OPINION AND ORDER Ajury convicted Celaj of two counts of Hobbs Act Robbery, one count of Conspiracy to Commit Hobbs Act Robbery, and two counts of Attempted Hobbs Act Robbery. In addition, pursuant to 18 U.S.C. §924(c), the jury convicted him of one count of Discharging a Firearm, one count of Brandishing a Firearm, one count of Possession of a Firearm. 924(c) compelled the government to prove that each of the three firearms offenses was linked to Celaj’s commission of a crime of violence. The government tethered the discharging count to one of the Hobbs Act robberies, the brandishing count to one of the attempted Hobbs Act robberies, and the possession count to the other attempted Hobbs Act robbery. Attacking his convictions pursuant to 28 U.S.C. §2255, Celaj claims that his trial counsel was ineffective in five ways and that his §924(c) convictions are invalid since they are based on crimes that are not crimes of violence. In his initial habeas petition, Celaj raised two ineffective assistance claims based on trial counsel’s failure to properly advise him with respect to a plea offer and trial counsel’s refusal to allow Celaj to testify in his own defense. The Court grants an evidentiary hearing on his plea-bargaining claim but denies his testifying claim. The three additional ineffective assistance claims raised in amended petitions are denied as time-barred. Examining the 924(c) convictions requires an appreciation that, as a society, we do not punish thoughts — no matter how nefarious or lurid — as crimes. Every criminal statute requires an act before a defendant may be convicted. To commit Attempted Hobbs Act Robbery, a defendant need not perfect the robbery, but she must take a “substantial step” toward the completion of the offense. Not every step involved in planning or executing a robbery is a violent one. But some of these non-violent, preliminary steps qualify as a substantial step, establishing the minimum conduct needed to sustain a conviction for Attempted Hobbs Act Robbery. Therefore, since the government is never obligated to prove that the defendant’s conduct — not thoughts — manifested the use, attempted use, or threatened use of physical force, Attempted Hobbs Act Robbery is not a crime of violence as defined in 18 U.S.C. §924 and cannot serve as a predicate for a conviction under that statute. Accordingly, the two §924(c) convictions attached to Celaj’s Attempted Hobbs Act Robbery convictions are VACATED. However, as discussed below, his §924(c) conviction for discharging a firearm in the commission of a completed Hobbs Act Robbery stands. BACKGROUND Law enforcement arrested Celaj on July 8, 2007. (07-cr-837). On September 5, 2007, a grand jury indicted him on ten criminal counts including one count of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. §1951 (b)(1) (Count I); one count of Hobbs Act robbery in violation of 18 U.S.C. §1951 (b)(1) (Count II); one count of attempted Hobbs Act robbery in violation of 18 U.S.C. §1951(b)(1) (Count III); two counts of conspiracy to violate the Controlled Substances Act in violation of 21 U.S.C. §§812, 841(a), and 841(b)(1)(C) (Counts IV and V); one count of conspiracy to transport stolen motor vehicles in violation of 18 U.S.C. §371(Count VI); one count of mail fraud and one count of conspiracy to commit mail fraud in violation of 18 U.S.C. §§1341, 1342 (Counts VII & VIII); and two counts of using a firearm in connection with a crime of violence in violation of 18 U.S.C. 924(c) (Counts 9 & 10). (Id. at ECF 13 or “Orig. Indictment”). Chart 1 — Offenses Charged in the Original Indictment Count Offense Applicable Mandatory Sentence I Conspiracy to Commit Hobbs Act Robbery (18 U.S.C. §1951) II Hobbs Act Robbery (18 U.S.C. §1951) Robbery of money and marijuana in the Bronx III Attempted Hobbs Act Robbery (18 U.S.C. §1951) Attempted Robbery of cocaine in Manhattan IV Conspiracy to Violate Controlled Substance Act (21 U.S.C. §846) V Conspiracy to Violate Controlled Substance Act (21 U.S.C. §846) VI Conspiracy to Transport Stolen Motor Vehicles (18 U.S.C. §2313) VII Conspiracy to Commit Mail Fraud (18 U.S.C. §1341) VIII Conspiracy to Commit Mail Fraud (18 U.S.C. §§1341, 1342) IX 18 U.S.C. §924(c)(1)(A)(iii) Discharge of firearm during commission of offense in Count I 10 years consecutive to sentence imposed in Count I X 18 U.S.C. §924(c)(1)(A)(iii) Brandishing of firearm during commission of offense in Count II 25 years consecutive to sentence imposed in Count II Before trial, the government offered Celaj a plea agreement. There is no dispute that in the course of extending the offer, the government informed trial counsel, Jeremy Schneider, that if Celaj rejected the offer, the government would supersede the Indictment, adding additional substantive Hobbs Act Robbery and §924(c) charges. The