Opinion
21-CV-7887 (JSR) (KHP)
08-23-2022
KEVIN WALKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
In 2018, Kevin Walker (“Petitioner”) was convicted in the United States District Court, Southern District of New York, of conspiracy to commit Hobbs Act Robbery violating 18 U.S.C. § 1951 (“Count One”), Hobbs Act Robbery violating 18 U.S.C. § 1951 (“Count Two”), and a firearms related charge in violation of 18 U.S.C. § 924(c) (“Count Three”). On August 14, 2018 he was sentenced to 13 years imprisonment on Counts One and Two to run concurrently and an additional 7 years for Count Three to run consecutively. On August 31, 2021, Petitioner filed the instant petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2255. (ECF No. 1.)
Petitioner contends that Meredith Heller (“Heller”), one of his two trial attorneys, provided ineffective assistance of counsel and that his conviction should be vacated and a new trial ordered, or, in the alternative, that his sentence be reduced. Petitioner points to five ways in which his counsel was ineffective: (1) she failed to investigate evidence and contact witnesses; (2) she failed to properly cross-examine a Government witness; (3) she improperly pressured Petitioner not to testify on his own behalf; (4) she failed to challenge a Career Offender Enhancement because Hobbs Act Robbery is not a crime of violence; and (5) she suffered from “stage fright” which hurt her performance as an advocate. (Petition, pp. 16-31.) Petitioner also argues that independent of his ineffective assistance of counsel claim, he was sentenced incorrectly because Hobbs Act Robbery does not qualify as a crime of violence. He contends that his sentence also should be reduced to be commensurate with his codefendants. (Id. at 2.) For the reasons set forth below, Petitioner's claims are without merit. Thus, I respectfully recommend that his Petition be denied.
Petitioner raises a total of six grounds for relief, however the Court addresses his claims alleging failure to investigate and contact witnesses together.
BACKGROUND
I. The Robbery Conspiracy
In October 2014, Petitioner solicited his brothers, Melvin Walker (“Melvin”) and Tyrone Walker (“Tyrone”), to commit robberies. (Trial Transcript of May 7-14, 2018 at Tr. 412:8414:25; ECF No. 13.)(“ Tr.”) Gerold Cooper (“Cooper”) and Brad Burrus (“Burrus”) were also recruited. (Id. at 414:11-419:25.) Petitioner provided a nine-millimeter handgun for the robberies as well as another gun that he obtained from Tyrone. (Id. at 414:18-417:8.)
The transcripts for Petitioner's trial can be found on the underlying criminal docket, 16-cr-567 ECF Nos. 200-212.
II. The Robberies
Petitioner and his accomplices committed over a dozen robberies from December 2014 to February 5, 2015. (Id. at 42:3-841:12.) A majority of the robberies concentrated on food delivery trucks in Manhattan and the Bronx. (Id. at 98:8-129:9, 165:3-187:11, 320:3-327:25, 350:7-360:13, 455:5-480:23, 616:10-643:16, 709:5-723:8.) The crew's gunman would confront the delivery truck driver, threaten the driver with a gun, and demand money from the driver. (Id. at 124:1-125:20.) Petitioner orchestrated the robberies from a getaway car where he monitored a police radio scanner to help the crew avoid police detection. (Id. at 419:2420:25, 423:4-424:6.)
III. The Final Robbery
The last robbery occurred in the Bronx in 2015. (Id. at 119:1-129:7.) The crew robbed a food delivery truck that was delivering products to a dollar store. (Id. at 121:3-19.) The delivery truck driver entered the dollar store and told the employees what occurred. (Id. at 214:9-25.) In response, a dollar store employee chased Cooper, one of the robbers in the crew. (Id. at 214:21-220:23, 491:4-15.) Cooper fired his gun at the employee but did not strike him. (Id. at 218:1-219:10, 491:7-15.) Although Cooper made it to the getaway car, the crew ultimately abandoned the vehicle after the shooting. (Id. at 702:7-16, 818:17-18.) When law enforcement located and searched the getaway car, the officers found Petitioner's wallet wedged in between the seat and center console, with his driver's license and birth certificate inside. (Id. at 269:5-273:25.)
PROCEDURAL HISTORY
I. Initial Charges and First Trial
On May 24, 2016, Petitioner was charged by complaint and soon thereafter indicted by a grand jury on the same charges. (Kevin Walker Indictment, 1-4, USA v. Walker et al., 1:16-cr-567-JSR-1, ECF No. 18.) A jury found Petitioner guilty on all three counts. (Id. at ECF No. 80.) However, the Honorable Jed S. Rakoff granted a new trial when Melvin, Petitioner's brother, proffered with the Government and disclosed new evidence that contradicted the trial testimony of Tyrone. (Declaration of Meredith S. Heller, USA v. Walker et al., 1:16-cr-00567-JSR-1, ECF Nos. 124, 157.)
