□□ □□ NN ee USDC SDNY yr UNITED STATES DISTRICT COURT DOCINENT I SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED wont enna □□□□□□□□□□□□□□□□□□□□□ X DOC #: ANGEL VELASQUEZ, : DATE FILED: _// Ht i Petitioner, : ORDER AND OPINION -against- : GRANTING PETITION FOR : HABEAS CORPUS UNITED STATES OF AMERICA, : > 18 Civ. 6139 (AKH) Respondent. : 16 Cr. 233 (AKH) □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ ALVIN K. HELLERSTEIN, U.S.D.J.: Petitioner Angel Velasquez filed this petition on July 2, 2018, pursuant to 28 \ U.S.C. § 2255 to vacate his conviction for possession of a firearm in connection with a crime of violence or drug tacking crime, in violation of

(c) (Count Four). For the reasons that follow, the petition is granted. he, . I stayed the petition in September 2018, in anticipation of ongoing Second Circuit and Supreme Court cases.expected to bear on the outcome of petitioner’s claim. After the Supreme Court’s decisign in United States y. Davis,

(2019), which held that

(c)(3)(B) is unconstitutionally vague, and the Second Circuit’s decision in United States v. Barrett,

(2d Cir. 2019), which held that Hobbs Act robbery conspiracy is not a “crime of violence” predicate offense capable of satisfying § 924(c), I lifted the stay. , The government concedes that under Davis and Barrett, petitioner’s guilty plea to \ . a Hobbs Act robbery conspiracy (Count One) can no longer serve as a § 924(c) predicate offense for Count Four. See ECF No. 12. The government instead argues that (a) petitioner procedurally defaulted on his present argument by failing to raise it on direct appeal, and (b) Count Four need not rely on the Hobbs Act robbery conspiracy, because the indictment also charged petitioner with attempted Hobbs Act robbery (Count Two) and conspiracy to distribute narcotics (Count Three), both of which the government argues are viable predicates. See id. at 4, 6.

In several recent orders, I rejected arguments substantially the same as those put forth by the government here. See Camacho v. United States, 17-cv-5199, ECF No. 675; Roman y. United States, 16-cv-4829, ECF No. 12; Jimenez v. United States, 16-cv-4653, ECF No. 6. For the reasons set forth in those decisions, and in light of the fact that petitioner’s plea allocution did not address any potential predicate offense aside from Hobbs Act robbery conspiracy, I grant the instant petition. Petitioner shall appear for resentencing on nutes T2014 @/). 30g - Clerk shall terminate the open motion (16-cr-233, ECF No. 77).

SO ORDERED. Dated: ocsabod/, 2019 Clb ft (lta New York, New York ALVIN K. HELLERSTEIN United States District Judge