parties also do not dispute that trial counsel communicated the offer to Celaj; however, Celaj alleges that trial counsel failed to inform him of the post-trial sentencing exposure, specifically as it related to the government’s threat to supersede the indictment. (13-cv-1290, ECF 1). Schneider disputes Celaj’s depiction of their communications. In an affirmation submitted to the Court, trial counsel states that he informed Celaj of the government’s threat and that a superseded indictment “significantly increased the mandatory minimum sentence [he] would face if convicted.” (13-cv-1290, ECF 55 at 26-33 or Schneider Aff. 13). Celaj rejected the deal and the government superseded the indictment. (07 Cr. 837 at ECF No. 102, or Sup. Indictment). Relevant to this case, the new indictment dismissed what was originally Count III (attempted Hobbs Act Robbery) and added two new attempted Hobbs Act Robbery counts (Sup. Indictment Counts IV and VI) as well as two new §924(c) counts for using a firearm in connection with the attempted and Hobbs Act robberies. (Sup. Indictment Counts v. and VII). Accordingly, under the new indictment, Celaj faced a mandatory minimum sentence of 82 years. Chart 2 — Offenses Charged in the Superseded Indictment Count Offense Applicable Mandatory Sentence I Conspiracy to Commit Hobbs Act Robbery (18 U.S.C. §1951) II Hobbs Act Robbery (18 U.S.C. §1951) Robbery of money and marijuana in the Bronx III 18 U.S.C. §924(c)(1)(A)(ii) Discharge of firearm during commission of offense in Count II 7 years consecutive to sentence imposed in Count II IV Attempted Hobbs Act Robbery (18 U.S.C. §1951) Attempted Robbery of Bobby Brown in Long Island V 18 U.S.C. §924(c)(1)(A)(ii); (C)(1) Brandishing a firearm during commission of offense in Count IV 25 years consecutive to sentence imposed in Count IV VI Attempted Hobbs Act Robbery — Substantive Offense Attempted Robbery near Sayville VII 18 U.S.C. §924(c)(1)(A)(I); (C)(I) Possession of a firearm in during commission of offense in Count VI 25 years consecutive to sentence imposed in Count IV VIII Hobbs Act Robbery (18 U.S.C. §1951) Robbery in Pennsylvania IX 18 U.S.C. §924(c)(1)(A)(iii) Discharge of firearm during commission of offense in Count I 25 years consecutive to sentence imposed in Count VIII X Conspiracy to Violate Controlled Substance Act (21 U.S.C. §846) XI Conspiracy to Transport Stolen Motor Vehicles and to Receive, Possess, Conceal, Store, Barter, Sell, and Dispose of Stolen Motor Vehicles (18 U.S.C. §2312 & §2313) XII Transport of Stolen Motor Vehicles (18 U.S.C. §2312) XIII Conspiracy to Commit Mail Fraud (18 U.S.C. §1341) During trial, the government and trial counsel entered into a stipulation providing: IT IS HEREBY STIPULATED AND AGREED by and among the United States of America, by PREET BHARARA, United States Attorney for the Southern District of New York, through John T. Zach and Arlo Devlin-Brown, Asssitant United States Attorneys, of counsel, and DIN CELAJ, the defendant, by and through his attorney, Jeremy Schneider, Esp., that marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area. The stipulation helped to enable the government to prove the interstate commerce elements of the Hobbs Act Robbery charges. Celaj provides that he did not agree to the stipulation. (13-cv-1290, ECF 28 or Supp. Aff. 13). Following a jury trial in this district in front of Judge Patterson, Celaj was convicted of all but two of the Superseding Indictment’s 13 counts. Specifically, the jury acquitted Celaj of Counts VIII and IX for Hobbs Act Robbery and the corresponding §924(c) count. (7-cr-837, ECF 161 or Judgment). Judge Patterson sentenced Celaj to imprisonment for nine one-month sentences to run concurrently on Counts I, II, III, IV, VI, X,XI, XII, and XIII, and for two 25-year sentences to run consecutively on Counts v. and VII for a total of 601 months. (Judgment at 3). Judge Patterson also sentenced Celaj to three years supervised release for each count to run concurrently. (Id. at 4). Celaj appealed his conviction and sentence, both of which were affirmed by the Second Circuit on February 27, 2012. U.S. v. Celaj, 649 F.3d 162 (2d Cir. 2011). The Supreme Court subsequently denied his petition for a Writ of Certiorari on February 27, 2012. U.S. v. Celaj, 132 S.Ct. 1636 (2012). On February 25, 2013, Celaj filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2255. (13 Civ. 1290 at ECF No. 1). The petition argued two separate grounds for habeas relief, both of which relied on the claim that Celaj received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. Ground One claimed that trial counsel failed to advise Celaj properly of the government’s plea offer. (Id. at 4). Ground Two claimed that trial counsel prevented Celaj from testifying at trial, despite Celaj’s request to do