II. The Second Trial
During the second trial held in May 2018, the Government presented evidence that Petitioner robbed various establishments and delivery trucks. (Tr. at 42:3-841:12.) The Government presented testimony of an FBI Special Agent, text messages from the Petitioner, and dozens of other exhibits. (Id.) The Special Agent testified that the Petitioner's cell phone connected to cell towers within two to five blocks of each robbery at the time it occurred, placing him in close proximity to each of the robberies. (Id. at 777:13-15, 763:20-819:14.) Further, the cell phone data showed that the Petitioner was on the phone with members of the robbery crew during the robberies. (Id. at 763:15-819:10.) Melvin testified that they were being directed by the Petitioner through their cell phones. (Id. at 579:13-17.)
One of the Government's exhibits included the Petitioner's wallet and birth certificate that were found inside the abandoned getaway car. (Id. at 269:16-273:25.) The Government also presented a text message from Petitioner to his brother Tyrone concerning Tyrone's girlfriend that said, “[d]on't tell her this, but tell her if they happen to have my wallet to say that she dropped me off three days ago and I lost my wallet.” (Id. at 763:5-7.)
Although no witnesses actually saw the Petitioner organizing the crimes from the getaway car, victims of all the robberies were robbed at the same time and place as when the cell phone data placed Petitioner and the robbery crew in close proximity. (Id. at 42:3-841:13.) Further, Melvin testified to taking part in several robberies. (Id. at 406:19-20, 418:20-22.) He also testified that Petitioner directed the robberies, paid the participants, picked the locations, and assigned their roles. (Id. at 419:3-421:23.) Kyell Clay (“Clay”), a passenger in Petitioner's car at one time, also testified that Petitioner described to him in detail how to rob a delivery truck and that Petitioner and Clay even attempted an unsuccessful robbery together. (Id. at 647:6-655:19.)
Additionally, the Government called Detective Steven Saint Hilaire of the New York Police Department, who testified that the police found a police radio scanner in Petitioner's bedroom. (Id. at 593:5-25.) Melvin testified that the Petitioner used the scanner to evade police detection during the robberies, and Clay testified that he saw the scanner in the car with Petitioner during their attempted robbery. (Id. at 423:18-25, 653:8-654:1.) To corroborate this testimony, the Government presented video footage throughout the trial showing various robberies being performed at the same time and places where the cell data placed Petitioner. (Id. at 54:13-718:23.)
Just before the Government's last witness, the Petitioner made a motion for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, which Judge Rakoff denied. (Id. at 829:16-19.) Petitioner renewed this motion when the Government rested, and Judge Rakoff again denied the motion. (Id. at 841:2-4.) Petitioner elected not to testify, as his counsel advised him that doing so would open him up to cross-examination on his prior robbery convictions from 2016. (Id. at 830:6-831:16.) Petitioner confirmed that it was his decision not to testify when asked by Judge Rakoff. (Id. at 848:25-849:6.) Petitioner did not call any other witnesses. (Id. at 843:10-11.)
On May 14, 2018, a jury again found Petitioner guilty of all three counts. (Id. at 950:1116.) As noted in Petitioner's presentence report, Petitioner faced up to twenty years imprisonment for each Counts One and Two-conspiracy to commit Hobbs Act Robbery and Hobbs Act Robbery. (Presentencing Report, pp. 1-2 (“PSR")). Petitioner also faced a mandatory consecutive minimum sentence of seven years imprisonment for Count Three - brandishing a firearm. (Id.) Based upon a total offense level of 32 and a criminal history category of VI, Petitioner's guideline imprisonment range was 210 months to 262 months. (Id. at 28.) However, as a career offender, Petitioner faced 360 months to life imprisonment. (Id.)
At sentencing, Judge Rakoff sentenced Petitioner to “13 years, that is to say 156 months,” on Counts One and Two, “concurrent with each other, and then on Count Three seven years, that is to say 84 months, consecutive to the other counts, for a grand total of 240 months.” (Sentencing Transcript 12:20-13:2) (“Sent. Tr.") Judge Rakoff made clear that his sentence was not tethered to the Guidelines range and would be the same without the career offender enhancement. (Id. at 5:15-25.) Judge Rakoff also made it a point to highlight that he found the sentencing guidelines “too Draconian." (Id. at 12:21.)
After Petitioner was sentenced, he appealed to the Second Circuit. On appeal, Petitioner argued that Clay should not have been able to testify, that his sentence was unreasonably long compared to his co-defendants, and that Hobbs Act Robbery was not a crime of violence. United States v. Walker, 789 Fed.Appx. 241, 243-245 (2d Cir. 2019). The Second Circuit affirmed the District Court's ruling on each of these issues. Id. The Court ruled that there was no issue with witness testimony, Petitioner's longer sentence was appropriate given his leadership role in the robberies, and that completed Hobbs Act Robbery was a crime of violence. Id.
