Jones, Jr v. USA
Filing
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ORDER granting 10 Motion for Leave to File; denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by Judge Ellen Bree Burns on 12/05/2014. (Brooks, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LYLE T. JONES, JR.
v.
UNITED STATES OF AMERICA
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Civil No.: 3:12CV601(EBB)
RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT
TO 28 U.S.C. § 2255
Pending before the Court is the motion of the petitioner, Lyle T. Jones, Jr. (“Jones”), for
habeas corpus relief pursuant to 28 U.S.C. § 2255. Jones is presently serving three concurrent
terms of life imprisonment following his 2003 convictions of racketeering (RICO), RICO
conspiracy and drug conspiracy. In this motion, he asserts that his Sixth Amendment right to
effective assistance of counsel on appeal was violated by counsel's failure to challenge the
sufficiency of the government's trial evidence establishing the existence of the alleged RICO
enterprise. In opposition, the government asserts that Jones's petition is untimely under the oneyear statute of limitations for habeas petitions in that it was filed more than four years after his
conviction became final; is substantively without merit; and is barred under the law of the case
doctrine. Familiarity with the underlying facts is presumed.
For the following reasons, Jones's habeas motion [doc. # 1] is DENIED.
BACKGROUND
On April 24, 2003, a jury convicted Jones and others of conducting an enterprise through a
pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) (RICO); conspiracy to conduct
a RICO enterprise, in violation of 18 U.S.C. § 1962(d); and conspiracy to possess with intent to
distribute and distribution of 1000 grams or more of heroin and 50 grams or more of cocaine base,
in violation of 21 U.S.C. §§ 846, 841(a)(1) and (B)(1)(A). On September 3, 2003, Jones was
sentenced, under the then-mandatory sentencing guidelines, to three concurrent terms of life
imprisonment. October 20, 2008, his conviction was affirmed by the Second Circuit, but his case
was remanded to the district court for consideration of whether he should be resentenced pursuant
to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). United States v. Jones, 296 F. App'x 179,
184 (2d Cir. 2008). On remand, the district court issued a written decision on August 11, 2009
denying Jones's request for resentencing, stating that it would not have imposed a different
sentence under an advisory guidelines regime. The Second Circuit affirmed the denial of
resentencing on November 30, 2010. United States v. Jones, 408 F. App'x 416, 420 (2d Cir. 2010).
Jones's petition for a writ of certiorari was denied on April 4, 2011. Jones v. United States, 131 S.
Ct. 1830 (2011).
DISCUSSION
Jones asserts that he is entitled to habeas corpus relief because he was denied his Sixth
Amendment right to effective assistance of counsel on appeal. Specifically, he claims that
appellate counsel failed to raise a sufficiency of the evidence claim with regard to the existence of
the RICO enterprise as alleged in the fifth superseding indictment. According to Jones, that claim
would have been successful because count one of the indictment alleges a RICO enterprise that
existed from 1990 to November 2001 whose “core members,” from the time of its inception,
included his co-defendants, Aaron Harris (“Harris”) and Quinne Powell (“Powell”), yet, at trial, the
government introduced no evidence to prove that either, or both, Harris and Powell were involved
in any of the enterprise's alleged criminal activity during the years 1990 to 1994. Thus, in the
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absence of such evidence, Jones maintains that the RICO and RICO conspiracy convictions cannot
stand. Tbus, he asserts that appellate counsel's failure to raise the claim constituted constitutionally
deficient performance and caused him prejudice.
In opposition, the government argues that Jones's motion is time barred because it was filed
more than four years after his conviction became final, which, it says, was on the date the Second
Circuit affirmed his conviction, October 20, 2008. It further maintains that Jones's sufficiency of
the enterprise evidence claim is procedurally barred because he failed to raise it on direct appeal
and he has not made the required showing of cause and actual prejudice to excuse that procedural
default. In addition, the government asserts that Jones's sufficiency of the enterprise evidence
claim was raised on appeal by his co-defendants in their separate appeals and was squarely rejected
by the Second Circuit. Thus, the government maintains that, even if Jones's claim had been raised,
it would have been similarly rejected and this Court is required to reject it now pursuant to the
“mandate rule.” Finally, the government contends that Jones's ineffective assistance of counsel
claim is without substantive merit and that Jones has not, nor can he, establish deficient legal
representation or the required prejudice.
Timeliness of Motion
According to the government, Jones's habeas motion is time barred under ADEPA's oneyear statute of limitations because it was not filed until April 14, 2012, almost four years after his
judgment of conviction became final, which, it maintains, occurred 90 days from October 20,
2008, the date the Second Circuit affirmed his conviction and no petition for certiorari was filed.
