Lorenzana v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,

3-cr-1256 (JGK)

- against - 16-cv-4355 (JGK)

MEMORANDUM OPINION AND

VICTOR LORENZANA, ORDER

Defendant.

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JOHN G. KOELTL, District Judge:

In 2005, the petitioner, Victor Lorenzana, was convicted of

numerous felony counts, including three counts of attempted or

completed Hobbs Act robbery in violation of 18 U.S.C. § 1951(a).

Pursuant to 18 U.S.C. § 924(c), Lorenzana was also convicted of

three counts of using and possessing a firearm in furtherance of

the Hobbs Act robbery counts. The petitioner was sentenced to a

total of eighty-seven years’ imprisonment: fifty-seven years on

the Hobbs Act robbery and § 924(c) counts, and thirty years on

the remaining counts of conviction.

In this successive petition brought pursuant to 28 U.S.C. §

2255, The petitioner now moves to vacate his conviction and

sentence on the three § 924(c) counts. For the following

reasons, the motion is granted and the petitioner’s convictions

on Counts Six, Seven, and Nine pursuant to § 924(c) are vacated.

I.

A defendant convicted under § 924(c) faces a mandatory

consecutive term of imprisonment. 18 U.S.C. § 924(c). A

defendant can be convicted under § 924(c) if he uses or carries

a firearm “during and in relation to,” or possesses a firearm

“in furtherance of,” any federal “crime of violence or drug

trafficking crime.” 18 U.S.C. § 924(c)(1)(A).1

Section 924(c) proceeds to define the term “crime of

violence” in two subparts. Under § 924(c)(3)(A), known as the

elements clause, an offense is a crime of violence if it “has as

an element the use, attempted use, or threatened use of physical

force against the person or property of another.” Under §

924(c)(3)(B), known as the residual clause, an offense is a

crime of violence if it is one “that by its nature, involves a

substantial risk that physical force against the person or

property of another may be used in the course of committing the

offense.”

II.

The following facts are undisputed for purposes of the

current § 2255 motion.

1 Unless otherwise noted, this Memorandum Opinion and Order omits

all internal alterations, citations, footnotes, and quotation

marks in quoted text.

A.

Through the late 1990s and into the early 2000s, Lorenzana

was a member of a crew that committed a series of violent armed

robberies in Manhattan and the Bronx. S9 Indictment (“S9”) ¶¶ 1,

2, 4, Dkt. 93.2 In 2003, Lorenzana was indicted on twelve counts

arising out of these robberies, six relevant to this petition.

Id. ¶¶ 1-14. Three counts—Counts Two, Three, and Five—each

charged Lorenzana with attempted and completed Hobbs Act robbery

in violation of 18 U.S.C. § 1951(a). Id. ¶ 4. The three

corresponding counts—Counts Six, Seven, and Nine—each charged

Lorenzana with using a firearm during the commission of a “crime

of violence” in violation of 18 U.S.C. § 924(c). Id. ¶ 5.3

On June 1, 2005, Lorenzana pleaded not guilty and proceeded

to a jury trial before Judge John F. Keenan. Trial Transcript

(“Tr.”) 4, Dkt. 118–20. The Government, Lorenzana, and

Lorenzana’s co-defendant at trial each submitted requests to

charge. See Gov’t Charge Req. (“Gov’t Ch.”), Dkt. 96; Lorenzana

2 Docket (“Dkt.”) numbers refer to Case No. 3-cr-1256 unless

otherwise noted.

3 The remaining counts charged Lorenzana with the following

crimes: Count One charged conspiracy to commit Hobbs Act

robbery, Count Ten charged conspiracy to distribute and possess

with intent to distribute five kilograms and more of cocaine and

one kilogram and more of heroin, Count Eleven charged money

laundering through the purchase of a 2001 Chrysler Town and

Country, and Count Twelve charged money laundering through the

purchase of a 1997 BMW 528. S9 ¶¶ 1–2, 6–9, 11, 14. Counts IV

and VIII pertained only to Ramon Reyes, Lorenzana’s co-defendant

at trial. Id. at ¶¶ 4–5.

Ch., Dkt. 107; Reyes Ch., Dkt. 97; see also Gov’t Resp. Ltr.,

Dkt. 111. Without specifying why, the parties’ requests to

charge agreed that both attempted and completed Hobbs Act

robbery qualified as crimes of violence pursuant to § 924(c)(3)

as a matter of law. Gov’t Ch. Req. 39; Lorenzana Ch. 28; Reyes

Ch. ¶ 23. At the charge conference, the court and the parties

did not discuss § 924(c)(3). See Tr. 1876–1911.

At the close of trial, the court instructed the jury that

either attempted or completed Hobbs Act robbery would suffice to

convict Lorenzana on the mixed Hobbs Act robbery counts. Id. at

2096–98 (instructing that the Government “must prove that the

defendant . . . obtained or took or attempted to obtain or take

the property of another”). The court further instructed the jury

that either attempted or completed Hobbs Act robbery qualified

as a crime-of-violence predicate for conviction on the

corresponding § 924(c) counts. Id. at 2125 (“You are instructed

that each of the offenses charged in those counts”—i.e.,

attempted and completed Hobbs Act robbery—“qualify as crime[s]

of violence under the law.”). Thus, the court did not specify

whether the Hobbs Act offenses constituted a crime-of-violence

predicate under § 924(c)’s elements clause, that section’s

residual clause, or both. Id.

On June 29, 2005, the jury returned a guilty verdict on the

mixed Hobbs Act robbery and corresponding § 924(c) counts. Id.

at 2193–96.4 The jury’s verdict did not specify whether the jury

found Lorenzana guilty of attempted or completed Hobbs Act

robbery on Counts Two, Three, and Five. Id. at 2194–95. The

verdict also did not explain which clause of § 924(c)(3) the

jury relied on to find the defendant guilty on Counts Six,

Seven, and Nine. Id. The jury specifically found that Lorenzana

brandished a firearm during the commission of Counts Six and

Nine, but not Count Seven. Id. at 2195, 2197; see also Jg. 1.