III. The Instant Habeas Corpus Petition and the Government's Response
Petitioner filed his Petition on August 31, 2021, after being given three extensions due to COVID-19. (Petition, p. 10.) First, Petitioner argues that Heller's representation was constitutionally ineffective for not taking investigative steps because she failed to properly discover “prison calls, emails, and cell-phone data.” (Id. at 16-21, 27-28.) In particular, Petitioner highlights an allegedly unproduced jail call where Tyrone said to his girlfriend, “I told you to say it was Kevin,” and “come on bi, we talked about this already.” (Id. at 28.) Petitioner asserts that such statements related to a “plot” regarding who was supposed to be “driving the car.” (Id.) Petitioner further argues that the cell phone data of Melvin, Cooper, and Burrus were not produced and that the Government had the wrong phone number for Melvin. (Id. at 18-19.)
The Government asserts that Melvin's phone data was produced, and that they had the correct phone number. (Resp't. Mem., p. 11 (“Mem.”), ECF No. 13.) Heller submitted an affirmation, attached to the Government's brief, asserting that further investigation was not reasonable because pursuing Petitioner's proposed discovery would not have been fruitful. (Aff. of Meredith Heller ¶¶ 2-3 (“Heller Aff.”).) Heller further attests that she investigated Melvin's phone data and found that it was not useful. (Id.) Heller also notes that regardless of what the cell phone data of other robbery participants showed, such information did not refute Petitioner's own cell phone data placing him at each robbery location. (Id.)
Petitioner further complains that Heller did not properly investigate witnesses. (Petition, pp. 17-18.) Petitioner claims that he knew three other witnesses who were willing to testify-Tyrone's son, his son's mother, and the mother of another one of Tyrone's children. (Id. at 18.) If allowed to testify, Petitioner claims that they could relay conversations they had with Tyrone and Melvin where the Walker brothers admitted they were willing to commit perjury to stay out of jail. (Id.) Heller affirms that she reached out to the three named witnesses but did not receive any responses. (Heller Aff. ¶ 6.) Heller notes that she was able to speak with Petitioner's sister, Michelle, but that Michelle was not interested in testifying. (Id.) Further, the Government notes that any testimony about the Walker brothers' conversation would be inadmissible hearsay. (Mem., p. 11.)
Second, Petitioner avers that Heller's cross examination of Melvin, a key Government witness, was deficient. (Petition, pp. 22-24.) Petitioner complains that Heller was too narrow in her line of questioning and failed to inquire about Melvin's allegedly erroneous phone number. (Id. at 23-24.) The Government contends that Heller was not ineffective for failing to examine Melvin regarding erroneous and useless information because his phone number was correct, and Heller affirmed that the data was not useful for Petitioner's case. (Mem., p. 12.)
Additionally, Petitioner asserts that Heller failed to include his proposed questions during Melvin's cross examination. (Petition, pp. 23-24.) Petitioner wanted Heller to inquire about Melvin's allegedly incorrect phone number to show that he was lying. (Id.) Such questions included, “whats [sic] your phone number if you remember?” (Id. at 23.) “How many of the alleged robberies did you participate in?” (Id.) “Did you ever state to so and so [alluding to the three witnesses that Petitioner wanted to call] that you would do whatever it takes to not got to jail?” (Id.) “Did you ask anyone to talk with your brother about a plea?” (Id.) Petitioner contends that asking these questions of Melvin would have “placed him in a box.” (Id. at 24.) In response, the Government argues that Petitioner's proposed questions are substantially similar to the questions Heller asked regarding the credibility of Melvin. (Mem., p. 12.) In fact, a review of the trial transcript shows that Heller asked many questions regarding Melvin's past lies to the Government, his desire to see his family, as well as the nature of his cooperation agreement. (Tr. at 524:8-547:11.)
Third, Petitioner asserts that Heller was ineffective because she coerced him to not testify, despite stating in open court that it was his decision. (Petition, pp. 29-31.) Petitioner also argues that Heller promised to prepare him for questioning, but never did. (Id.) As a result, he felt ill-equipped to testify, and thus declined. (Id.) The Government asserts that Heller advised him not to testify because it would allow potentially prejudicial crossexamination on a previous robbery conviction. (Mem., p. 13.)
Fourth, Petitioner contends that Heller was ineffective for not challenging his Career Offender Enhancement because Hobbs Act Robbery is not a crime of violence, and thus did not qualify him for the enhancement. (Petition, p. 32.) The Government argues that the Petitioner is wrong about the law in light of a Second Circuit ruling that was issued before Petitioner's sentencing. (Mem., p. 14.) The Second Circuit at the time held that Hobbs Act Robbery is indeed a “crime of violence” and thus qualified Petitioner for the enhancement. See United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018).
Fifth, Petitioner contends that Heller suffered from “stage fright” and that this damaged the quality of her advocacy. (Petition, pp. 22-23, 25-26.) Petitioner says that he observed this behavior when the Court sustained an objection to one of her questions on grounds of hearsay. (Id. at 23.) Further, Petitioner complains that Heller was “rushed” and too narrow on her crossexamination subjects. (Id. at 24.) Finally, Petitioner asserts that Heller allowed the prosecution to intimidate her. (Id. at 20.) In response, Heller asserts in her affirmation that she was never intimidated, nor did she suffer from “stage fright.” (Heller Aff. ¶¶ 4-5, 8.) Heller also contends that any allegations of prosecutorial bullying are unfounded, and that she was a zealous advocate throughout the trial. (Id. at ¶ 4.)
