McKenzie v. United States of America
ORDER. For the reasons stated in the accompanying memorandum and order, the petition for habeas corpus relief pursuant to 28 U.S.C. § 2255 is denied. The Clerk of the Court is respectfully requested to dismiss the petition, enter judgment in fa vor of respondent, and close this case. The Clerk of the Court shall serve a copy of this Memorandum and Order upon petitioner and file a declaration of service within two days of the date of this Memorandum and Order. Ordered by Judge Kiyo A. Matsumoto on 11/2/2015. (Jacobson, Jonathan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
UNITED STATES OF AMERICA,
MATSUMOTO, United States District Judge:
On June 25, 2012, petitioner Troy McKenzie
(“petitioner”), proceeding pro se, filed a petition pursuant to
28 U.S.C. § 2255 (“Section 2255”) seeking to vacate, set aside,
or correct his sentence.
Petitioner was convicted by a jury on
April 18, 2008, and on August 13, 2009, the Honorable David G.
Trager sentenced petitioner to concurrent sentences of 120
months of custody on each count of conviction.
Transcript (“Tr.”) 374; 8/13/09 Safety Valve and Sentencing
Transcript (“Sent. Tr.”) 44.)
On December 11, 2009, the
Honorable David G. Trager entered a judgment of conviction in
the United States Eastern District of New York.
currently incarcerated at the Adams County Correctional
Institution in Natchez, Mississippi.
Petitioner seeks to vacate his conviction and sentence
on two grounds.
First, petitioner alleges that his Sixth
Amendment rights were violated by the ineffective assistance of
his trial counsel, Barry Turner, Esq. (“Turner”), who petitioner
claims did not permit him to testify at trial and failed to
advise him to truthfully proffer and testify in connection with
his safety valve hearing.
Second, petitioner claims actual
innocence based on what he claims is new, and allegedly
exculpatory, evidence in the form of an affidavit written by
federal inmate Marlon Campbell.
For the reasons set forth
below, the petition is denied.
The Charges And Conviction
Petitioner Troy McKenzie was indicted in a superseding
indictment on February 27, 2008.
The superseding indictment
charged him with the following: (1) Count One: conspiracy to
possess with intent to distribute 1,000 kilograms or more of
marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(A)(vii) 1; (2) Count Two: conspiracy to commit money
laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (ii)
and 1956(a)(1)(B)(i); (3) Count Three: attempted possession with
intent to distribute five kilograms or more of cocaine in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II); (4)
Count Four: possession with intent to distribute 100 kilograms
1 Although the superseding indictment charged conspiracy to possess with
intent to distribute five kilograms or more of a substance containing cocaine
in Count One, Judge Trager granted defendant’s motion to dismiss the cocaine
conspiracy prior to trial. (United States v. McKenzie, No. 04-CR-1110, ECF
No. 50, Minute Entry dated 2/22/08; Tr. 4:10-12; Sent. Tr. 3:21-3:1.)
or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(vii); and (5) Count Five: money laundering in
violation of 21 U.S.C. §§ 846 and 841(a)(1).
Petitioner’s 2008 Trial and Sentencing
Petitioner was convicted after a five-day jury trial
in the Eastern District of New York of Counts One and Three,
respectively conspiracy to possess with intent to distribute
1,000 kilograms or more of marijuana in violation of 21 U.S.C.
§§ 846, 841(a)(1) and 841(b)(1)(A)(vii), and attempted
possession with intent to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. §§ 846 and
United States v. Troy McKenzie, No. 04-
CR-1110 (DGT) (E.D.N.Y.).
The Government’s Case
Petitioner’s conviction stems from his participation
in a marijuana and cocaine distribution scheme.
At trial, the
government primarily relied on testimony by cooperating witness
and co-conspirator Robert McCleary (“McCleary”), a tractortrailer driver who transported drugs for petitioner and his coconspirators, and recorded telephone conversations between
cooperating witness McCleary and petitioner regarding the
transportation of narcotics.
The government’s evidence also
included photographs, telephone records, and law enforcement
McCleary testified about his role as a drug courier
for petitioner and co-conspirator Clacon James 2 (“James”) and
testified in detail about McCleary’s transportation of large
quantities of marijuana and cocaine between 2003 and 2004 on
behalf of petitioner and co-conspirator James.
testified that he understood James to be the “boss” of the
operation, but considered James and petitioner to be “partners,”
and that James had instructed McCleary to contact petitioner in
the event he could not reach James.
McCleary testified that in or about early 2003, James
paid McCleary $15,000 to transport marijuana from Texas to New
McCleary understood that this shipment
contained 1,000 pounds of marijuana, but was later told it was
Two associates of James, nicknamed
“6-0” and “Mr. Respect” paid McCleary $15,000 upon his delivery
of the narcotics in New York.
testified that he first met petitioner in 2003, after he was
instructed by 6-0 to meet petitioner and other co-conspirators
at an apartment in the Bronx, New York, to pick up money for the
next shipment of marijuana.
