Mui v. United States of

Filing 98

ORDER DENYING Motion to Vacate, Set Aside or Correct Sentence (2255). See attached. The Clerk of the Court is directed to close the case. Ordered by Judge Sterling Johnson, Jr on 12/5/2013. (Figeroux, Davina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------X
YIK MAN MUI,
Petitioner,
99 CV 3627 (SJ) (RER)
v.
ORDER ADOPTING
REPORT AND
RECOMMENDATION

UNITED STATES OF AMERICA,
Respondent.
-------------------------------------------------X
APPEARANCES
OBEID & LOWENSTEIN
111 Broadway
Suite 1401
New York, NY 10006
By:
Fran Obeid
Attorney for Petitioner
UNITED STATES ATTORNEY
Loretta E. Lynch
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Elizabeth Kramer
Attorney for Respondent

JOHNSON, Senior District Judge:
The facts and circumstances surrounding the instant petition (“Petition”) filed
by Yik Man Mui (“Mui” or “Petitioner”) are fully set forth in Magistrate Judge
Ramon E. Reyes’ March 1, 2012 Report and Recommendation (“Report”), and are
1

incorporated herein by reference. Because familiarity therewith is assumed, the
following is a relatively brief synopsis of the procedural posture of both this case and
the underlying criminal matter, styled United States v. Mui, 95 CR 766 (E.D.N.Y.
Filed Aug. 10, 1995).
On July 4, 1993, Tak Leung Chung, also known as Kenny Chung (“Chung”),
was found dead on Route 295 in Anne Arundel County, Maryland. He had been
beaten with a baseball bat, shot several times, and abandoned on the side of the road.
Petitioner was arrested and charged with nine counts: conspiracy to interfere with
commerce by robbery, in violation of 18 U.S.C. § 1951; interference with commerce
by robbery, in violation of 18 U.S.C. § 1951; conspiracy to travel in interstate
commerce in aid of racketeering, in violation of 18 U.S.C. § 371; travel in interstate
commerce in aid of racketeering, in violation of 18 U.S.C. § 1952(a)(2)(B);
conspiracy to kidnap, in violation of 18 U.S.C. § 1959(a)(5); kidnapping, in violation
of 18 U.S.C. § 1959(a)(1); conspiracy to commit murder, in violation of 18 U.S.C. §
1959(a)(5); murder, in violation of 18 U.S.C. § 1959(a)(1); and using and carrying a
firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1).
At trial, government witnesses testified that at the time of Chung’s murder,
Mui was the chairman of the Baltimore Lodge of the Hung Mun Chinese
Freemasons. Chung was known to be cheating the lodge, to the point the lodge once
closed early after running out of cash. A cooperating witness, Ho Sui, testified that
he, Chung, and two others had been cheating the lodge.

2

Another government

witness, Kenny Chen (“Chen”), testified that Mui told him that Chung and others
were cheating the lodge. Chen recruited Minh Luong (“Luong”) and Ah Dai to assist
in kidnapping Chung and recouping Mui’s losses.

Luong testified that the group

received their orders from Mui and traveled from New York to Maryland when Mui
announced that the Baltimore Lodge was ready to receive them. Mui was aware that
the kidnappers had a .9 millimeter handgun.
Chung arrived that night as expected, and was kidnapped, handcuffed,
stripped of the firearm he was carrying, punched and hit with a baseball bat. Mui
was among those involved in the beating and inquired of Chung the identity of those
who assisted Chung in cheating. Chung agreed to take the kidnappers to New York
for the purpose of pointing out his cheating partners to them.
Mui called his co-defendant, Chin Yen Kwok (“Kwok”), who instructed
Chen to follow Mui’s orders. The group left Baltimore with instructions to go to
New York.

However, en route, the driver stopped the vehicle, telling to Luong to

“take care of” Chung, whereupon the driver, Luong and Ah Dai took turns shooting
Chung. Cellular telephone records confirmed communication between Chen, Mui
and the Baltimore Lodge.
When initially questioned by Lieutenant Kenneth Ward (“Ward”) of the
Maryland State Police, Mui denied knowing Chung, then admitted knowing Chung
and being present at the lodge on the night of the murder, then fled the interview on
foot.

