Jones v. USA
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) for the reasons set forth in the attached decision. The Court declines to issue a certificate of appealability. The Clerk is directed to amend the Judgment in United States v. Williams, Case No. 10-cr-00080-3 (VLB) as contemplated by the discussion in footnote 1 of this decision. The Clerk is ordered to close this case. Signed by Judge Vanessa L. Bryant on 01/07/2018. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIVIL CASE NUMBER
JANUARY 7, 2018
MEMORANDUM OF DECISION DENYING PETITION FOR RELIEF UNDER 28 U.S.C.
§ 2255 [DKT. 1]
Petitioner, Jermaine Jones (“Jones” or “Petitioner”), brings this pro se
petition for habeas relief under 28 U.S.C. § 2255, asserting twelve ineffective
assistance of counsel claims against his counsel who represented him for trial and
sentencing. For the foregoing reasons, this Motion to Vacate, Set Aside, or Correct
Sentence, [Dkt. 1], is DENIED.
On May 20, 2010, Mr. Jones was arrested in Florida for charges stemming
from the initial Indictment issued on April 1, 2010. See United States v. Williams,
Case No. 10-cr-00080 (VLB) (hereinafter “Williams”), [Dkt. 1 (Sealed Indictment)].
The Indictment charged Mr. Jones and his two co-defendants, Sheikera Williams
and Michael Jones, with 70 counts of bank fraud in violation of 18 U.S.C. § 1344,
one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, and
three counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. At the
arraignment on June 29, 2010, Mr. Jones entered a plea of not guilty and was
appointed Frank Riccio, Jr. (“Attorney Riccio”) as CJA counsel. See Williams, [Dkt.
No. 13 and 14 (Attorney Appearance)]. Mr. Jones was ordered detained.
After several continuances, the trial was ultimately scheduled for November
2011. Co-defendant Williams pleaded guilty on October 3, 2011. See Williams, [Dkt.
No. 104 (Change of Plea Hearing)]. A Superseding Indictment was issued on
October 11, 2011, which decreased the total counts and instead included seven
counts of bank fraud, one count of conspiracy to commit bank fraud, and seven
counts of aggravated identity theft, all in violation of the same statutes as
previously stated. See Williams, [Dkt. No. 115 (Superseding Indictment)].
The trial began on November 2, 2011 and the jury rendered its verdict on
November 17, 2011: guilty on all counts. See Williams, [Dkt. No. 182 (Jury Verdict)].
Mr. Jones was sentenced on May 16, 2012 and received 216 months’ imprisonment
on the bank fraud and conspiracy counts to run concurrently; 24 months’
imprisonment on the aggravated identity theft counts to run consecutive to the 216
months; 60 months’ supervised release; a special assessment of $1,500.00; and
$237.790.001 payable at a rate of not less than $25.00 per week. See Williams, [Dkt.
No. 245 (Judgment)].
By and through Attorney Riccio, Mr. Jones appealed his conviction and
sentence. See Williams, [Dkt. No. 238 (Notice of Appeal)]. The Second Circuit
affirmed the conviction and sentence in summary order filed February 26, 2014.
The Court has reviewed the transcript of the sentencing hearing, the Statement
of Reasons, and the Judgment. At the hearing, the Court ordered Mr. Jones to pay
restitution in the amount of $237,790 payable at a rate of $25 per week, see Dkt. 274
(Sentencing Tr.) at 43:5-12], the value of which is stated in the Statement of
Reasons, see [Dkt. 243 (Stmt of Reasons) at 4 of PDF]. The Judgment does not
reflect this amount and instead lists the restitution amount to be $237,936. The
Court finds that the Judgment is in error and contemporaneously herewith files an
See Williams, [Dkt. No. 291 (Mandate)]. Specifically, the Second Circuit upheld his
conviction for failure to demonstrate insufficient evidence at trial, ruling, “In short,
plentiful evidence was presented at trial of Jones’s intent to join a conspiracy to
commit bank fraud, his intent to commit the substantive crime of bank fraud, and
his knowledge that the means of identification at issue belonged to another
person.” Id. at 4. In addition, the Second Circuit upheld his sentence and found
that this Court did not err in (1) calculating the loss amount pursuant to §
2B1.1(b)(1), (2) applying a two-level enhancement for “sophisticated means” under
§ 2B1.1(b)(10), and (3) applying a four-level enhancement for 50 fifty or more
victims pursuant to § 2B1.1(b)(2)(B). See id. at 6-7. Thereafter, Mr. Jones timely
filed this habeas petition before the Court.
Section 2255 enables a prisoner is federal custody to petition a federal court
to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Relief under
Section 2255 is generally available “only for a constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or fact that constitutes a
fundamental defect which inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotation marks
and citation omitted). Section 2255 provides that a district court should grant a
hearing “[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
Claims for ineffective assistance of counsel are analyzed under the two part
test established in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a
movant must both allege facts demonstrating that “counsel’s representation fell
below an objective standard of reasonableness” and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 687–88, 694. As to the first showing,
a movant must demonstrate that counsel’s performance “amounted to
incompetence under ‘prevailing professional norms’” rather than demonstrating
that the performance “deviated from best practices or most common custom.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).
As to the second showing, a movant must demonstrate “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Mr. Jones brings 12 ineffective assistance of counsel claims, which raise
instances that occurred during both trial and sentencing. The Court addresses
each claim in turn.
Failure to Raise a Batson Challenge
Mr. Jones claims the jury pool included approximately five African
Americans and the Government used its peremptory challenges to strike all but
one of these individuals. The use of peremptory challenges, Mr. Jones contends,
was done “in a systematic racial[ly] mot[i]vated manner to [e]nsure that neither one
of the African-American prospective jurors were actually seated on the jury.” [Dkt.
1-1 (Petitioner’s Mem. Law) at 8]. As a result, the jury was comprised entirely of
white people, and Mr. Jones argues counsel acted deficiently in failing to object to
the jury composition “[i]n light of the [G]overnment’s theory of the case, that
Movant sought out, and only used, white females to commit the crimes for which
he was on trial for. . . .” Id.
The Government disputes the validity of Mr. Jones’s Batson challenge claim
for the primary reason that he fails to establish a prima facie case of purposeful
discrimination. [Dkt. 14 (Gov. Response) at 17]. The Government points out that
Mr. Jones does not cite the transcript or another document identifying the
demographics of the venire or the Government’s peremptory strikes. Even if he
were to satisfy the prima facie case, the Government contends he nonetheless fails
to establish prejudice. Id. at 18.
Batson v. Kentucky, 476 U.S. 79 (1986) created a three-step procedure for
courts to determine “whether a peremptory strike has been exercised in a racially
discriminatory manner.” United States v. Diaz, 176 F.3d 52, 76 (1999). First, a court
must determine whether the petitioner makes out “a prima facie showing that the
prosecution has exercised its peremptory strike on the basis of race.” Id. If
defendant satisfies the first step, the court must then evaluate “whether the
government has satisfied its burden of coming forward with a race-neutral
explanation for striking the juror in question.”
