Petition for Writ of Certiorari — Jonathan Feliz, Petitioner v. United States

No. _____

__________________________________________________________________

__________________________________________________________________

In the

Supreme Court of the United States

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Jonathan Feliz,

v.

Petitioner,

United States of America,

Respondent.

______________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

Daniel Habib

Counsel of Record

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

daniel_habib@fd.org

(212) 417–8742

Counsel for Petitioner

QUESTION PRESENTED

Whether a crime that requires proof of bodily injury or death, but can be

committed by failing to take action, has as an element the use, attempted use, or

threatened use of physical force, the question presented in Delligatti v. United

States, No. 23–825 (U.S.) (cert. granted June 3, 2024).

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TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

OPINIONS AND ORDERS BELOW............................................................................. 1

JURISDICTION............................................................................................................. 1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 1

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 7

I.

The Petition Should Be Held For Delligatti. .................................................... 7

CONCLUSION............................................................................................................. 12

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TABLE OF AUTHORITIES

Cases

Bailey v. United States, 516 U.S. 137 (1995) ...................................................................... 10

Brito v. United States, No. 21–5097 (U.S. June 27, 2022)............................................... 11

Delligatti v. United States, No. 23–825 (U.S.) ........................................... i, 2, 6, 7, 9, 11, 12

Howard v. United States, No. 20–8372 (U.S. June 27, 2022) ......................................... 11

Johnson v. United States, 559 U.S. 133 (2010) .................................................................. 10

Johnson v. United States, 576 U.S. 591 (2015) .................................................................... 4

People v. Best, 609 N.Y.S. 2d 478 (N.Y. App. Div. 1994).................................................. 10

People v. Steinberg, 595 N.E.2d 845 (N.Y. 1992) ................................................................. 9

People v. Wong, 619 N.E.2d 377 (N.Y. 1993) ...................................................................... 10

United States v. Castleman, 572 U.S. 157 (2014) .............................................................. 10

United States v. Davis, 588 U.S. 445 (2019) ............................................................. 4, 5, 6, 8

United States v. Harris, 88 F.4th 458 (3d Cir. 2023) .......................................................... 9

United States v. Heyward, 3 F.4th 75 (2d Cir. 2021) .......................................................... 8

United States v. Martinez-Rodriguez, 857 F.3d 282 (5th Cir. 2017) ............................... 9

United States v. Mayo, 901 F.3d 218 (3d Cir. 2018) ........................................................... 9

United States v. Pastore, 36 F.4th 423 (2d Cir. 2022) ........................................................ 5

United States v. Pastore, 83 F.4th 113 (2d Cir. 2023) ................................................ 5, 6, 8

United States v. Rodriguez-Moreno, 526 U.S. 275 (1999).............................................. 3, 8

United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc)............................... 5, 6, 9, 11

United States v. Taylor, 596 U.S. 845 (2022) ................................................................. 8, 11

Voisine v. United States, 579 U.S. 686 (2016) .................................................................... 10

Statutes

18 U.S.C. § 924(c).......................................................................................... 1, 2, 4, 5, 6, 7, 8, 11

18 U.S.C. § 924(c)(1)(A) ............................................................................................................. 7

18 U.S.C. § 924(c)(1)(A)(i) ......................................................................................................... 3

18 U.S.C. § 924(c)(1)(A)(iii) ................................................................................................... 1, 3

18 U.S.C. § 924(c)(1)(C)(i) (2006 ed.) .................................................................................. 2, 3

18 U.S.C. § 924(c)(3)(A) ............................................................................. 2, 4, 6, 7, 8, 9, 10, 11

18 U.S.C. § 924(c)(3)(B) ..................................................................................................... 2, 4, 8

18 U.S.C. § 924(e)(2)(B)(ii) ........................................................................................................ 4

18 U.S.C. § 1959(a)(5) ................................................................................................................ 5

28 U.S.C. § 1254(1) ..................................................................................................................... 1

iii

28 U.S.C. § 2255 .................................................................................................... 1, 4, 5, 7, 8, 11

28 U.S.C. § 2255(a) ..................................................................................................................... 1

N.Y. Penal Law § 20.00 ............................................................................................................. 3

N.Y. Penal Law § 105.15 ........................................................................................................... 3

N.Y. Penal Law § 110.00 ........................................................................................... 2, 3, 5, 6, 7

N.Y. Penal Law § 125.25 ....................................................................................................... 2, 3

N.Y. Penal Law § 125.25(1) .................................................................................. 2, 5, 6, 7, 8, 9

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OPINIONS AND ORDERS BELOW

The order of the United States Court of Appeals for the Second Circuit

denying Petitioner’s motion for a certificate of appealability (“COA”) appears at Pet.