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On October 30, 1996, the jury returned a verdict of guilty on all counts. Mui
filed a motion for a new trial, alleging ineffective assistance of counsel on the part of
trial counsel, Jonathan Marks (“Marks”), who by then Mui replaced with new
counsel. The motion was denied.  On April 10, 1997, Mui was sentenced to a term of
life imprisonment plus 60 months.

A direct appeal followed, and on June 24, 2013,

the Second Circuit affirmed Mui’s conviction. See United States v. Mui, 159 F.3d
1349 (2d Cir. 1998).
On May 8, 1999, Mui filed the instant petition pursuant to 28 U.S.C. § 2255
(“Section 2255”), alleging ineffective assistance of counsel on the part of both his
trial and appellate counsel, and claiming that he was deprived of an adequate
Cantonese interpreter at trial, constituting violations of the Fifth Amendment’s Due
Process Clause and the Sixth Amendment’s right to counsel. Some of the ineffective
assistance claims raised by Mui were already rejected on direct appeal and were thus
deemed without merit in a February 9, 2005 order of this Court. In the same order,
this Court determined that the remainder of Mui’s claims were procedurally
defaulted because they had not been raised on direct appeal. A September 19, 2007
order of this Court denied Mui’s motion for reconsideration.
Mui appealed both, and on July 30, 2010, the Second Circuit Court of
Appeals remanded the action for consideration of certain ineffective assistance
claims. Specifically, the Second Circuit held that pursuant to Massaro v. United
States, 538 U.S. 500 (2003), ineffective assistance of counsel claims can be

4

presented for the first time either at the direct appeal level or in a Section 2255
petition, and that a Section 2255 petition raising ineffective assistance of counsel
claims can follow a direct appeal raising different ineffective assistance of counsel
claims. See Mui v. United States, 614 F.3d 50 (2d Cir. 2010).
Therefore, presently before the Court are seven claims brought in Mui’s
Section 2255 petition that were not among those ineffective assistance of counsel
claims brought on direct appeal. Each of the claims involves trial counsel. Mui
claims that Marks provided ineffective assistance because: (1) Marks failed to secure
a Cantonese interpreter at each of his meetings with Mui; (2) Marks failed to raise
with the District Court Mui’s alleged difficulty understanding proceedings; (3)
Marks did not examine certain evidence; (4) Marks made false assertions in his
opening statement; (5) Marks failed to investigate any defense witnesses; (6) Marks
failed to raise jurisdictional challenges; and (7) Marks failed to file motions related
to exculpatory evidence.
I referred the Petition to Judge Reyes, whereupon the following
communications brought to light an eighth claim: Judge Reyes ordered Marks to
submit an affidavit addressing the issues on remand, which Marks did on May 20,
2011 (the “Marks Affidavit” or the “Affidavit”). Among other things, Marks wrote:
“This is a very troubling case. Mr. Mui was offered a plea that would have exposed
him to no more than five years in prison. I urged him to accept the offer, but he
rejected my advice and went to trial.

He was sentenced to life, which is an

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exceedingly harsh sentence for his tangential involvement in Kenny Chung’s
murder.”
On June 20, 2011, Mui submitted a response to the Marks Affidavit. Mui
indicated that until he read the Marks Affidavit, he was unaware of a five year plea
offer. Mui moved to supplement his Petition with a claim that Marks was ineffective
for failing to advise him of the existence of this deal, alleging that had he been aware
of it, he would have accepted it rather than risk the chance of a life sentence after
trial.
Judge Reyes determined that a hearing was necessary and appointed counsel
for Mui. Prior to the hearing, Marks submitted a letter (the “Letter”) to the court
purporting to correct statements in his Affidavit. In the Letter, Marks stated that
“[o]n further reflection,” the government had not offered Mui a five year deal.
Marks explained that his prior statement was influenced by a recent conversation
Marks had with Lawrence Frost (“Frost”), an investigator who worked for Marks on
Mui’s case. Marks claimed to have “conflated what Larry Frost told [him] . . . with
[his] own independent recollection.” In the end, all Marks was certain of was that he
generally encouraged Mui to plead rather than go to trial and that those efforts were
rebuffed by Mui.
Judge Reyes held a hearing on September 26, 2011, which was continued to
October 31, 2011. At the hearing, he took testimony of five witnesses: Mui, Marks,
Frost, Harold Pokel (“Pokel”), the attorney who represented co-defendant Kwok at