If so, the court evaluates
“whether the defendant has carried his burden of persuasion of proving purposeful
There are several ways in which a petitioner can make a prima facie showing
of racial discrimination. A court should consider “how many members of the
cognizable racial group are in the venire panel from which the petit jury is chosen,
the pattern of strikes against racial group jurors in the particular venire, the
prosecutor’s statements and questions during selection, as well as any other
relevant circumstances.” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998)
(addressing prima facie showing in the Powers context). “When the asserted prima
facie case is based upon the use of strikes to exclude all or nearly all of the
members of a particular racial group, the record need only include how many
members of that group were in the venire, and how many of those were struck.”
Jones v. West, 555 F.3d 90, 99 (2d Cir. 2009).
Mr. Jones has not provided the Court with any evidence supporting his
claim. Nonetheless, the Court independently assessed the venire documents kept
by the Clerk. The jury pool contained only two individuals who identified as African
American. The first person was randomly assigned pool number 39, and the Court,
not the Government, struck him for cause. The second person was randomly
assigned pool number 64, and she was chosen as the third alternate. It is worth
noting the twelfth juror was assigned pool number 49, and therefore the random
nature of the jury selection process essentially made it impossible for the alternate
to have been picked as a juror given she was questioned 15 people later. The Court
also notes the Government used peremptory challenges on eight people, seven
who were listed as White and one who was listed as Other. One chosen juror was
also listed as Other. The objective evidence does not support a finding that the
Government’s actions were racially motivated or that Attorney Riccio acted below
an objective standard of reasonableness in failing to object to petit jurors having
been stricken. Neither Mr. Jones nor the record offer any factual support for this
claim and therefore a hearing is not warranted. See Strickland, 466 U.S. at 687-88.
Failure to Object to Discovery
Mr. Jones claims the Government withheld exculpatory evidence as
demonstrated by the changes in the Superseding Indictment, which reduced the
number of Defendants from three to two and the number of bank fraud counts from
74 to seven. [Dkt. 1-1 at 12-13]. Specifically, Mr. Jones believes the Government
withheld all discovery pertaining to Counts 9, 11, 13 and 15 of the Superseding
Indictment. Id. The Government maintains that it “provided early and fulsome
discovery in this case, beginning in July 2010,” and that Mr. Jones’s
characterization demonstrates a misunderstanding of the discovery process rather
than any potential misconduct. See [Dkt. 14 at 19].
In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court
established the requirement to disclose all evidence that could be considered
exculpatory or bearing on a defendant’s innocence or guilt. The Government’s
obligations under Brady are well-established. The prosecution has a constitutional
duty to disclose evidence favorable to an accused when such evidence is material
to guilt or punishment. Id. at 87. This duty covers not only exculpatory evidence,
but also information that could be used to impeach a key government witness. See
Giglio v. United States, 405 U.S. 150, 154 (1972). Brady does not, however, require
the prosecution to disclose all exculpatory and impeachment evidence; it need
disclose only that, which “if suppressed, would deprive the defendant of a fair
trial.” United States v. Bagley, 473 U.S. 667, 675 (1985). In the context of Brady, a
defendant is deprived of a fair trial only where there is a reasonable probability that
the government’s suppression affected the outcome of the case, see id. at 682, or
where the suppressed evidence “could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict,” Kyles v.
Mr. Jones has failed to identify any evidence withheld by the Government,
much less any evidence that would have changed the outcome of the trial and the
withholding of which thus deprived him of a fair trial. It appears as if the evidence
Mr. Jones challenges was not even “favorable to the accused” as his position is
the Government “failed to disclose any discovery whatsoever to support its
inclusion of Counts 9, 11, 13, and 15 of the Superseding Indictment. . . .” [Dkt. 1-1
at 13]. The Government avers that it timely disclosed all discovery beginning in
June 2010, which relate to the Superseding Indictment filed October 2011.2 See
[Dkt. 14 at 22]. The filing of a Superseding Indictment, which reduced the total
number of counts and adjusted the nature of the counts, does not inherently mean
discovery was withheld. Mr. Jones clearly has not met his burden to establish
deficient performance because he has not alleged any facts demonstrating how the
absence of an objection on these grounds means counsel’s performance fell below
an objective standard of reasonableness. See Strickland, 466 U.S. at 687–88; Lewis
v. Feliciano, No. 3:09cv20171 (DJS), 2012 WL 1247264, at *9 (D. Conn. Apr. 13, 2014)
(stating that “[a]bsent any indication as to what the witnesses would have stated
The Government has provided the Court with evidence of rental car records
disclosed to Defendant prior to trial as well as summary charts of checks and other
records, some of which are expressly referenced in the Superseding Indictment
and which were some of the Government’s trial exhibits. See Williams, [Dkt. 115].
To the extent Petitioner believes the Government did not disclose any evidence
relating to the Superseding Indictment, see [Dkt. 1-1 at 13], this contention is
dispelled by the Government’s Exhibit 6, see [Dkt. 14-6 (Ex. 6, Trial Exs.)].
or what the evidence would have shown, Lewis failed to meet [his] burden” of
demonstrating deficient performance on Brady grounds). Therefore, the Court
need not address the prejudice prong.
Failure to File Motion to Sever
Mr. Jones criticizes defense counsel’s failure to file a motion to sever his
case from that of his co-defendant, Michael Johnson. According to Mr. Jones,
severance would have been essential because he stopped participating in the
conspiracy after his arrest and detention. Severance, the Government contends,
is not warranted simply because a defendant did not participate in the entire
conspiracy, because the critical question is whether a joint trial prejudiced the
movant and Mr. Jones has not addressed this factor. See [Dkt. 14 at 22].
Rule 14 of the Federal Rules of Criminal Procedure provides that “[i]f the
joinder of offenses or defendants in an indictment . . . appears to prejudice a
defendant or the government, the court may order separate trials of counts, sever
the defendants’ trials, or provide any other relief that justice requires.” Fed. R.
Crim. P. 14(a). There is a clear preference for a joint trial where “the defendants
are alleged to have participated in a common plan or scheme.” United States v.
Fazio, 770 F.3d 160, 166 (2d Cir. 2014) (citing United States v. Salameh, 152 F. 3d
88, 115 (2d Cir. 1998)).
“[I]t is well-settled that withdrawal from a conspiracy is an affirmative
defense for which the defendant bears the burden of proof at trial.” United States
v. Leslie, 658 F.3d 140, 143 (2d Cir. 2011).
A conspirator’s membership in a
conspiracy is presumed to continue until he affirmatively withdraws or the
conspiracy ends. United States v. Flaharty, 295 F.3d 182, 192 (2d Cir. 2002). The
defendant has the burden of proving withdrawal. United States v. Berger, 224 F.3d
107, 118 (2d Cir. 2000). Here, Mr. Jones fails to establish that his involuntary
incapacitation even constitutes withdrawal. Evidence of imprisonment can, but
does not necessarily, constitute withdrawal from a conspiracy. See Flaharty, 295
F.3d at 192-93.
To withdraw from a conspiracy, a person must take some
affirmative action either by “the making of a clean breast to the authorities, or
communication of the abandonment in a manner reasonably calculated to reach
co-conspirators.” United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964); Berger,
224 F.3d at 118 (same). To withdraw, an individual must not take any subsequent
acts to promote the conspiracy. United States v. Basciano, 634 F. App’x 832, 834
(2d Cir. 2015). At trial, evidence that identity documents stolen by Jones was used
by his co-conspirators when he was not present.