App. 1a. The memorandum decision and order of the United States District Court

for the Southern District of New York denying Petitioner’s 28 U.S.C. § 2255 motion

appears at Pet. App. 2a–13a and is reported at 632 F. Supp. 3d 294. The order of the

District Court denying a COA appears at Pet. App. 14a.

JURISDICTION

The District Court had jurisdiction under 28 U.S.C. § 2255(a), denied

Petitioner’s § 2255 motion on September 29, 2022, and denied a COA on November

30, 2022. The Court of Appeals had jurisdiction under 28 U.S.C. § 2253(a) and

denied Petitioner’s motion for a COA on April 3, 2024. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment provides, in relevant part:

No person shall ... be deprived of life, liberty, or property, without due process of

law.

18 U.S.C. § 924(c)(1)(A) provides, in relevant part:

Except to the extent that a greater minimum sentence is otherwise provided by

this subsection or by any other provision of law, any person who, during and in

relation to any crime of violence ... .for which the person may be prosecuted in a

court of the United States, uses or carries a firearm, or who, in furtherance of

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any such crime, possesses a firearm, shall, in addition to the punishment

provided for such crime of violence or drug trafficking crime ...

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of

not less than 10 years.

The version of 18 U.S.C. § 924(c)(1)(C)(i) (2006 ed.) applicable at the time of

Petitioner’s conviction and sentencing provided:

In the case of a second or subsequent conviction under this subsection, the

person shall ... be sentenced to a term of imprisonment of not less than 25 years.

18 U.S.C. § 924(c)(3) provides:

For purposes of this subsection the term “crime of violence” means an offense

that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical

force against the person or property of another, or

(B) 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.

N.Y. Penal Law § 110.00 provides:

A person is guilty of an attempt to commit a crime when, with intent to commit a

crime, he engages in conduct which tends to effect the commission of such crime.

N.Y. Penal Law § 125.25 provides, in relevant part:

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of

such person or of a third person.

STATEMENT OF THE CASE

This petition is controlled by Delligatti v. United States, No. 23–825 (U.S.)

(cert. granted June 3, 2024). Petitioner seeks to vacate an 18 U.S.C. § 924(c)

conviction predicated on the exact same offense at issue in Delligatti, namely,

attempted second-degree murder in violation of New York State law. Accordingly,

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this petition should be held for Delligatti and then disposed of as appropriate in

light of that decision.

In 2012, Petitioner pleaded guilty in the United States District Court for the

Southern District of New York to a two-count information charging him with: (i)

using and carrying a firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count One); and (ii) using, carrying, and

discharging a firearm during and in relation to a crime of violence, 18 U.S.C.

§§ 924(c)(1)(A)(iii) and 924(c)(1)(C)(i) (2006 ed.) (Count Two). Pet. App. 2a, 4a–5a;

C.A. Doc. No. 20 Exh. B, at 1–2 ¶¶ 1–2. The commission of a predicate crime of

violence was an element of the Count Two § 924(c) offense. See United States v.

Rodriguez-Moreno, 526 U.S. 275, 280 (1999). Count Two was predicated on a

racketeering act, alleged in a prior charging instrument, which comprised three

offenses: a 2006–2008 conspiracy to murder a person named Skeilin Camacho, in

violation of N.Y. Penal Law §§ 105.15 and 125.25; a September 25, 2006 attempt to

murder Camacho, in violation of N.Y. Penal Law §§ 20.00, 110.00, and 125.25; and a

November 23, 2006 attempt to murder Camacho, §§ 20.00, 110.00 and 125.25. Pet.

App. 4a–5a; C.A. Doc. No. 20 Exh. B, at 2 ¶ 2 (superseding information, charging

predicate racketeering act); C.A. Doc. No. 20 Exh. C, at 6–8 ¶ 8 (racketeering act,

charging New York statutory violations). During his guilty plea colloquy, Petitioner

“allocuted that he ‘carr[ied] a firearm in connection with a plan to kill an individual

named [Camacho],’ that ‘a firearm [was] discharged in the course of that plan,’” and

this conduct amounted to an “‘attempted murder.’” Pet. App. 5a–6a. In 2013, the

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District Court (Daniels, J.) sentenced Petitioner to the then-mandatory term of 30

years: five years on Count One, and a consecutive term of 25 years on Count Two.