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trial, and former Assistant United States Attorney John Curran (“Curran”), who tried
the case against Mui and Kwok.
On March 1, 2012, Judge Reyes issued the Report in which he recommended
denying the Petition in full. Judge Reyes determined that Mui failed to establish the
existence of a five year plea deal, a language barrier between him and Marks or
between him and the court interpreter, or any unreasonable conduct by Marks. On
May 30, 2012, Mui, through counsel, filed objections to certain conclusions of law
made in the Report. Mui’s arguments focus on three issues: (1) whether Mui could
communicate with Marks and understand court proceedings; (2) whether Marks
properly prepared for trial; and (3) whether a five year plea deal existed.1

I.

Access to Cantonese Interpreter
Mui alleges that he received ineffective assistance of counsel because Marks

conducted meetings with him without the aid of a Cantonese interpreter and because
Marks did not raise with the Court Mui’s alleged difficulty understanding the
Cantonese interpreter who was present at trial.

A. Availability of Interpreters at Pre-Trial Meetings

1
Mui’s objections do not purport to challenge the remaining recommendations. Therefore,
Mui has waived any right to review of Judge Reyes’ findings that Marks did not make false
statements in his opening statement, was not constitutionally ineffective for conceding that
Mui ran a gambling operation that Chung cheated, and was not constitutionally ineffective
for failing to contest venue. Thomas v. Arn, 474 U.S.140, 147-8 (1985); Mario v. P&C
Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). Those findings are adopted.
7

None of the witnesses were able to provide a specific number of pre-trial
meetings between Marks and Mui. However, Mui testified that he met with Marks
five or six times in the year prior to trial, which is a figure consistent with the Marks
Affidavit.

At the time of the meetings, Marks employed a native Cantonese-

speaking paralegal, Philene Kwan (“Kwan”), who Marks claims was present at most
meetings and interpreted for Mui. Additionally, both Marks and Frost testified that
the woman who referred Mui to Marks, Amy Chan (“Chan”), also spoke Cantonese,
and attended “several” meetings with Frost, Marks and Mui. Marks also testified
that he could recall only one meeting with Mui at which an interpreter was not
present. On the other hand, Mui testified that only twice did Marks provide an
interpreter.
The parties dispute not only the number of meetings at which an interpreter
was present but Mui’s facility with the English language. Mui claims that at the time
of the events alleged in the Petition he knew “merely the basics of English, i.e.,
hello, goodbye, etc.,” having come to the United States from Hong Kong in 1975 at
the age of 15. Mui briefly attended high school in New York, and claims that
English language limitations led to him having trouble there. Mui dropped out of
high school at 17, moved to Baltimore and joined the Hung Mun. His only work had
been in Chinese restaurants. Marks admits that Mui “had a sub-standard mastery”
of English. However, Marks testified that Mui was not so impaired as to make
communication difficult without an interpreter. Specifically, Marks testified that it is

8

his belief that he and Mui were able to communicate without difficulties. Marks
recalled speaking to Mui in English without aid of Kwan, even in Kwan’s presence.
In addition to not recalling any problems communicating with Mui, Marks recalled
cross-examining Lieutenant Ward about Ward’s conversation with Mui in which
Mui allegedly lied about knowing Chung. Marks stated “Had I been unable to speak
with Mr. Mui in English, I would have cross-examined Lt. Ward on this point.”

B. Court Interpreters
Mui also complains that he did not understand the Cantonese interpreter at
trial, who Mui claims spoke with what was to him an unintelligible Mandarin accent.
However, no objection was made a trial. Mui claims that Marks is to blame for
failing to raise the issue, while Marks does not recall Mui apprising him of any
problem with the court interpreter, and stated that his normal practice if a client does
not understand the court proceedings would be to make a record of the issue.2

II.