Severance is not automatic in circumstances where a defendant is
incarcerated during the conspiracy, particularly where there is substantial
evidence of the defendant’s involvement in the conspiracy prior to incarceration
and withdrawal relates “only to the improper use against him of subsequent acts
and declarations of coconspirators.” See United States v. Agueci, 310 F.2d 817,
838-39 (2d Cir. 1962); United States v. Bless, 422 F.2d 210, 213 (2d Cir. 1970). A
court is to sever defendants “only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” United States v. Astra Motor
Cars, 352 F. Supp. 2d 367, 369-70 (E.D.N.Y. 2005) (quoting Zafiro v. United States,
506 U.S. 534, 539 (1993)). Such a determination is left to the sound discretion of
the court. Zafiro v. United States, 506 U.S. at 539.
Mr. Jones has not presented the Court with any evidence that he was denied
a fair trial. After reviewing the trial transcripts, the Court finds that Defendants
participated in a “common scheme or plan,” Fazio, 770 F.3d at 166, and that there
was substantial evidence of his involvement in the conspiracy, see Agueci, 310
F.2d at 838-39.
Moreover, Mr. Jones’s withdrawal was relevant “only to the improper use
against him of subsequent acts and declarations of coconspirators,” see Agueci,
310 F.2d at 838-39, which he freely acknowledges as relevant to the length of time
he participated in the conspiracy, see [Dkt. 5 (Jones Decl.) ¶ 15]. Mr. Jones points
to no improper use of the evidence.
The Second Circuit’s mandate on Mr. Jones’s appeal concluded that
“plentiful evidence was presented at trial” of Mr. Jones’s intent to join the
conspiracy and commit the substantive offenses with the knowledge that the
means of identification belonged to other people. See [Dkt. 291 at 4].
Attorney Riccio declares that he considered severance and advised Mr.
Jones that courts typically deny motions to sever. See [Dkt. 19 (Riccio Aff.) at 7 of
PDF]. Counsel did not act unreasonably when he elected not to move to sever
defendants in light of the facts of the case, his understanding of prevailing case
law, and the unlikelihood that a motion to sever would have been granted. See id.
Mr. Jones similarly fails to show prejudice in light of the fact that withdrawal
was relevant only to subsequent activities and the loss amount attributable to him,
because despite his incarceration the jury would have been reasonably able to
consider the evidence as to the guilt of Mr. Johnson and Mr. Jones. See United
States v. Moten, 564 F.2d 620, 627 (2d Cir. 1977).
Failure to Sequester Special Agent Mahar
Mr. Jones believes defense counsel was ineffective in failing to demand
Special Agent Ryan Mahar be sequestered from the trial. [Dkt. 1-1 at 15]. He argues
Agent Mahar participated in the investigation and “[p]rejudice resulted when the
agent controlled the flow of evidence for the prosecution, in such a manner so as
to actually prosecute the case, thus denying Movant of a fair trial.”
Government does not dispute Agent Mahar’s presence during trial but contends
that such presence is permitted by the Federal Rules of Evidence and case law.
[Dkt. 14 at 25].
Rule 615 of the Federal Rules of Evidence requires a court to sequester a
witness upon a party’s request or on its own “so that they cannot hear other
witnesses’ testimony.” One exception to this rule applies where “an officer or
employee of a party that is not a natural person [is] designated as the party’s
representative by its attorney.” Fed. R. Evid. 615(b). In keeping with this rule, a
“district court has discretion to exempt the government’s chief investigative agent
from sequestration, and it is well settled that such an exemption is proper under
Rule 615[b], deeming the agent–witness a ‘representative’ of the government.”
United States v. Lee, 834 F.3d 145, 162 (2d Cir. 2016) (internal quotation marks and
citations omitted); see Griffith v. United States, No. 03 Civ. 7860(HB), 03 Civ.
7861(HB), 2005 WL 245071, at *6 (S.D.N.Y. Oct. 6, 2005) (“In light of such well-settled
precedent [establishing the court’s discretion] it is reasonable for the Griffiths’
counsel not to have objected to the agent’s presence in the courtroom.”).
Therefore, defense counsel was not deficient for failing to request sequestration
because Agent Mahar would have fit within the ambit of the Rule 615(b) exception.
See United States v. Lott, 365 F. App’x 946, 950 (10th Cir. 2010) (ruling defense
counsel’s failure to seek sequestration of government’s case agent did not
constitute ineffective assistance of counsel because the witness would have fallen
within a Rule 615 exception). Mr. Jones fails to provide a legal or factual basis that
warrants a finding of deficiency or prejudice.
Failure to Object to Special Agent’s Expert Testimony and the Lack of
Mr. Jones bases this next ineffective assistance of counsel claim on defense
counsel’s failure to object to the foundation laid for Agent Mahar to testify as an
expert and his subsequent testimony.
See [Dkt. 1-1 at 17].
classification as an expert and associated testimony purportedly “served no
purpose but to bolster the credibility of the witnesses whose credibility is/was
questionable at best.” Id. at 18. The Government argues that it laid a proper
foundation for Agent Mahar’s testimony as an expert and that his testimony in
multiple capacities was permissible. See [Dkt. 14 at 26].
With respect to the foundation issue, the Government established that Agent
Mahar holds a Bachelor’s degree from the University of Nashville, Tennessee and
that he became a forensic examiner for the United States Secret Service in 2006.
[Dkt. 267 (Tr. 11/14/11) at 225:17-226:2]. He received approximately 140 hours of
special training in cell phone forensics, which has taught him how to recover digital
evidence from various devices. Id. at 226:3-11. In total, he has analyzed over 50
cell phones. Id. at 226:12-14. He had previously been qualified as an expert in cell
phone forensics in Connecticut state court. Id. at 226:21-25. After discussing the
nature of the expert testimony at side bar, neither defense counsel for Mr. Johnson
nor defense counsel for Mr. Jones objected to his determination as expert. See id.
at 227:3-20. Mr. Jones has not brought forth any factual evidence or a legal basis
indicating the Agent Mahar is not “qualified as an expert by knowledge, skill,
experience, training or education. . . .” Fed. R. Evid. 702. The Court finds the
Government sufficiently laid a foundation for Agent Mahar to testify as an expert
and that Attorney Riccio’s performance did not fall below prevailing professional
norms in abstaining from objection. See Harrington, 562 U.S. at 105.
Mr. Jones’s contention that his qualification as an expert bolstered his lay
witness testimony requires a closer analysis, but ultimately it does not prevail. In
certain circumstances, a case agent’s testimony as expert carries some risks of
juror confusion, see Fed. R. Evid. 403, because “[s]ome jurors will find it difficult
to discern whether the witness is relying properly on his general experience and
reliable methodology, or improperly on what he has learned of the case.” United
States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003). Accordingly, there exists a risk
that a case agent testifying about both an expert opinion and the facts of the case
“may easily elide these two aspects of their testimony.” Id. at 55-56. Indeed,
“[g]iven their role, their perspective, and their focus on the facts, these case agent
experts are more likely to stray from the scope of their expertise and to testify about
other aspects of the case, including the divulging of hearsay evidence.” Id. at 5556.
Here, the potential for juror confusion was minimal because the Government
questioned Agent Mahar on a very narrow set of issues; he testified almost
exclusively to the summarization of certified records and the content of documents
that were submitted into evidence. See generally [Dkt. 267 at 206:15-242:11; Dkt.