When he arrived at
the apartment, McCleary observed petitioner counting money
contained in a garbage bag using a machine that petitioner had
removed from another travel or “pull bag.”
Clacon James was known to McCleary as “Mark” or “Marky,” and is referred to
as Mark or Marky in McCleary’s trial testimony.
McCleary testified that after petitioner finished counting the
money, he handed it to Mr. Respect, who passed the money to
McCleary to drive back to Texas.
arrived in Texas, he was instructed by James to give the money
to James’s associate, “Desi.”
Approximately three weeks later, Mr. Respect called
McCleary and instructed him to go to Houston, Texas and call
James for further instruction.
Once in Texas,
McCleary called James, who instructed him to contact Desi.
then instructed McCleary to pick up a “load” in Houston, Texas
containing electrical fixtures, such as wires, sockets, and
other fixtures, as well as a load of marijuana from a ranch in
He testified that “the same person
that called [him] before on the first trip” instructed him to
deliver this marijuana shipment to a warehouse in New Jersey
that was “the same place that we go before [sic].”
At the warehouse, after McCleary and others unloaded the
marijuana from the truck, McCleary received a call from James,
6-0, and Desi informing him that part of the load was believed
to be missing.
McCleary testified that after the
delivery, he met 6-0, who brought him to the apartment in the
Bronx where Mr. Respect was waiting.
The three men
went to a restaurant to meet James; however, when they arrived,
petitioner was waiting without James.
time, petitioner instructed Mr. Respect to inform McCleary that
James had to make a decision about the missing marijuana.
McCleary drove home to Miami, Florida after the encounter
and began driving legitimate loads because James and petitioner
did not want him to transport marijuana after the incident with
the missing drugs.
McCleary testified that in October 2003 he was again
called by James who told him that none of the marijuana had been
missing and there had been a mistake.
McCleary to start transporting drugs again for him, and in June
2004, McCleary drove eight duffel bags filled with 400 pounds of
marijuana from Florida to New York.
While on the
New Jersey Turnpike, McCleary called James, who informed him
that his “brother,” who McCleary understood to be petitioner,
would call McCleary with directions to a location in Ridgewood,
McCleary testified that petitioner then
called him and provided directions to a construction yard, where
petitioner met him with another man and unloaded the marijuana
from the truck into an Altima, in which petitioner then drove
For this trip, James paid McCleary $17,000.
In September 2004, McCleary transported
approximately 150 pounds of marijuana from New Mexico to the
James met McCleary in the Bronx to pick
up the marijuana, and two days later paid McCleary $7,500.
In October 2004, McCleary began transporting cocaine,
and couriered approximately five boxes of cocaine from Seguin,
Texas to Atlanta, Georgia.
After delivering the
shipment in Atlanta, where he met Desi, McCleary was handed a
“small . . . bag with a small quantity” of cocaine; James had
previously told McCleary that Desi was going to give him the
small package of cocaine to bring to James in the Bronx.
McClearly couriered this remaining quantity from
Atlanta to the Bronx, where he met and delivered the drugs to
James paid McCleary $15,000 of the
$50,000 he was due for the transportation.
According to McCleary, three days later — after the cocaine was
sold — he called petitioner, who told him that James gave
petitioner the money to pay McCleary for the cocaine.
Petitioner then met McCleary in the Bronx and paid McCleary the
remaining balance of $35,000.
In early November 2004, McCleary transported four
duffel bags of cocaine from Texas to Georgia for James, for
which he received $50,000.
Following this trip,
James instructed McCleary to transport four duffel bags
containing approximately 100.1 kilograms of 85% pure cocaine
from Texas to New York.
(Tr. 138-42; Ex. B (GX 4 (DEA
Laboratory Report dated Dec. 22, 2004)); Ex. C (GX 5
(Stipulation dated Apr. 11, 2008))).
On the morning of November
27, 2004, while en route to New York, McCleary was pulled over
by a Louisiana state trooper on a Louisiana highway.
trooper checked McCleary’s tags, license, and registration, the
trooper told McCleary that he was the subject of an outstanding
warrant from South Carolina on a gun possession charge.
During the stop, McCleary consented to a search and the
state trooper discovered the cocaine shipment and placed
McCleary under arrest.
(Tr. 26-28, 143-45.)
After his arrest,
McCleary was brought to the “narcotics headquarters” where he
agreed to cooperate with law enforcement by participating in a
controlled delivery using sham cocaine and engaged in
consensually-monitored and recorded telephone calls with James
and petitioner regarding the delivery of narcotics in New York.
On November 29, 2004, McCleary arrived in Queens and,
in a recorded telephone conversation, received directions from
petitioner who alluded to McCleary’s previous marijuana delivery
in June 2004 by stating that McCleary should “remember [his]
way” and by asking “[d]on’t you remember[,] driver?”.
152; Ex. D (GX 1a (Transcript of Consensual Recording dated Nov.
29, 2004)) at 4, 5.)
Petitioner also stated, “[b]ut you find it
easy the other day,” and offered to meet McCleary to assist him
in finding the lot.