On January 16, 2007, the court sentenced the petitioner

principally to eighty-seven years’ imprisonment, including

fifty-seven years for his § 924(c) convictions. See Sentencing

Transcript (“S. Tr.”) 12, Dkt. 161. The court sentenced the

petitioner to the mandatory minimum sentence of seven years on

Count Six, and the mandatory minimum sentence of twenty-five

years on each of Counts Seven and Nine, all to run

4 The jury also found Lorenzana guilty on Counts One, Ten, and

Eleven, but not Count Twelve. See Judgment (“Jg.”) 1–2, Dkt.

157.

consecutively. Id. at 11–12.5 In addition, the petitioner was

sentenced to thirty years on the other counts on which the jury

returned a guilty verdict. Id. at 11–12.6

Lorenzana timely appealed. As relevant to the present

petition, Lorenzana did not raise any arguments on appeal that

related to whether attempted Hobbs Act robbery was a crime of

violence for purposes of 18 U.S.C. § 924(c). Lorenzana’s

convictions were affirmed on direct appeal. See United States v.

Lorenzana, 380 F. App’x 13, 15-16 (2d Cir. 2010) (summary

order).

5 At the time of Lorenzana’s conviction and sentencing, the

statute imposed a “stacked” mandatory minimum consecutive

sentence of twenty-five years for a “second or subsequent

conviction under” § 924(c), including second or subsequent

convictions charged in the same indictment as the first. §

924(c)(1)(C) (2006). Lorenzana thus received a seven-year

sentence pursuant to § 924(c)(1)(A)(ii) on Count Six, then two

consecutive twenty-five-year sentences pursuant to §

924(c)(1)(C) on each of Counts Seven and Nine. S. Tr. at 11–12.

The First Step Act, enacted in 2018, struck “second or

subsequent conviction under this subsection” from § 924(c)(1)(C)

and inserted “violation of this subsection that occurs after a

prior conviction under this subsection has become final.” See

Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221–22 (2018).

Accordingly, were Lorenzana convicted on the same § 924(c)

counts and sentenced today, he would not face the “stacked”

mandatory minimum sentence. Id.

6 Lorenzana was sentenced to twenty years on each of Counts One,

Two, Three, Five, and Eleven to run concurrently with each

other, S. Tr. at 11, and ten years on Count Ten to run

consecutively to all of the other sentences imposed, id. at 12.

Lorenzana’s present petition does not challenge these

convictions.

B.

In 2012, Lorenzana petitioned for post-conviction relief

pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of

counsel and lack of subject-matter jurisdiction. Lorenzana v.

United States, No. 11-cv-6153, 2012 WL 4462006, at *2–7

(S.D.N.Y. Sept. 27, 2012). In his first § 2255 petition,

Lorenzana did not raise any arguments challenging whether

attempted Hobbs Act robbery was a crime of violence within the

meaning of 18 U.S.C. § 924(c). See id. The court denied his

petition and also denied a certificate of appealability. Id. at

*7.

Four years after Lorenzana’s unsuccessful § 2255 petition,

the legal landscape shifted: the Supreme Court decided United

States v. Johnson, 576 U.S. 591 (2015). Johnson struck as

unconstitutionally vague the Armed Career Criminal Act’s

(“ACCA’s”) residual clause, codified in 18 U.S.C. §

924(e)(2)(B)(ii). Id. at 606.

Because Lorenzana’s § 924(c) convictions potentially rested

on that section’s residual clause, in June 2016, Lorenzana

sought authorization from the Second Circuit Court of Appeals to

file a successive § 2255 petition for post-conviction relief. He

simultaneously proceeded to file a second § 2255 petition in the

trial court. ECF No. 1 at 11.7 Both courts entered stays pending

decisions in several cases before the Supreme Court and the

court of appeals. ECF Nos. 3, 4.

In 2019, the Supreme Court decided United States v. Davis,

588 U.S. 445 (2019). Davis invalidated § 924(c)’s residual

clause as unconstitutionally vague. Id. at 470. In October 2020,

the Second Circuit Court of Appeals lifted its stay and granted

Lorenzana leave under § 2255(h)(2) to file his successive § 2255

petition. ECF No. 10. In September 2021, the trial court denied

Lorenzana’s second or successive petition, finding that his §

924(c) convictions were supported by two valid predicates:

attempted Hobbs Act robbery and completed Hobbs Act robbery.

United States v. Lorenzana, Nos. 3-cr-1256 & 16-cv-6153, 2021 WL

4462358, at *2–3 (S.D.N.Y. Sept. 29, 2021). The trial court also

denied a certificate of appealability. Id. at *3.

In October 2021, Lorenzana timely appealed and moved the

court of appeals for a certificate of appealability under §

2255(c). ECF No. 12. Then, in June 2022, the Supreme Court

decided United States v. Taylor, 596 U.S. 845 (2022). Taylor

held that attempted Hobbs Act robbery does not constitute a

crime of violence within the meaning of § 924(c)’s elements

clause. Id. at 851. Following Taylor, the court of appeals

7 ECF Numbers refer to Case No. 16-cv-4355 unless otherwise

indicated.

granted Lorenzana’s § 2255(c) petition, vacated the trial

court’s order denying Lorenzana’s successive § 2255 petition,

and remanded the case to this Court for further proceedings. ECF

No. 13. The Government consented to the vacatur and remand,

although it reserved its right to argue the following: the

petition failed to meet AEDPA’s gatekeeping requirements; the

petitioner’s claims were procedurally defaulted; and the

petitioner’s § 924(c) convictions remain supported by valid

predicates. Lorenzana v. United States, No. 21-2605 (2d Cir.),

ECF No. 32.

