Opinion
6:17-CR-06156 EAW 6:21-CV-06055 EAW
2023-04-14
Barry WHITAKER, Petitioner, v. UNITED STATES, Respondent.
Charles E. Moynihan, Government Attorney, U.S. Attorney's Office, Rochester, NY, for Respondent in 6:17-CR-06156. Barry Whitaker, Leavenworth, KS, Pro Se.
Charles E. Moynihan, Government Attorney, U.S. Attorney's Office, Rochester, NY, for Respondent in 6:17-CR-06156. Barry Whitaker, Leavenworth, KS, Pro Se.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Petitioner Barry Whitaker ("Petitioner") previously pleaded guilty and was sentenced by the undersigned on April 10, 2019, to 106 months in prison, followed by six years of supervised release. (Dkt. 51; Dkt. 56; Dkt. 57). Presently pending before the Court is Petitioner's motion to vacate his sentence, filed pursuant to 28 U.S.C. § 2255 (Dkt. 66), as well as Petitioner's motion to appoint counsel (Dkt. 76). For the following reasons, Petitioner's motion to vacate is dismissed, and his motion to appoint counsel is denied as moot.
BACKGROUND AND PROCEDURAL HISTORY
Petitioner was charged in a five-count Indictment returned on November 7, 2017, with the following crimes: (1) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (2) possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (3) possession of a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A)(i); (4) felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (5) possession of a controlled substance (marijuana), in violation of 21 U.S.C. § 844(a). (Dkt. 10). The crimes were alleged to have occurred on February 3, 2017, when Petitioner was stopped in a vehicle he was operating by law enforcement employed by the Elmira Police Department ("EPD"). (See Dkt. 36).
During pretrial proceedings, Petitioner moved to suppress evidence and statements obtained by the EPD. (Dkt. 16). Petitioner challenged his stop pursuant to § 1163(b) of the New York Vehicle and Traffic Law, which requires that "[a] signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning," and the officers' ability to see when he initiated the signal. (Dkt. 16 at 9; N.Y. Vehicle & Traffic Law § 1163(b); see also Dkt. 37 at 12-16). After conducting an evidentiary hearing, United States Magistrate Judge Jonathan W. Feldman issued a Report and Recommendation on September 21, 2018, recommending that the suppression motion be denied. (Dkt. 36). Petitioner timely objected to the Report and Recommendation. (Dkt. 37). Following oral argument (Dkt. 42), the undersigned adopted the Report and Recommendation in its entirety, including by finding that the government had established by a preponderance of the evidence that Officer Raymond observed the vehicle, operated by Defendant, violating Vehicle and Traffic Law § 1163 by failing to signal a right-hand turn at least 100 feet before an intersection (Dkt. 46 at 6, 8).
Thereafter, on January 16, 2019, Petitioner pleaded guilty to Count 1 and Count 3 of the Indictment. (Dkt. 50; Dkt. 51). As part of his plea agreement, Petitioner waived both his appellate rights and his right to collaterally attack any sentence falling within the sentencing range for imprisonment (see Dkt. 50 at ¶¶ 22, 23), but he reserved the right to appeal the denial of his motion for suppression of physical evidence and statements, pursuant to Fed. R. Crim P. 11(a)(2) (id. at ¶ 26).
During the plea hearing, the Court questioned Petitioner and confirmed that he understood the terms and conditions of the plea agreement, that he had adequate time to review and discuss the plea agreement with his attorney, and that he understood he was waiving his right to appeal or collaterally attack his sentence, with the exception of the denial of his suppression motion. (Dkt. 63 at 3-25). The Court concluded that, based on Petitioner's answers to its questions, his demeanor in court, and his signing the plea agreement, that Petitioner was entering into the plea in a knowing, voluntary, and intelligent matter. (Id. at 25-26).
