Hughes v. USA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
-v- 	3:14-CR-389-1 (DNH)
3:23-CV-384 (DNH)
LESLIE HUGHES,
Defendant.
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APPEARANCES: 	OF COUNSEL:
UNITED STATES ATTORNEY 	RICHARD SOUTHWICK, ESQ.
Northern District of New York 	Ass’t United States Attorney
100 South Clinton Street
Syracuse, NY 13261
LESLIE HUGHES
Petitioner-Defendant, Pro Se
15 Charlotte Street
Binghamton, NY 139051
DAVID N. HURD
United States District Judge
ORDER TRANSFERRING HABEAS PETITION
I. INTRODUCTION
Petitioner-defendant Leslie Hughes (“petitioner”) has moved to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255. Dkt. No. 232. The
1 Petitioner’s last known address is listed as a BOP facility, but records show he is no longer in
BOP custody.
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United States of America (the “Government”) has opposed. Dkt. No. 240.
After petitioner replied, Dkt. No. 242, the matter was reassigned to this
Court for a decision, Dkt. No. 243.
The motion has been fully briefed and will be considered on the basis of
the submissions without oral argument.
II. BACKGROUND
On October 22, 2014, a federal grand jury returned a one-count indictment
that charged petitioner with a large-scale drug trafficking conspiracy. Dkt.
No. 107. The indictment specifically alleged that petitioner was responsible
for more than 280 grams of cocaine base and more than 100 grams of heroin.
Id. The indictment further alleged that, based on prior convictions, petitioner
was subject to certain federal enhanced penalty provisions. Id.
The matter was initially assigned to Senior U.S. District Judge Thomas J.
McAvoy. Shortly after the return of the indictment, the Government filed an
Enhanced Penalty Information under § 851 alleging that petitioner had been
convicted of state-law felony drug offenses. Dkt. No. 126. Petitioner took the
case to trial in late February of 2015. Dkt. No. 147.
After hearing three days of proof and deliberating for part of a fourth day,
the jury convicted petitioner of the drug trafficking conspiracy alleged in the
indictment. Dkt. No. 153. At that time, the jury found that petitioner was
responsible for at least 280 grams of cocaine base and at least 100 grams of
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heroin. Id. Judge McAvoy denied petitioner’s post-trial motions. Dkt. No.
171.
On August 19, 2015, Judge McAvoy sentenced petitioner to the mandatory
minimum term of life imprisonment based on the application of the so-called
“three strikes law.” Dkt. No. 180. There, Judge McAvoy stated:
THE COURT: . . . the statute says this is the sentence
I have to impose and that’s what I’m going to do. And
just because your client may have been a low level
dealer you claim doesn’t wipe out the fact that every
time he was put on any kind of court-sponsored control
he violated it. 	He has absolutely no history of trying
to overcome the problems that he’s had during his life
and go out and make a living like everybody else does.
He just seems to be bent toward committing crime
after crime after crime regardless of what any Court
says to him, what any probation department or parole
official says. 	He’s going to do what he wants to do.
What I say to him isn’t going to make any difference
either, [the Assistant U.S. Attorney] was right about
that, so I’m going to get on with it.
Dkt. No. 180 at 27–28.
Petitioner took a direct appeal, Dkt. No. 182, but a panel of the U.S. Court
of Appeals granted summary affirmance. Dkt. No. 188. After the Mandate
issued, petitioner wrote to Judge McAvoy to complain that “his due process
rights” and his Sixth Amendment right to counsel were violated because his
appeal “was never filed.” Dkt. No. 189.
Judge McAvoy construed petitioner’s letter as an attempt to file a § 2255
motion. Dkt. No. 190. At that time, Judge McAvoy gave petitioner thirty
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days to amend, supplement, or withdraw the § 2255 motion. Id. Thereafter,
petitioner filed pro se supplemental § 2255 briefing. Dkt. Nos. 197–98.
Liberally construed, petitioner’s filings: (1) asserted ineffective-assistance
claims against his counsel; (2) challenged the validity of his conviction based
on, inter alia, the sufficiency of the evidence; and (3) insisted that, under the
“categorical approach,” his prior convictions did not qualify as “felony drug
offenses” for purposes of the career offender law.
On November 26, 2018, Judge McAvoy denied and dismissed petitioner’s §
2255 motion. Dkt. No. 201. There, Judge McAvoy rejected the argument that
petitioner had been denied a direct appeal. As Judge McAvoy explained, his
counsel filed a notice of appeal, his appellate counsel filed a so-called Anders
brief, and the Second Circuit granted summary affirmance. This procedure is
not available unless appellate counsel demonstrates that a diligent search of
the record reveals no non-frivolous issues for appeal.
In addition, Judge McAvoy also rejected petitioner’s ineffective-assistance
claims against his trial counsel regarding certain “newly obtained” evidence,
for failing to object to certain aspects of the jury instructions, for not moving
for a new trial on sufficiency grounds, for allegedly failing to present certain
“mitigation evidence” to be used at sentencing, and for presenting allegedly
inconsistent defense theories. Dkt. No. 201.