Pre-Trial Preparation
Mui argues that Marks failed to adequately prepare for trial in a variety of

ways. Mui claims that Marks did not examine certain evidence and investigate
certain witnesses, and that Marks failed to file motions to preserve or disclose
exculpatory evidence. Specifically, Mui claims that “a Malt 45 can that was directly

2
Mui’s co-defendant, on the other hand, did object at trial to the quality of the translations
provided by the Court interpreter. Specifically, Kwok complained that the interpreter was
only translating a portion of the testimony. Mui did not join in on this objection.
9

beneath the victim along with two containers of fresh oriental food” constituted
“critical evidence” about which Marks failed to cross-examine a government’s
witness. Mui also argues that Marks’ failure to seek disclosure of certain “rough
notes” taken by the government’s investigator witnesses constituted ineffective
assistance of counsel because “[h]ad counsel had the rough notes . . . he would or
should have known beyond a reasonable degree of certainty that no investigation was
thorough by the investigating agents.”
In response, Marks stated in his affidavit that he could not independently
recall examining the physical evidence but located a letter he sent to Mui on
December 14, 1998 indicating that all of the physical evidence was reviewed. Marks
also stated that while he could not recall Mui telling him about potential character
witnesses, it is unlikely those witnesses would have been called to the stand because
their testimony would open the door to a cross examination in which the government
could summarize the evidence against Mui. Marks did not dispute his failure to seek
out the government investigators’ “rough notes.”

III.

Availability of a Five-Year Plea Deal
Mui claims that Judge Reyes erred in concluding that there was no five year

plea offer. In support, Mui relies on the language barrier he claims existed between
him and Marks. Mui also points to the retracted statement in the Marks Affidavit
and to both the testimony of Marks and Frost, who recalled trying to persuade Mui to

10

plead. According to Mui, if Marks and Frost recall discussing a plea with him,
“there must have been a plea . . . to plead to,” and “[a]ny plea would have been less
than the life sentence [Mui] is serving.”

DISCUSSION
In Strickland v. Washington, 466 U.S. 668, 688 (1984), the Supreme Court
established a two-part test to determine whether counsel's assistance was ineffective.
First, “the defendant must show that counsel’s representation fell below an objective
standard of reasonableness.”

Strickland, 466 U.S. at 688.

When evaluating

counsel’s performance, courts give deference to the attorney, since it is all too
tempting for a defendant to second-guess counsel’s assistance after conviction. To
fairly assess an attorney’s performance, courts eliminate the effect of hindsight by
reconstructing the circumstances of counsel’s conduct from counsel’s perspective.
Thus, to meet the first prong of the Strickland test, Petitioner must overcome the
strong presumption that the challenged action was sound trial strategy under the
circumstances at the time. See id. at 689.
Second, the defendant must show that counsel’s performance prejudiced his
defense. See id. at 692. To show prejudice, there must be a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. See id. at 694. Thus, the petitioner must demonstrate that counsel
failed to raise significant and obvious issues that if raised, would likely have been
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successful. See Mayo v. Henderson, 13 F.3d 528, 533–34 (2d Cir. 1994). Because a
convicted defendant will always have a strong incentive to make a prejudice claim
after conviction, courts are skeptical of “self-serving, post-conviction testimony” that
but for counsel’s bad advice, the defendant would have pled guilty or gone to trial.
See Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003) (in addressing prejudice
showing required on ineffective assistance claim, court noted that “a convicted
felon’s self-serving testimony is not likely to be credible”). A defendant must meet
both prongs to prove that the conviction resulted from a breakdown in the adversary
process. See Keiser v. New York, 56 F.3d 16, 18 (2d Cir. 1995).

I.

Language Barrier
Several of Petitioner’s complaints are premised upon the alleged language

barrier between him and the Court and between him and his defense team. He
claims Marks provided ineffective assistance of counsel because Marks conducted
meetings with him without an interpreter, Marks failed to bring to light Mui’s
problems understanding the court’s trial interpreter, and Marks failed to
communicate a plea offer to him. However, for the following reasons, Mui has not
established by a preponderance of the evidence that any such barrier existed.
Neither Mui’s testimony nor the statements he has made in support of the
Petition are credible. He denied making statements attributed to him in his PreSentence Investigation Report (“PSR”), claiming he never told the Probation

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Department that he had 10 years of formal education in Hong Kong or that he
learned English on the streets of Hong Kong, while the PSR attributes those
statements to him. Mui also claimed to have difficulty understanding the Court’s
interpreter at trial, because she allegedly spoke Cantonese with a Mandarin accent.
However, no such objection was made at trial, nor did Mui avail himself of the
opportunity to join in on an objection made by Kwok that the court’s interpreter was
translating only portions of the proceedings. Furthermore, on January 13, 1997, Mui
submitted an affidavit in support of his motion for a new trial in which he stated,
inter alia, that “[d]uring the direct examination of Kenny Chen, I realized that Chen’s
testimony . . . did not make sense.”