The Court disagrees. The government's statute of limitations argument ignores the fact
that, on October 20, 2008, the Second Circuit, while affirming Jones's conviction, issued a limited
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remand under Crosby that required the district court to determine whether Jones should be
resentenced pursuant to the advisory guidelines regime that became effective after his sentence was
imposed. In compliance with the mandate, on remand, the district court issued a ruling declining
to resentence Jones on August 11, 2009. Jones appealed the denial to the Second Circuit. The
Second Circuit affirmed Jones's sentence on November 30, 2010, and Jones's petition for certiorari
was denied on April 4, 2011. Thus, contrary to the government's assertion, Jones's conviction did
not become final until his petition for certiorari was denied and the one-year statute of limitations
did not run until one year later, April 4, 2012. Clay v. United States, 537 U.S. 522, 527 (2002)
(noting that the precise meaning of “final judgment” depends on context and in the context of postconviction relief, finality attaches when the Supreme Court denies a petition for certiorari or the
time for filing a certiorari petition expires).
“A judgment of conviction encompass both a determination of guilt and the imposition of
sentence, and until both are settled, the judgment is not final.” Duque v. United States, No. 08 Civ
9315(RMB)(MHD), 2009 WL 2370639, at *6 (S.D.N.Y. Jul 31, 2009) (noting, in similar
circumstances, that the problem with the government's statute of limitations argument was that the
habeas petitioner's judgment cannot be viewed as being final after his conviction was affirmed on
appeal because the appellate court “left open the question of the appropriate sentence, choosing to
remand rather than affirm on that question” and holding that the judgment was not finalized until
the sentence was affirmed on appeal and certiorari was denied) (citations omitted); Morgan v.
United States, No. 08 Civ. 927 (TPG), 2010 WL 4921770, at *2 (S.D.N.Y. Dec. 2, 2010) (same);
see generally Burrell v. United States, 467 F.3d 160, 162-66 (2d Cir. 2006) (noting, for purposes of
determining the finality of a criminal judgment, the difference between a remand for a ministerial
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act requiring a routine, nondiscretionary act by the district court that could not be appealed on any
valid ground and a remand that gives the district court discretion or authority to entertain new
arguments, and holding that, unlike a discretionary remand, a ministerial remand does not delay a
judgment's finality because the lower court's action on remand can not give rise to a valid appeal).
Accordingly, Jones's habeas petition, which was dated April 14, 2012, was not, as the
government claims, filed almost four years after his judgment became final, but was filed only 10
days after the one-year limitations period expired. Regardless, it was not filed within the one-year
time limit, and unless the Court finds that the circumstances causing the short delay are sufficient
to warrant equitable tolling of the limitations period for those ten days, Jones's habeas petition
must be deemed time barred and denied as such.
In this regard, the Court has given careful consideration to Jones's submissions setting forth
his due diligence and the alleged exceptional circumstances that caused his petition to be filed ten
days after the one-year limitation period expired. Although those circumstances present a close
call as to whether Jones has made the required showing to warrant equitable tolling, it is, in the
end, a call that the Court need not make because, even if his petition were timely filed, it does not
present a viable claim for habeas relief and thus would be denied on the merits.
Ineffective Assistance of Counsel Claim
For a habeas petitioner to prevail on a claim of constitutionally inadequate counsel,1 he
must overcome the strong presumption that counsel provided effective assistance. Strickland v.
1
Section 2255 is the preferred method for bringing a claim of ineffective assistance and
the fact that it was not raised on direct appeal does not bar it from being brought under § 2255.
Massaro v. United States, 538 U.S. 500, 509 (2003).
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Washington, 466 U.S. 688, 689 (1984). Strickland requires a habeas petitioner claiming
ineffective assistance of counsel to make a two-part showing. First, he must demonstrate that
counsel's performance was deficient—that is, his counsel made errors of such serious magnitude
that he was deprived of the counsel guaranteed by the Sixth Amendment. Id. at 687. Second, he
must show that there is a reasonable probability that, but for counsel's deficient performance, the
result would have been different. Id. at 694. The Second Circuit has repeatedly “declined to deem
counsel ineffective notwithstanding a course of action (or inaction) that seems risky, unorthodox or
downright ill-advised.” Loliscio v. Goord, 263 F.3d 178, 195 (2d Cir. 2001). “[T]he failure to
make a meritless argument does not rise to the level of ineffective assistance, and ‘strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.' ” United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (quoting Strickland,