On April 12, 2022, the undersigned held a telephonic case management conference wherein Petitioner was ordered to file any reply to the Government's opposition to his Petition by July 15, 2022. (ECF No. 18.) No such reply was filed. Accordingly, this report and recommendation is issued without the benefit of any additional rebuttal arguments by Petitioner. Additionally, on July 21, 2022, the Second Circuit issued its decision in United States v. Chappelle, which held that Hobbs Act Robbery is not a crime of violence for sentencing purposes. 41 F.4th 102, (2d Cir. 2022). As Petitioner raised this issue in his Petition, the Court ordered the Government to submit supplemental briefing. (ECF No. 19.) The Government did so, and the Court considers the arguments raised therein in this Report and Recommendation. (ECF No. 20.)
DISCUSSION
I. Legal Standard
In order to bring a federal habeas petition, the Petitioner must currently be in custody. 28 U.S.C. § 2255(a). Custody includes being presently incarcerated in federal prison. See Maleng v. Cook, 490 U.S. 488, 489-92 (1989). The Petitioner must also have a cognizable claim, such as violations of the Constitution, its Amendments, and the laws of the United States. 28 U.S.C. § 2255(a). The petition must also be timely. 28 U.S.C. § 2255(f). The time starts to run as soon as the conviction becomes final, although it can be extended when government action prevents the movant from making a habeas motion. Id.
A petitioner may bring an ineffective assistance of counsel claim on a collateral attack through a habeas petition. Massaro v. United States, 538 U.S. 500, 504 (2003). They may do so “whether or not the Petitioner could have raised the claim on direct appeal.” Id. However, a petitioner may not raise claims in their § 2255 petition that were already litigated on the merits during direct appeal. Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992) (citing Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986); accord Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980) (no relitigation permitted if issue already raised on direct appeal, absent intervening change of law which would change outcome).
Importantly however, the courts allow an exception to the rule against relitigation. The courts allow petitioners to raise claims already litigated on direct appeal where there “has been an intervening change in the law and the new law would have exonerated [the] defendant had it been in force before the conviction was affirmed on direct appeal." United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting Chin, 622 F.2d at 1092).
Furthermore, when a Petitioner appears pro se, the court must construe the Petitioner's arguments charitably, and interpret it to “raise the strongest possible argument . . . [it] suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citations omitted).
a. Ineffective Assistance of Counsel Standard
The Sixth Amendment of the United States Constitution provides that a criminal defendant “shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. Habeas petitions that assert ineffective assistance of counsel claims are analyzed under the “clearly established” federal law standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a Petitioner claiming ineffective assistance of counsel in violation of the Sixth Amendment must establish that: (1) his counsel's representation “fell below an objective standard of reasonableness,” and (2) “there is a reasonable probability that, but for Counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 692-94.
Under the first prong of the Strickland test, the Petitioner bears the burden of demonstrating that his counsel's errors were “so serious that counsel was not functioning as the ‘counsel' guaranteed [to] the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal quotation marks and citation omitted). This standard is intentionally high because ineffective assistance claims “are quite often the law's equivalent of ‘buyer's remorse' or ‘Monday morning quarterbacking' . . . [and d]ecisions by criminal defense counsel are often choices among bad alternatives[.]” Mui v. United States, 614 F.3d 50, 57 (2d Cir. 2010). Because ineffective assistance of counsel claims “can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial . . . the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington, 562 U.S. at 105 (citing Strickland, 466 U.S. at 689-90). In applying Strickland, the court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks and citation omitted).
Under the second prong of the Strickland test, a Petitioner can demonstrate prejudice by proving that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, in determining whether a habeas Petitioner has suffered prejudice as a result of his trial counsel's allegedly unreasonable acts or omissions, “the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently;” rather, Strickland asks courts to consider whether the result would have been ‘reasonably likely' to have been different. Harrington, 562 U.S. at 111 (internal citations omitted). In other words, the “question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. Further, in cases of overwhelming guilt, counsel is not likely to violate Strickland's prejudice prong even where clear error can be established. Rodriguez v. New York, 2017 WL 1655217, at *10 (E.D.N.Y. May 2, 2017) (citing Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001)).
Finally, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700. Thus, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.
b. Specific Issues with Ineffective Assistance of Counsel Claims
1. Discovery
Counsel has a duty to “make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Nevertheless, the standard does not require counsel to pursue every possible lead. Id. Rather, counsel may use their reasonable judgment when determining what investigation would be fruitful and what would be a waste. See Rompilla v. Beard, 545 U.S. 374, 383 (2005); Bobby v. Van Hook, 558 U.S. 4, 12 (2009) (holding that where testimony would not add anything of value, counsel was not ineffective for failing to investigate witnesses).