On April 22, 2019, Petitioner filed a Notice of Appeal. (Dkt. 59). In connection with his appeal, Petitioner argued, in part, that § 1163(d)—which applies to vehicles moving "from a parked position" and does not require a car to signal its turn one hundred feet before making it—applied in his case (as opposed to § 1163(b)), since his vehicle was stopped at a stop sign and then turning. See United States v. Whitaker, 827 F. App'x 39, 41-42 (2d Cir. 2020). On September 14, 2020, the Second Circuit affirmed the Court's suppression decision. (See Dkt. 65); Whitaker, 827 F. App'x at 42-43. With respect to Petitioner's argument pertaining to application of § 1163, the court concluded that the plain error standard was not met because "[e]ven if it would be error to hold that Whitaker's traffic stop was legal because he violated § 1163(b) of the traffic code, that error would not be 'clear or obvious, rather than subject to reasonable dispute.' As Whitaker himself concedes . . . whether § 1163(b) or § 1163(d) applies to a car stopped at a stop sign is, at best, an open question in New York. Whitaker is therefore not entitled to suppress the evidence seized at the time of the traffic stop." Id. at 42 (citations omitted).
Thereafter, on January 19, 2021, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Dkt. 66). The Court set a scheduling order (Dkt. 68), and the government filed a motion to dismiss and answer in response to Petitioner's motion on March 8, 2021 (Dkt. 69; Dkt. 70). Petitioner filed a reply on March 26, 2021. (Dkt. 71). On December 9, 2022, Petitioner filed a motion to appoint counsel. (Dkt. 76).
The government filed its original motion to dismiss on March 8, 2021. (Dkt. 69). Three days later, on March 11, 2021, the government filed another motion to dismiss, attaching revised exhibits to correct a filing error that occurred with respect to Exhibit 1. (Dkt. 70). Although the government's amended filing was made two days after the due date of March 9, 2021 (see Dkt. 68), the Court will accept the filing as timely.
DISCUSSION
I. Legal Standard
A prisoner in federal custody may challenge the validity of his sentence by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2255(a). "Section 2255 provides relief in cases where the sentence: (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack." Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004) (citing 28 U.S.C. § 2255). "[T]he scope of review on a § 2255 motion should be 'narrowly limited' in order to preserve the finality of criminal sentences and to effect the efficient allocation of judicial resources." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (citation omitted). "In reviewing a pro se petition for habeas corpus, the Court must be mindful that '[a] document filed pro se is to be liberally construed, and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' " Harris v. United States, No. 6:14-CR-6149 EAW, 2020 WL 4059198, at *3 (W.D.N.Y. July 20, 2020) (alterations in original) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)).
II. The Parties' Arguments
Petitioner advances nine arguments in support of his motion, all of which raise issues concerning the aforementioned search by the EPD and his motion to suppress evidence, including that the Court did not properly interpret the law concerning the traffic stop from which his charges stemmed. Petitioner contends that his conviction must be vacated because: (1) the conviction was obtained by denial of equal protection under the law and due process, and courts are obligated to construe laws to effectuate the intent of the legislature; (2) the conviction was obtained by illegal and unreasonable search and seizure; (3) the conviction was obtained by misinterpretation of the law and an "incorrectly influenced" court decision, and the government should not be able to protect law enforcement officials; (4) law enforcement's superficial examination of the Vehicle and Traffic Law was subjective; (5) he was erroneously charged with not signaling properly and is innocent; (6) statutory and regulatory interpretation of the enactors; (7) presumption and burden of proof, meaning that the government cannot sustain its burden of showing the legality of police conduct; (8) law enforcement did not have probable cause to stop his vehicle; and (9) a law enforcement official knowingly gave false testimony to the court. (Dkt. 66 at 4-7).
In response, the government contends that Petitioner's motion should be dismissed because (1) it fails to set forth specific facts warranting relief pursuant to 28 U.S.C. § 2255, including because Petitioner knowingly and voluntarily entered a guilty plea, which included an appellate/collateral attack waiver, and (2) under the law of the case doctrine, Petitioner has waived his right to raise the claims presented, as they were previously adjudicated by the Second Circuit. (Dkt. 70 at 4-8).
As explained above, there are limited circumstances under which a defendant may move to vacate his sentence. Construed broadly, Petitioner's arguments arguably implicate the first and fourth grounds—that the sentence was imposed in violation of the laws of the United States or is otherwise subject to collateral attack. Because Petitioner's plea agreement contained an appeal/collateral attack waiver, and because the record before the Court reflects that he entered into his plea agreement in a knowing and voluntary manner, his motion is barred by the waiver. Further, because Petitioner's arguments with respect to the illegality of the traffic stop were previously addressed by this Court and the Second Circuit, he is barred from raising those arguments in support of his motion to vacate.