(Tr. 155, Ex. F (GX 1c (Transcript of
Consensual Recording dated Nov. 29, 2004)).)
arrived at the gate in front of the construction lot in
Ridgewood, New York, petitioner and others were arrested.
At the time of petitioner’s arrest, his phone was
ringing from a call from James.
petitioner’s arrest, James arrived at the lot and was also
The Defense’s Case
At trial, the defense called two character witnesses.
The first, an acquaintance of petitioner, testified that
petitioner lived in a rough neighborhood, that he had never seen
petitioner involved in drugs, and that petitioner did not have a
The second, a former employer,
testified that he had never seen petitioner in the presence of
After both parties rested, petitioner renewed his
motion pursuant to Federal Rule of Criminal Procedure Rule 29
for acquittal, alleging insufficient evidence, and his motion
was denied by the district court.
On April 18,
2008, the jury returned a guilty verdict against petitioner on
Count One (conspiracy to possess with intent to distribute 100
grams or more of a substance containing marijuana between
December 1, 2000 and November 29, 2004) and Count Three
(attempted possession with intent to distribute five kilograms
or more of cocaine between November 26, 2004 and November 29,
McKenzie, 04-CR-1110 (DGT) (E.D.N.Y.).
acquitted petitioner of Counts Two, Four, and Five, which
charged defendant with conspiring to commit and committing money
laundering (Counts Two and Five) as well as possession with
intent to distribute 100 kilograms or more of marijuana (Count
At the close of trial, the court stated to
petitioner’s trial counsel, Mr. Turner: “Mr. Turner, you did a
very nice job.
You weren’t successful but it was a close case
and you really – I’ve listened to a lot of defense lawyers.
has no complaint about the quality of work you did.
think it’s reflected in the jury’s verdict.”
On May 13, 2009, petitioner participated in a proffer
session with the government.
(See Govt. Opp. Ex. G, Notice of
Factual Disputes With the Pre-Sentence Investigation Report
(“PSI. Disp.”) at 20; Ex. H, Govt.’s Sentencing Letter dated
7/20/09 (“Govt.’s 7/20/09 Ltr.) at 5.)
his innocence with respect to the cocaine conspiracy charged in
(See PSI. Disp. at 1.)
He admitted that he knew
James “was involved in the marijuana business” and that he and
James maintained a close relationship, but that he had no part
in James’s business.
(PSI. Disp. at 20-21; Govt.’s 7/20/09 Ltr.
Petitioner admitted that he directed McCleary to the
lot where petitioner was arrested on November 29, 2004 and that
he knew McCleary was delivering marijuana.
(See Not. Disp. 20-
Petitioner also admitted that he had previously directed
McCleary to this lot for the purposes of delivering marijuana.
(PSI Disp. at 21.)
Petitioner stated that he gave the
directions to McCleary as a favor to James, and on occasion met
McCleary at the lot, but denied ever removing drug shipments
from the truck or having any other dealings with McCleary.
(Govt.’s 7/20/09 Ltr. at 5.)
On August 13, 2009, petitioner appeared before the
Honorable David G. Trager for a safety valve and sentencing
hearing with regard to petitioner’s motion for safety-valve
relief and for sentencing.
At the safety-valve hearing,
petitioner testified that he knew James was involved in selling
marijuana and that, at the request of James, petitioner had
given McCleary directions to a drop-off point on two occasions,
including on the day of his arrest.
(Sent. Tr. 9-10.)
Petitioner also testified that he knew McCleary’s truck
contained marijuana on the day of his arrest.
(Sent. Tr. 10.)
Petitioner, however, denied meeting McCleary in the Bronx and
denied giving McCleary a suitcase full of money.
Petitioner also denied any participation in marijuana and
cocaine trafficking, alleging that he had been set up by James
and that he had never coordinated marijuana or cocaine
transactions with truck drivers.
(Sent. Tr. 18, 27.)
On cross-examination at the hearing, petitioner was
shown a report of a debriefing of another truck driver who
stated that he had worked for petitioner and James.
28; Gov’t Ex. I.)
He was also shown a report from an interview
with a cooperating witness, who proffered that he had met with
petitioner and James in 2002, and that they had agreed to send
him $180,000 as a prepayment for a bulk shipment of marijuana.
(Sent. Tr. 29-30.)
The cooperating witness also reported that
he had been kidnapped by narcotics traffickers in Mexico because
he could not pay for cocaine that he had purchased for James,
and that he had contacted petitioner after he failed to get in
contact with James.
(Sent. Tr. 31.)
The same individual also
reported that petitioner had paid him a sum of money at a New
York hotel for a shipment of cocaine in 2004.
Petitioner denied that any of these incidents occurred.
Petitioner also testified on cross-examination about a
previous arrest at the U.S.-Mexico border in or around 2000, for
which he was ultimately released without charges.
Petitioner was cross-examined about his employment
record, his previous claims in bankruptcy court and to social
security that he lacked income, and the four properties he owned
in the Bronx, Queens and Brooklyn, including one property,
valued between $135,000 and $185,000, that petitioner testified
had been deeded to him out of friendship.