Mui’s affidavit went on to summarize both

Marks’ cross-examination of Chen (including what Marks did and did not elicit on
cross-examination) and Marks’ summation. To make these statements, Mui would
have had to comprehend the proceedings.
Mui then testified that there was no interpreter present for his sentencing, a
statement that is simply untrue.

After the hearing before Judge Reyes, Mui

submitted a letter claiming that he was not perjuring himself when he said there was
no interpreter at sentencing, but rather was confused. Specifically, counsel for Mui,
at Mui’s request, wrote: “When questioned, he believed he was being asked whether
Mr. Goldberger, [his counsel at sentencing] brought an interpreter to sentencing, as
opposed to the Court providing an interpreter.” As the following exchange (taken

13

from the October 31, 2011 hearing before Judge Reyes) demonstrates, even that is
not true:
AUSA:

Mr. Goldberger said at sentencing that the only statement . . .
[he] wish[es] to make is that “Mr. Mui continues to assert that
he is innocent of the charges, that he is not guilty of any of the
crimes for which he has been convicted and he has the intent
to pursue his remedy?”

Mui:

I don’t know what he said to the judge at the time. There was
no interpreter present.

AUSA:

There was no interpreter at your sentencing?

Mui:

No.

Mui’s response does not indicate that he believed he was being asked about the
source of the interpreter.
Mui also testified that Marks never discussed the government’s evidence with
him. However, in his 1997 affidavit, he describes a meeting with Marks that took
place at the Metropolitan Detention Center (“MDC”) on the weekend following the
end of the government’s case. Mui wrote:
Again I tried to explain the importance of the cellular phone records and
urged him to use them as part of our defense. I also restated my intent to
testify.
Mr. Marks, however, seemed distracted. He kept insisting that I should not
testify because the case looked very bad. He said my testimony would insure
[sic] a conviction since I would have to admit several of the crimes charged,
which was not true. In any event, Mr. Marks had already told the jury that I
was, in effect, guilty of several of the crimes charged in his opening
statement. He also said the prosecutor would vigorously cross-examine me
about a variety of matters including a 1992 credit card fraud charge against
me, which I later learned would not necessarily be allowed. I was totally
confused when Mr. Marks left our meeting.
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While Mui claims to have been confused, he makes nary a mention of
communication difficulties between him and Marks. What he does is complain that
Marks was wrong about the scope of the government’s would-be cross-examination,
Marks ought to have permitted him to testify, and Marks ought to have crossexamined Chen differently – issues that he and Marks discussed and on which they
disagreed.3 It is especially noteworthy that Marks made this trip to MDC without an
interpreter.
These inconsistencies undercut Mui’s claim that without an interpreter he
was unable to communicate with Marks and it also indicates that, contrary to Mui’s
testimony, he did discuss the government’s evidence with Marks. See, e.g., Castillo
v. United States, No. 07 CV 2976 (KMW), 2010 WL 3912788, at *3 (S.D.N.Y. Sept.
8, 2010) (dismissing petition where record demonstrated that petitioner “possess[ed]
an understanding of English sufficient to comprehend the proceedings”); Elize v.
United States, No. 12 CV 1350 (NGG), 2008 WL 4425286, at *7 (E.D.N.Y. Sept.
30, 2008) (“When a defendant is clearly able to communicate in a given language, he
cannot sustain claims protesting that his trial was unfair because of a language
barrier.”).
Mui also claims that a five year plea deal existed and that Marks failed to
properly communicate it to him. However, Mui’s only evidence is the statement in

