Fleury v. United States

Background

Peter Fleury filed a petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence or conviction after the ordinary appeal process. He was convicted by a jury in 2000 of bank robbery, armed bank robbery, using a firearm during a crime of violence, and being a felon in possession of a firearm. His bank-robbery conviction was dismissed at sentencing because it was included within the armed-bank-robbery conviction. He received a total principal sentence of 322 months.

Fleury was sentenced as a career offender under the United States Sentencing Guidelines. The prior convictions used for that classification were a 1989 New York controlled-substance conviction and a 1982 New York second-degree robbery conviction. His 2016 petition argued, based on Johnson v. United States, that the 1982 robbery conviction and the armed-bank-robbery conviction were not crimes of violence and therefore could not support his career-offender classification. He also later challenged his firearm conviction under Davis v. United States, which held that the residual clause of 18 U.S.C. § 924(c) was unconstitutionally vague.

Rulings on the 2016 Petition

The court denied the arguments concerning the career-offender classification. Relying on Second Circuit precedent, it held that all degrees of robbery under New York law qualified as crimes of violence under the force clause of the applicable Guidelines definition. The force clause covers offenses that involve the use, attempted use, or threatened use of physical force. Because the 1982 New York robbery conviction qualified under that clause, it remained a valid career-offender predicate.

The court also held that armed bank robbery categorically qualified as a crime of violence under the force clause. It therefore rejected Fleury’s argument that his armed-bank-robbery conviction could not support his sentence.

Fleury separately argued that the 1989 controlled-substance conviction no longer qualified as a career-offender predicate under United States v. Townsend. The court held that Townsend could not provide relief because it did not announce a new constitutional rule and had not been made retroactively applicable to cases on collateral review.

The court also rejected Fleury’s challenge to the firearm conviction based on the residual clause of § 924(c). Because the armed-bank-robbery conviction qualified as a crime of violence under the force clause, the court concluded that it did not need to address the residual-clause argument.

Rehaif Argument

In a July 11, 2019 letter, Fleury raised a new argument based on Rehaif v. United States. Rehaif held that, for a conviction under 18 U.S.C. § 922(g), the government must prove that the defendant knew both that he possessed a firearm and that he belonged to the category of people barred from possessing one. Fleury argued that his felon-in-possession conviction should therefore be vacated.

The court denied this argument as procedurally defaulted. Procedural default generally prevents a defendant from raising a claim in a collateral proceeding when he failed to raise it on direct appeal, unless he shows a legally sufficient reason for that failure and actual harm, or shows actual innocence. Fleury had not raised the knowledge-of-status issue on direct appeal or in his 2016 petition. He did not explain what prevented him from raising it earlier, and the court found that he had not shown actual harm or actual innocence. The court also noted that the new issue should have been presented, if at all, to the Court of Appeals in a successive petition.

Disposition

Judge Denise Cote denied Fleury’s June 21, 2016 petition and denied the July 11, 2019 Rehaif argument as procedurally defaulted. The court declined to issue a certificate of appealability because Fleury had not made the required substantial showing that a constitutional right had been denied. It also certified that any appeal would not be taken in good faith and directed the Clerk of Court to close the case.