2. Cross-examination
The standard for cross-examination is highly deferential to the preferred strategy of the attorney. See United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Because the range of reasonable representation is so wide, counsel's strategic decisions on how to crossexamine witnesses are rarely questioned by the court. Id. Further, Petitioner has the high burden of showing how the cross-examination was deficient due to lack of discovery materials. United States v. Choudhry, 330 F.Supp.3d 815, 856 (E.D.N.Y. 2018), aff'd, 813 Fed.Appx. 4 (2d Cir. 2020) (holding that Petitioner cannot show ineffective assistance of counsel where counsel was able to make his desired points in cross-examination, even without Petitioner's desired discovery documents).
3. Right to Testify
In a criminal case, the defendant has the right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 51 (1987). Counsel must inform the defendant of this right and is also allowed to offer advice to the defendant on whether self-testimony is prudent. See Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir. 1997). However, the defendant must be the one to make the decision whether or not to testify. Id. In cases where a petitioner claims that he was improperly pressured not to testify by his counsel, the petitioner must allege specific facts and show that he suffered prejudice because he was not allowed to testify. Yannai v. United States, 346 F.Supp.3d 336, 345-46 (E.D.N.Y. 2018). Further, when a defendant specifically confirms on the record that his choice not to testify is his own, the court considers this strong evidence of an informed waiver. McKenzie v. United States, 2015 WL 6680108, at *10 (E.D.N.Y. Nov. 2, 2015) (holding where defendant waived his right on record and his attorney submitted an affidavit stating that he informed defendant of his right to testify but advised against it due to risk of perjury, no deficiency of counsel occurred).
Lastly, prejudice will not be found when the proposed testimony of the petitioner would have done more harm than good. Rega v. United States, 263 F.3d 18, 26 (2d Cir. 2001) (holding that counsel's denial of defendant's testimony was permissible where the testimony would have opened the door to prejudicial facts regarding defendant's past violent behavior).
c. Commensurate Sentencing Between Co-Defendants
18 U.S.C. § 3553(a) “requires a district court to consider nationwide sentence disparities, but does not require a district court to consider disparities between co-defendants.” United States v. Williams, 736 Fed.Appx. 267, 273 (2d Cir. 2018) (citing United States v. Ghailani, 733 F.3d 29, 55 (2d Cir. 2013)). Furthermore, courts may legitimately sentence particular defendants more heavily based on their level of involvement in a particular crime. Id. (citing United States v. Goffer, 721 F.3d 113, 130, (2d Cir. 2013)).
d. Hobbs Act Robbery and Crimes of Violence
Prior to July 21, 2022, a completed Hobbs Act Robbery constituted a crime of violence in this Circuit. See United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018); United States v. Santos, 449 F.3d 93, 99 (2d Cir. 2006) (holding that force, or violence, is required of all Hobbs Act robbery cases). However, the Second Circuit recently joined seven other Courts of Appeals ruling that Hobbs Act Robbery does not qualify as a crime of violence. Chappelle, 41 F.4th at 102.
Under the categorical approach, the Second Circuit assessed whether Hobbs Act Robbery qualified as a “crime of violence” within the meaning of U.S.S.G. § 4B1.2. Id. The Circuit reasoned that § 4B1.2(a) shows that the elements of a “crime of violence” pertain specifically to the use of force or threats against other people. Id. at 109. In contrast, Hobbs Act Robbery includes crimes based on threats against either people or property. Id. Thus, it reasoned, “because the elements of Hobbs Act robbery sweep more broadly than the elements clause, that offense is not a ‘crime of violence' under § 4B1.2(a)(1).” Id. (quoting United States v. Scott, 14 F.4th 190, 195 (3d Cir. 2021)) (internal quotation marks omitted). In other words, regardless of whether a particular instance of Hobbs Act robbery could satisfy the elementapproach as a crime of violence, the Second Circuit has now ruled that Hobbs Act Robbery can never be categorized as a crime of violence. Id. at 109-10.
Additionally, the Second Circuit also found that Hobbs Act Robbery was also categorically broader than generic “robbery” and “extortion” as listed in the enumerated clause. Id. Thus, Hobbs Act Robbery does not qualify as a crime of violence pursuant to § 4B1.2(a)(2). Id. at 112.
ANALYSIS
Petitioner's claims satisfy the procedural requirements to bring a § 2255 petition. First, Petitioner is in custody because he is incarcerated in federal prison. Second, Petitioner alleges cognizable claims regarding ineffective assistance of counsel under the Sixth Amendment. Third, Petitioner's petition is timely, due to legitimate COVID-19 extensions. However, for the substantive reasons listed below, none of Petitioner's ineffective assistance of counsel claims meet the high bar for § 2255 relief. And, though Petitioner correctly argues that Hobbs Act Robbery is not a crime of violence as the Second Circuit recently held, his sentence is still within the guideline range and, thus, Petitioner has not suffered any prejudice by the change of law.