Pet. App. 2a & n.2. Petitioner did not appeal. Pet. App. 6a.

Following this Court’s decisions in Johnson v. United States, 576 U.S. 591

(2015) (invalidating residual clause of Armed Career Criminal Act’s definition of

“violent felony,” 18 U.S.C. § 924(e)(2)(B)(ii), as void for vagueness, and United

States v. Davis, 588 U.S. 445 (2019) (applying Johnson; invalidating residual clause

of § 924(c)’s definition of “crime of violence,” 18 U.S.C. § 924(c)(3)(B), as void for

vagueness, Petitioner sought § 2255 relief from Count Two. Pet. App. 2a–3a. As

relevant, he argued that Count Two had to be vacated because neither conspiracy to

commit murder nor attempted murder qualified as a § 924(c) crime of violence. See

Pet. App. 3a, 11a–13a. As to the conspiracy predicate, Petitioner argued, and the

government conceded, that conspiracy to commit murder could have qualified as a

crime of violence only under § 924(c)(3)(B)’s residual clause, which Davis had

invalidated. Pet. App. 3a. As to the attempt predicate, Petitioner argued, among

other things, that attempted murder did not satisfy 18 U.S.C. § 924(c)(3)(A)’s

elements clause because it could be completed not just by action but by culpable

omission, as, for example, when a parent withholds food or medical care from a

child. See Pet. App. 11a (noting that Petitioner “strongly urges [the District Court]

to adopt” the “position” that “attempted murder does not necessarily involve the use

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of force” because of “the possibility of attempted murder being committed by

omission”); see also D. Ct. Doc. No. 1003, at 10–13; D. Ct. Doc. No. 1023, at 11–16. 1

The District Court denied the § 2255 motion. Pet. App. 2a–13a. The Court

accepted the government’s concession that conspiracy to commit murder was not a

valid § 924(c) predicate in light of Davis. Pet. App. 3a, 7a. However, the Court

concluded that attempted murder remained a valid predicate that could support a

§ 924(c) conviction under United States v. Pastore, 36 F.4th 423 (2d Cir. 2022),

which had so held. In addition, the Court rejected Petitioner’s omission argument in

reliance on United States v. Scott, 990 F.3d 94, 101 (2d Cir. 2021) (en banc), which

held that “crimes intentionally causing physical injury are categorically violent even

if committed by omission.” Pet. App. 11a. The Court denied a COA. Pet. App. 14a. 2

Petitioner appealed. C.A. Doc. No. 1. The United States Court of Appeals for

the Second Circuit held Petitioner’s appeal in abeyance pending the issuance of an

amended Pastore opinion. C.A. Doc. No. 14. In the amended Pastore opinion, the

Court of Appeals reaffirmed that attempted murder in aid of racketeering, 18

U.S.C. § 1959(a)(5), itself predicated on attempted murder in violation of N.Y. Penal

Law §§ 110.00 and 125.25(1), was a § 924(c) crime of violence. 83 F.4th 113, 119―20

(2d Cir. 2023). The amended Pastore opinion rejected the argument that “attempted

1 Petitioner also argued that the plea colloquy reflected that Count Two was

predicated on conspiracy to commit murder alone. The District Court rejected that

argument (Pet. App. 7a–10a), and Petitioner does not renew it here.

2 Because the District Court determined that Petitioner’s argument failed on the

merits, the Court did not address Respondent’s argument that Petitioner had

procedurally defaulted his Davis claim. Pet. App. 3a n.3.

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murder is not a crime of violence because it can be committed ‘by way of affirmative

acts or omissions,’” adhering to the analysis in Scott. See 83 F.4th at 121.

Following issuance of the amended Pastore opinion, Petitioner moved the

Court of Appeals for a COA on the question whether his Count Two § 924(c)

conviction violated due process in light of Davis. C.A. Doc. No. 25. Petitioner

acknowledged Pastore, but “for purposes of preservation ... maintain[ed] that

Pastore [was] wrongly decided, and that attempted murder under New York State

law [was] not a valid § 924(c)(3)(A) predicate.” C.A. Doc. No. 25, at 10 ¶ 13. See also

id. at 11 ¶ 13 (“Attempted murder ... requires only intent to cause death and a

substantial step―which need not be violent―toward doing so. Accordingly, this

offense does not categorically require the ‘use, attempted use, or threatened use of

physical force.’” (quoting § 924(c)(3)(A))). The Court of Appeals (Raggi, Lee,

Robinson, JJ.) summarily denied a COA. Pet. App. 1a.

