brought pursuant to § 2255 "if he can prove either that he is actually innocent of the crime for which he was convicted, or that there is a valid cause for the default, as well as prejudice resulting from the default." Id . (citing Bousley , 523 U.S. at 622).

Reyes argues that his counsel's ineffectiveness was cause for his failure to raise Grounds One, Two, and Three on direct appeal. Cause necessary to excuse a procedural default must be an occurrence beyond a defendant's control that cannot be fairly attributed to him. See McCleskey v. Zant , 499 U.S. 467, 493 (1991) ("In procedural default cases, the cause standard requires the petitioner to show... some objective factor external to the defense....'" (quoting Murray v. Carrier , 477 U.S. 478, 488 (1986))). Prejudice necessary to excuse a procedural default means that any alleged error worked to a defendant's "actual and substantial disadvantage." United States v. Frady , 456 U.S. 152, 170 (1982)). "Ineffective assistance of counsel that rises to the level of a Sixth Amendment violation constitutes cause for a procedural default." Hodge , 554 F.3d at 379 (citations omitted). However, there is "no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument." United States v. Sanders , 165 F.3d 248, 253-54 (3d Cir. 1999) (citations omitted).

1. Ground One: Notice of the Charges in the Indictment

In Ground One, Reyes argues that he was not put on proper notice of the charges against him because the Indictment led him to falsely believe that the Government would have to prove that he specifically intended to interfere with interstate commerce in connection with the § 1951(a) charge. "Generally, each count of the indictment must set forth a sufficient description of the crime charged." United States v. Werme , 939 F.2d 108, 111 (3d Cir. 1991). To determine whether an indictment puts a defendant on notice of the charges against him, "we look at the entire indictment" and consider "whether the indictment contains the elements of the offense intended to be charged and sufficiently appraises the defendant of [the crime] he should be prepared to meet.'" Id. at 112 (alteration in original) (quoting United States v. Wander , 601 F.2d 1251, 1258 (3d Cir. 1979)) (other citation omitted). In other words, an indictment need only put a defendant on notice of the charged offense. See id.

Section 1951(a) reads, in pertinent part: "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery... shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a). The Indictment states that Reyes "attempted to obstruct, delay and affect commerce and the movement of articles and commodities in commerce, by robbery" in violation of § 1951(a). (Indictment at 1.) The Indictment also discloses the date of the attempted robbery, the location of the Gomez Grocery, and that Reyes attempted "to take and obtain cash" from the store. (See id. at 1-2.) The Indictment thus clearly "contains the elements of the offense intended to be charged" under § 1951(a) and sufficiently appraised Reyes of the facts underlying the attempted robbery charge against him. Werme , 939 F.2d at 112 (quotation and citation omitted).

Furthermore, we reject Reyes's argument that a plain reading of the Indictment indicates that the Government would have to prove that Reyes intended to affect interstate commerce. "It is well-established that a specific intent to affect interstate commerce is not an element of [§ 1951(a)], " Reyes , 363 F.Appx. at 195, and Reyes has identified nothing in the Indictment that could have reasonably led him to a contrary conclusion. Reyes also fails to articulate any way in which his alleged misunderstanding of the Indictment prejudiced his defense. We conclude that Ground One is without merit and, therefore, Reyes's counsel was not ineffective for failing to raise it on direct appeal. We further conclude that Reyes cannot show cause and prejudice to excuse his procedural default on Ground One, and accordingly, we deny Reyes's Motion as to Ground One.

2. Ground Two: Constructive Amendment

In Ground Two, Reyes argues that there was a constructive amendment of the Indictment because the proof at trial established that the attempted robbery actually affected interstate commerce, whereas the Indictment alleges that the attempted robbery only potentially affected interstate commerce. "A constructive amendment occurs where a defendant is deprived of his 'substantial right to be tried only on charges presented in an indictment returned by a grand jury.'" United States v. Syme , 276 F.3d 131, 148 (3d Cir. 2002) (quoting United States v. Miller , 471 U.S. 130, 140 (1985)). There is a constructive amendment to an indictment where:

in the absence of a formal amendment, the evidence and jury instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged.

United States v. Daraio , 445 F.3d 253, 259-60 (3d Cir. 2006) (citing Miller , 471 U.S. at 140; and United States v. Floresca , 38 F.3d 706, 710 (4th Cir. 1994)). Reyes does not argue that he was convicted of an offense different than that identified in the Indictment. Thus, we conclude that there was no constructive amendment of the Indictment in this case.

Reyes's argument, rather, is more akin to a claim that there was a variance between the evidence established at trial and the facts alleged in the Indictment. A variance occurs "where the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.'" Daraio , 445 F.3d at 261 (alteration in original) (quoting United States v. Castro , 776 F.2d 1118, 1121 (3d Cir. 1985)). "[A] variance can result in a reversible error only if it is likely to have surprised or otherwise has prejudiced the defense." Id. at 262 (citing United States v. Schurr , 775 F.2d 549, 553-54 (3d Cir. 1985)). "A variance does not prejudice a defendant's substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, [or] (2) if the variance is not such that it will present a danger that the defendant may be prosecuted a second time for the same offense.'" Id . (alteration in original) (quoting United States v. Schoenhut , 576 F.2d 1010, 1021-22 (3d Cir. 1978)).

The evidence at trial proved that the attempted robbery had an actual effect on interstate commerce. (See N.T. 08/30/07 at 148-49 (establishing that many items available for purchase in the store had traveled in interstate commerce); N.T. 08/29/07 at 138-39 (establishing that the store was forced to shut down for nearly eight hours for cleanup during which time the store could not receive or sell its goods).) The Indictment states that the Gomez Grocery "was engaged in and affecting interstate commerce" and that Reyes "attempted to obstruct, delay, and affect commerce and the movement of articles and commodities in commerce" by attempting "to take and obtain cash." (Indictment at 1.) The Indictment does not suggest that the Government would prove that the attempted robbery had only a potential effect on interstate commerce. Therefore, the facts proved at trial-that the attempted robbery had an actual effect on interstate commerce-were not "materially different from those alleged in the indictment.'" Daraio , 445 F.3d at 261 (quoting Castro , 776 F.2d at 1121). Accordingly, we conclude that there was no variance between the Indictment and the evidence established at trial.

Reyes has also failed to articulate any way in which he was prejudiced by the alleged inconsistency. The Government's proof of an actual effect on interstate commerce was not likely to surprise or otherwise prejudice Reyes's defense because, as we have already determined, the Indictment sufficiently informed him of the § 1951(a) charge against him. Accordingly, we conclude that Ground Two is without merit and, therefore, Reyes's counsel was not ineffective for failing to raise it on direct appeal. We further conclude that Reyes cannot show cause and prejudice to excuse his procedural default on Ground Two, and accordingly, we deny Reyes's Motion as to Ground Two.

3. Ground Three: Sufficiency of the Indictment

In Ground Three, Reyes argues that the Indictment was insufficient because it fails to identify the interstate party with which the Gomez Grocery was in business, and that omission prevented him from developing a defense that the attempted robbery did not affect interstate commerce. An indictment need only contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged.'" United States v. Huet , 665 F.3d 588, 594 (3d Cir. 2012) (quoting United States v. Resendiz-Ponce , 549 U.S. 102, 110 (2007)). "[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation' to permit a defendant to prepare his defense...." Id. at 595 (alteration in original) (quoting United States v. Kemp , 500 F.3d 257, 280 (3d Cir. 2007)). "Generally, an indictment will satisfy these requirements where it informs the defendant of the statute he is charged with violating, lists the ...


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