so. (Id. at 5). On July 15, 2013, the government responded with its opposition and an affirmation from Celaj’s trial counsel. (07 Cr. 837, ECF 189). On April 22, 2014, Celaj wrote the court requesting appointment of counsel. (13-cv-1290, ECF 16). Subsequently, Celaj amended his petition on May 27, 2014, asserting two, additional, ineffective assistance of claims for habeas relief. (13-cv-1290, ECF 11). First, Celaj claimed that counsel improperly stipulated to a material, disputed fact, which if not proved by the government, would have resulted in the dismissal of several counts of the indictment. (13-cv-1290, ECF 11 at 5). Second, counsel failed to request that the court question under oath a juror and prosecutor who had extrajudicial conversations about Celaj’s case. (Id.) The government opposed the amendment, arguing the new claims were time-barred and meritless. (13-cv-1290, ECF 13). Celaj responded to all the government’s submissions by letter dated August 12, 2014. (13-cv-1290, ECF 14). Celaj submitted a subsequent letter to the court on March 8, 2015, requesting appointment of counsel and asserting a fifth ground in support of his habeas petition — that trial counsel had a conflict of interest at the time he represented Celaj. (13-cv-1290, ECF 17). On July 24, 2015, I granted Celaj’s request for appointment of counsel. (13-cv-1290, ECF 18). With the court’s permission, Celaj’s new counsel submitted a reply in response to the government’s submissions and in further support of Celaj’s petition and amended petition. (13-cv-1290, ECF 22, 26). On June 10, 2016, Celaj’s counsel filed a request for a placeholder petition/motion to file a second or successive petition asserting a claim challenging Celaj’s §924(c) convictions in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (13-cv-1290, ECF 29). Celaj reaffirmed his desire to amend his petition in a July 14, 2017 letter and further requested that consideration of and decision on the petition be stayed pending a rehearing en banc petition in U.S. v. Hill, 832 F.3d 135 (2d Cir. 2016) and decisions in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). (13-cv-1290, ECF 37). The court consented to this request, staying the case. (13-cv-1290, ECF 38). In June 2019, the parties wrote arguing the §924(c) claim should continue to be stayed pending the Supreme Court’s decision in United States v. Davis, 139 S.Ct. 2319 (2019). (13-cv-1290, ECF 47). On November 18, 2019, after the Supreme Court had decided Davis and the Second Circuit decided Barrett, Celaj filed a supplemental memorandum of law in support of his §924(c) claim. (13-cv-1290, ECF 48). Briefing concluded January 17, 2020, (ECF No. 52), although Celaj’s counsel subsequently submitted supplemental authority. (13-cv-1290, ECF 56, 57). I. INEFFECTIVE ASSISTANCE OF COUNSEL A) LEGAL STANDARDS Pursuant to §2255,”[a] prisoner in custody under sentence of a court established by Act of Congress…may move the court which imposed the sentence to vacate, set aside or correct the sentence” on the grounds that it “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. §2255(a). A §2255 habeas petition must be brought within one year from the date of final conviction. 28 U.S.C. §2255(f)(1). For the purposes of Section 2255, where, as here, a Petitioner has filed a petition for certiorari contesting the appellate court’s affirmation of the conviction, the conviction becomes final when the United States Supreme Court denies the petition. See Green v. United States, 260 F.3d 78, 84 (2d Cir. 2001). “After that, petitions may be amended only if the new claims ‘relate back’ to the original petition, meaning that they ‘arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading.’” Ozsusamlar v. United States, 2013 WL 4623648, at *3 (S.D.N.Y. Aug. 29, 2013) (adopting report and recommendation) (quoting Fed. R. Civ. P. 15(c)(1)(B)). “In the habeas context, ‘[a]n amended habeas petition…does not relate back when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading sets forth.’” Ozsusamlar, 2013 WL 4623648, at *3 (quoting Mayle v. Felix, 545 U.S. 644, 650 (2005)). The original and amended petitions must “state claims that are tied to a common core of operative facts.” Mayle, 545 U.S. at 664. Amendments must satisfy this rule “even where both the original claims and the new claims are for ineffective assistance of counsel.” Osusamlar, 2013 WL 4623648 at *4. Relatedly, relation back will not be available “merely because the proposed claims relate to the same trial, conviction, or sentence as the original petition.” Cotton v. Burge, No. 08-cv-453S, 2009 WL 3165868, at *3 (S.D.N.Y. Sept. 26, 2009). “A defendant is generally barred from ‘collaterally challenging a conviction under §2255 on a ground that he failed to raise on direct appeal.’” Rosario Figueroa v. United