(Sent. Tr. 21-25.)
Additionally, petitioner was asked about the reason his
application for U.S. citizenship was denied, and petitioner
testified that it was due to an inability to submit paperwork
timely, rather than a finding by an administrative officer that
he provided false testimony.
(Sent. Tr. 33-34.)
At the end of petitioner’s cross-examination, the
court asked the petitioner whether he understood that “it
[did]n’t matter what [he] admit[s] to, as long as [he tells] the
(Sent. Tr. 35.)
(Sent. Tr. 35.)
Petitioner responded, “The truth, yes,
Petitioner then testified that James had
set people up and that they were attempting to retaliate against
him and James by implicating petitioner in crimes he did not
(Sent. Tr. 35-36.)
Petitioner further testified and
his counsel further clarified that a prisoner at the
Metropolitan Detention Center (MDC) in Brooklyn had informed
petitioner that McCleary told the prisoner that McCleary had
provided false testimony against petitioner to save himself
(McCleary) and retaliate against James and petitioner for
cooperating with the government.
Petitioner’s counsel also
argued that the other cooperators gave statements (Gov. Exs. 13) implicating petitioner because they erroneously assumed
petitioner and James were working together because James
introduced petitioner as his brother, but that petitioner was
not involved in drug trafficking with James.
(Sent. Tr. 36-37.)
The government then responded to petitioner’s theory of
retaliation by McCleary and others because of the purported
cooperation and “set-ups” by James.
The government informed the
court that McCleary had begun cooperating with the government
immediately after his arrest in Louisiana, and that McCleary’s
cooperation led to the arrests of James and petitioner.
At the close of the safety-valve hearing, the court
determined that petitioner had not been “completely candid with
the government” and found petitioner ineligible for a safety
valve reduction pursuant to 18 U.S.C. § 3553(f).
Judge Trager then sentenced petitioner to 120 months’
imprisonment on each count of conviction to run concurrently,
five years supervised release, and a special assessment of $200.
(Sent. Tr. 44.)
III. Direct Appeal
On December 16, 2009, petitioner appealed his
conviction and sentence to the Second Circuit, alleging that
there was insufficient evidence to support his conviction and
challenging the sentencing court’s finding that petitioner was
ineligible for safety valve relief, pursuant to 18 U.S.C.
(United States v. Troy McKenzie, No. 09-CR-5179,
Dkt. No. 1.)
Petitioner argued, with respect to Count One, that
evidence establishing that petitioner gave money to Mr. Respect,
that this money was later transported to Texas, and that
petitioner was present during a conversation between Mr. Respect
and 6-0 about missing marijuana did not prove beyond a
reasonable doubt that he had participated in the conspiracy.
United States v. McKenzie, 421 F. App’x 28, 30 (2d Cir. 2011).
With respect to Count Three, petitioner argued that the evidence
did not prove beyond a reasonable doubt that he was aware that
McCleary’s November 29, 2004 shipment contained cocaine, or that
he attempted to actually possess the cocaine.
Id. at 31.
Moreover, petitioner argued that his role was limited to
providing McCleary with driving directions to the construction
Id. at 31-32.
On April 29, 2011, in a summary order, the Second
Circuit affirmed petitioner’s conviction and sentence, and the
district court’s denial of safety valve relief.
Id. at 32-33.
Specifically, the court found that there was sufficient evidence
in the trial record to support petitioner’s conviction on both
With respect to Count One, the Second Circuit noted
that the totality of McCleary’s testimony constituted “ample
evidence upon which the jury could reasonably conclude that
[petitioner] was aware of the conspiracy to distribute
marijuana, and that he knowingly joined and participated in that
Id. at 31.
With regard to Count Three, attempted
possession with intent to distribute five kilograms or more of
cocaine, the Second Circuit found that there was sufficient
evidence from which a reasonable jury could infer that
petitioner was guilty of an attempt to possess the cocaine
shipment being transported on November 29, 2004.
though petitioner contended that he lacked actual knowledge of
the type or quantity of drugs involved, the Second Circuit
determined that the jury could have found that petitioner had
the intent to commit the offense by directing McCleary’s truck
containing cocaine to the delivery yard, and meeting him there,
and that petitioner thus engaged in conduct amounting to a
substantial step toward commission of the crime.
Id. at 32.
any event, petitioner’s actual knowledge of the drug type and
quantity is irrelevant under the offense charged in Count Three.
Further, the Second Circuit held that the district court
did not err in determining that petitioner was not entitled to
safety valve relief because “[petitioner] failed to address a
number of incriminating facts during his proffer session and the
subsequent hearing, and his explanations for certain
discrepancies between his testimony and the record evidence were
not entirely plausible.”
Id. at 33.
The Instant Petition
On June 25, 2012, petitioner filed the instant
petition pursuant to 28 U.S.C. § 2255.
The petition was filed
within one year of the date on which judgment of his conviction
became final and, therefore, the petition is timely.
U.S.C. § 2255(f)(1).
STANDARD OF REVIEW
A prisoner in federal custody may challenge the
validity of his sentence by petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence on the basis “that the sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.”