The appellate court’s November 29, 2022 order granted

Lorenzana a certificate of appealability “on the issue of

whether [his] 18 U.S.C. § 924(c) convictions remain supported by

any valid crime-of-violence predicate . . . in light of

[Taylor].” ECF No. 14. The order instructed this Court to answer

two specific questions: (1) whether the petitioner’s § 924(c)

convictions are still supported by any valid crime-of-violence

predicate; and (2) whether the case law underlying the

petitioner’s claim may be applied retroactively to cases on

collateral review. Id.

On January 19, 2023, the court of appeals decided Hall v.

United States, holding that Davis, like Johnson, applies

retroactively on collateral review. 58 F.4th 55, 63 (2d Cir.

2023). The next day, on January 20, 2023, the court of appeals

issued the November 29, 2022 order as a mandate to this Court.

ECF No. 14. On November 20, 2024, the Court heard oral argument.

III.

A.

In 2015, Johnson struck ACCA’s residual clause as

unconstitutionally vague. 576 U.S. at 606.8 Then, the Supreme

Court in Welch v. United States held that “the rule announced in

Johnson is substantive” and therefore “has retroactive effect .

. . in cases on collateral review.” 578 U.S. 120, 129–30 (2016).

Next, in 2019, Davis invalidated § 924(c)(3)(B) as

unconstitutionally vague. 588 U.S. at 470.

Post-Davis, a § 924(c) conviction may only be sustained on

a crime of violence as defined under § 924(c)’s elements clause.

See id. In 2022, Taylor decided that attempted Hobbs Act robbery

does not constitute a crime of violence within the meaning of §

924(c)’s elements clause. 596 U.S. at 851. Completed Hobbs Act

robbery, however, remains a valid crime-of-violence predicate

under § 924(c)’s elements clause. See United States v. Hill, 890

8 ACCA, codified at § 924(e), enhances a person’s sentence for

certain firearms offenses when that person has at least three

previous state or federal convictions “for a violent felony or a

serious drug offense, or both.” § 924(e)(1). Under ACCA’s now-

invalid residual clause, a “violent felony” includes any offense

that “involves conduct that presents a serious potential risk of

physical injury to another.” § 924(e)(2)(B)(ii).

F.3d 51, 60 (2d Cir. 2018); see also United States v. McCoy, 58

F.4th 72, 74 (2d Cir. 2023) (affirming Hill post-Taylor).

B.

Federal prisoners like Lorenzana must pursue postconviction

remedies pursuant to 28 U.S.C. § 2255. To obtain postconviction

relief under § 2255, a petitioner must show that the

petitioner’s prior sentence was invalid because “the sentence

was imposed in violation of the Constitution or the laws of the

United States . . . or is otherwise subject to collateral

attack.” § 2255(a).

On the merits, the petitioner bears the burden to prove

that he is entitled to relief by a preponderance of the

evidence. See, e.g., United States v. Thorn, 659 F.3d 227, 233–

34 (2d Cir. 2011); Triana v. United States, 205 F.3d 36, 40 (2d

Cir. 2000). In addition, a § 2255 petitioner must demonstrate

that the alleged errors had a “substantial and injurious effect”

that resulted in “actual prejudice” to the petitioner. Brecht v.

Abrahamson, 507 U.S. 619, 623, 637 (1993); see also Underwood v.

United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht’s

harmless-error standard to § 2255 petitions).

C.

In 1996, Congress enacted the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which “place[d] stringent

limits on a prisoner’s ability to bring a second or successive

application for a writ of habeas corpus.” Adams v. United

States, 155 F.3d 582, 583 (2d Cir. 1998).

Section 2255(h) requires a federal prisoner to “clear two

hurdles” before he can file a second or successive petition.

Savoca v. United States, 21 F.4th 225, 230 (2d Cir. 2021),

vacated in other part, No. 20-1502, 2022 WL 17256392 (2d Cir.

Nov. 29, 2022) (summary order). First, the petitioner must

receive permission to file a second or successive petition from

the appropriate court of appeals according to the procedures

“provided in section 2244.” § 2255(h); see also § 2244(b)(3). To

obtain this authorization, the petitioner must make a “prima

facie showing” that his petition relies on: (1) newly discovered

evidence that, if proven, would be sufficient to establish

factual innocence, or “(2) a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” § 2255(h).

Next, AEDPA “shifts responsibility to the district courts,

which are tasked with assessing, on the merits, each petition’s

substantive compliance with AEDPA.” Savoca, 21 F.4th at 232

(citing § 2244(b)(4)); see also Bell v. United States, 296 F.3d

127, 128 (2d Cir. 2002). At this second step, the district court

conducts the “full merits adjudicat[ion]” of AEDPA’s gatekeeping

requirements. Savoca, 21 F.4th at 232. The district court “must

engage in a searching inquiry” to determine whether the second

or successive petition “in fact relies on a ‘new rule of

constitutional law.’” Id. at 230 (quoting language in §

2244(b)(2)(A)). Whether the record “reflects a particular

court’s reliance on” the now-void statutory clause is “a

question of historical fact.” See id. at 232. The district court

must independently conduct this analysis and is not bound by the

appellate court’s prima facie finding. Id. at 230.

IV.

The parties dispute whether the Court should reach the

merits of the petitioner’s claim. The Government asserts that

the petitioner has failed to establish that the petition relies

on a new rule of constitutional law made retroactive to cases on

collateral review by the Supreme Court. See Gov’t’s Opposition

(“Opp.”) 10–12, Dkt. 307.; see also § 2255(h)(2). In response,

Lorenzana contends that a plain-text reading of “relies on”

permits his claim to satisfy AEDPA’s gatekeeping requirements.

Petitioner’s Reply (“Rep.”) 17–19, Dkt. 310.

A.

At the threshold, the petitioner argues that the Court

should bypass AEDPA’s gatekeeping requirements pursuant to the

law-of-the-case doctrine. Id. at 14–17. His threshold objections

are without merit.

The petitioner contends that because the district court’s

previous decision reached the merits of his petition, Lorenzana,

2021 WL 4462358 at *2–3, the law-of-the-case doctrine precludes

this Court from considering AEDPA’s gatekeeping requirements.