States, No. 16-cv-4469, 2020 WL 2192536, at *3 (S.D.N.Y. May 6, 2020) (quoting United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011)). Ineffective assistance of counsel claims are an important exception to this rule, as they may be raised in a collateral attack regardless of “whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 509 (2003); see Yick Man Mui, 614 F.3d 50, 54-55 (2d Cir. 2010); Naranjo v. United States, No. 16-cv-7396, 2019 WL 7568186, at *3 (S.D.N.Y. Dec. 16, 2019), report and recommendation adopted by, 2020 WL 174072 (Jan. 13, 2020), aff’d, 645 Fed. Appx. 50 (2d Cir. 2016). However, even where “a defendant has procedurally defaulted a claim” not subject to exception “by failing to raise it on direct review…the claim may still be raised in a habeas petition if the defendant can ‘demonstrate either cause and actual prejudice, or that he is actually innocent.’” Rosario Figueroa, 2020 WL 2192536, at *3 (quoting Gupta v. United States, 931 F.3d 81, 84 (2d Cir. 2019) (internal punctuations and citations omitted)). Where a petitioner raises claims that are neither time-barred nor procedurally-defaulted, “Section 2255 requires the district court to hold a hearing ‘[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’” Dodakian v. United States, 2015 WL 11144511, at *23 (S.D.N.Y. Aug. 14, 2015) (quoting 28 U.S.C. §2255(b)). “To warrant a hearing on an ineffective assistance of counsel claim the defendant need establish only that he has a ‘plausible’ claim of ineffective assistance of counsel, not that ‘he will necessarily succeed on the claim.’” Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (quoting Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000) (quoting United States v. Tarricone, 996 F.2d 1414, 1418 (2d Cir. 1993)). To succeed on an ineffective assistance of counsel claim, a petitioner must satisfy the Supreme Court’s two-part test established in Strickland v. Washington, 466 U.S. 668 (1984): “Under Strickland, in order to prevail on an ineffective-assistance-of-counsel claim, a defendant must meet a two-pronged test: (1) he ‘must show that counsel’s performance was deficient,’ so deficient that, ‘in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance,’ and (2) he must show ‘that the deficient performance prejudiced the defense,’ in the sense that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ “ Rone v. United States, No. 15-cv-1417, 2019 WL 5445710, at *5 (S.D.N.Y. Oct. 24, 2019) (quoting Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011) (quoting Strickland, 466 U.S. at 687, 690, 694)). “In applying Strickland to a plea offer, ‘as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.’ An objectively reasonable attorney must ‘properly communicate’ and explain any plea offer.” Weston v. United States, No. 11-cv-2151, 2014 WL 4370034, at *2 (S.D.N.Y. Sept. 2, 2014) (quoting Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012)). Where trial counsel’s deficient performance caused the Petitioner to reject a plea offer and proceed to a trial that resulted in conviction, to satisfy the Strickland prejudice prong, the Petitioner [M]ust show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed. Lafler v. Cooper, 566 U.S. 156, 162 (2012). The court must determine “whether, viewing the evidentiary proffers, where credible, and record in the light most favorable to the petitioner, the petitioner, who has the burden, may be able to establish at a hearing a prima facie case for relief.” Puglisi, 586 F.3d at 213. Thus, “[t]he procedure for determining whether a hearing is necessary is in part analogous to…a summary judgment proceeding…If material facts are in dispute, a hearing should usually be held, and relevant findings of fact made.” Dodakian v. United States, 2015 WL 11144511, at *23 (S.D.N.Y. Aug. 14, 2015) (alterations in original), adopting report and recommendation (quoting Puglisi, 586 F.3d at 213). However, “where a petitioner makes only vague, conclusory, or palpably incredible [] allegations,’ a hearing is not required, as the petitioner’s motion is required to “set forth specific facts supported by competent evidence, raising detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief.” Miller v. United States, 2017 WL 3268204, at *3 (S.D.N.Y. Aug. 1, 2017) (internal quotations and citations omitted) (alteration in original). “Moreover, courts need not presume the credibility of factual assertions ‘contradicted by the record in the underlying proceeding.” Lopez v. United States, 2017 WL 1424328, at *3 (S.D.N.Y. Apr. 20, 2017) (quoting Puglisi, 586 F.3d at 214). B) DISCUSSION The government argues that the court cannot consider any ineffective assistance claims outside of the two original claims. The government contends that the three new ineffective assistance of counsel claims are time-barred because they do not relate back to his original claims. I agree with the government. 