268 at 6:11-24:24]. Agent Mahar did not provide hearsay evidence or stray from the
scope of his expertise. Id. Mr. Jones fails to demonstrate how counsel’s failure to
object would be deficient, let alone prejudicial, to his case.
Failure to Object to Evidence at Trial
Mr. Jones lists in four groups several exhibits that were introduced without
objection and contends that the failure to object constituted ineffective assistance
of counsel. He does not identify the objections that could have been made or
establish why the failure to object would have been deficient.
First, Mr. Jones argues Attorney Riccio was ineffective for allowing the
Government’s Exhibit 301 to be admitted and to subsequently be amended. See
[Dkt. 1-1 at 18].
This exhibit is a summary chart of Exhibits 1-100 and was
admissible pursuant to Fed. R. Evid. 1006, which enables a proponent to “use a
summary, chart, or calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently examined in court.”
Because the Court admitted the documents pursuant to Fed. R. Evid. 1006, see
[Dkt. 260 (Tr. 11/2/11) at 3:7-23], and the underlying documents were admitted as
exhibits as well, Mr. Jones has not shown how, if at all, the summary charts failed
to reflect accurately the underlying exhibits. Consequently, he has failed to show
how Attorney Riccio acted below his objective standard of reasonableness in
failing to object to the introduction of unobjectionable exhibits which merely
summarized voluminous admissible exhibits. See Strickland, 466 U.S. at 687-88.
There is no basis for the Court to conclude that Attorney Riccio performed
deficiently by allowing the summary chart to be amended as trial continued. The
revisions certainly did not amount to anything serious enough to undermine the
outcome of trial. See Strickland, 466 U.S. at 964.
Second, Mr. Jones contends that Exhibits 23-A-1, 23-B-1, 24-A-1, 24-B-1, 25A-1, 25-B-1, 26-B-1, 27-A-1, and 27-B-1 should not have been introduced as they
were notes referred to by witness Marie Martin. See [Dkt. 1-1 at 18]. At the
beginning of the direct examination, the Government handed Ms. Martin a binder
of Exhibits 23 through 28, see [Dkt. 261 (Tr. 11/3/11) at 38:2-10], and the record
reflects these exhibits were copies of checks, not notes, see id. at 38:2-40:19]. In
addition, Ms. Martin brought copies of returned checks “along with the reason . . .
that it was returned . . . from a second bank.” See [Dkt. 261 at 46:4-13]. Ms. Martin
testified that the check “is the same as . . . the original check when it was
negotiated” but “[i]t’s before we knew it was going to return.” Id. She also testified,
“When it’s returned it looks the same but they just put a return reason.” Id. These
documents were admitted under the business records exception as the
Government established they were version of other exhibits created by the
employee with knowledge near the time of the transaction, they were kept in the
ordinary course of business, and they were made as a regular practice of that
activity. See Fed. R. Evid. 803(6)(A)-(C); see [Dkt. 261 at 38:3-65:1; 47:15-48-14].
The fact that there is a stated reason for the return does not mean the documents
were not admissible.
The record indicates defense counsel possessed these
documents prior to the trial, and defense counsel’s copies were submitted into
evidence. Id. at 49:18-50:7. Attorney Riccio did not act deficiently because these
documents were admissible.3
Third, Mr. Jones challenges Attorney Riccio’s stipulation to Exhibits 140A-C
and 154A-C. See [Dkt. 1-1 at 19]. Witness Susan McGregor testified that Exhibits
140A-C were her driver’s license, debit card, and a check made out in her name.
See [Dkt. 264 (Tr. 11/8/11) at 54:3-24]. Witness Mary Willingham testified that
Exhibits 154A-C were her driver’s license, credit card, and military identification.
See id. at 48:21-49:9]. The parties stipulated to the admissibility of Exhibits 140AC and 154A-C, which were “similar to exhibits previously stipulated for admission
as full exhibits.” Id. at 56:12-23. Regardless, these documents would have been
admissible as the witnesses were the owners of the documents and adequately
identified the evidence in a manner “sufficient to support a finding that the item is
what the proponent claims it is.” See Fed. R. Evid. 901(a). Attorney Riccio acted
as a reasonable attorney in stipulating to the admission.
Fourth, Mr. Jones claims that Exhibits 14, 23, 52, and 96 should not have
been admitted because they supported Counts 9, 11, 13, and 15 and had never been
disclosed to him prior to trial. See [Dkt. 1-1 at 19]. These exhibits were checks
Mr. Jones also fails to direct the Court to the Avis Budget sheet substitutions to
which he objects. The Court will not address his reference to this claim, without
submitted into evidence, which were also featured in the summary chart. Attorney
Riccio did not perform below an objective standard of reasonableness for the same
reasons as the above exhibits pertaining to Ms. Martin’s testimony. See Dkt. 260
at 61:9-62:14 (admitting Exhibit 96 as a business record); Dkt. 261 at 38:3-40:14,
67:1-69:20, 127:24-129:19 (admitting Exhibits 14, 23, and 52 as a business record)].
Assuming Mr. Jones did not have the opportunity to review these documents prior
to trial, these checks were just four of the 100 checks submitted into evidence and
would not have “undermine[d] confidence in the outcome.” See Strickland, 466
U.S. at 694. Accordingly, this ineffective assistance of counsel claim fails.
Failure to Advise of Right to Testify
It is Mr. Jones’s position that Attorney Riccio failed to advise him of his right
to testify. See [Dkt. 1-1 at 20-21]. Specifically, Mr. Jones claims that “counsel knew
[he] wanted to testify and tell his side of the story regarding the offense” and that
“counsel knew that Movant only proceeded to a jury trial whereas he could testify
regarding loss amounts attributed to him. . . .” Id. at 20. The Government objects
to Mr. Jones’s claim on two key bases: (1) Attorney Riccio’s affidavit, which
conflicts with Mr. Jones’s affidavit, demonstrates that Attorney Riccio advised Mr.
Jones about his right to choose to testify, see [Dkt. 14 at 31]; and (2) Mr. Jones
cannot show prejudice because he only wanted to testify to the loss amount and
the Government would have questioned him on his lengthy criminal record, which
undoubtedly would have been damaging to his case, id.
It is well-settled that a criminal defendant “has the right to take the witness
stand and to testify in his or her own defense.” Bennett v. United States, 663 F.3d
71, 84 (2d Cir. 2011) (quoting Rock v. Arkansas, 483 U.S. 44, 49 (1987)). The
decision to testify is solely for the defendant to make, and defense counsel is
tasked with the responsibility to “advis[e] the defendant of his right to testify or not
to testify.” Id. Included in counsel’s duty is to “advise the defendant about the
benefits and hazards of testifying and not testifying,” and although counsel is
permitted to “strongly advise the course that counsel thinks best” he must leave
the ultimate decision to the defendant. Id.
Attorney Riccio submitted an affidavit indicating he believes Mr. Jones
should not testify due in part because of his extensive criminal history. See [Dkt.
19 ¶ 6]. Attorney Riccio averred that Mr. Jones “agreed ultimately to not take the
stand.” Id. ¶ 7. This affidavit directly conflicts with Mr. Jones’s declaration wherein
he claims Attorney Riccio prevented him from testifying even though Attorney
Riccio knew he wanted to testify, and that “[A]ttorney Riccio never explained to me
anything about my rights to testify, he just wouldn’t let me testify, although we had
previously decided that I would.” [Dkt. 5 ¶ 13, 18].