Rep. at 14–16. However, the Second Circuit Court of Appeals

vacated the previous order. ECF No. 14. Therefore, the trial

court’s previous decision does not constrain this Court. See

Johnson v. Bd. of Educ. of Chicago, 457 U.S. 52, 53–54 (1982)

(“Because we have vacated the Court of Appeals’ judgments . . .

the doctrine of the law of the case does not constrain either

the District Court or . . . the Court of Appeals.”); Ling Nan

Zheng v. Liberty Apparel Co., 556 F. Supp. 2d 284, 296 (S.D.N.Y.

2008) (finding that where a “judgment has been vacated” the “law

of the case doctrine does not apply”).

Next, the petitioner contends that the mandate rule

requires the Court to reach the substantive merits. Rep. 16–17.

“Where a mandate limits the issues open for consideration on

remand, a district court ordinarily cannot consider additional

issues.” Puricelli v. Argentina, 797 F.3d 213, 218 (2d Cir.

2015). However, the mandate in this case does not clearly

exclude AEDPA’s gatekeeping provisions from consideration by

this Court. The mandate asks: (1) “whether [Lorenzana’s] 18

U.S.C. § 924(c) convictions remain supported by any valid crime-

of-violence predicate . . . in light of [Taylor];” and (2)

“whether the case law underlying [Lorenzana’s] claim may be

applied retroactively to cases on collateral review.” ECF No.

14.

AEDPA placed stringent limits on when courts may review a

second or successive § 2255 petition. See Adams, 155 F.3d at

583. Moreover, the Second Circuit Court of Appeals has made

clear that district courts may not “impermissibly circumvent[]”

AEDPA’s gatekeeping provisions. See Corrao v. United States, 152

F.3d 188, 191 (2d Cir. 1998). Without clear direction from the

court of appeals, this Court must “assess[], on the merits,

[the] petition’s substantive compliance with AEDPA.” Savoca, 21

F.4th at 232.

B.

Lorenzana’s successive § 2255 petition satisfies AEDPA’s

stringent gatekeeping requirements. At this stage, the

petitioner must show that his claim “in fact relies on,” id. at

230, “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable,” 28 U.S.C. § 2244(b)(2)(A). Namely, the

petitioner must show that he was convicted and sentenced under §

924(c)’s residual clause. Savoca, 2022 WL 17256392 at *2

(stating that a district court must make “a factual

determination as to whether [the petitioner’s] § 924(c)

conviction was based on the elements clause or the residual

clause.”); cf. Savoca, 21 F.4th at 233. If the petitioner fails

to make this showing, the Court must “dismiss any claim

presented in a second or successive application.” Savoca, 21

F.4th at 230; § 2244(b)(4).

Savoca sets forth a three-step process for conducting this

inquiry. First, the Court must examine “a wide range of

materials” to determine, as a matter of historical fact, which §

924(c)(3) clause formed the basis for Lorenzana’s conviction on

Counts Six, Seven, and Nine. See Savoca, 21 F.4th at 232.9

Second, if the record is inconclusive, the Court may consider

background legal conditions. Savoca, 2022 WL 17256392 at *3. If

that fails to clarify matters, the Court may reach “the question

whether a habeas petition relies on a new rule of constitutional

law when the record does not reveal the basis of the sentence.”

Id.

In Savoca, because the question was not squarely presented,

the court of appeals did not decide the nature of the

petitioner’s burden: whether the petitioner may reach the merits

by showing only that his sentence “may have been predicated” on

the now-void residual clause, or whether he must establish that

9 Savoca uses the term “sentencing court” because § 2255(a)

provides a right of action for federal prisoners to challenge

their “sentence” by moving the “court which imposed the sentence

to vacate, set aside or correct the sentence.” § 2255(a). In the

§ 924(c) context, a § 2255 movant challenges the movant’s

sentence imposed by the court pursuant to the jury’s verdict

convicting the movant under § 924(c).

it is “more likely than not” that it was. 2022 WL 17256392 at *3

n.1.

1.

Lorenzana’s trial and sentencing record does not indicate

which clause of § 924(c) formed the basis for his conviction on

Counts Six, Seven, and Nine. None of the parties’ requests to

charge specified how attempted Hobbs Act robbery and completed

Hobbs Act robbery qualified as crimes of violence under §

924(c)(3). Gov’t’s Ch. 39; Def.’s Ch. 17; Reyes Ch. ¶ 23. In

turn, the final jury charge permitted conviction on the

corresponding § 924(c) counts if the jury convicted Lorenzana of

either attempted or completed Hobbs Act robbery on Counts Two,

Three, and Five. Tr. 2125. Therefore, the court determined as a

matter of law that both attempted and completed Hobbs Act

robbery qualified as crimes of violence under § 924(c)(3). Id.

But nothing in the record indicates whether the court did so

under § 924(c)’s elements clause or that section’s residual

clause.

One court in this District has held that a petitioner’s §

924(c) conviction rested on the elements clause as a matter of

historical fact where the jury charge contained the language

used in the elements clause, but not the language used in the

residual clause. Barnes v. United States, Nos. 11-cr-184 & 16-cv-

4521, 2024 WL 1309240, at *5–6 (S.D.N.Y. Mar. 26, 2024) (appeal

filed). By contrast, the record in this case does not provide

such a clear indication. In Lorenzana’s case, the trial court

instructed the jury that both attempted and completed Hobbs Act

robbery were crimes of violence as a matter of law without

referencing the language in either clause of § 924(c)(3). See

Tr. 2125. Namely, the trial court “instructed that each of the

offenses charged in those counts qualify as crime[s] of violence

under the law.” Id. In sum, the historical record fails to show

whether Lorenzana was convicted pursuant to § 924(c)’s elements

clause or the section’s residual clause.

According to the Government, the record shows that the

court instructed the jury that attempted Hobbs Act robbery was a

crime of violence under § 924(c)’s elements clause. Opp. 12–13.