1) Amended Ineffective Assistance of Counsel Claims The Supreme Court denied Celaj’s petition for a writ of certiorari on February 27, 2012. Celaj had until February 27, 2013 to seek relief under 28 U.S.C. §2255. Celaj’s original habeas petition is dated February 12, 2013 and was filed on February 25, 2013. However, Celaj did not amend his petition until May 19, 20141 and March 8, 2015. (13 Civ. 1290. ECF 11, 17). Accordingly, for me to consider the new claims raised in Celaj’s amended petitions, I would need to find that these claims “relate back” to the original habeas grounds upon which Celaj sought relief. Celaj’s new claims are time barred. It is not enough that both sets of claims allege ineffective assistance of trial counsel, as Celaj’s “additional claims must have a clear temporal and factual connection those raised in his original petition.” Ozsusamlar, 2013 WL 4623648, at 4; see Veal v. United States, No. 01 civ. 8033, 2007 WL 3146925, at *4 (S.D.N.Y. Oct. 9, 2007) (quoting Reiter v. United States, 371 F.Supp.2d 417, 423-24 (S.D.N.Y. 2005) (“it is not sufficient for an untimely amendment merely to assert the same general type of legal claim as in the original §2255 motion.”)). Celaj’s original habeas petition claims concern Schneider’s failures to advise him properly regarding the government’s plea offer and to allow him to testify. These claims do not share a “common core of operative facts” with Celaj’s new claims concerning Schneider’s improper stipulation to a material disputed fact, failure to question under oath the prosecutor and juror who had an extra judicial conversation about Celaj’s case, and conflict of interest. Although there is some temporal similarity in that all the claims relate to either pre-trial or trial events, there is no factual tie between any new and original claim. Each new claim is based on independent factual grounds and thus, does not relate back. See Gibson v. Artus, 407 Fed. Appx. 517, 519 (2d Cir. 2010) (no relation back despite petitioner’s arguments that new and old claims both “involve[d] the grand jury stage of proceedings”); United States v. Marulanda, 226 Fed. Appx. 709, 710-11 (9th Cir. 2007) (no relation back where new and old ineffective assistance claims all related to trial conduct but shared no “common core of operative facts”); Ozsusamlar, 2013 WL 4623648, at *3, (no relation back where original habeas petition claimed, among other things, that trial counsel provided ineffective assistance at sentencing by “fail[ing] to present mitigating evidence” and “not inform[ing] the Government that [Petitioner] was serving as an informant…”, and proposed new claims alleged that “trial counsel was ineffective for (1) failing to object to a particular government exhibit on a variety of grounds, and (2) failing to raise facts that directly contradicted the testimony of four witnesses.”); cf. Pierre v. Ercole, 607 F.Supp.2d 605, 608 (amendment related back where new ineffective assistance of counsel claim arose “out of the same set of operative facts as the due process claim in the original petition. Both are based on the exclusion of statements by the same two unavailable witnesses who, petitioner alleges, would have supported the defense theory that the victim was murdered when petitioner was out of state”). 2) Original Ineffective Assistance of Counsel Claims The court next considers whether Celaj’s surviving ineffective assistance of counsel claims can be resolved on the submitted record, or alternatively, require an evidentiary hearing. a) Plea-Bargaining Claim To warrant a hearing on his claim that trial “counsel’s ineffective assistance led to the rejection of a plea offer that, properly informed, would have been accepted,” Celaj needed to “proffer arguably credible evidence of a prima facie case that, but for counsel’s improper advice, [Celaj] would have accepted the plea offer.” Puglisi, 386 F.3d at 215. “This may be accomplished through the petitioner’s own sworn statement if it is credible in light of all the relevant circumstances.” Id. “[A] petitioner’s statement is sufficiently credible to warrant a hearing where it is accompanied by some ‘objective evidence,’ such as a significant sentencing disparity, that he or she would have accepted the proposed plea offer if properly advised.” Id. at 216; see King v. United States, No. 13-cv-7510, 2016 WL 11268958, at *6 (S.D.N.Y. June 17, 2016). Both Celaj and Schneider submitted sworn affidavits that contradict the other’s version of events. Celaj also submitted a supplemental affidavit after obtaining counsel. (13-cv-1290, ECF 26-1 or Celaj Supp. Aff.). According to Celaj’s sworn affidavit, Schenider advised that the government’s offer was for 22 years. (Id.