With respect to Strickland’s deficiency prong, the Second Circuit has upheld
a district court’s denial of a hearing when the only evidence supporting counsel’s
failure to provide the right to testify was the Mr. Jones’s “own blanket statements”
that he was prevented from testifying. See Chang v. United States, 250 F.3d 79, 8485 (2d Cir. 2001). In Chang, however, the trial counsel supplemented the record
with a “detailed affidavit . . . credibly describing the circumstances concerning
appellant’s failure to testify.” See id. at 85. Here, Attorney Riccio’s affidavit falls
short of being sufficiently detailed on this issue. As a general matter, where a claim
involves “off-the-record interactions” with trial counsel, it “cannot be determined
by examining the motion, files, and records before the district court.” Id. at 85. The
Court thus assumes without deciding only for the purposes of this analysis that
his performance was deficient.
The Court nonetheless determines a hearing is not warranted because Mr.
Jones fails to properly address the prejudice prong under Strickland. As Mr. Jones
himself avers in his brief, counsel knew he proceeded to trial so “he could testify
regarding loss amounts attributed to him, as he never denied any involvement in
the offense.” [Dkt. 1-1 at 20-21]. Mr. Jones does not provide the Court with any
other content to which he would have testified, and accordingly the Court cannot
conclude there is a reasonable probability the verdict would have been different.
See generally Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997) (assessing petitioner’s
proposed testimony and ruling that he would not have been able to satisfy all
elements of a justification defense, thereby failing to establish prejudice); Perez v.
United States, No. 3:09cv30 (JBA), 2012 WL 1067549, at *5 (D. Conn. Mar. 30, 2012)
(“Without offering any explanation as to what he would have testified about, or how
that could have possibly changed the outcome of his trial, Petitioner cannot
demonstrate that but for Attorney Reeve's alleged advice about his testifying, there
is a reasonable probability that the outcome of the trial would have been
different.”). Therefore, the Court will not order a hearing or find Attorney Riccio’s
representation was constitutionally ineffective on this ground.
Failure to Seek Two-Level Departure for Acceptance of Responsibility
On January 3, 2011, Attorney Riccio sent a letter to Mr. Jones discussing the
United States Sentencing Guidelines calculation for his charges under the original
Indictment. See [Dkt. 14-3 (Opp’n Ex. 3, Riccio Exhibits) at 12 of PDF]. The letter
informs Mr. Jones of the Government’s then-pending plea agreement, which
included a three-level downward adjustment for acceptance of responsibility. See
id. at 15 of PDF. An e-mail sent by Attorney Riccio to the Government on October
6, 2011, indicates Attorney Riccio “told him that the opportunity to plead guilty and
receive 3 acceptance points would close on Monday 10/10.” Id. at 54 of PDF.
Attorney Riccio did not thereafter seek a two-level downward adjustment for
acceptance of responsibility in the sentencing memorandum or in objecting to the
Presentence Report (“PSR”).
Specifically in the sentencing memorandum, he
wrote, “Mr. Jones understands that an adjustment under Guidelines § 3E1.1(b) will
not occur due to his putting the Government to its burden of proving him guilty at
trial.” See Williams, [Dkt. No. 223 (Def. Sentencing Mem.) at 7]; [Dkt. 14-7 (Opp’n
Ex. 7, PSR Obj.)].
Mr. Jones has not established in what way counsel’s performance is
deficient for recognizing the fact that Mr. Jones did not qualify for the acceptance
of responsibility adjustment. Comment Two to the Sentencing Guidelines states
the acceptance of responsibility adjustment “is not intended to apply to a
defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse.” U.S.S.G. § 3E1.1, cmt. 2 (2011). The Commission identified
only rare circumstances for awarding an acceptance of responsibility adjustment
despite a defendant’s exercise of his right to a jury trial, included which are
attempts to “assert and preserve issues that do not relate to factual guilt (e.g., to
make a constitutional challenge to a statute or a challenge to the applicability of a
statute to his conduct).” Id. Such a determination is to be based on “pretrial
statements and conduct.” Id. Mr. Jones may have admitted his culpable conduct
to his counsel, but the fact remains that he proceeded to trial leaving the
Government to its burden of proof. He did not exercise his right to trial solely to
preserve issues unrelated to factual guilt and therefore he cannot establish
counsel’s performance was deficient.
In addition, at sentencing most attorneys seek to cast their clients in a
favorable light; as contrite and remorseful rather than argumentative and
disrespectful of the law. Recognizing a clear and unambiguous provision of the
sentencing guidelines rather than making a specious argument for an adjustment
for which a client is clearly not entitled is a strategy to cast a client in the most
favorable light possible in order to best assure a more lenient sentence.
reasonable strategic decision cannot form the basis or an ineffective assistance
claim. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987); United States
v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (applying the trial strategy principle to a §
2255 motion). Strategic trial decisions, “if reasonably made, will not constitute a
basis for an ineffective assistance claim.” Nersesian, 824 F.2d at 1321.
Moreover, the sentencing transcript makes clear that Mr. Riccio did not
forego making an available argument that Mr. Jones took responsibility for his
personal conduct as he understood it. First, Attorney Riccio stated during his
opening statement at sentencing that Mr. Jones “certainly accepts responsibility
for the crimes that he stands charged of” and that a “[d]ispute always existed in
the Government’s offer of the overall scope, the overall amount, and the vastness
of this conspiracy and the vastness of this activity.” See Williams, [Dkt. 274 at
13:19-24]. Mr. Jones later gave a statement that there was no proof he broke into
cars in Connecticut, see id. at 24:10-14, and he also opined, “I just don’t want to
take the punishment for what [my co-conspirators] did,” id. at 24:21-25. This Court
observed Mr. Jones “stands here today, purportedly accepting responsibility for
his conduct, saying, ‘I should only be sentenced on the basis of the money that
was stolen either by me or when I was present, or only with the things that I stole.’”
Id. at 30:2-9. This Court then determined a downward adjustment for acceptance
of responsibility would not be warranted, “certainly not after today’s statement.” In
his statement to the Court, Mr. Jones expressed an unwillingness to accept
responsibility for the reasonably foreseeable acts of his co-conspirators in
furtherance of their joint objective as required by law and explained in the Court’s
jury instruction. See id. at 36:1-4. Attorney Riccio’s oral argument, Mr. Jones’s
subsequent statement at sentencing, and the Court’s § 3553 findings on the record
make clear that Attorney Riccio made the only acceptance of responsibility
argument to which Mr. Jones availed himself. Mr. Jones thus cannot show that Mr.
Riccio’s admission of the obvious altered the outcome of his case.
Presence in Courtroom for Administration of Restitution Sentence
Mr. Jones claims the Court ordered restitution during recess and outside Mr.
Jones’s presence, and that defense counsel’s failure to object constituted
ineffective assistance of counsel. There is no evidence to back up this claim.
On page 43 of the Sentencing Transcript, the Government requested
pursuant to 18 U.S.C. § 3663A that restitution be ordered in the amount of $237,790.