28 U.S.C. §
2255(a); Reisman v. United States, No. 12-CV-291, 2013 WL
5774592, at *3 (E.D.N.Y. Oct. 24, 2013) (citing Adams v. United
States, 372 F.3d 132 (2d Cir. 2004)).
Collateral relief from a
final judgment is 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 a miscarriage of justice.’”
United States v. Bokun,
73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368
U.S. 424, 428 (1962)).
Section 2255 petitions must be filed in the district
court “which imposed the sentence” being challenged.
Additionally, prisoners may not use Section 2255 as
a substitute for a direct appeal.
Marone v. United States, 10
F.3d 65, 67 (2d Cir. 1993) (citing United States v. Frady, 456
U.S. 152, 165 (1982)).
Generally, with the exception of
ineffective assistance claims, “a claim may not be presented in a
habeas petition where the petitioner failed to properly raise
the claim on direct review.”
Zhang v. United States, 506 F.3d
162, 166 (2d Cir. 2007) (citation omitted).
“Where a defendant
has procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the
defendant can first demonstrate either ‘cause’ and actual
‘prejudice,’ or that he is ‘actually innocent.”
United States, 523 U.S. 614, 622 (1998) (citations omitted).
Further, it is well established that Section 2255 may
not be used to litigate issues that have been decided adversely
to a defendant on direct appeal.
United States v. Sanin, 252
F.3d 79, 83 (2d Cir. 2001); see Reese v. United States, 329 F.
App’x 324, 326 (2d Cir. 2009); United States v. Natelli, 553
F.2d 5, 7 (2d Cir. 1977) (per curiam) (“[O]nce a matter has been
decided adversely to a defendant on direct appeal it cannot be
relitigated in a collateral attack under section 2255.”).
petitioner may bring an ineffective assistance of counsel claim
[in a petition pursuant to Section 2255] whether or not the
petitioner could have raised the claim on direct appeal.”
v. United States, 614 F.3d 50, 54 (2d Cir. 2010) (citing Massaro
v. United States, 538 U.S. 500, 509 (2003)).
In reviewing the instant petition, the court is
mindful that “[a] document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks and citations omitted); Williams v.
Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (noting that courts
should review pro se habeas petitions with a lenient eye).
Accordingly, the court is obliged to interpret petitioner’s
pleadings as raising the strongest arguments they suggest.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Martin, 834 F.
Supp. 2d at 119 (citing Williams, 722 F.2d at 1050). 3
3 The government’s opposition to the petition requests dismissal pursuant to
Rule 4(b) of the Rules Governing Section 2255 Proceedings, which requires
courts to review and deny Section 2255 petitions before directing an answer
“[i]f it plainly appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not entitled to relief.”
Rules Governing Section 2255 Proceedings for the United States District
Courts, Rule 4(b); see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000).
The court declines to summarily dismiss the petition under Rule 4(b) because
it does not “plainly appear” from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court. Further,
this court directed the respondent to show cause on June 29, 2012 (ECF No.
3.), thus rendering this point moot. Although the court denies respondent’s
In this proceeding, jurisdiction is proper and
petitioner has timely filed his petition for a writ of habeas
(Pet. at 1).
Petitioner asserts the following as
grounds for habeas relief: (1) ineffective assistance of counsel
based on (a) trial counsel’s “failure to permit” petitioner to
testify at trial and (b) trial counsel’s failure to advise
petitioner to be truthful at his safety valve hearing, and (2)
actual innocence, supported by new evidence.
Ineffective Assistance of Counsel
The Sixth Amendment protects the right of a criminal
defendant “to have the Assistance of Counsel for his defense.”
U.S. Const. amend. VI.
This requires that a defendant receive
“effective assistance of counsel.”
U.S. 759, 771 (1970).
McMann v. Richardson, 397
In considering ineffective assistance of
request for dismissal on Rule 4(b) grounds, the court nevertheless dismisses
the petition on the merits.
4 Section 2255 petitions must be brought within one year “of the date on which
the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). When a
federal criminal defendant makes a direct appeal, the judgment of conviction
becomes final for Section 2255 purposes “when the time for filing a
certiorari petition expires” or, if the defendant filed a timely petition for
certiorari, when the Supreme Court “affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari.” Clay v. United
States, 537 U.S. 522, 527 (2003). A petition for certiorari “is timely when
it is filed . . . within 90 days after entry of the judgment.” Sup. Ct. R.
13.1. Accordingly petitioner’s Section 2255 petition was timely filed
because it was filed on June 25, 2012, which is within one year and 90 days
of April 29, 2011, when the Second Circuit entered judgment affirming his
conviction. See McKenzie, 421 F. App’x at 28.
counsel claims, the Second Circuit has held that a defendant
“need establish only that he has a ‘plausible’ claim of
ineffective assistance of counsel, not that ‘he will necessarily
succeed on the claim.’”
Puglisi v. United States, 586 F.3d 209,
213 (2d Cir. 2009) (quoting Armienti v. United States, 234 F.3d
820, 823 (2d Cir. 2000)).