466 U.S. at 690).
As noted, Jones contends that his appellate counsel rendered constitutionally inadequate
representation because he failed to argue that the government did not present sufficient evidence to
prove the existence of the RICO enterprise as alleged in the fifth superseding indictment. In
opposition, the government maintains that the evidence showing the existence of the alleged
enterprise was overwhelming - - indeed, that the Second Circuit found as much in its ruling on that
issue in the appeal of one of Jones's co-defendants.2 See United States v. Jones, 482 F.3d 60, 70
2
The government also reads Jones's argument as raising a sufficiency of the evidence
claim as substantive grounds for habeas relief and not just as a ground for ineffective assistance
of counsel, and, as such contends that the claim is procedurally barred for failure to raise it on
direct appeal and also that it must be denied under the “mandate rule” because the Second Circuit
considered and squarely rejected it in an earlier collateral proceeding. See Burrell v. United
States, 467 F.3d 160 (2d Cir. 2006) (noting that the mandate rule bars relitigation of issues
already decided, directly or implicitly, on direct appeal in the same case) . The Court, however,
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(2d Cir. 2006) (finding, on evidence similar to that presented at Jones's trial, the existence of “a
relatively structured enterprise, conducted over a substantial period of time.”). The government
also argues that Jones has not shown that counsel's performance was deficient for failing to raise
that sufficiency challenge or that he suffered prejudice.
The fundamental flaw in Jones's ineffective assistance/sufficiency of the evidence argument
lies in his mis-characterization of the indictment's allegations setting forth the RICO enterprise.
According to Jones, the indictment alleged a RICO enterprise that commenced in 1990 and ended
in November 2001, and that, among others, co-defendants Powell and Harris were its “core
members” from its inception, and who, in 1995, established, and helped Jones and others establish,
a drug organization that distributed heroin and cocaine base in the Middle Court of the P.T.
Barnum Housing Project in Bridgeport, Connecticut. Jones further asserts that, despite these
enterprise allegations, the government presented no evidence at his trial3 showing that Powell and
Harris were involved in any of the enterprise's alleged criminal activity during the years 1990 to
1994,4 and that without such evidence, the alleged enterprise was not sufficiently proven.
Contrary, however, to Jones's characterization, there is nothing in the indictment's
allegations defining the RICO enterprise that identifies the “core members” or the dates in which
each alleged member was an active participant. Rather, the indictment alleges an enterprise that
does not read Jones's motion as raising such a substantive claim. It is raised only in the context
of ineffective assistance and as such is not procedurally barred.
3
To avoid potential spillover prejudice from evidence of violent acts alleged against some
defendants, but not all, Jones's co defendants, Powell, Harris and Luke Jones were tried
separately from Jones.
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“at various times material . . .” was comprised of defendants Powell, Harris, Jones, Luke Jones,
and Leonard Jones, among other defendants and others known and unknown, but not named as
defendants, who “were officers, members, and associates of an organization known as 'Q&A,' 'The
Batman Crew,' or 'The Middle,' and 'D-Top' (hereinafter referred to as “the Enterprise”), which
engaged in narcotics trafficking and acts of violence.” The indictment further alleges that “[t]his
criminal organization, including its leadership, its membership, and its associates constituted an
Enterprise as defined in Title 18, United States Code, Section 1961(4), to wit: a group of
individuals associated in fact, although not a legal entity . . . [which] at all times relevant . . .
operated in . . . the P.T. Barnum Housing Project in Bridgeport, Connecticut, among other
locations, [and] constitutes an ongoing organization whose members functioned as a continuing
unit for a common purpose of achieving the objectives of the Enterprise.” (Fifth Super. Indict.
Para. 1-2) (emphasis added).
Again, contrary to Jones's claim, the enterprise alleged in the indictment was amply
supported by trial evidence showing, not only that it existed as charged, but that it had an
“ascertainable structure beyond that inherent in the pattern of activity in which it engag[ed],” Boyle
v. United States, 556 U.S. 938 (2009), and from which it could be inferred that persons associated
with it engaged in a pattern of racketeering activity. Id. at 947 (noting that the evidence used to
prove the pattern of racketeering activity and the evidence establishing the enterprise may
coalesce). At Jones's trial, the government's evidence consisted of, inter alia, testimony of
cooperating witnesses, including street-level sellers and mid-level lieutenants, as well as law
enforcement officers, who described a relatively structured, ongoing enterprise whose overall drugdistribution operation was run by Luke Jones and his two nephews, Jones and Lonnie Jones, with
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the assistance of Harris and Kenneth Richardson (“Richardson”), and numerous lieutenants who
worked under them supervising the street-level drug dealers and supplying those dealers with
heroin and crack cocaine in two specific areas inside the P.T. Barnum Housing Project, specifically
the Middle Court and D-Top areas. In the Middle Court area, Jones and Lonnie Jones had several
lieutenants working under them, including Willie Nunley, David Nunley, Kevin Jackson, Eugene
Rhodes (“Rhodes”) and John Foster (“Foster”). Rhodes and Foster were cooperating witnesses
who testified at Jones's trial and provided details of the inner workings of the Middle Court crew.
