Rose v. United States

Background

Floyd Rose petitioned under 28 U.S.C. § 2255, a federal procedure allowing a person in custody to seek correction or invalidation of a sentence on specified constitutional or legal grounds. Rose proceeded without a lawyer. He challenged the sentence imposed after his guilty plea to one count of Hobbs Act robbery under 18 U.S.C. § 1951.

The charge arose from a June 10, 2015 incident in which Rose and James Arberry forced an individual to withdraw money from a Citibank ATM and give it to them. The Government stated during the plea proceeding that the bank involved in the withdrawal engaged in interstate commerce. Rose pleaded guilty, and the court accepted the plea. The court later imposed a sentence of 60 months in prison and three years of supervised release, below the parties’ agreed Guidelines range of 77 to 96 months in prison.

Rose had previously challenged the refusal to let him withdraw his guilty plea on direct appeal. The Second Circuit affirmed, holding that Hobbs Act robbery requires only a minimal effect on interstate commerce and that forcing an individual to withdraw money from an ATM of a bank engaged in interstate commerce satisfied that requirement. The Supreme Court denied Rose’s request for review on January 7, 2019.

Rose’s Claims

Rose raised three principal arguments. First, he argued that the Hobbs Act’s interstate-commerce element was too unclear to enforce under the rule of lenity, which requires ambiguous criminal laws to be interpreted in the defendant’s favor. Second, he claimed that his lawyers were ineffective during the plea, sentencing, and appeal stages. Third, he argued that he was actually innocent of separate bank-robbery charges under 18 U.S.C. § 2113 that had been dismissed at sentencing, and that this supposedly showed he was also innocent of the Hobbs Act charge.

Court’s Analysis

The court held that the interstate-commerce argument was barred by the mandate rule. That rule prevents a district court from reconsidering issues that were decided, or necessarily resolved, during a defendant’s direct appeal. The court also stated that the argument failed on the merits because the Second Circuit had already held that the Hobbs Act reaches conduct producing any interference with or effect on interstate commerce, even if the effect is slight, subtle, or potential. The court concluded that Rose’s conduct met that standard because it targeted money from a bank engaged in interstate commerce.

The court similarly rejected Rose’s ineffective-assistance claims. Claims based on counsel’s failure to raise the interstate-commerce or rule-of-lenity arguments were barred because those issues had been addressed on direct appeal and could not be repackaged as ineffective-assistance claims. Rose’s argument that counsel should have objected to the use of a knowing mental-state requirement also failed. The court explained that Elonis v. United States supported reading criminal statutes to include a mental-state requirement even when the statute does not expressly state one. Because the proposed objection was meritless, counsel’s failure to make it did not show deficient performance under the two-part ineffective-assistance test from Strickland v. Washington.

The court rejected the actual-innocence claim as well. The bank-robbery charges had been dismissed, so Rose had not been convicted or sentenced on them. In addition, factual innocence requires evidence showing that, considering all the evidence, it was more likely than not that no reasonable juror would have convicted the defendant. The court found that Rose offered no such evidence. Instead, his argument repeated the same legal theory about interstate commerce that had already been rejected on direct appeal, so the mandate rule also barred it.

The court stated that any argument that Rose’s original lawyer had coerced his guilty plea had already been considered and rejected after an evidentiary hearing. Rose identified no legal basis for setting aside that earlier ruling, so the court did not revisit whether the plea was knowing, voluntary, and intelligent.

Disposition

The court denied the § 2255 petition. It denied Rose’s motion to expedite review as moot, declined to issue a certificate of appealability because Rose had not made the required substantial showing that a constitutional right was denied, and directed the clerk to close the civil case.