Id. at 43:5-9. This request comports with the calculations set forth in the PSR. See
Williams, [Dkt. 216 (PSR) ¶ 40]. The Court then stated, “So ordered,” and specified
that restitution would be paid at $25 per week. Id. at 43:12-44:3. It was not until
page 47 of the Sentencing Transcript that the Court took recess.
therefore was present when restitution was imposed upon him and defense
counsel was not deficient for failing to object.
To the extent Mr. Jones also challenges his 60-month term of supervised
release, the Court notes for the record that it imposed upon him a five-year period
of supervised release after explicitly stating, “Sir, would you please stand.” [Dkt.
274 at 38:1-7]. There is no reason to believe, in light of the Court’s direction, that
he was not present to receive this aspect of his sentence. Attorney Riccio did not
act below the objective standard of reasonableness regarding the supervised
release aspect of Mr. Jones’s sentence.
Failure to Impeach at Trial
Mr. Jones claims defense counsel was ineffective in failing to impeach
witnesses Deneen Johnson, Mallory Markovic, Ashley Dunn, Rebecca Souve,
Megan Fox, and Shekeira Williams through their prior inconsistent statements. See
[Dkt. 1-1 at 31-32].
“Decisions whether to engage in cross-examination, and if so to what extent
and in what manner, are . . . strategic in nature.”
Nersesian, 824 F.2d at 1321;
Eisen, 974 F.2d at 265. Strategic trial decisions, “if reasonably made, will not
constitute a basis for an ineffective assistance claim.” Id.
Where appropriate, Attorney Riccio used prior inconsistent statements for
For example, Megan Fox testified during her cross-
examination that she was telling the truth during her grand jury testimony in 2009,
see [Dkt. 265 (Tr. 11/9/11) at 121:5-9], but Attorney Riccio’s questioning revealed
that she “left out” certain information:
Q: Do you remember being asked that question at the grand jury?
A: Yes, and that’s – I left out that I ever met a female at the grand
jury to the best of my knowledge.
Q: Well, I just asked you a couple of minutes ago if the responses
that you gave to the questions were true, and you said they were.
A: I said they were true, but I left out information.
Id. at 124:4-11. In another instance, Attorney Riccio impeached Ms. Souve through
her inconsistent statements during her grand jury testimony and trial testimony
about the color of an SUV. See id. at 45:23-48:15. Both lines of questioning are
evidence that Attorney Riccio strategically impeached witnesses through prior
inconsistent statements at points he deemed appropriate, and he reasonably and
effectively used grand jury testimony to discredit trial testimony.
Mr. Jones has not demonstrated how Attorney Riccio’s cross-examinations
of the aforementioned witnesses were unreasonable where he did not impeach
through prior inconsistent statements. The Court has reviewed the trial transcripts
and finds that Attorney Riccio acted reasonably throughout each crossexamination. He strategically and systematically attacked the credibility of each
witness using various cross-examination techniques that did not include prior
First, Attorney Riccio used Ms. Johnson’s plea
agreement, cooperation, drug and alcohol use, purported dishonesty in her
application for a Pell Grant, and abandonment of her child to attack the credibility
of her testimony. See [Dkt. 262 (Tr. 11/4/11) at 281:1-319:5]. Second, he drew upon
Ms. Markovic’s larceny charge, drug addiction, tattoos, and unfamiliarity with Mr.
Jones to challenge her credibility. See [Dkt. 263 (Tr. 11/7/11) at 206:1-220:9]. Third,
Attorney Riccio questioned Ms. Dunn about her federal charges, drug addiction,
multiple flights from the federal government, and response to subpoena to end
parole, all to attack her reliability as a witness. See [Dkt. 264 at 95:23-100:10].
Fourth, he raised Ms. Souve’s drug use, probation violations, and cooperation with
the Government to attack her reliability as a witness. [Dkt. 265 at 39:10-51:23]. Fifth,
Attorney Riccio challenged Ms. Fox’s testimony through evidence about her drug
addiction and cooperation, which she expected would enable her to avoid
indictment in another case. See [Dkt. 265 at 118:7-133:9]. Fifth, Attorney Riccio
attacked the credibility of Mrs. Williams’s testimony by questioning her about her
cooperation agreement, violation of the law, plea agreement, previous interviews
with the police, and extensive alcohol use. See [Dkt. 267 at 34:10-68:24].
Without Mr. Jones presenting affirmative evidence of unreasonable conduct,
the Court cannot conclude that Attorney Riccio’s impeachment strategy at trial was
unreasonable, deficient, or prejudicial.
Failure to Advise of Right to Plead Guilty
Mr. Jones claims that defense counsel improperly advised him with respect
to his plea offer, because Attorney Riccio “advised Jones that the only way he
could challenge loss amount[ ] was at a jury trial.” See [Dkt. 1-1 at 34; Dkt. 5 ¶ 6
(declaring Attorney Riccio “told me that the only way to challenge loss amount was
to proceed to a jury trial where a jury could/would determine actual loss amount”)].
The Government raises the fact that Attorney Riccio provided Mr. Jones with the
Government’s plea offer, a detailed explanation of the Guidelines as applied to the
offer, and the scope of evidence and discovery. See [Dkt. 14 at 40]. Attorney Riccio
also attempted to negotiate down the loss amount and he submitted several
memoranda to file documenting his conversations with Mr. Jones about the plea
offer. Id. at 42.
When a defendant is deciding whether to accept a plea offer, defense
counsel must balance two key principles regarding client representation. See
Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000). “On the one hand, defense
counsel must give the client the benefit of counsel’s professional advice on this
crucial decision of whether to plead guilty.” Id. (internal quotation marks omitted).
This advice must include communicating the terms of the plea offer, and it may
include informing defendant “of the strengths and weaknesses of the case against
him” and alternative sentences absent acceptance of the plea offer. Id. at 45. “On
the other hand, the ultimate decision whether to plead guilty must be made by the
defendant.” Id. A lawyer cannot “coerce a client into either accepting or rejecting
a plea offer.” Id.
The manner in which counsel advises the client “enjoys a wide range of
reasonableness because ‘[r]epresentation is an art’” and counsel can effectively
assist a client in countless ways. Id. (quoting Strickland, 466 U.S. at 689, 693).
Relevant information for counsel to consider in advising client are: “the
defendant’s chances of prevailing at trial, the likely disparity in sentencing after a
full trial as compared to a guilty plea (whether or not accompanied by an agreement
with the government), the defendant’s comprehension of the various factors that
will inform his plea decision.” Purdy, 208 F.3d at 45.
Attorney Riccio denies in his affidavit the allegation that he told Mr. Jones
the only way to challenge the loss amount was through a trial. He avers,
One of the issues often discussed was the amount of loss attributable
to Mr. Jones. Conspiracy law was discussed in this area I explained
to him how he could be held responsible for loss amounts that
occurred during conspiracy. I attempted to negotiate the loss amount
with the Government . . . but it did not ultimately occur because Mr.
Jones wanted a trial. I did not inform him that the only way to
challenge loss is to go to trial.
[Dkt. 19 at 3 of PDF]. Attorney Riccio also “advised [Mr. Jones] that the trial could
very well clarify the loss amounts through witness examination” and denies that
he told Mr. Jones he had nothing to lose at trial. Id. at 5 of PDF. In addition,
Attorney Riccio “explained the strength of the Government’s case and what
evidence could be used to convict him at trial.” Id. at 8 of PDF. At some point
before trial, Attorney Riccio organized a reverse proffer session with the
Government to “have the Government present its view of the evidence to [Mr.