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court articulated a two-prong test to determine whether
an attorney has provided effective assistance of counsel.
Strickland test contemplates whether the petitioner received
“reasonable effective assistance of counsel, such that counsel’s
actions neither: (1) fell below an objective standard of
reasonableness (the “performance prong”); or (2) caused a
reasonable probability that the result of the trial would have
been different but for counsel’s unprofessional conduct (the
Id at 687-96.
The Strickland standard is
both “highly demanding,” and “rigorous.”
Kimmelman v. Morrison,
477 U.S. 365, 382 (1986); Lindstadt v. Keane, 239 F.3d 191, 199
(2d Cir. 2001).
The petitioner bears the burden of proving that
both Strickland prongs are met.
Byrd v. Evans, 420 F. App’x 28,
30 (2d Cir. 2011) (citing Kimmelman, 477 U.S. at 381).
considering the performance prong, a court must “indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.”
U.S. at 689.
Petitioners are tasked with overcoming “the
presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’”
Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Under the prejudice prong, courts consider “whether
counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.”
Id. at 686.
To establish prejudice, a
petitioner must demonstrate that “there is a reasonable
probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.”
Henry v. Poole, 409
F.3d 48, 63-64 (2d Cir. 2005) (quoting Strickland, 466 U.S. at
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Strickland, 466 U.S. at
Where, as here, a petitioner challenges his sentence, “the
petitioner must show that but for counsel’s ineffectiveness,
there is a reasonable probability that the sentence imposed
would have been different.”
Martin, 834 F. Supp. 2d at 126
(citing United States v. Workman, 110 F.3d 915, 920 (2d Cir.
When faced with an ineffective assistance of counsel
claim, the court must treat the allegation seriously and
determine whether a hearing is warranted.
Under Section 2255,
“[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions
of law with respect thereto.”
Chang v. United States, 250 F.3d
79, 84 (2d Cir. 2001) (citing 28 U.S.C. § 2255).
A court need
not hold a full evidentiary hearing if the defendant’s assertion
is unsupported by the trial record and, as is the case here,
flatly contradicted by a detailed affidavit from his trial
Id. at 86.
Where there is sufficient evidence, the
court is not required to engage in “the delay, the needless
expenditure of judicial resources” and the other burdens of a
Id.; Lang v. United States, No. 02-CR-1444,
2009 WL 4788430, at *2 (S.D.N.Y. Dec. 9, 2009).
Failure to Inform Petitioner of the Right to
The right to testify at one’s criminal trial “has
sources in several provisions of the Constitution, including the
Due Process Clause of the Fifth and Fourteenth Amendments, and
the Compulsory Process Clause of the Sixth Amendment.”
Arkansas, 483 U.S. 44, 51-52 (1987); see also Brown v. Artuz,
124 F.3d 73, 78 (2d Cir. 1997), cert. denied, 522 U.S. 1128
Additionally, the Supreme Court has held that the
“opportunity to testify is also a necessary corollary to the
Fifth Amendment’s guarantee against compelled testimony.”
483 U.S. at 52.
The right to testify is personal to a defendant and
can only be waived by the defendant.
Brown, 124 F.3d at 76.
Thus, defense counsel should provide a defendant with advice
about the benefits and hazards of testifying, and may “strongly
advise the course that counsel thinks best,” but “must inform
the defendant that the ultimate decision whether to take the
stand belongs to the defendant, and counsel must abide by the
defendant’s decision on this matter.”
Id. at 79.
effective assistance of counsel, defense counsel must ensure
that the defendant is informed of the nature and existence of
the right to testify.
Failure to inform a defendant of his right to testify
constitutes ineffective assistance of counsel.
Id. at 79.
petitioner who claims that his counsel failed to inform him of
his right to testify therefore must establish his claim under
the Strickland test set out above.
See id. at 80.
Additionally, “as any non-testifying defendant can claim that he
was denied his right to testify after the trial, a defendant
bears the burden of proving his claim with detailed
Contreras v. U.S., No. 08-CV-1976, 2009 WL
1174730, at *4 (S.D.N.Y. Apr. 30, 2009) (citing Chang v. United
States, 250 F.3d 79, 84-86 (2d Cir. 2001)), adopted by Contreras
v. U.S., No. 08-CV-1976 (S.D.N.Y. May 15, 2009), ECF No. 14.
Moreover, a petitioner who has been denied the right to testify
must still establish that his failure to testify prejudiced his
See Rega v. United States, 263 F.3d 18, 22 (2d Cir. 2001)
(finding that counsel’s failure to properly advise defendant of
his right to testify did not prejudice defendant where court
found that defendant’s testimony would have done more harm than
Petitioner claims that “due to counsel’s failure to
permit the petitioner to testify” at trial, he was unable to
challenge the credibility of the government’s witness McCleary
and the other evidence presented by the government.
The trial record, however, reflects that counsel did
inform petitioner of his right to testify.
After the court
asked petitioner’s counsel if he was going to testify, defense
counsel responded, “No.”