1. Petitioner's Claims that Counsel Failed to Investigate Evidence and Contact Witnesses
a. Failure to Investigate Evidence
Petitioner complains that Heller should have obtained particular evidence like recordings of jail calls, cell phone data, and emails from other members of the robbery crew. However, counsel is not required to investigate every possible lead when it is unreasonable to do so. See Rompilla, 545 U.S. at 383; Bobby, 558 U.S. at 12. Heller explains in her affirmation that extra discovery would have been unreasonable, especially where evidence of other crew members' alleged plots to frame Petitioner would not explain the presence of Petitioner's cell phone in close proximity to all of the robberies - a fact supported by the testimony of the FBI Special Agent and cell site data. (Tr. 777:13-15, 763:20-819:14.)
Although this Court has a duty to examine Petitioner's habeas arguments in the strongest light possible, even the most charitable interpretation does not satisfy the Strickland factors. For instance, Petitioner claims that certain statements by Tyrone in prison phone calls showed that there was a “plot” and that the context of the statements alluded to who was “supposed to be driving the car.” (Petition, p. 27.) Even assuming the existence of such evidence, Heller was not deficient for failing to include it at trial. If produced at trial, the content of the calls would not necessarily demonstrate a conspiracy to frame the Petitioner, especially given the presence of Petitioner's cell phone near the locations of the robberies and his wallet and identification in the getaway car. Tyrone's alleged statements that, “I told you to say it was Kevin,” and “come on bi, we talked about this,” could relate to any number of situations, as opposed to the robberies. Such statements do not necessarily align with Petitioner's possible interpretation as evidence of a conspiracy to frame him. Further, such calls were not critical for Heller's defense, as she could establish her theory of Petitioner's absence without them because no one actually saw Petitioner at any of the robberies.
Second, even assuming that Heller was deficient for failing to obtain the prison calls, Petitioner still cannot achieve Strickland's required showing of prejudice. It remains extremely unlikely that including the jail calls would have “more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 693. Even if recordings of Tyrone's jail calls existed, such evidence does not explain Petitioner's close proximity to each robbery, incriminating text messages timed with each robbery, the police scanner found in his bedroom, his wallet in the getaway car, and the sworn testimony of Melvin and Clay naming him as the captain of the robbery crew. Much like in Jackson v. Lee, where petitioner was convicted based on extensive circumstantial evidence, here, Petitioner faced a similar level of overwhelming guilt. 2010 WL 4628013, at *26-27 (S.D.N.Y. Nov. 16, 2010), report and recommendation adopted, 2010 WL 5094415 (S.D.N.Y. Dec. 10, 2010) (finding overwhelming guilt where co-conspirators testified that the defendant directed the robberies, where phone records corroborated defendant's guilt, and where the defendant's personal items were found in the robbery car).
Additionally, contrary to Petitioner's assertions, the record shows that Melvin's phone data and number were accurate and produced to Heller at trial. (Tr. 306:19-307:4). Petitioner also has failed to specify what emails he is referring to in his Petition, or what they contain. (See Petition, p. 17.) In short, regarding these other contentions, Petitioner fails to show how Heller's performance fell below a reasonable standard and resulted in prejudice.
Considering the copious amount of evidence incriminating the Petitioner, Heller acted reasonably in constraining the scope of discovery, especially where extra evidence was unlikely to have changed the outcome of the case. For the above stated reasons, Strickland's twopronged test is not satisfied.
b. Failure to Investigate Certain Witnesses
Petitioner complains that Heller did not contact three critical witnesses. However, Heller attests she contacted the witnesses and they did not respond. (Heller Aff. ¶ 6.) The one other witness she contacted, Walker's sister, indicated she did not want to testify. (Id.) Further, the testimony in question, regarding a conversation they overheard between Tyrone and Melvin, would have been hearsay. Heller was not unreasonable for failing to pursue inadmissible evidence, and no prejudice resulted. See Barnes v Burge, 372 Fed.Appx. 196, 201 (2d Cir. 2010) (holding that counsel was not ineffective where counsel did not pursue testimony that would have been inadmissible hearsay).
2. Petitioner's Claim that Counsel Failed to Properly Cross Examine a Government Witness
Petitioner contends that Heller failed to adequately cross examine Melvin regarding his phone data and the allegedly erroneous phone number. However, Heller was not required to examine witnesses based on information that is not useful. See Strickland, 466 U.S. at 699; Rompilla, 545 U.S. at 383; Bobby, 558 U.S. at 12. According to Heller's sworn affirmation, neither Melvin's allegedly erroneous phone number nor his cell phone data were of use in the case. (Heller Aff. ¶ 2.) Additionally, Heller asked Melvin questions that were substantially similar to those proposed by Petitioner, belying any prejudice that could have resulted from Heller's choice not to follow Petitioner's suggested line of questions verbatim.