The Government relies on the definition of “robbery” in the jury

charge and contends that the actual or threatened use of force

was an element of attempted Hobbs Act robbery.

The Government reads too much into the record. The jury

charge included the use of “actual or threatened force,

violence, or fear of injury, whether immediate or in the

future,” as the second element of the mixed Hobbs Act robbery

counts. Tr. 2097. But in the next breath, the court also

instructed the jury that “[a]n attempt is similar to the crime

of conspiracy in that there is no requirement that the attempt

be successful or that the defendant actually carry out the crime

he was trying to commit.” Tr. 2097–98. The attempt definition

followed: “[t]o prove the charge of attempting to commit a

robbery, the [G]overnment must prove beyond a reasonable doubt

that a defendant willfully took a substantial step to bring

about or accomplish the charged robbery.” Tr. 2098 (emphasis

added).

“At no point did the [c]ourt instruct the jury that the

‘substantial step’ required the use of actual or threatened

force.” Parkes v. United States, Nos. 3-cr-1364 & 16-cv-4771,

2023 WL 4865616, at *4 (S.D.N.Y. July 31, 2023). Rather, the

trial court instructed that a substantial step had to go beyond

“mere preparation,” with the caveat that “some preparations,

when taken together, may amount to an attempt” when such actions

“clearly indicate a willful intent to commit the crime.” Tr.

2098. The court also instructed the jury that Hobbs Act robbery

included the taking of property by placing a victim in fear of

“economic rather than physical injury,” and “verbally or by a

physical gesture.” Tr. 2099–2100.

A crime of violence under the elements clause, however,

must have “as an element the use, attempted use, or threatened

use of physical force against the person or property of

another.” § 924(c)(3)(B) (emphasis added). Accordingly, the

record does not clearly show that Lorenzana was convicted on

Counts Six, Seven, and Nine “pursuant to the elements clause.”

Parkes, 2023 WL 4865616 at *4.10

2.

Given the ambiguous record, the Court may consider

“background legal conditions” at the time of sentencing. Savoca,

2022 WL 17256392 at *3. At this step, the Court “should consider

the likelihood that applying a given clause would have been

legal error at the time of sentencing, and should not assume

[the] sentencing court[] would have chosen a legally erroneous

clause over a legally permissible one.” Savoca, 21 F.4th at 235.

In other words, the Court must examine whether, at the time of

Lorenzana’s trial and sentencing, the state of the law compelled

the application of either the elements clause or the residual

clause.

Neither party has presented such clear evidence. According

to the Government, background legal conditions show that

Lorenzana was convicted under § 924(c)’s elements clause. Opp.

13–14. But the Government relies on tangential cases. Two such

10 The petitioner argues that even completed Hobbs Act robbery

does not qualify as a “crime of violence” under § 924(c)(3)(A).

Petitioner’s Brief (“Br.”) 13–18, ECF No. 19. But “Hill remains

good law.” United States v. Amador-Rios, No. 18-cr-398, 2023 WL

2383273, at *4 (E.D.N.Y. Mar. 6, 2023) (appeal filed) (citing

McCoy, 58 F.4th at 74). Thus, “Hobbs Act robbery itself remains

a valid predicate crime of violence for convictions under §

924(c).” Mendez v. United States, No. 21-1536, 2022 WL 17684586,

at *2 (2d Cir. Dec. 15, 2022) (summary order).

cases, United States v. Galicia-Delgado, 130 F.3d 518, 520 (2d

Cir. 1997) and United States v. Brown, 52 F.3d 415, 425–26 (2d

Cir. 1995), “addressed attempted robbery under New York law,

which had a ‘more stringent’ attempt requirement than the

‘substantial step’ test adopted by the Second Circuit [Court of

Appeals] under federal law.” Parkes, 2023 WL 4865616 at *4

(quoting United States v. Thrower, 914 F.3d 770, 776–77 (2d Cir.

2019) (in turn quoting People v. Acosta, 609 N.E.2d 518 (N.Y.

1993))). “Accordingly, those cases do not constitute relevant

background legal conditions.” Id.

The Government also relies on United States v. Medina, 32

F.3d 40, 45 (2d Cir. 1994). In Medina, the court of appeals

noted in dicta that an attempted robbery is a violent felony

within the meaning of § 924(e)(2)(B)(i), a similarly worded

provision to § 924(c)’s elements clause. But at most, Medina

marginally increases the likelihood that Lorenzana was convicted

under § 924(c)’s elements clause. Medina’s dicta—which did not

even directly address § 924(c)(3)(A)—does not resolve the

record’s ambiguity.

On the other hand, Lorenzana argues that his trial and

sentencing took place during “the reign of the residual clause.”

As evidence, the petitioner points to United States v. Elder,

which held in 1996 that conspiracy to commit Hobbs Act robbery

qualified as a crime of violence pursuant to § 924(c)’s residual

clause. 88 F.3d 127, 128–29 (2d Cir. 1996), overturned by United

States v. Barrett, 937 F.3d 126, 129 (2d Cir. 2019) (Barrett

abrogated on other grounds by Lora v. United States, 599 U.S.

453, 459 (2023)). Relying on Elder’s application of the residual

clause to Hobbs Act-robbery conspiracy at the time of his trial,

Lorenzana argues that attempted Hobbs Act robbery likewise would

have been considered a crime of violence pursuant to the

residual clause. Rep. 23–24. But that conclusion is simply

speculation without a basis in the contemporary cases.

Therefore, background legal conditions in 2005 did not require

the trial court to define attempted Hobbs Act robbery as a crime

of violence pursuant to § 924(c)’s residual clause instead of

the section’s elements clause.

3.

Because the record and background legal conditions are

inconclusive, the Court must decide the nature of the

petitioner’s burden to show that his “habeas petition relies on

a new rule of constitutional law.” Savoca, 2022 WL 17256392 at

*3.

a.