Petitioner would not be successful in bringing a motion based on the remaining two grounds—that his sentence exceeds the maximum detention authorized by law or was entered by a court without jurisdiction to impose the sentence. The sentence imposed by the Court—106 months (46 months on Count 1, and 60 months consecutive on Count 3)—is less than the statutory maximum for violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (for which Petitioner's maximum sentence was 30 years) and 18 U.S.C. § 924(c)(1)(A)(i) (for which the mandatory minimum sentence is 60 months and the maximum is life, run consecutive to any other sentence imposed for a crime of violence or drug trafficking crime). Further, the court had jurisdiction to impose a sentence for the violations of federal law, to which Petitioner pled guilty.
III. The Plea Agreement and Collateral Attack Waiver
"Waivers of the right to appeal a sentence are presumptively enforceable." United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (citation omitted). Likewise, "[t]here is no general bar to a waiver of collateral attack rights in a plea agreement." Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002); Muniz v. United States, 360 F. Supp. 2d 574, 576 (S.D.N.Y. 2005) ("A defendant's knowing and voluntary waiver of his right to bring a petition pursuant to section 2255 is generally enforceable."); see also United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) ("Where the record clearly demonstrates that the defendant's waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable."). "However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement." Frederick, 308 F.3d at 195. More generally, "[a] violation of a fundamental right warrants voiding an appeal waiver." Riggi, 649 F.3d at 147; see also Muniz, 360 F. Supp. 2d at 577 (explaining that "[a]n enforceable waiver bars claims based on grounds that arose after, as well as before, the agreement was signed," but "a waiver of collateral attack rights in a plea agreement is unenforceable where the petitioner claims ineffective assistance of counsel in connection with the plea agreement itself").
As part of his plea agreement, Petitioner reserved the right to appeal only the discrete issue of the denial of his suppression motion, but he otherwise waived his appellate rights and his right to collaterally attack his conviction. The plea agreement contains a provision waiving the right to appeal or collaterally attack his sentence, including that Petitioner "knowingly waives the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release"—which was 97 to 106 months (60 months on Count 3 to run consecutive to 37 to 46 months on Count 1), a fine of $10,000 to $2,000,000, and a term of supervised release of six years—"notwithstanding the manner in which the Court determines the sentence." (Dkt. 50 at ¶¶ 13, 22; see also id. at ¶ 23 ("The defendant understands that by agreeing to not collaterally attack the sentence, the defendant is waiving the right to challenge the sentence in the event that in the future the defendant becomes aware of previously unknown facts or a change in the law which the defendant believes would justify a decrease in the defendant's sentence.")). As explained above, Petitioner was sentenced to 106 months in prison (46 months on Count 1 and 60 months on Count 3), six years of supervised release, and a $1,201 fine (see Dkt. 57), which is within the sentencing range, and therefore the collateral attack waiver in the plea agreement applies. See, e.g., Sanford v. United States, 841 F.3d 578, 581 (2d Cir. 2016) (collateral attack waiver applied where the defendant agreed in his plea agreement "not to file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of 210 months or below," and the court imposed a sentence of 148 months, "thus triggering the waiver," and his waiver was otherwise knowing and voluntary).
Petitioner's motion does not mention or address the collateral attack waiver contained in his plea agreement. He does not argue that his waiver was not knowing and voluntary or that he did not understand the waiver, nor does he raise any other issue relating to the plea process. As explained above, the undersigned presided over Petitioner's change of plea hearing, and the record demonstrates that his waiver was knowing and voluntary. Petitioner was represented by counsel at his plea hearing. He confirmed that he understood what was happening in court, had read and understood the written plea agreement, and discussed it with his attorney. The undersigned also reviewed with Petitioner several of the salient terms of the plea agreement, including the waiver of his trial and appellate rights, and Petitioner stated that he understood them. Petitioner expressly stated that he believed it was in his best interest to plead guilty, that no one had threatened or coerced him into pleading guilty, and he gave the Court no indication that he was not entering into his guilty plea in a knowing and voluntary manner. Accordingly, the Court concludes that Petitioner has failed to demonstrate any violation of his fundamental rights which would operate to void his appeal/collateral attack waiver, and therefore his motion is denied on that basis.
