Fernandez v. United States, 1:17-cv-04806

Background

Petitioner Joe Fernandez was convicted by a jury (March 7, 2013) of conspiracy to commit murder-for-hire (18 U.S.C. § 1958) and causing death by use of a firearm in the course of that conspiracy (18 U.S.C. § 924(j)); sentenced to two consecutive life terms plus supervised release and a $200 assessment.
At trial key government witness Patrick Darge testified that he recruited Fernandez as a backup shooter, told him he was "hired to murder two guys," offered Fernandez $40,000, and instructed him to bring his own gun; Darge testified Fernandez arrived after the shooting and said he "had to make sure they were both dead."
Fernandez filed a pro se § 2255 petition (June 28, 2017) arguing (1) the aiding-and-abetting jury charge was deficient under Rosemond v. United States, and (2) the § 924(c) "use" instruction was deficient under Bailey v. United States; he also alleged ineffective assistance of trial and appellate counsel for failing to raise these issues on direct appeal or at the plea stage.
Direct appeal was denied; Fernandez v. United States, 648 F. App'x 56 (2d Cir. 2016), and certiorari was denied. The § 2255 motion proceeded in the Southern District of New York.
The court construed the pro se submission liberally but denied relief, holding the Rosemond-based claim procedurally defaulted and, in any event, not prejudicial given the trial evidence; the Bailey-based challenge also failed on the merits and as procedurally defaulted; ineffective-assistance claims were denied for lack of prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Aiding-and-abetting instruction under § 924(c) (Rosemond)	Jury charge failed to require "advance knowledge" of a gun; Rosemond requires advance knowledge to convict an aider/abettor under § 924(c).	Rosemond (and similar claims) were available on direct appeal; Fernandez did not raise them and cannot show cause and prejudice or actual innocence to excuse default.	Claim procedurally defaulted; alternatively no prejudice because trial evidence showed Fernandez had advance knowledge and actively participated.
Definition of "use" under § 924(c) (Bailey)	Jury instruction did not adequately require "active employment" of the firearm as Bailey requires.	Instruction tracked Bailey by requiring "active employment"; evidence showed weapons were actively employed.	Instruction was sufficient and claim also procedurally defaulted; no Strickland prejudice.
Ineffective assistance of appellate counsel for not raising above issues	Appellate counsel's failure to raise Rosemond/Bailey claims on direct appeal was constitutionally deficient, excusing procedural default.	Even if counsel erred, Fernandez cannot show Strickland prejudice because the evidence overwhelmingly established the necessary elements.	Ineffective-assistance claim rejected for lack of prejudice under Strickland.
Ineffective assistance at plea stage (failure to advise re: Rosemond/Bailey)	If properly advised, Fernandez would have accepted a non-trial plea and avoided conviction.	No evidence counsel's advice was deficient; no reasonable probability of a different outcome.	Claim denied for failure to show deficient performance or prejudice.

Key Cases Cited

Rosemond v. United States, 134 S. Ct. 1240 (2014) (aider/abettor under § 924(c) must have advance knowledge of a firearm's presence)
Bailey v. United States, 516 U.S. 137 (1995) (§ 924(c) requires active employment of a firearm)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
Thorn v. United States, 659 F.3d 227 (2d Cir. 2011) (procedural default standard for § 2255 claims)
Coleman v. Thompson, 501 U.S. 722 (1991) (cause for procedural default must be external to petitioner)
Martinez v. Ryan, 566 U.S. 1 (2012) (attorney errors on direct appeal can sometimes provide cause to excuse default)
Bousley v. United States, 523 U.S. 614 (1998) (actual innocence means factual innocence; collateral relief exceptions)
Teague v. Lane, 489 U.S. 288 (1989) (retroactivity framework for new rules on collateral review)
Schriro v. Summerlin, 542 U.S. 348 (2004) (distinguishing substantive from procedural new rules)
United States v. Medina, 32 F.3d 40 (2d Cir. 1994) (pre-Rosemond Second Circuit precedent requiring more than mere knowledge to sustain § 924(c) aiding/abetting liability)
Schlup v. Delo, 513 U.S. 298 (1995) (standard for actual-innocence gateway to overcome procedural default)
Harrington v. Richter, 562 U.S. 86 (2011) (Strickland prejudice requires reasonable probability of different result)