The following exchange then occurred:
The Court: You informed [your client] that the fact
[sic] he shouldn’t have to listen to you but that the
ultimate decision is his.
Mr. Turner: Yes. You know that, right, that the
ultimate decision is yours, not mine on whether or not
Moreover, upon the filing of petitioner’s writ
of habeas corpus, the court ordered petitioner’s trial counsel,
Barry Turner, to submit an affidavit responding to petitioner’s
allegations of ineffective assistance.
Turner stated in a sworn
affidavit (Affidavit of Barry Turner (“Turner Aff.”)) that “at
the end of the Government’s case on trial, [he] advised [his]
client that he had an absolute right to testify on his own
behalf” but that he advised petitioner that “based on the
government’s case and his past history, it would be a risk to
(Turner Aff. 1.)
Turner’s affidavit further
corroborates the trial record that petitioner was not denied
effective assistance of counsel because his attorney did, in
fact, inform him of his right to testify at trial.
See U.S. v.
Ozsusamlar, No. 05-CR-1077, 2007 WL 2826601, at *14 (S.D.N.Y.
Sept. 20, 2007) (finding petitioner’s ineffective assistance of
counsel claim not credible where his attorney testified that he
had discussed petitioner’s right to testify but advised against
it because of his prior history).
Under similar circumstances, in Contreras, a
magistrate judge, in a report and recommendation subsequently
adopted by the district court, determined that a petitioner
claiming ineffective assistance of counsel was unable to provide
specific evidence that he was denied his right to testify where
the petitioner’s trial attorneys affirmed that they had informed
him of his right to testify and “their accounts [were]
corroborated by the trial record.”
2009 WL 1174730, at *4.
Because the allegations of the petitioner in Contreras “provided
nothing more than ‘his own highly self-serving and improbable
assertions’ to support his claim,” the court found that the
petitioner’s ineffective assistance of counsel claim failed.
Id. (citing Chang, 250 F.3d at 86).
Here, petitioner has provided no evidence, other than
his own conclusory and self-serving statement, to establish that
his right to testify was denied, and courts have recognized that
self-serving affidavits alleging such failures are insufficient
to establish that counsel was ineffective based on an asserted
failure to advise of the right to testify.
Brown, 124 F.3d at
80-81; United States v. Castillo, 14 F.3d 802, 805 (2d Cir.
1994) (defendant failed to establish involuntary waiver of right
to testify with affidavit alleging he was unaware of right),
cert. denied, 513 U.S. 829 (1994); Dominguez-Gabriel v. United
States, No. 09-CR-157, 2014 WL 4159981, at *6 (S.D.N.Y. Aug. 21,
The petitioner’s bare assertion that counsel “fail[ed]
to permit the Petitioner to testify,” balanced against the
evidence from the trial record and in Mr. Turner’s affidavit, is
insufficient to warrant a hearing or habeas relief on grounds of
Accordingly, petitioner has not
satisfied the “performance prong” of his ineffective assistance
of counsel claim.
Further, even assuming, arguendo, that petitioner were
able to satisfy the performance prong of the Strickland test,
petitioner is unable to show that his counsel’s alleged
deficiency resulted in prejudice.
When petitioner testified at
his safety valve hearing, the court found that his testimony
regarding the incidents about which McCleary testified were not
“completely candid,” and deemed him ineligible for safety valve
(Sent Tr. 278.)
Upon review of the record, the Second
Circuit similarly found that petitioner “failed to address a
number of incriminating facts during his proffer session and the
subsequent hearing, and his explanations for certain
discrepancies between his testimony and the record evidence were
not entirely plausible.”
McKenzie, 421 F. App'x at 33. The
petitioner does not explain why a jury, unlike the district and
circuit courts, would have found his testimony credible in light
of contradictory testimony and other trial evidence.
Furthermore, any effect of petitioner’s testimony on
the jurors would have depended on their assessment of the
credibility of petitioner and the cooperating witnesses who
testified against him, as well as other trial evidence.
Rega, the Second Circuit denied an ineffective assistance claim
based on trial counsel’s alleged failure to advise defendant of
his right to testify because the effect of the petitioner’s
testimony was “wholly dependent on either his credibility or on
the incredibility of the witnesses against him.”
Rega, 263 F.3d
at 22; United States v. Fleurimont, 401 F. App’x 580, 584 (2d
Cir. 2010) (quoting Strickland, 466 U.S. at 697) (rejecting
petitioner’s claim that his trial counsel had refused to permit
him to testify where petitioner could not establish reasonable
probability of prejudice).
The court noted that “[a]ny
probability of an acquittal . . . must be based on an assessment
that, if [defendant] had testified, the jury would have credited
his testimony, notwithstanding the substantial evidence against
Rega, 263 F.3d at 22.
The court concluded that the
government had presented ample evidence of defendant’s
involvement in the charged offenses, and that if defendant had
taken the stand, “the probability of a conviction would have
increased because his testimony would have been severely
undermined by impeachment evidence.”
Rega, 263 F.3d at 22.