After the mandate of the Court of Appeals issued, this Court granted

certiorari in Pastore (sub nom. Delligatti, one of Pastore’s co-defendants), on the

question “[w]hether a crime that requires proof of bodily injury or death, but can be

committed by failing to take action”―such as attempted murder in violation of New

York State law―“has as an element the use, attempted use, or threatened use of

physical force.” Pet. for Cert. i, Delligatti, supra. Notably, the § 924(c) predicate

asserted in Pastore/Delligatti is the exact same one asserted here―attempted

second-degree murder in violation of N.Y. Penal Law §§ 110.00 and 125.25(1).

Compare Pet. for Cert. 11, Delligatti, supra (noting that § 924(c) predicate was

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“attempted second-degree murder under N.Y. Penal Law § 125.25(1)”) and Pastore,

83 F.4th at 120 & n.5 (noting that “Delligatti was convicted of attempting to commit

murder under N.Y. Penal Law § 125.25(1)”) with C.A. Doc. No. 20 Exh. C, at 6–8 ¶ 8

(racketeering act, charging conspiracy to commit and attempt to commit

“intent[ional]” murder, which is criminalized by § 125.25(1)) and D. Ct. Doc. No.

1016, at 11 & n.10 (Respondent’s opposition to § 2255 motion, acknowledging that

Petitioner’s Count Two conviction was predicated on conspiracy to commit and

attempt to commit intentional murder, in violation of § 125.25(1)).

REASONS FOR GRANTING THE WRIT

Delligatti controls this petition. Delligatti presents the question whether an

offense that can be committed not by affirmative action but by culpable omission

categorically involves the use, attempted use, or threatened use of physical force.

More precisely, Delligatti presents the question whether attempted second-degree

murder, in violation of N.Y. Penal Law §§ 110.00 and 125.25(1), is a valid § 924(c)

predicate. This case is on all fours: Petitioner’s Count Two § 924(c) conviction rests

on the exact same predicate attempted murder offense, and Petitioner has urged

that the offense does not satisfy the § 924(c)(3)(A) elements clause because it can be

accomplished by omission. Accordingly, this petition should be held for Delligatti.

I.

The Petition Should Be Held For Delligatti.

Section 924(c)(1)(A) defines a standalone offense, and at the time of

Petitioner’s conviction mandated a 25-year consecutive sentence, for a defendant

“who, during and in relation to any crime of violence ... for which the person may be

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prosecuted in a court of the United States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm.” The commission of a predicate

crime of violence is an element of a § 924(c) offense. Rodriguez-Moreno, 526 U.S. at

280. Section 924(c)(3) defines a crime of violence as:

an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical

force against the person or property of another, or

(B) 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.

Davis held that § 924(c)(3)(B)’s residual clause is void for vagueness. 588 U.S. at

470. Accordingly, a valid predicate offense must satisfy § 924(c)(3)(A)’s elements

clause. If a § 924(c) conviction lacks a valid predicate, vacatur of the conviction is

the remedy, including on § 2255 review. E.g., United States v. Taylor, 596 U.S. 845

(2022) (affirming grant of § 2255 relief that vacated § 924(c) conviction predicated

on attempted Hobbs Act robbery).

The District Court found that Petitioner’s Count Two § 924(c) conviction had

two predicates: conspiracy to commit murder and attempted murder, both premised

on violations of New York State’s second-degree murder statute, § 125.25(1). As all

agreed below, the conspiracy predicate no longer supports a § 924(c) conviction in

light of Davis. E.g., United States v. Heyward, 3 F.4th 75, 78 (2d Cir. 2021) (“[O]ur

decisions in light of Davis preclude 18 U.S.C. § 924(c) from being applied to a

murder conspiracy.”). As for the attempted murder predicate, the District Court

determined that it sufficed under the Second Circuit’s decisions in Pastore and

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Scott. In particular, the District Court invoked Scott to reject Petitioner’s argument

that attempted murder under New York State law did not satisfy § 924(c)(3)(A)’s

elements clause because of “the possibility of attempted murder being committed by

omission.” Pet. App. 11a.

As the petition for a writ of certiorari in Delligatti explains (at 20–26), Scott

was wrongly decided, and the correct analysis is that of the Courts of Appeals on

the short side of the split that this Court granted certiorari to resolve. United States

v. Mayo, 901 F.3d 218 (3d Cir. 2018) (cited below by Petitioner, see D. Ct. Doc. No.

