Hilario-Bello v. United States

Background

A jury found Hilario-Bello guilty of conspiracy to commit Hobbs Act robbery, conspiracy to commit kidnapping, two substantive Hobbs Act robberies, possessing and brandishing a firearm during and in relation to one robbery, and conspiracy to distribute narcotics. The charges arose from the government’s allegation that he participated in a violent armed robbery crew targeting drug dealers and business owners. The court sentenced him to 235 months in prison.

After his conviction was affirmed on direct appeal, Hilario-Bello filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence based on constitutional or other fundamental legal errors. He argued that his trial lawyer, Steven F. Pugliese, provided ineffective assistance; that Count Two of the indictment was insufficient because it identified an intersection that did not exist; and that his firearm conviction under 18 U.S.C. § 924(c) was invalid after the Supreme Court’s decision in United States v. Davis. The court also resolved an earlier, counseled § 2255 motion raising the firearm issue under Johnson v. United States.

Ineffective Assistance of Counsel

The court denied relief without holding an evidentiary hearing. It applied the standard from Strickland v. Washington, under which a defendant must show both that counsel’s performance fell below an objectively reasonable standard and that the alleged errors probably affected the result.

The court rejected Hilario-Bello’s claim that Pugliese inadequately cross-examined cooperating witnesses. The trial record showed that counsel questioned the witnesses about their possible sentences, incentives to testify favorably for the government, and criminal histories. The court also found a tactical justification for questions that elicited testimony about an uncharged robbery because the questions were intended to show that a cooperating witness had withheld information from the government. Hilario-Bello did not show that different questioning would probably have changed the trial’s outcome.

The court also rejected the claim that counsel failed to challenge the jury instructions. The trial transcript showed that discussions about the jury charge and objections to it occurred on the record. The court concluded that the off-the-record discussions identified by Hilario-Bello appeared to concern scheduling or administrative matters.

Finally, the court rejected the claim that counsel should have called an alibi witness known as “Wendy” or introduced evidence that the vehicle used in the robbery had previously been reported stolen. Evidence about the stolen vehicle had already been introduced by stipulation. Hilario-Bello provided no evidence, apart from his own unsupported assertions, showing what the potential witness would have said or that the testimony would have helped him. The court concluded that these ineffective-assistance claims failed and dismissed them.

Indictment Challenge

Hilario-Bello argued that Count Two violated due process because it described the location of the Barber robbery as being near “230th Street and Sedgewick Avenue,” streets that he said did not intersect. The court noted that he had already raised the indictment’s sufficiency on direct appeal and that the appeals court had found the indictment sufficiently specific to inform him of the charges and allow him to defend against them. The court therefore rejected this claim as procedurally barred because a § 2255 motion cannot ordinarily be used to relitigate an issue already decided on direct appeal.

The court separately stated that any claim based on counsel’s failure to challenge the indictment at trial would also fail because the indictment was sufficient and such a challenge would have been meritless.

Firearm Conviction

Hilario-Bello argued that his conviction under § 924(c) was unconstitutional after Davis invalidated the statute’s “risk-of-force” or residual clause as too vague. The court first held that the claim was procedurally defaulted because Hilario-Bello had not raised it on direct appeal and had not shown a legally sufficient reason for that failure or actual innocence.

The court also rejected the claim on the merits. Section 924(c) requires a firearm conviction to be connected to a qualifying “crime of violence.” After Davis, an offense qualifies under the statute’s elements clause if it includes the use, attempted use, or threatened use of physical force against a person or property. Relying on Second Circuit precedent, the court held that completed Hobbs Act robbery remains a qualifying crime of violence under that clause. Because Hilario-Bello’s firearm conviction was based on the Hobbs Act robbery charged in Count Thirteen, the court found the conviction valid.

Disposition

The court denied Hilario-Bello’s motions to vacate, set aside, or correct his sentence. It declined to issue a certificate of appealability, certified that an appeal would not be taken in good faith, and denied permission to proceed without paying filing fees. The clerk was directed to terminate the relevant criminal motions and close the related civil cases, Nos. 16 Civ. 4971 (JFK) and 19 Civ. 6964 (JFK).