"A plea of guilty is considered voluntary and intelligent if the defendant enters the plea with full awareness of its 'direct consequences.' " Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).
IV. The Law of the Case and Collateral Estoppel
Although Petitioner makes no such argument, even assuming the collateral attack waiver does not apply to issues raised by his suppression motion, the Court further concludes that Petitioner's claims are barred because they were previously adjudicated by both this Court and the Second Circuit. Petitioner advances nine grounds for relief, all of which are related to issues raised in connection with his motion to suppress and his appeal to the Second Circuit, including that § 1163(d) applies, the legality of the stop under § 1163(b), and the officers' testimony at the hearing. (See Dkt. 66; see also, e.g., Dkt. 71 at 5-6, 23 (discussing testimony with respect to traffic stop, and that the officers' "version of the facts [is] not supported by the record"); id. at 10 (arguing that subsection (d) "legally exculpates the motor vehicle operator" of having to continuously signal); id. at 11-12 (discussing that § 1163(d) applies, and arguing that his conviction "was obtained by misinterpretation of New York Vehicle and Traffic statute § 1163"); id. at 39 ("Defendant did not encroach on any vehicle and traffic laws."); id. at 63 ("Signaling while stopped at a stop sign intersection is not a violation of vehicle and traffic law or any law.")). Petitioner further contends that the law of the case doctrine is discretionary and does not bar a court from reconsidering a prior ruling. (Id. at 1-2, 32). He requests an "evidentiary hearing for findings of fact." (Id. at 18).
The government contends that because the issues raised by Petitioner in connection with his motion to vacate were previously litigated and resolved, he is foreclosed from raising them again under the law of the case doctrine. The government further contends that a petition filed pursuant to 28 U.S.C. § 2255 cannot be used to relitigate issues which were raised and considered on direct appeal. (See Dkt. 70 at 6-8).
As an initial matter, the Court concludes that a hearing is not warranted. "In ruling on a motion under § 2255, the district court is required to hold a hearing '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' " Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (alteration in original) (quoting 28 U.S.C. § 2255). "To warrant a hearing, the motion must set forth specific facts supported by competent evidence, raising detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief." Id. at 131. Section 2255 does not automatically require a hearing where the movant's allegations are "vague, conclusory, or palpably incredible." Id. at 130 (citation omitted). As more fully explained below, the materials presently before the Court conclusively demonstrate that Petitioner is not entitled to habeas relief, and therefore a hearing is not necessary to evaluate his claims.
With respect to the law of the case, that doctrine "ordinarily forecloses relitigation of issues expressly or impliedly decided by the appellate court." United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002)). "Applying this general principle, we have held that section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal. Nevertheless, application of the doctrine remains a matter of discretion, not jurisdiction." Id. (quotations and citations omitted). For example, a court "may find it appropriate to reconsider an earlier decision when we are confronted with 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.' " Id. (citation omitted).
Relatedly, "[i]t is well established that a § 2255 petition cannot be used to relitigate questions which were raised and considered on direct appeal. If [a defendant] thus raises an issue that was dealt with on direct appeal, he will be procedurally barred from proceeding with the challenge. Reconsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal." United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (citations and quotations omitted); see also Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980) ("Reconsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal. Thus, petitioners must show that there is new law which, when applied to their claims, would result in a different disposition." (citation omitted)); United States v. Brennerman, No. 17-cr-337 (RJS), 2023 WL 2242051, at *2 (S.D.N.Y. Feb. 27, 2023) ("As a general rule, petitions under section 2255 'cannot be used to relitigate questions which were raised and considered on direct appeal.' " (citation omitted)).
