Frazier v. United States

Background

Diamante Frazier filed a petition under 28 U.S.C. § 2255 challenging his conviction under 18 U.S.C. § 924(c). That statute imposes criminal penalties for using or carrying a firearm during and in relation to a crime of violence. Frazier specifically challenged Count 14, which charged brandishing a firearm in connection with assault with a dangerous weapon and attempted murder in aid of racketeering, charged in Count 2. The opinion states that his plea did not encompass the narcotics-conspiracy predicate charged in Count 3.

Frazier relied on United States v. Davis, which held that § 924(c)’s residual clause—the part defining a crime of violence by asking whether the offense creates a substantial risk that force may be used—was unconstitutionally vague. Frazier argued that the offenses underlying Count 14 did not qualify under § 924(c)’s elements clause, which requires an offense to include the use, attempted use, or threatened use of physical force against a person or property.

Procedural Default

The government argued that Frazier’s challenge was procedurally defaulted. A claim is procedurally defaulted when a defendant could have raised it earlier, such as on direct appeal, but did not do so. The court explained that collateral review under § 2255 generally is unavailable unless the defendant shows a valid reason for the omission and actual prejudice, or shows factual innocence.

Frazier did not dispute that he failed to raise the vagueness challenge on direct appeal. He argued that Davis had not yet been decided. Judge Cathy Seibel rejected that explanation. The court noted that Frazier’s conviction became final on April 17, 2019, and that before then the Supreme Court had decided Johnson II and Sessions v. Dimaya, which involved similarly worded provisions. The court concluded that the vagueness challenge was available when Frazier could have raised it. The fact that the challenge might have failed under then-controlling circuit precedent did not excuse the failure to preserve it. Because Frazier did not establish cause, the court held that the claim was procedurally defaulted and stated that the petition therefore had to be dismissed. The court said it did not need to address prejudice or actual innocence.

Merits Analysis

The court nevertheless reached the merits as an additional matter. It concluded that Count 14 remained valid after Davis because its predicates categorically qualified as crimes of violence under the elements clause. Under the categorical approach, the court examines the statutory elements rather than the particular facts of the defendant’s conduct. The relevant force must be “violent force,” meaning force capable of causing physical pain or injury.

The court determined that assault with a dangerous weapon and attempted murder under New York law meet that requirement. It relied on decisions from the Second Circuit and courts within the circuit finding that attempted murder and assault with a dangerous weapon involve the use of physical force. The court also rejected reliance on merely theoretical possibilities that the statutes might be applied to nonviolent conduct, explaining that the required showing must involve a realistic probability of such an application.

The court concluded that the New York offenses underlying the racketeering charges were crimes of violence under § 924(c)(3)(A), and that the related violent crimes in aid of racketeering therefore also qualified. Because those offenses supported the challenged § 924(c) conviction, the conviction remained valid.

Disposition

Judge Cathy Seibel denied the petition. The court also ruled that Frazier had not made a substantial showing of a denial of a constitutional right and therefore would not receive a certificate of appealability. The clerk was directed to docket the order in both listed cases, terminate the relevant docket entry, and close the civil case.