1023, at 16 n.3); United States v. Martinez-Rodriguez, 857 F.3d 282 (5th Cir. 2017).

Section 924(c)(3)(A)’s elements clause applies only where a crime “has as an element

the use, attempted use, or threatened use of physical force.” (emphases added). But

where an offense can be committed by “total inaction,” the defendant may “exert no

physical force at all on the victim.” United States v. Harris, 88 F.4th 458, 464 (3d

Cir. 2023) (Jordan, J., concurring in denial of rehearing en banc). Such a crime, even

if it results (or is calculated to result) in serious bodily injury or death, does not

necessarily involve the use of physical force.

New York State’s second-degree intentional murder offense, § 125.25(1), is an

example of such a crime. As state appellate courts interpreting that statute have

held, § 125.25(1), like other New York State homicide offenses, can be violated by

“failure to perform a legally imposed duty.” People v. Steinberg, 595 N.E.2d 845, 847

(N.Y. 1992). New York State courts have thus upheld the convictions of a father who

was charged with the “omission” of “withholding medical care” from a fatally sick

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child, id. at 848; and of a mother who “fail[ed] to seek medical attention for [her]

boy.” People v. Best, 609 N.Y.S. 2d 478, 480 (N.Y. App. Div. 1994). See also People v.

Wong, 619 N.E.2d 377, 380 (N.Y. 1993) (accepting the legal validity of prosecuting

“passive” parent who “failed to seek medical assistance” after other parent violently

shook child). When a crime is committed by failing to take any action, it cannot be

said that the defense “use[d] ... physical force” against the victim.

That conclusion flows from § 924(c)(3)(A)’s text, construed in light of the plain

meaning of the statutory terms. First, “the word ‘use’ conveys the idea that the

thing used (here, ‘physical force’) has been made the user’s instrument.” United

States v. Castleman, 572 U.S. 157, 170–71 (2014). It is unnatural to say that a

person “made” physical force his “instrument” by doing nothing. This Court’s cases

have consistently understood the term “use” to refer to “active employment.” Bailey

v. United States, 516 U.S. 137, 143 (1995). See also id. at 145 (dictionary definitions

of “use” “imply action and implementation”); Voisine v. United States, 579 U.S. 686,

692–93 (2016) (noting that “[d]ictionaries consistently define the noun ‘use’ to mean

the ‘act of employing’ something,” and construing use to require “active

employment”). Next, the phrase “physical force” “plainly refers to force exerted by

and through concrete bodies.” Johnson v. United States, 559 U.S. 133, 138 (2010).

That phrase requires the kind of tangible force that produces “the acceleration of

mass.” Id. at 139. Finally, § 924(c)(3)(A) demands not just force but “violent force.”

See id. at 140. Allowing a dependent to starve or die for want of medical attention,

although it might involve common-law force, see Castleman, 572 U.S. at 170, does

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not involve “violent” or “substantial” force “strong enough to constitute power.”

Johnson, 559 U.S. at 140, 142. At a minimum, the rule of lenity compels Petitioner’s

construction. See Scott, 990 F.3d at 137 (Leval, J., dissenting).

Because neither of the predicate offenses for Petitioner’s Count Two § 924(c)

conviction qualify as a crime of violence under § 924(c)(3)(A)’s elements clause,

Petitioner is entitled to § 2255 relief and vacatur of the conviction. At this juncture,

however, the correct course is more modest, and straightforward: Because

Petitioner challenges the exact same predicate offense at issue in Delligatti, and

presses the same merits argument as the defendant there, this petition should be

held for Delligatti. If the defendant in Delligatti prevails, Petitioner’s § 924(c)

conviction would have no valid predicate. This Court should then grant this

petition, vacate the order of the Court of Appeals denying a COA, and remand this

case for further proceedings. See, e.g., Howard v. United States, No. 20–8372 (U.S.

June 27, 2022) (GVR’ing order denying COA following Taylor, where § 924(c)

conviction was predicated on attempted Hobbs Act robbery); Brito v. United States,

No. 21–5097 (U.S. June 27, 2022) (same).

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CONCLUSION

The petition for a writ of certiorari should be held for Delligatti.

Respectfully submitted,

/s/

Daniel Habib

Counsel of Record

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, NY 10007

(212) 417–8742

daniel_habib@fd.org

July 2, 2024

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