During cross-examination, Petitioner wanted Heller to challenge Melvin's credibility by inquiring about his phone number and alleged conversations where Melvin admitted that he would do anything to stay out of jail. (Petition, pp. 23-25.) Although Petitioner claims that Heller failed to do this, the record shows that Heller extensively questioned Melvin's credibility. Heller adduced that Melvin was incentivized to provide substantial assistance to the Government in order to hopefully receive a sentence below the guidelines. (Tr. 524:9-525:14.) Heller also elicited testimony regarding Melvin's false statements to the Government about not participating in robberies, further putting his credibility in question. (Id. at 532:19-534:5.)
In sum, Petitioner has failed to establish how his desired discovery material would have substantively enhanced Heller's ability to make her points during cross-examination. Choudhry, 330 F.Supp.3d at 856 (holding that Petitioner cannot show ineffective assistance of counsel where counsel was able to make his desired points in cross-examination, even without Petitioner's desired discovery documents). Additionally, as Heller notes in her affirmation, the fact that Melvin participated in many of the robberies does not negate the cell phone evidence also putting Petitioner at each robbery site. (Heller Aff. ¶ 3.)
In short, Heller's decision not to pursue either the alleged erroneous or useless evidence does not violate Petitioner's right to representation guaranteed by the Sixth Amendment, as Heller still conducted a thorough cross-examination.
3. Petitioner's Claim that Counsel Pressured Him Not to Testify on His Own Behalf Petitioner asserts that Heller denied him the opportunity to testify on his own behalf.
While it is true that Heller discouraged him from testifying, such advice was permitted and not unreasonable. Brown 124 F.3d at 77-78. Additionally, the record does not show Heller coerced Petitioner to not testify. The record does show that the Court specifically asked Petitioner to confirm that his refusal to testify was voluntary, which he did. (Tr. 849:1-7.) As such, Petitioner's waiver of his right to testify should be taken seriously considering both Heller's affirmation stating it was Petitioner's decision based on the Court's ruling that evidence of his commission of other similar robberies would be introduced on cross examination of Petitioner and the Court's confirmation of Petitioner's voluntary waiver to testify. See McKenzie, 2015 WL 6680108, at *10 (holding where defendant waived his right on the record and his attorney submitted an affidavit stating that he informed defendant of his right to testify but advised against it due to risk of perjury, no deficiency of counsel occurred).
However, assuming arguendo that Heller denied Petitioner his right to testify, Rega makes clear that prejudice cannot be found where the testimony would have done more harm than good. 263 F.3d at 26. Here, there is no doubt his testimony would have been harmful because the jury would have learned that Petitioner had a history of committing a robbery in the recent past. Finally, Petitioner has not stated how his proposed testimony would alter the outcome of the trial. Yannai, 346 F.Supp.3d at 345-46. Thus, Heller acted reasonably, and no prejudice resulted.
4. Petitioner's Claim that Counsel Failed to Challenge a Career Offender Enhancement
At the time of Petitioner's crime and trial, Hobbs Act Robbery was considered a crime of violence. As such, Heller was not deficient for failing to challenge the Career Offender sentencing enhancement when doing so would have been a meritless argument. Further, both the Second Circuit and Heller in her affirmation note that Petitioner's sentence is actually well below the sentencing guidelines under the law at the time-that is, when Hobbs Act Robbery was deemed a crime of violence. Walker, 789 Fed.Appx. at 244; (Heller Aff. ¶ 5). For these reasons, Heller's performance did not fall below a reasonable standard, and no prejudice resulted.
However, Petitioner's claim that the Court misidentified Hobbs Act Robbery as a crime of violence can also be construed independently from the ineffective assistance of counsel claim. Read most charitably in favor of the pro se Petitioner, the argument puts forward the cognizable claim that he is imprisoned contrary to the “laws of the United States.” 28 U.S.C. § 2255. The laws of the United States include the recent Second Circuit opinion that Hobbs Act Robbery does not qualify as a crime of violence. Chappelle, 41 F.4th at 102. Accordingly, this argument warrants further discussion.
As Hobbs Act robbery is no longer deemed a crime of violence in this Circuit, the Career Offender Enhancement would not be applicable to Petitioner under today's law. Nonetheless, this change of law does not have a substantive effect on Petitioner's sentence. Today, under the recent change in law, Petitioner's Guidelines range would be 151 months to 188 months imprisonment on the robbery counts, plus 84 months consecutive on the firearms count, for a total of 235 to 272 months (PSR ¶¶ 138, 150), rather than the 360 months' to life that applied at his sentencing (Sent. Tr. 5:21-5:25.) However, Judge Rakoff did not adhere to the Guidelines and sentenced Petitioner to 156 months on each of the robbery counts, to be served concurrently, and 84 months for the gun count, to be served consecutively, for a grand total of 240 months. (Sent. Tr. 12:20-13:2.) Thus, despite this change of law and a recalculation of Petitioner's sentence, it still falls in the lower range of the Guidelines, and “‘in the overwhelming majority of cases, [a within-Guidelines sentence] will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.'” United States v. Simmonds, 425 Fed.Appx. 31, 32 (2d Cir. 2011) (quoting United States v. Friedberg, 558 F.3d 131, 137 (2d Cir.2009)).