They described how drugs were sold in the Middle Court every hour of every day, in multiple
shifts, each of which was overseen by various lieutenants. The lieutenants would obtain bricks of
heroin and slabs of crack cocaine in prepackaged individual plastic bags from Jones, Lonnie Jones
and, occasionally, Richardson. The lieutenants would distribute the individual bags to the street
sellers who engaged in hand-to-hand sales with the customers. Street sellers included Glenda
Jimenez, James Earl Jones and Lawson Day, all of whom were cooperating witnesses who testified
about their involvement in the enterprise's day-to-day activities in the Middle Court. The
lieutenants also made sure that the street operations ran smoothly, that the sellers had steady and
sufficient supplies of narcotics to sell, collected money from the street-sellers and served as look
outs. If a street seller was arrested, Jones and Lonnie Jones would post bond for his release. In
order to preserve their control and dominance over their Middle Court turf and to keep out rival
drug gangs, the Middle Court crew only allowed their specific “brands” of crack and heroin to be
sold on their “turf” and frequently engaged in violence and threatened violence. To further the
enterprise's goal of selling narcotics in P.T. Barnum, its members engaged in numerous related
racketeering acts, including narcotics conspiracies and acts of violence.
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This evidence, viewed in the light most favorable to the government and giving credit to
every inference the jury might have drawn in the government's favor, United States v. Dhinsa, 243
F.3d 635, 648 (2d. Cir. 2001) (stating the standard by which a challenge to the sufficiency of the
evidence is judged), certainly demonstrated a well-defined, structured enterprise with an enduring
power structure or core leadership, whose associates and members worked together over a lengthy
period of time for the common purpose of engaging in a pattern of racketeering activity, including
narcotics distribution and narcotics conspiracy, in two exclusive areas inside the P.T. Barnum
Housing Project. See Boyle, 556 U.S. at 946 (stating that an association-in-fact enterprise must
have at least 3 structural features: a purpose, a relationship among those associated with it and
longevity sufficient to permit it to pursue the enterprise's goals). Moreover, even if, as Jones
alleges, there was no evidence showing that Powell and Harris had any involvement in the criminal
activities of the enterprise from 1990 to 1994, the law is clear that the government does not need to
prove an enterprise was comprised of a fixed membership throughout its existence. E.g., United
States v. Eppolito, 543 F.3d 25, 49 (2d Cir. 2008). There is nothing in RICO that “exempts an
enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.”
Boyle, 566 U.S. at 948. Indeed, different members of an enterprise may perform different roles at
different times, and it may continue to exist even if it undergoes changes in membership. United
States v. Coonan, 938 F.2d 1553, 1560-61 (2d Cir. 1991). All that the government is required to
prove to satisfy the enterprise element of RICO is evidence showing that it functioned as an
ongoing, continuing unit, whose core leadership remained the same, even if its membership
changed during the period alleged. Id. The fact that, as Jones asserts, the government introduced
evidence at Luke Jones's separate trial showing that Luke Jones, Powell, Harris and others
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converted cocaine into cocaine base for distribution in the Middle Court and D-Top areas and
distributed drugs between buildings six and seven in P.T. Barnum in 1995, but did not introduce
such evidence at his trial. does not take away from the fact that there was ample, indeed
overwhelming, other evidence proving the existence of the RICO enterprise led by Jones, Luke
Jones, Lonnie Jones and others as charged in the fifth superseding indictment.
Thus, Jones's appellate counsel's strategic decision to not raise a meritless sufficiency of the
evidence argument as to the existence of the charged enterprise hardly rises to the level of
ineffective assistance or professional incompetence. Kirsh, 54 F.3d at 1071. Accordingly, Jones
can not show that his appellate counsel's representation fell below an objective standard of
reasonableness, Strickland, 466 U.S. at 688, 693, and his Sixth Amendment ineffective assistance
of counsel claim would fail as a matter of law even if his habeas petition had been timely filed.
CONCLUSION
For the foregoing reasons, Jones's motion for habeas corpus relief pursuant to 28 U.S.C. §
2255 [doc. # 1] is DENIED.
A certificate of appealability will not issue as Jones has not made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
SO ORDERED
/s/________________________________________
ELLEN BREE BURNS
SENIOR UNITED STATES DISTRICT JUDGE
Dated this 5th day of December, 2014 at New Haven, Connecticut.
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