AEDPA’s text does not specify the standard of proof that

the district court must apply and that the petitioner must meet

to overcome the statute’s gatekeeping requirements. In the

context of post-Johnson second or successive § 2255 petitions,

circuit courts of appeal have adopted two different standards.

Three circuit courts of appeal have held that a petitioner need

only show that the ACCA-enhanced sentence “may have been

predicated on application of the now-void residual clause.”11

Seven circuit courts of appeal have disagreed and held that the

petitioner must “establish[] that it is more likely than not

that he was sentenced solely pursuant to [the] residual

clause.”12 These courts have or are likely to adopt the same

holdings in the context of § 924(c)’s residual clause. See,

e.g., Fernandez v. United States, 114 F.4th 1170, 1178–80 (11th

Cir. 2024); United States v. Jordan, 96 F.4th 584, 589 (3rd Cir.

2024).

The Second Circuit Court of Appeals has yet to adopt either

standard. See Savoca, 21 F.4th at 234 n.7. In the absence of

such binding authority, the vast majority of district courts in

the Second Circuit that have considered the issue have adopted

the more permissive “may have” standard. See Parkes, 2023 WL

4865616 at *5 n.47 (S.D.N.Y. July 31, 2023) (collecting cases).

11 United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017);

United States v. Peppers, 889 F.3d 211, 222 (3d Cir. 2018);

United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017).

12 Dimott v. United States, 881 F.3d 232, 243 (1st Cir. 2018);

United States v. West, 68 F.4th 1335, 1338 (D.C. Cir. 2023);

United States v. Clay, 921 F.3d 550, 559 (5th Cir. 2019); Walker

v. United States, 900 F.3d 1012, 1015 (8th Cir. 2018); United

States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018); Potter

v. United States, 887 F.3d 785, 788 (6th Cir. 2018); Beeman v.

United States, 871 F.3d 1215, 1221–22 (11th Cir. 2017).

The “may have” standard most sensibly constructs the habeas

statutes as amended by AEDPA. See Savoca v. United States, No.

16-cv-4465, at 30 (S.D.N.Y. Apr. 20, 2023), Dkt 71 (“Savoca Op.

Tr.”); Parkes, 2023 WL 4865616 at *5. The gatekeeping inquiry

required by §§ 2244(b) and 2255(h)(2) is by its nature a

threshold one. Unlike the “may have” standard, however, the

“more likely than not” standard augments the statutory text and

turns the gatekeeping analysis into a merits determination. See

Peppers, 899 F.3d at 222–23. “[S]trict though Congress intended

it to be, AEDPA surely was not meant to conflate jurisdictional

inquiries with analyses of the merits of a defendant’s claims.”

Id. at 222. Moreover, as exemplified by this case, the

preponderance standard “penalize[s] a movant for a court’s

discretionary choice not to specify under which clause” of §

924(c) “an offense qualified as” a crime of violence. Cf.

Winston, 850 F.3d at 682; Peppers, 889 F.3d at 223–24.

Finally, the “may have relied” approach “does not deprive

[AEDPA’s] gatekeeping requirements of force.” Peppers, 899 F.3d

at 224. The federal prisoner “must still show that it is

possible he was sentenced under the now-unconstitutional

residual clause.” Id. “There are likely to be situations where

the record is clear that a defendant was not sentenced under the

residual clause, either because the sentencing judge said

another clause applied or because the evidence provides clear

proof that the residual clause was not implicated.” Id. In this

Circuit, at least two cases have found such historical records.

See Massey, 895 F.3d at 252–53 (“We have no doubt that Massey's

sentence was enhanced pursuant to the ACCA’s force clause.);

Barnes, 2024 WL 1309240 at *6 (concluding that the petitioner

was sentenced based on his conviction under § 924(c)’s elements

clause). “When that happens, the movant cannot establish that he

may have been sentenced under the residual clause, and the court

must dismiss the § 2255 petition for lack of jurisdiction.”

Peppers, 889 F.3d at 224.

The Government argues that the preponderance standard is

the correct standard because AEDPA’s text states that the movant

must “show[] that the claim relies on a new rule of

constitutional law.” § 2244(b)(2)(A). But a showing on the may-

have standard is a showing all the same. AEDPA’s text does not

evince a preference for one standard over the other. See

Peppers, 899 F.3d at 222 (noting that “the text here is

inconclusive”). To proceed to the merits, Lorenzana must show

that he “may have” been convicted pursuant to § 924(c)’s now-

void residual clause.

b.

Lorenzana may have been convicted pursuant to § 924(c)’s

residual clause. There is nothing in the jury charge requests,

the jury charge, the trial transcript, or the sentencing record

establishing that Lorenzana’s § 924(c) convictions rested on one

clause of § 924(c)(3) instead of the other. In addition, the

trial court instructed the jury that “injury” encompasses

economic injury and that “fear” exists if “at least one victim

expresses anxiety, worry over . . . business loss or over

financial or job security.” Tr. 2099–2100. And because “attempt”

required only a “substantial step towards the commission of that

crime,” Tr. 2098, a mere threat of economic injury sufficed to

convict the petitioner of attempted Hobbs Act robbery. To

qualify as a crime of violence under the elements clause,

however, an offense must have as an “element the use, attempted

use, or threatened use of physical force against the person or

property of another.” § 924(c)(3)(B) (emphasis added).

The Court cannot rule out the possibility that the trial

court applied the residual clause to completed Hobbs Act

robbery, attempted Hobbs Act robbery, or both, as a matter of

historical fact in this case. See Savoca Op. Tr. 32.

Accordingly, Lorenzana has shown that his § 924(c) convictions

“may have relied on the residual clause that was invalidated by

Davis and therefore has satisfied the gatekeeping requirements

of [§] 2244(b)(2)(A).” Parkes, 2023 WL 4865616 at *5.

V.

Trying to avoid the substantive merits, the Government

argues that the Court should dismiss the petitioner’s § 2255

motion based on procedural default. Opp. 16–20. Pointing out

that Lorenzana did not raise his current claims on direct

appeal, the Government contends that Lorenzana may not raise

them now.