As explained above, Petitioner previously litigated issues with respect to the stop of his vehicle both before the undersigned, and then on appeal to the Second Circuit. Petitioner raised issues with respect to the officers' testimony, as well as application of § 1163 of the New York Vehicle and Traffic Law. See Whitaker, 827 F. App'x at 42 ("On appeal, Whitaker argues that his traffic stop, which occurred after he signaled his turn while stopped at a stop sign instead of one hundred feet before, was illegal because § 1163(b) does not apply to turns made at a stop sign . . . . Whitaker argued before the district court that his traffic stop was illegal, but he only challenged the police's ability to see when he initiated the signal; he did not contend below that his signaling while stopped at a stop sign complied with the traffic code."). Accordingly, both the undersigned and the Second Circuit addressed Petitioner's arguments with respect to the stop of his vehicle and found them to be without merit. (See Dkt. 46 at 4-5 (addressing Petitioner's argument that Officer Raymond's testimony was not credible, and concluding that "[b]ased upon the Court's de novo review, it agrees with Judge Feldman's conclusion that Officer Raymond unequivocally and plainly testified that he observed the traffic violation . . . .")). At the appellate level, the Second Circuit also disagreed with Petitioner, and affirmed the suppression decision:
Even if it would be error to hold that Whitaker's traffic stop was legal because he violated § 1163(b) of the traffic code, that error would not be "clear or obvious, rather than subject to reasonable dispute." As Whitaker himself concedes, whether § 1163(b) or § 1163(d) applies to a car stopped at a stop sign is, at best, an open question in New York. Whitaker is therefore not entitled to suppress the evidence seized at the time of the traffic stop.827 F. App'x at 42 (citations omitted).
Regardless of how he presents them, Petitioner again raises these same, previously-rejected arguments in connection with his motion to vacate his sentence. Further, he has failed to sustain his burden of demonstrating an intervening change in the law which would have exonerated him. Nor has Petitioner raised any grounds which would cause the Court to reconsider its prior ruling on the motion to suppress evidence, such as by offering newly discovered evidence. Rather, Petitioner seeks the proverbial "second bite at the apple," which is not permitted on habeas review. See Gotti v. United States, 622 F. Supp. 2d 87, 92 (S.D.N.Y. 2009). Accordingly, Petitioner's claims are barred, and the government's motion to dismiss the Petition is granted.
Petitioner cites extensively to sections of the "Governor's bill jacket," which he argues supports his interpretation of the New York Vehicle and Traffic Law. He includes copies of these materials in his Exhibits (see Dkt. 71-1), as well as cases he claims support his interpretation of the law. However, the documents pertaining to the bill jacket are dated 1964, and the cases cited by Petitioner predate the Second Circuit's decision in this case. Moreover, the Court's own independent research has not revealed a subsequent change in the law. See, e.g., United States v. Wofford, No. 19-CR-6061EAW, 2021 WL 95916, at *16 (W.D.N.Y. Jan. 11, 2021) ("Although Wofford has identified one later case interpreting Section 1163 as he has . . . he also acknowledges that the Second Circuit observed in a subsequent case that even if the district court had erred by not finding that the Section 1163(b) stop was unlawful, the question 'whether § 1163(b) or § 1163(d) applies to a car stopped at a stop sign is, at best, an open question in New York' " (quoting Whitaker, 827 F. App'x at 42)), adopted, 527 F. Supp. 3d 486 (W.D.N.Y. 2021). In fact, one of the cases cited by Petitioner, People v. Brandt, 60 Misc.3d 956, 81 N.Y.S. 3d 880 (N.Y. City Ct., Duchess Cnty. 2018), was subsequently overruled by the Second Department in Moore v. City of New York, 197 A.D.3d 93, 151 N.Y.S.3d 682, 684 (2d Dep't 2021); see also People v. Mickens, 214 A.D.3d 1073, 184 N.Y.S.3d 481, 482 (3d Dep't 2023) ("Pursuant to Vehicle and Traffic Law § 1163(b), '[a] signal of intention to turn right or left when required shall be given continuously during not less than the last [100] feet traveled by the vehicle before turning.' This statute can 'reasonably be read' to require that all motorists, regardless of whether they are stopping at a stop sign, activate their turn signal not less than 100 feet prior to making the turn."). Accordingly, these materials do not represent a change in controlling law that would justify revisiting the prior determinations with respect to Petitioner's suppression motion.
CONCLUSION
For the foregoing reasons, the government's motion to dismiss (Dkt. 70) is granted, and the Petition (Dkt. 66) is dismissed. Petitioner's motion for appointment of counsel (Dkt. 76) is denied as moot. The Clerk of Court is instructed to close case number 6:21-CV-06055 EAW. Further, because Petitioner has not made "a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability.
SO ORDERED.