3
Incidentally, on appeal, Mui based his ineffective assistance of counsel arguments on these
disagreements with Marks. The Second Circuit rejected Mui’s claims. United States v. Mui,
159 F.3d 1349 (2d Cir. 1998).
15

the Marks Affidavit that Marks has since recanted. At the hearing, Marks testified
that at the time he wrote the affidavit, he was focused on accurately answering the
Court’s questions about the claims made in the Petition, which itself he considered to
be difficult given the age of the case. Marks testified that he spoke with Frost prior
to preparing the Affidavit and that Frost recalled a five year deal. Marks claims he
did not realize that he had no independent recollection of the five year deal until after
Mui raised it as a basis for finding Marks ineffective as counsel. Upon a subsequent
discussion with Frost, Marks claims that he realized his mistake. Yes, it is true,
Marks claims, he tried to convince Mui to accept a plea, but there was not actually a
plea offer pending. Instead, Marks claims that he sought to gauge Mui’s amenability
to a plea as a general matter, and Mui remained adamantly opposed to pleading no
matter the would-be offer suggested by Marks.
While Marks’ version of events is not without drawbacks, there is greater
support in the record for his recollection of events than Mui’s. Frost testified that he
recalled being upset about Mui’s insistence on going to trial. He also remembered
Marks being upset for the same reason. Frost recalled Marks unsuccessfully trying
to convince Mui that a plea of “a single digit number below ten years,” but Frost was
not privy to any communications with the government and could not say whether any
plea existed at all.
Pokel also recalled Marks being dismayed at his failure to convince Mui to
consider a plea. While Pokel “seem[ed] to remember five years,” he was not certain

16

and in any event was “completely clear that [Marks] would have conveyed it to his
client” because Marks “was certainly that kind of lawyer.” Finally, Pokel recalled
“strongly” feeling that AUSA Curran wanted to try the case, and not have the
defendants plead to fewer charges.
AUSA Curran testified that because the alleged plea discussions would have
been close in time to the trial, the only deal he would have been empowered to offer
Mui would have been to the top count in the indictment, i.e., murder, which would
have led to a sentence far in excess of five years. Curran also testified that anything
more favorable than a plea to the top count would have had to be approved by a
supervisor, and he had no recollection of seeking that approval.
Therefore, Mui has not established that there was either a five year plea deal,
or any plea deal that Marks failed to offer him. At best, he argues that Marks failed
to bring an interpreter to the meetings at which the topic was raised. However,
Mui’s lack of credibility as to the existence of a language barrier also weighs against
a claim that he didn’t understand Marks in the discussions they had about pleading.
Judge Reyes’ finding that Mui’s claims are not credible is hereby adopted.
This finding renders untenable Mui’s allegation that he failed to comprehend the
proceedings, as well as his claim that he could not comprehend his lawyer.
Therefore, Mui’s claim that Marks was ineffective for failing to question the quality
of the Court interpreter, failing to provide a Cantonese interpreter at each of their
meetings, and failing to discuss a guilty plea with him are without merit.

17

II.

Examination of Evidence
Mui claims that Marks failed to examine the “Malt 45” and “fresh oriental

food” found near Chung, but fails to offer any support for his claim that these were
“critical” pieces of evidence. Mui also claims that Marks should have investigated
the circumstances surrounding the photographs of Mui introduced at trial, which
were offered to show Mui’s association with New York members of the Hung Mun.
However, Marks reported to Mui on December 14, 1998 that he viewed all of the
physical evidence prior to trial, and Marks testified that he also reviewed the
documentary discovery and 3500 materials prior to trial.
There is not a “particular set of detailed rules for counsel’s conduct. . . . Any
such set of rules would interfere with the constitutionally protected independence of
counsel and restrict the wide latitude counsel must have in making tactical
decisions.” Strickland, 466 U.S. at 689. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690–91. This Court adopts Judge Reyes’ credibility finding
as to Marks’ testimony and finds that Mui has failed to prove that Marks failed to
examine the evidence. Just because Marks did not pursue a strategy Mui now
believes might have been successful does not mean that Marks was ineffective or
that his decisions were anything other than tactical.

Therefore, the Report’s

conclusion that Marks did not fail to examine evidence is adopted.

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III.