Jones] which, in combination with [his] advice to plead, would change [Mr.
Jones’s] mind regarding trial.” Id. at 6 of PDF. Attorney Riccio clarifies that “[i]t
was after the reverse proffer where he ultimately decided that he did not want to
plead guilty.” Id.
There is objective evidence in the record to support Attorney Riccio’s claims.
Notably, in January 2011 Attorney Riccio circulated to Mr. Jones a detailed
memorandum regarding the Government’s plea offer. See [Dkt. 14-3 at 12 of PDF].
This memorandum explains Mr. Jones’s statutory punishments; the elements of
each offense and what the Government would be required to prove; the Guidelines
calculation for his offenses, including his criminal history score and departures;
and the Government’s plea offer. Id. In addition, Attorney Riccio notified Mr. Jones
that over 10,000 pages of discovery had been produced, he listed the material he
had reviewed to date, and he indicated they could watch the listed DVD videos at
the next visit. See id. at 18 of PDF. Attorney Riccio also explicitly requested that
Mr. Jones “very carefully” review the 227 pages of police reports, which
summarized the 10,000 pages of documentary evidence, and stated they would
review the content at the next visit. Id. Enclosed with the memorandum were the
indictment, discovery, proposed plea agreement, the Guidelines Sentencing Table,
statutes of the charged offenses, and Guidelines § 2B1.1 and §3E1.1. Id. With
respect to the plea offer, Attorney Riccio did articulate, “Let me be clear – I don’t
agree with parts of this plea agreement. We’ll discuss this when I next visit.” Id.
at 17 of PDF.
Shortly before trial on September 30, 2011, Attorney Riccio wrote a
memorandum to file, which documented a visit to Donald W. Wyatt Detention
Facility that day. At this visit Attorney Riccio showed Mr. Jones new CDs of
discovery (lasting approximately one hour) and notified Mr. Jones that Sheikera
Williams would be pleading guilty on October 3, 2011. Id. at 50 of PDF. The
memorandum indicates they “reviewed what the consequences may be to the case
if Sheikera pleads guilty” and Attorney Riccio noted, “Jermaine clearly seemed
concerned about her pleading guilty.” Id. Mr. Jones was also informed that Ms.
Williams potential role as a cooperating witness could lead to the possibility of four
to five informants testifying against him. Id.
The following week on October 6, 2011, Attorney Riccio visited Mr. Jones to
inform him that Ms. Williams pleaded guilty and he contemporaneously wrote
another memorandum to file. Id. at 51 of PDF. The memorandum indicates the
meeting lasted 3.5 hours. Id. Attorney Riccio read Ms. Williams’s proffer notes to
Mr. Jones but did not leave copies pursuant to an agreement with AUSA Novick,
and they also reviewed proffers from witnesses likely to testify. Attorney Riccio
I made it clear to him that this new development (i.e., Sheikera’s
transformation to a cooperating witness) was very concerning to me.
I also made it clear that going to trial is not a good idea. I then asked
Jermaine what his position is—and he didn’t give a clear indication of
what he wanted to do. I told him that the deadline for making a
decision was Monday 10/10. I told him that I would return to the office
and attempt to negotiate a lesser Guidelines range—though I advised
him that I was unsure if that was possible.
Id. That same day he circulated an e-mail to AUSA Novick indicating he “spent
virtually the entire day” with Mr. Jones and shared the proffer notes. Id. at 54 of
PDF. Attorney Riccio opined that Mr. Jones was “leaning towards pleading guilty”
and continued his efforts to negotiate the terms of the plea offer. Id.
On October 13, 2011, Mr. Jones was arraigned on the Superseding
Indictment. See Williams, [Dkt. 115]. The evidence indicates he went through the
reverse proffer on the same day of the arraignment, and on that day he decided to
go to trial.
See [Dkt. 14-3 at 56 of PDF (E-mail between defense counsel)].
Subsequent e-mails sent by Attorney Riccio to AUSA Novick indicate Mr. Jones
continued to elect trial over a guilty plea. See Dkt. 14-4 (Opp’n Ex. 4, E-mail
10/13/11); Dkt. 14-5 (E-mail 10/19/11)].
In reviewing the objective evidence, the Court concludes Attorney Riccio
reasonably balanced his duties (1) to give his professional advice about whether
to accept the plea offer and (2) to afford Mr. Jones the ultimate decision of whether
to plead guilty. See Purdy, 208 F.3d at 44. On multiple occasions, Attorney Riccio
reviewed substantial evidence with Mr. Jones, discussed and analyzed potential
witness testimony, and made clear that he did not think trial was a good idea. [Dkt.
14-3 at 18, 50-51 of PDF].
Attorney Riccio’s memorandum explaining the
Guidelines calculation for the plea offer presents the Guidelines calculation of 144
to 174 months imprisonment. He arrived at this calculation by using Counts 1-70,
Bank Fraud, as the base offense level. See id. at 15. Attorney Riccio did not provide
the details about how Counts 71, Conspiracy to Commit Bank Fraud, and 72-74,
Aggravated Identity Theft, factor into the sentencing range calculation.
calculations of 144 to 174 months imprisonment do, however, do appear to be
accurate and comport with the sentencing range set forth in the proposed plea
Mr. Jones cites Raysor v. United States, 647 F.3d 491 (2d Cir. 2011) for the
proposition that the Court must conduct a hearing to gather evidence about offthe-record conversations. In Raysor, the Second Circuit clarified that the standard
to determine the necessity of a hearing is akin to the summary judgment
proceeding: “If material facts are in dispute, a hearing should usually be held, and
relevant findings of fact made.” Id. (quoting Puglisi v. United States, 586 F.3d 209,
213 (2d Cir. 2009)). The Second Circuit stated that where an ineffective assistance
of counsel claim is based on improper advice leading to a plea offer rejection, the
petitioner “must demonstrate a reasonable probability that but for the counsel’s
deficient performance, he would have pled guilty instead of going to trial.” Id. at
495. Specifically, the petitioner was required to establish a prima facie case that
he would have accepted a plea offer absent counsel’s improper advice. “Prima
facie evidence may include a petitioner’s own statement, as was offered here;
however, in order for the statement to be sufficiently credible to justify a full
hearing, it must be accompanied by some ‘objective evidence,’ such as a
significant sentencing disparity, that supports an inference that the petitioner
would have accepted the proposed plea offer if properly advised. Id.; see Puglisi,
586 F.3d at 216 (“Thus, we have found that 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.”).
Unlike the petitioner in Raysor, who submitted an affidavit stating he would
have pleaded guilty if properly advised, Mr. Jones here makes no such claim.
Rather, he merely states that Attorney Riccio “provided [him] with a plea offer of
the government, hereby a stipulation that the loss amount would be $1 Million,4”
and that Attorney Riccio “never explained to me the Federal Sentencing Guidelines
nor its correct application to a conviction by jury verdict or guilty plea.” [Dkt. 5 ¶¶
4, 11]. This case is therefore more aligned with Puglisi, wherein the Second Circuit
upheld a district court’s denial of an evidentiary hearing because, in relevant part,
even though “appellant did submit an affidavit in support of his motion, he never
stated that he would have entered a plea had he received adequate legal advice.”