A § 2255 petitioner cannot bring a claim that was not

raised on direct appeal and thereby waived, unless the

petitioner overcomes the procedural bar by showing “cause and

actual prejudice” or “actual[] innocen[ce].” Bousley v. United

States, 523 U.S. 614, 622 (1998). However, the Government’s

argument is itself procedurally barred because the Government

failed to raise procedural default earlier in this case despite

having had multiple opportunities to do so. See Gomez v. United

States, 87 F.4th 100, 107 (2d Cir. 2023).

“[P]rocedural default is normally a defense that the

[Government] is obligated to raise and preserve if it is not to

lose the right to assert the defense thereafter.” See Trest v.

Cain, 522 U.S. 87, 89 (1997). In this case, the Government could

have raised the defense in 2020, when the petitioner renewed his

petition seeking leave from the Second Circuit to file a

successive § 2255 petition. It did not. It could have done so on

remand in 2021. It did not. A third opportunity came in 2022

when the petitioner appealed the trial court’s ruling. It did

not. Accordingly, “that defense is either waived or forfeited.”

Gomez, 87 F.4th at 107.

VI.

On the merits, Lorenzana’s § 924(c) convictions are not

supported by any valid crime-of-violence predicate. First, Davis

and Taylor apply retroactively. Second, harmless-error review is

inapplicable. Third, applying the modified categorical approach,

the jury convicted Lorenzana of attempted Hobbs Act robbery on

Counts Two, Three, and Five. In turn, applying Taylor, the jury

convicted Lorenzana pursuant to § 924(c)(3)(B), in violation of

Davis.

A.

The parties agree that Davis, which invalidated § 924(c)’s

residual clause, and Taylor, which held that attempted Hobbs Act

robbery is not a crime of violence under § 924(c)’s elements

clause, apply retroactively to cases on collateral review. Br.

19–22; Rep. 12; Opp. 11. Indeed, the Second Circuit Court of

Appeals held in Hall, 58 F.4th at 63, that Davis applies

retroactively on collateral review. Following Hall, courts in

this District have found that Taylor also applies retroactively.

See, e.g., Aponte v. United States, Nos. 2-cr-1082-4 & 16-cv-

3511, 2023 WL 3600848, at *3–4 (S.D.N.Y. May 23, 2023); Crowder

v. United States, Nos. 5-cr-67-02 & 16-cv-4403, 2023 WL 5097803,

at *2–3 (S.D.N.Y. Aug. 9, 2023).

“Taylor announced a new rule by overturning existing

precedent” and thereby “announced a substantive rule.” Aponte,

2023 WL 3600848 at *4. Therefore, “Taylor applies retroactively

to petitioners, like [Lorenzana], who seek collateral review of

their convictions under § 2255.” Id. Thus, on the merits,

Taylor—a “judicial construction of a statute”—provides the

“authoritative statement of what the statute meant” at the time

of Lorenzana’s conviction and sentencing. See Rivers v. Roadway

Express, Inc., 511 U.S. 298, 312–13 (1994).

To put it succinctly, Taylor held that attempted Hobbs Act

robbery was not a crime of violence under § 924(c)’s elements

clause. 596 U.S. at 851. And attempted Hobbs Act robbery cannot

be a crime of violence under § 924(c)’s residual clause because

that clause was held unconstitutional in Davis, 588 U.S. at 470.

Therefore, it was error for the trial court to allow the jury to

find the petitioner guilty of a crime of violence under § 924(c)

based on attempted Hobbs Act robbery.

B.

Relying on Stone v. United States, 37 F.4th 825 (2d Cir.

2022), the Government argues that any error was harmless. Opp.

at 20–23. The petitioner disagrees. Br. 11–12. Under Stone,

“where a jury’s finding of guilt is based on two [§ 924(c)]

predicates, only one of which can lawfully sustain guilt,” an

error is “harmless when the jury would have found ‘the essential

elements of guilt on [an] alternative charged predicate that

would sustain a lawful conviction’ beyond a reasonable doubt.”

Stone, 37 F.4th at 831 (quoting United States v. Laurent, 33

F.4th 63, 86 (2d Cir. 2022)).

Stone is inapposite. In that case, the petitioner was

convicted of both murder, a qualifying offense, and murder

conspiracy, a non-qualifying offense. Id. at 826. Because that

petitioner committed a crime of violence—murder—the Stone

court’s “inquiry [wa]s focused on whether Stone was prejudiced

by the erroneous jury instruction stating that his § 924(c)

conviction could be predicated on either or both of two crimes,

only one of which remains a constitutionally valid predicate.”

Id. at 831. On those facts, the Stone court concluded that “the

error of instructing the jury on the now-invalid predicate was

harmless to [the petitioner] because the jury found facts

satisfying the essential elements of guilt on the valid

predicate.” Id. at 832. In short, traditional harmlessness

review applied in Stone because the petitioner had been

convicted separately of murder, a still-valid crime-of-violence

predicate. See id. at 831–32.

In this case, unlike in Stone, there is no separate still-

valid crime-of-violence predicate. Each of the predicate Hobbs

Act robbery counts charged both completed Hobbs Act robbery and

attempted Hobbs Act robbery. Completed Hobbs Act robbery remains

a valid crime-of-violence predicate, McCoy, 58 F.4th at 74;

attempted Hobbs Act robbery does not, Davis, 588 U.S. at 470;

Taylor, 596 U.S. at 851. Thus, the question in this case is

whether the jury convicted Lorenzana of attempted or completed

Hobbs Act robbery on each of the predicate counts.

“To determine whether a predicate offense qualifies as a

crime of violence” under § 924(c)’s elements clause, courts

“employ what has come to be known as the categorical approach.”