Furthermore, Judge Rakoff made clear that his sentence was not tethered to the Guidelines, further undercutting any claim of prejudice. Judge Rakoff stated on the record that his sentence would be the same regardless of the career offender enhancement and that the Guidelines “will play no greater role in this sentence than is required by law.” (Sent Tr. 6:1525.) As such, Petitioner's claim is without merit. See United States v. Rueda-Zarate, 291 Fed.Appx. 364, 366 (2d Cir. 2008) (affirming district court's sentence where the Court “did not treat those Guidelines as binding or even presumptively reasonable but simply treated them as a “starting point and the initial benchmark”) (internal quotation marks and citation omitted); see also McBeth v. United States, 2022 WL 563039, at *9 (S.D.N.Y. Jan. 4, 2022), report and recommendation adopted, 2022 WL 562025 (S.D.N.Y. Feb. 24, 2022) (denying Section 2255 habeas petition and noting that “in light of Judge Forrest's repeated indications that Petitioner's 117-month sentence was fair and appropriate . . . I do not find a reasonable probability that . . . Petitioner would have received a more favorable sentence.”).
5. Petitioner's Claim that Counsel Suffered from “Stage Fright" Which Hurt her Performance as an Advocate
Upon review, the record does not reflect that Heller suffered from “stage fright,” as Petitioner asserts. While there may be occasional pauses or objections to her crossexamination, this does not constitute ineffective assistance of counsel. See Cruz v. Griffin, 2019 WL 6220806, at * 13 (S.D.N.Y. Oct. 24, 2019) (“Petitioner cannot prevail on a claim of ineffective assistance merely because he believes that his counsel's strategy was inadequate or because the cross-examinations were arguably ineffective.”) (internal quotation marks and citation omitted); Fabian v. United States, 2007 WL 2480164, at *9 (E.D.N.Y. Aug. 28, 2007) (“Ineffective assistance of counsel claims based on inadequate cross-examination are strongly disfavored.”). Here, the questions that Heller asked were coherent. Heller's cross-examination of Melvin also went on for over twenty pages of the transcript, touching on many issues. (Tr. at 524:8547:11.) Heller questioned Melvin extensively about his cooperation agreement, past drug sales, his profession, his relationship with the Petitioner, the guns used in the robberies, the previous robberies he participated in, his previous lies to the Government, his previous involvement in shootings, his family and kids waiting for him to get out of prison, among other topics. (Id.)
Because cross-examination strategies can vary widely, and Heller's approach did not appear to demonstrate any major faults considering its length and thoroughness, it is not credible that any nervousness or “stage fright” affected her performance. Consequently, the Strickland factors are not satisfied, as Heller's performance did not fall below an objectively reasonable standard. Upon review of the record, nothing about Heller's performance was “so serious that Heller was not functioning as the ‘Counsel' guaranteed [to] the defendant by the Sixth Amendment.” Harrington 562 U.S. 104.
6. Petitioner's Request for Relief Comparable to Similarly Situated Co-Defendants
Petitioner requests a new trial or a sentence reduction that reflects the same prison time to which co-defendants were sentenced. (Petition, p. 12.) This request is substantively identical to Petitioner's claim on appeal asserting that the District Court erred in sentencing Petitioner to a “significantly longer” period than his similarly situated co-defendants. Walker, 789 Fed.Appx. at 243-45.
On Petitioner's appeal, the Second Circuit, citing Ghailani, noted that district courts need not equalize sentences between co-defendants. Id. at 244. The court also pointed to factors favoring a higher sentence, including Petitioner's “leadership role, criminal history, and lack of cooperation.” Id. In sum, the Petitioner's arguments were decided on the merits, and thus cannot be raised again in his § 2255 petition. See Jones v. United States, 2021 WL 311279, at *9 (D. Conn. Jan. 29, 2021) (“A Section 2255 motion ‘may not relitigate issues that were raised and considered on direct appeal.'”) (quoting United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997)).
Even if this Court were to construe Petitioner's § 2255 request for a sentencing adjustment as couched in an ineffective assistance of counsel claim, Petitioner's claim would still fail for the substantive reasons stated by the Second Circuit. Petitioner was not similarly situated to his co-defendants because of his role as the leader of the robbery crew and his lack of cooperation with the Government, thus warranting a greater sentence. See Williams, 736 F.
App'x at 273 (finding the petitioner was not entitled to a similar sentence as co-defendants where petitioner led the fraudulent scheme). Importantly, Petitioner's § 2255 claim for a sentence reduction based on the changed definition of a “crime of violence” is not affected by this line of argument.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Petitioner's § 2255 habeas petition be denied.
NOTICE
Petitioner shall have seventeen days, and Defendant shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Petitioner shall have seventeen days to serve and file any response. Defendant shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Judge Jed Rakoff at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rakoff. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).