Herrera v. United States

Background

Curt Herrera, representing himself, filed a petition under 28 U.S.C. § 2255 seeking to vacate convictions on Counts 28, 29, 30, 32, and 40. A jury convicted him in 1993 on twenty-five counts involving his role in the Moya/Paige Organization. He received ten concurrent life sentences on other counts and additional consecutive sentences on the five challenged counts.

The five challenged counts involved using firearms in connection with crimes of violence under 18 U.S.C. § 924(c). Counts 28, 29, 30, and 32 were based on kidnapping or murder in aid of racketeering. Count 40 was based on a conspiracy involving damage to or destruction of property by explosives. The petition relied on the Supreme Court’s decisions in Johnson v. United States and United States v. Davis. The Second Circuit had authorized Herrera to file this later § 2255 petition.

Court’s reasoning

The court applied the concurrent sentence doctrine. That doctrine allows a court to decline to decide a challenge when winning would not reduce the prisoner’s time in custody and the challenged conviction would not create meaningful additional harmful consequences.

The court found that vacating Counts 28, 29, 30, and 32 would not reduce Herrera’s imprisonment because he remains subject to ten unchallenged life sentences. The court also found no meaningful additional consequences from leaving those convictions in place. It reasoned that the convictions would not affect parole eligibility, create a realistic risk of increased punishment under future repeat-offender laws, significantly affect his credibility or pardon prospects, or add meaningful social stigma compared with his other unchallenged convictions.

Disposition

The petition was denied as to Counts 28, 29, 30, and 32 under the concurrent sentence doctrine. Count 40 was vacated based on the government’s agreement, and the court ordered that there would be no resentencing. The denial was without prejudice to Herrera renewing his claim if he later becomes authorized to challenge the validity of his life sentences.

The court stated that Herrera had not made the required substantial showing that a constitutional right had been denied, so it would not issue a certificate of appealability. It also certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The clerk was directed to enter judgment for the United States, close the civil case, and mail Herrera the opinion and amended judgment.