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Further, although petitioner’s substantive challenges to his conviction and
sentence were procedurally barred, Judge McAvoy determined that, “[e]ven
interpreting these [ ] challenges as inartfully drafted ineffective assistance of
counsel claims, [these] claims fail[ed] because, if the issues were raised by
defense counsel or appellate counsel, they would have provided Defendant no
relief.” Dkt. No. 201 at 18–22.
Because Judge McAvoy had declined to issue a certificate of appealability,
Dkt. No. 201, petitioner moved for one from the Second Circuit, Dkt. 202, but
this request was denied because he had failed to make a substantial showing
of the denial of a constitutional right. The Mandate issued on November 13,
2019. Dkt. No. 204.
On March 25, 2021, petitioner moved pro se for a sentence reduction under
18 U.S.C. § 3582(c)(1)(A). Dkt. No. 205. Judge McAvoy appointed the Office
of the Federal Public Defender, Dkt. No. 206, who filed briefing in support of
the motion. Dkt. No. 208. After the Government opposed, Dkt. No. 21, Judge
McAvoy granted petitioner’s motion in part and modified his life sentence to a
term of 180 months’ imprisonment followed by a ten-year term of supervised
release. Dkt. No. 226. An amended judgment was entered on April 21, 2022.
Dkt. No. 227.
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On March 27, 2023, petitioner filed this § 2255 motion. Dkt. No. 232. The
motion was briefed, Dkt. Nos. 240, 242, and then reassigned to this Court for
a decision on March 27, 2025. Dkt. No. 243.
III. LEGAL STANDARD
Congress enacted § 2255 in 1948 because federal courts in certain judicial
districts were getting swamped by habeas corpus petitions. United States v.
Hayman, 342 U.S. 205, 213–14 (1952). Section 2255 was passed as a habeas-
type remedy that returned jurisdiction over challenges to the validity of a
federal conviction to the sentencing court. United States v. Addonizio, 442
U.S. 178, 185 (1979).
Under § 2255, “a prisoner in custody under sentence of a [federal] court . . .
claiming the right to be released . . . may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” But § 2255 is not a
substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165
(1982). A legal or factual error that might warrant relief on direct review is
typically insufficient under § 2255. Addonizio, 442 U.S. at 184.
Instead, § 2255 strikes a balance between the value of error-correction and
the respect for finality in criminal sentences. United States v. Bokun, 73 F.3d
8, 12 (2d Cir. 1995). Thus, relief is available “only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of law or fact that
constitutes ‘a fundamental defect which inherently results in a complete
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miscarriage of justice.’” Id. (quoting Hill v. United States, 368 U.S. 424, 428
(1962)).
Procedurally, a court presented with a 28 U.S.C. § 2255 motion must
follow the Rules Governing § 2255 Proceedings for the United States District
Courts. Under those Rules, a trial court can decide meritless claims on the
basis of the papers, with or without a response from the Government. Rule
4(b); Rule 7(a). If a claim requires factual development, the court can order
discovery or expand the paper record. Rule 6; Rule 7. Thereafter, the court is
expected to hold an evidentiary hearing “unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.”
§ 2255(b). As the Second Circuit has explained:
The procedure for determining whether a hearing is
necessary is in part analogous to, but in part different
from, 	a 	summary 	judgment 	proceeding. 	The
petitioner’s motion sets forth his or her legal and
factual claims, accompanied by relevant exhibits: e.g.,
an affidavit from the petitioner or others asserting
relevant facts within their personal knowledge and/or
identifying other sources of relevant evidence. 	The
district court reviews those materials and relevant
portions 	of 	the 	record 	in 	the 	underlying 	criminal
proceeding. 	The 	court 	then 	determines 	whether,
viewing the evidentiary proffers, where credible, and
record in the light most favorable to the petition, the
petitioner, 	who 	has 	the 	burden, 	may 	be 	able 	to
establish at a hearing a prima facie case for relief. 	If
material facts are in dispute, a hearing should usually
be held, and relevant findings of fact made.
Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (cleaned up).
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Where, as here, a defendant proceeds without counsel, his submissions
must be liberally construed and read “to raise the strongest arguments that
they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006) (emphasis in original). But the defendant still bears the ultimate
burden of proving his claim by a preponderance of the evidence. Triana v.
United States, 205 F.3d 36, 40 (2d Cir. 2000). “Airy generalities, conclusory
assertions and hearsay statements will not suffice because none of these
would be admissible evidence at a hearing.” United States v. Aiello, 814 F.2d
109, 113 (2d Cir. 1987). Nor is a court required to credit factual assertions
that are “contradicted by the record in the underlying proceeding.” Puglisi,
586 F.3d at 214.
IV. DISCUSSION
Petitioner contends that he is entitled to 28 U.S.C. § 2255 relief because of
“newly discovered facts” in one of his co-conspirator’s cases. Dkt. No. 232 at
3. As he explains, his prior state-law felony convictions are invalid predicate
crimes for the sentencing enhancements he initially received. Id. According
to him, equitable tolling of the one-year statute of limitations should apply to
this argument. See id.