Pannell v. United States, 115 F.4th 154, 160 (2d Cir. 2024);

Stone, 37 F.4th at 831. Under the categorical approach, courts

consider the minimum conduct required for a conviction of the

predicate offense, then consider whether such conduct

constitutes a crime of violence under the § 924(c) elements

clause. Pannell, 115 F.4th at 160. In other words, courts must

“‘look only to the statutory definitions’—i.e., the elements—of

[the] defendant’s [predicate] offenses, and not ‘to the

particular facts underlying those convictions.’” Cf. Descamps v.

United States, 570 U.S. 254, 261 (2013) (quoting Taylor v.

United States, 495 U.S. 575, 600 (1990)).

Some statutes “have a more complicated (sometimes called

‘divisible’) structure, making the comparison of elements

harder.” Mathis v. United States, 579 U.S. 500, 505 (2016)

(quoting Descamps, 570 U.S. at 260). “If the statute of offense

is ‘divisible’” in that “it defines multiple separate crimes,”

courts “apply the ‘modified categorical’ approach and look at ‘a

limited class of documents’ from the record of conviction to

‘determine what crime, with what elements, a defendant was

convicted of.’” Gray v. United States, 980 F.3d 264, 266 (2d

Cir. 2020) (quoting Mathis, 579 U.S. at 505–06). Such documents

include “the indictment, jury instructions, or plea agreement

and colloquy.” Mathis, 579 U.S. at 505.

In this case, the indictment and jury instructions offered

the jury two paths to conviction on Counts Two, Three, and Five,

and therefore two potential crime-of-violence predicates on each

of Counts Six, Seven, and Nine: attempted Hobbs Act robbery and

completed Hobbs Act robbery. The Supreme Court has instructed

lower courts to apply the modified categorical approach to

resolve such ambiguity in the record. See Descamps, 570 U.S. at

260.

Applying the modified categorial approach, Lorenzana was

charged and convicted of either attempted or completed Hobbs Act

robbery on each of Counts Two, Three, and Five. Cf. Gray, 980

F.3d at 266. On those counts, the indictment charged both

“robberies and attempted robberies.” S9 ¶ 4. And the trial court

instructed the jury that either an attempted or completed Hobbs

Act robbery would suffice to convict Lorenzana on the mixed

Hobbs Act robbery counts. Tr. 2096–98. Accordingly, “look[ing]

only to the statutory definitions—i.e., the elements—of the

offense,” Descamps, 570 U.S. at 261, the minimum conduct

required for a conviction on Lorenzana’s predicate counts was

attempted Hobbs Act robbery.

Therefore, Lorenzana’s § 924(c) convictions on Counts Six,

Seven, and Nine were predicated on convictions of attempted

Hobbs Act robbery on Counts Two, Three, and Five, respectively.

What the Government actually proved at trial is irrelevant. The

categorical approach “cares not a whit about” facts. See Mathis,

579 U.S. at 504; United States v. Berry, No. 9-cr-19, 2020 WL

591569, at *3 (W.D. Va. Feb. 6, 2020). Indeed, at oral argument,

the Government conceded that if the modified categorical

approach applied, Lorenzana’s convictions on the § 924(c) counts

must be vacated.

Because attempted Hobbs Act robbery no longer qualifies as

a valid crime-of-violence predicate under § 924(c)(3), Davis,

588 U.S. at 470; Taylor, 596 U.S. at 851, the petitioner has

shown by a preponderance that his sentence on the § 924(c)

counts “was imposed in violation of the Constitution or laws of

the United States,” 28 U.S.C. § 2255(a). Lorenzana’s convictions

on Counts Six, Seven, and Nine must therefore be vacated.

VII.

Section 2255 grants district courts the discretion to

select among four remedies when reviewing a conviction or

sentence that was not authorized by law or is otherwise open to

collateral attack. See 28 U.S.C. § 2255(b). A court may: “[1]

vacate and set the judgment aside and . . . discharge the

prisoner or [2] resentence him or [3] grant a new trial or [4]

correct the sentence as may appear appropriate.” Id. When courts

invalidate a defendant’s § 924(c) conviction, courts

“‘routinely’ vacate the defendant’s entire sentence on all

counts ‘so that the district court may increase the sentences

for any remaining counts’ if such an increase is warranted.”

Davis, 588 U.S. at 469 (quoting Dean v. United States, 581 U.S.

62, 68–69 (2017)). Accordingly, the petitioner’s entire sentence

in this case should be vacated so that the petitioner may be

resentenced de novo on all remaining counts.

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed, the arguments

are either moot or without merit.

The Court has answered the mandate’s two questions. First,

Lorenzana’s § 924(c) convictions do not remain supported by any

valid crime-of-violence predicate because the petitioner’s §

924(c) convictions were predicated on convictions of attempted

Hobbs Act robbery. Under Davis, 588 U.S. at 470, and Taylor, 596

U.S. at 851, Lorenzana’s § 924(c) convictions cannot stand.

Second, both Davis and Taylor, the case law underlying

Lorenzana’s claim, apply retroactively to cases on collateral

review. Hall, 58 F.4th at 63 (Davis); Aponte, 2023 WL 36000848 at

*3-4 (Taylor).

For the foregoing reasons, the petitioner's 28 U.S.C. §

2255 motion to vacate is granted, the petitioner’s convictions

pursuant to 18 U.S.C. § 924(c) are vacated, and the petitioner’s

entire sentence is vacated to permit de novo resentencing on all

remaining counts.

The Court will schedule a sentencing hearing to resentence

Lorenzana de novo on the remaining counts. The parties should

Submit a proposed schedule for sentencing submissions within

fourteen (14) days of the date of this Memorandum Opinion and

Order.

A certificate of appealability is denied because the Court

has granted the petitioner’s motion to vacate his sentence, See

28 U.S.C. § 2253. The Court certifies under 28 U.S.C. §

1915(a} (3) that any appeal by the petitioner from this order

would not be taken in good faith. Therefore, in forma pauperis

status is denied for the purpose of an appeal. See Coppedge v.

United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: New York, New York

December 9, 2024 oN IC Poa

t_G (Geb

_ J John G. Koeltl

ited States District Judge

35