Failure to Call Witnesses

Similarly, Mui’s claim that Marks was constitutionally ineffective for failing
to call certain defense witnesses is bare, conclusory, and insufficient as a matter of
law.
In order to prevail on a claim of ineffective assistance of counsel based on a
lawyer’s failure to call certain witnesses, “the petitioner must establish what
these . . . witnesses would have testified to, and, equally as important, that they
would in fact have testified.” Carneglia v. United States, No. 03 CV 6388 (ADS)
(ARL) 2006 WL 148908, at *4 (E.D.N.Y. Jan. 18, 2006) (citing McCarthy v. United
States, No. 02 CV 9082 (LAK), 2004 WL 136371 (S.D.N.Y. Jan. 23, 2004);
Venkataram v. United States, No. 11 CV 6503 (RPP), 2013 WL 5298461, at *8
(S.D.N.Y. Sept. 20, 2013) (dismissing ineffective assistance of counsel claim where
“there has been no evidence, beyond [petitioner’s] speculation, that [an uncalled
witness’] testimony would have impacted [petitioner’s] sentence or been helpful to
[petitioner] in any way”). Mui has neither shown that the would-be witnesses would
have actually testified nor provided any evidence as to what the testimony would
have been.
Without that much, Marks’ decision not to call these witnesses is afforded
tremendous deference. See, e.g., United States v. Best, 219 F.3d 192, 201 (2d Cir.
2000) (“[C]ounsel’s decision as to whether to call specific witnesses – even ones that
might offer exculpatory evidence – is ordinarily not viewed as a lapse in professional
19

representation.”). Marks stated that whether or not Mui told him about potential
character witnesses, Marks would not likely have called them to testify because it
would have provided the government with an opportunity to summarize the evidence
against him. See, e.g., United States v. Walker, 24 Fed. Appx. 57, 60 (2d Cir. 2001)
(“[T]rial counsel’s strategic decision to try to maintain credibility with the jury could
hardly be considered ineffective assistance of counsel.”) (citations omitted); see also
United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (“The decision whether to
call any witnesses on behalf of the defendant and if so, which witnesses to call, is a
tactical decision of the sort engaged in by defense attorneys in almost every trial”
and “cannot form the basis of a meritorious ineffective assistance claim.”); United
States ex rel Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974) (“[T]he
decision to call or bypass particular witnesses is peculiarly a question of trial strategy
. . . which courts will practically never second-guess.”) (citation omitted).
Therefore, this claim is without merit.

IV.

Pre-Trial Motions
Likewise, Mui cannot maintain an ineffective assistance of counsel claim

based on Marks’ failure to request copies of the investigator’s “rough notes” because
Mui has not demonstrated that the motion would have been granted and that any
evidence gleaned from such notes would have altered the outcome of his trial. See
United States v. Martinez, 101 F.3d 684 (2d Cir. 1996) (“In order for [petitioner] to

20

be successful . . . he must show that the . . . motion would have been meritorious if
filed.”); see also Paez v. United States, 2012 WL 1574826, at * 2 (S.D.N.Y. May 3,
2012) (denying ineffective assistance of counsel claim where petitioner failed to
suggest “any plausible argument that a motion to suppress evidence would have
affected the outcome at trial”). Therefore, the Court adopts Judge Reyes’ finding
that Mui did not suffer ineffective assistance of counsel for Marks’ failure to request
those notes.

CONCLUSION
After careful review of the record, including Mui’s habeas submissions (both
pro se and through counsel), the Marks Affidavit and Letter, the government’s
submissions, the trial transcripts, Mui’s motion for a new trial (and supporting
documentation), the sentencing transcripts and transcripts of the hearing before
Judge Reyes, the Court finds that Judge Reyes carefully determined that Marks’
representation was neither constitutionally deficient nor did it prejudice Mui.
Therefore, the findings in Report are adopted in their entirety. Because Mui has not
made a substantial showing of the denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C. § 2253. Additionally, the Court certifies
that any appeal from this Order would not be taken in good faith, as Mui’s claims
lack any arguable basis in law or fact, and therefore in forma pauperis is also denied.
See 28 U.S.C. § 1915(a)(3); Martin v. Dist. of Columbia Court of Appeals, 506 U.S.

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1, 3 (1992) (“Every paper filed with the Clerk of this Court, no matter how repetitive
or frivolous, requires some portion of the institution’s limited resources. A part of
the Court’s responsibility is to see that these resources are allocated in a way that
promotes the interest of justice.”).
The Clerk of the Court is directed to close the case.

SO ORDERED.

DATED: December 5, 2013
Brooklyn, New York

___________/s____________________
Sterling Johnson, Jr, U.S.D.J.

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