Puglisi, 586 F.3d at 216.
It is worth noting that the petitioner in Puglisi was
represented by counsel and Mr. Jones is not. However, in all other respects the
cases are strikingly similar in that no objective evidence in either case was relied
upon to show that the petitioner would have accepted a plea offer. Indeed, at
sentencing Mr. Jones continued to challenge the loss amount attributable to him.
He stated, “I just don’t want to take the punishment for what [my co-conspirators]
did.” Id. at 24:21-25. The plea agreement also stipulates to a loss amount between
$400,000 and $1,000,000 and therefore when Attorney Riccio circulated the detailed
letter to Mr. Jones, he was presented with sufficient information to conclude that
The Court notes that Attorney Riccio memorandum does not indicate the plea
offer required a stipulation to $1,000,000 in loss amount. Rather, Attorney Riccio
indicated the loss amount stipulation would be between $400,000 and $1,000,000.
See [Dkt. 14-3 at 15 of PDF].
he was not necessarily stipulating to a $1,000,000 loss amount by pleading guilty.
See [Dkt. 14-3 at 31 of PDF].
Notably, “a significant sentencing disparity in combination with defendant’s
statement of his intention is sufficient to support a prejudice finding.” Pham v.
United States, 317 F.3d 178, 182 (2d Cir. 2003).
In Pham, the Second Circuit
determined a sentencing disparity of more than double “between the high end of
the government’s plea offer and Pham’s sentence after a trial conviction,”
constituted a “significant sentencing disparity.” Id. at 182-83. Here, the disparity
between the high end of the plea offer and the resulting term of imprisonment was
66 months; the plea offer rendered a range of 144 months to 174 months, and the
Court sentenced Mr. Jones to 240 months. The Court imposed a below-guideline
sentence, which would have been lower had the Defendant not made statements at
sentencing that convinced the Court that he was more likely to recidivate, pose a
danger to the community, and disrespect the law by refusing to accept
responsibility for his co-conspirators’ conduct in furtherance of their conspiracy.
The Court has considered the sentencing disparity and does not find it warrants a
hearing given Mr. Jones never professed that he would have pleaded guilty.
In summary, although Mr. Jones argues that he was improperly advised that
he could challenge the loss amount only at trial, the Court finds that did not
undermine the outcome of his case because there is no objective evidence
indicating he would have pleaded guilty. In fact, the plain language of the plea offer
leaves open the possibility that he could have challenged the loss amount at
sentencing. Accordingly, he is not entitled to a hearing on this claim.
Failure to Investigate and Present Defense
Lastly, Mr. Jones contends defense counsel failed to investigate and conduct a
reasonable defense. In particular, Mr. Jones argues, “Of the some 68 witnesses
who testified, both counsels, collectively, only cross-examined approximately 18,
and briefly.” [Dkt. 1-1 at 39-40]. Mr. Jones then lists 11 different instances5 where
defense counsel purportedly assisted the Government.
He has not,
however, provided any factual or legal basis for the Court to conclude counsel’s
representation fell below an “objective standard of reasonableness” for allowing
the 11 instances to occur or that there was a “reasonable probability” that the
results would be different absent counsel’s errors. See Strickland, 466 U.S. at 68788, 694.
Courts routinely hold that where “allegations with regard to alleged
counsel’s errors in pre-trial preparation and investigation and trial advocacy are
These 11 examples include: “(a) permitting the Jury’s copy of Government’s
Exhibit 301 to be “fixed” [see Day 2, November 3, 2011 @ TR. 30]; (b) permitting
government witnesses to testify from notes, without objections, and more
aggravatingly, permitting 8 additional exhibits to be entered, which were notes
from the witnesses, without objections. [Id. @ TR 45-46]; (c) withdrawing claim that
jury saw defendants in handcuffs[ ] [see Day 3, November 4, 2011 @ TR. 91]; (d)
stipulating to damaging evidence[ ] [Id. @ TR. 89-91]; (e) permitting the special
agent, who[ ] investigated the case and who[ ] would testify as expert witness, to
remain in courtroom throughout entire trial, without sequester[;] (f) stipulating to
what a government witness [Dianne Larson Lippard] a victim, would testify to [Day
5, November 8, 2011 @ TR. 11-13]; (g) stipulating to government’s exhibits 154A-C
and 140A-C[,] the Willingham and McGregor exhibits[ ] [Id. @ TR. 56]; (h) permitting
the government to call witnesses out-of-turn[ ] [Day 7, November 10, 2011, @ TR.
243]; )i) permitting correction of error in Avid/Budget spread sheet, and its
substitution[ ] [Day 9, November 15, 2011]; (j) permitting [i]nattentive jury (juror(s))
to deliberate on the case when the court specifically inquired as to this issue; and
(k) permitting the government to lead its witnesses in literally hundreds of
instances.” Id. at 40.
‘vague, conclusory, and unsupported by citation to the record, any affidavit, or any
established. Vasquez v. United States, Nos. 96 CIV. 2104 (PKL), 91 CR. 153(PKL),
1997 WL 148812, at *12 (S.D.N.Y. Mar.28, 1997); see also Davison v. United
States, No. 97 CR. 490 (LAP), 00 CIV. 3064 (LAP), 2001 WL 883122, at *8 (S.D.N.Y.
Aug. 3, 2001) (“[B]lanket assertions against his trial counsel’s performance in a
self-serving affidavit,” in the absence of objective evidence to support petitioner’s
claim, were insufficient). The Court has previously addressed several instances
listed by Mr. Jones, but to the extent he raises new examples and cites to the
record, the Court has evaluated these examples for deficient and prejudicial
The Court finds that Mr. Jones’s complaints are fundamental
examples of defense counsel’s trial strategy. As aforementioned, a “[d]ecisions
whether to engage in cross-examination, and if so to what extent and in what
manner, are . . . strategic in nature” and will not constitute ineffective assistance
so long as they are reasonable. Nersesian, 824 F.2d at 1321. There is no evidence
in the record that demonstrates any of counsel’s trial strategies were
unreasonable. Furthermore, in light of the large number of witnesses and the
ample evidence presented at trial, even if counsel were to have acted deficiently as
to the issues raise in this claim, the Court finds Mr. Jones has not established a
reasonable likelihood that but for these claimed deficiencies there would likely
have been a different outcome in light of the court's questions, admonitions and
instructions to the jury both as jury selection and during the trial and the copious
amount of highly credible and corroborative evidence against him.
There is no need for this Court to conduct a hearing on this habeas petition.
Although courts generally “look with disfavor on summary rejection of a habeas
petition,” United States v. Aiello, 900 F.2d 528, 534 (2d Cir.1990) (quotation
omitted), the text of § 2255 provides that the court need not conduct a hearing
where “the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief,” 28 U.S.C. § 2255(b) (2014); see also Aiello, 900 F.2d
at 534 (finding no reversible error in the failure to conduct a hearing where the
petition omitted “meritorious allegations that can be established by competent
evidence” and the district court judge that ruled on the petition also presided over
petitioner's trial) (citation and internal quotations omitted). Mr. Jones is not entitled
to relief on any of his 12 claims. Therefore, this Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Court denies a
certificate of appealability because jurists of reason would not find this procedural
ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 478 (2000). The Court
CERTIFIES under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: January 7, 2018
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