In opposition, the Government contends that: (1) this § 2255 motion must
be transferred to the U.S. Court of Appeals for permission to proceed because
it is “second or successive”; (2) the petition should be dismissed because the
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statute of limitations has expired and tolling is inappropriate; (3) the petition
is moot because petitioner has already received relief when Judge McAvoy
granted his § 3582(c) motion for a sentence reduction; and, relatedly, (4) any
further reduction would run afoul of the sentencing factors. Dkt. No. 240.
Upon review, this § 2255 petition2 must be transferred to the U.S. Court of
Appeals for the Second Circuit because petitioner has already sought § 2255
relief, which Judge McAvoy denied on the merits. Dkt. No. 201.
The general rule is that a petitioner cannot file a “second or successive” §
2255 motion unless he gets permission from the court of appeals. 28 U.S.C. §
2255(h). This requirement is jurisdictional and cannot be waived. Burton v.
Stewart, 549 U.S. 147, 152 (2007).
Where, as here, the petitioner has filed a “second or successive” petition
without authorization, the district court is supposed to transfer the case to
the court of appeals pursuant to 28 U.S.C. § 1631. See Liriano v. United
States, 95 F.3d 119, 123 (2d Cir. 1996).
The statute does not define what counts as “second or successive.” Corrao
v. United States, 152 F.3d 188, 191 (2d Cir. 1998). In the Second Circuit, a
petition is “second or successive” if a prior § 2255 petition that raises claims
2 Under 28 U.S.C. § 2255, a petitioner must be “in custody” in order to mount a collateral attack
on the validity of his conviction and sentence. See, e.g., Scanio v. United States, 37 F.3d 858, 860 (2d
Cir. 1994). Although it appears that petitioner has been released from prison, he remains subject to
supervised release, which satisfies this requirement. See id.
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about the same conviction and sentence has already been decided on the
merits.3 See, e.g., Quezada v. Smith, 624 F.3d 514, 517–18 (2d Cir. 2010).
It is beyond dispute that petitioner previously filed a § 2255 motion, Dkt.
No. 198, that Judge McAvoy denied that petition on the merits, Dkt. No. 201,
and that there was a final adjudication, Dkt. No. 204, before petitioner filed
this second motion four years later, Dkt. No. 232. Courts routinely conclude
that this is enough to make the second filing successive.4 See United States v.
Binday, 2024 WL 4664032, at *4 (S.D.N.Y. Nov. 4, 2024).
The challenging variable presented here is that Judge McAvoy entered an
amended judgment when he reduced petitioner’s sentence from life to 180
months in prison. Dkt. No. 227.
Although the Second Circuit has not yet weighed in on whether a § 3582(c)
sentence reduction results in a “new” judgment, other courts have concluded
that a § 3582(c) sentence reduction does not reset the habeas clock. See, e.g.,
Jones v. United States, 2024 WL 2701677 (D. Conn. May 24, 2024) (holding
3 Under a narrow exception called the “savings clause,” a petitioner can file a § 2241 petition if
he can show that § 2255 relief is “inadequate or ineffective.” § 2255(e). But this exception requires
the petitioner to show “actual innocence” on the existing record that could not have been effectively
raised at an earlier time. Dhinsa v. Krueger, 917 F.3d 70, 81 (2d Cir. 2019). This exception does not
and cannot apply because petitioner has not made anything approaching this kind of showing. See,
e.g., Darby v. United States, 508 F. App’x 69, 71 (2d Cir. 2013) (summary order) (explaining that the
“actual innocence” exception does not apply where the petitioner is making a legal argument).
4 To the extent that petitioner might be understood to argue that he is trying to alter or amend
or otherwise seek relief from the judgment in his first § 2255 motion, Banister v. Davis, 590 U.S. 504
(2020), that claim is untimely and/or meritless.
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that a sentence reduction “amended the prior judgment without rendering it
invalid”); United States v. Morris, 2021 WL 2036544, at *3 (D. Kan. May 21,
2021) (holding substantially same).
Notably, Judge McAvoy did not find that petitioner’s underlying conviction
was invalid or that his original life sentence was legally erroneous. Instead,
Judge McAvoy concluded that extraordinary and compelling reasons justified
a reduction in the life sentence. Dkt. No. 226.
IV. CONCLUSION
In sum, petitioner’s motion appears to be a “second or successive” one that
raises a legal theory related to his initial conviction and sentence. Although
Judge McAvoy later reduced that sentence from life in prison to 180 months,
that discretionary determination did not “reset” the habeas clock in the way
that a “new, intervening judgment” might have done. See, e.g., Jones, 2024
WL 2701677, at *3. Because petitioner has not received authorization to file
this motion from the court of appeals, it must be transferred to that tribunal
for consideration in the first instance.
Therefore, it is
ORDERED that
Defendant’s § 2255 motion is TRANSFERRED to the U.S. Court of Appeals
for the Second Circuit pursuant to 28 U.S.C. § 1631.
IT IS SO ORDERED.
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Dated: December 17, 2025
Utica, New York.
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