Similarly, here, the government presented ample
evidence of petitioner’s guilt at trial, including recorded
telephone conversations between petitioner and a cooperating
witness and the testimony of law enforcement and cooperating
witnesses regarding petitioner’s knowledge of and involvement in
the charged offenses. 5
(See Sent. Tr. 28-33.)
petitioner is unable to establish that, had he testified, the
“factfinder would have had a reasonable doubt respecting guilt.”
5 Notably, petitioner asserts that his defense was “put forth in his safety
valve proffer,” but the sentencing court ultimately found that petitioner was
not “completely candid” and therefore did not qualify for safety valve
relief. (Sent. Tr. 35.)
Strickland, 466 U.S. at 695; see also Halo v. U.S., No. 06-CV5041, 2007 WL 1299158, at *3 (E.D.N.Y. Apr. 30, 2007) (finding
petitioner’s failure to testify did not result in prejudice
where three witnesses testified against petitioner); see also
Ozsusamlar v. United States, No. 05-CR-1077, 2012 WL 4473286, at
*2, 5 (S.D.N.Y. Sept. 28, 2012) (finding petitioner’s failure to
testify did not result in prejudice where the government had
evidence from a cooperating witness and recorded telephone
In light of petitioner’s failure to satisfy the
two-prong test established in Strickland, the court denies and
dismisses his ineffective assistance of counsel claim with
respect to counsel’s alleged failure to advise him of his right
Counsel’s Advice Regarding Safety Valve Proffer
Courts similarly apply the Strickland test to a
petitioner’s claims that his counsel provided ineffective
assistance at the sentencing phase.
See United States v.
Pozuelos-Morales, 526 F. App’x 74, 75 (2d Cir. 2013).
to prove ineffective assistance of trial counsel [at
sentencing], defendant must show both that counsel’s
representation was unreasonable under the ‘prevailing
professional norms,’ and that, but for counsel’s incompetence,
there is a reasonable probability that ‘the result of the
proceeding would have been different.’”
F. App’x at 75 (citing United States v. Matos, 905 F.2d 30, 32
(2d Cir. 1990)) (denying ineffective assistance claim where
record did not support a “reasonable probability” that the
result of the sentencing hearing would have differed in
defendant’s favor, but for his attorney’s alleged errors);
United States v. Herrera, 186 F. App’x 109, 112 (2d Cir. 2006)
Pursuant to 18 U.S.C. § 3553(f) and its implementing
guideline, U.S.S.G. § 5C1.2, courts may impose lesser sentences,
providing a “safety valve” from mandatory minimum sentences in
some drug cases, if five criteria are satisfied.
v. Gaskin, 364 F.3d 438, 469 (2d Cir. 2004).
One requirement is
that a defendant must, “prior to sentencing, truthfully proffer
to the government ‘all information and evidence’ pertaining to
his offenses and any related conduct.” Id. (citing 18 U.S.C. §
3553(f)(5); U.S.S.G. § 5C1.2(a)(5)).
A claim that counsel gave improper advice regarding a
prisoner’s safety valve hearing should also be considered under
the Strickland test for ineffective assistance of counsel.
Gaskin, 364 F.3d at 470 (evaluating whether counsel’s advice
regarding the safety valve hearing constituted ineffective
assistance of counsel); see also Jimenez v. U.S., 168 F. Supp.
2d. 79, 81-82 (S.D.N.Y. 2001).
Petitioner claims that his counsel “fail[ed] to advise
Petitioner to offer a truthful proffer,” and “gave improper
advice . . . regarding his [safety valve] proffer,” and contends
that he did not realize he had “nothing to gain” by providing “a
version of events contradictory from McCleary’s [trial
testimony] at the safety valve proffer.”
Petitioner states that
he had been found guilty, and “any protestation of innocence was
inappropriate during the safety valve proffer,” as “is evident
in the finding of the Court of Appeals that the Petitioner’s
safety valve proffer was not entirely ‘candid.’” 6
(Pet. at 6.)
As previously noted, at the combined safety valve and sentencing
hearing during which petitioner testified under oath, the court
confirmed that petitioner understood the purpose of the hearing,
asking: “Do you understand that it doesn’t matter what you admit
to, as long as you tell the truth?”, to which petitioner
responded, “The truth, yes, sir.”
(Sent. Tr. 35.)
petitioner’s counsel confirmed to the court at the commencement
of the proffer hearing that petitioner understood that he must
“tell  what he knows,” and agreed that petitioner understood
that “all that matters is telling the truth.” (Sent. Tr. 2-3.)
The court notes that petitioner’s ineffective assistance of counsel and
actual innocence claims are at odds with each other. Indeed, petitioner
argues that his counsel’s failure to advise him to testify truthfully at his
safety valve hearing resulted in his (presumably untruthful) testimony in
which he maintained his innocence and, consequently, his right to effective
counsel was violated. Petitioner, however, also claims actual innocence as
an alternate basis for relief.
Accordingly, even assuming that petitioner’s attorney
failed to advise him of the significance of providing complete
and truthful disclosure at the safety valve hearing, petitioner
would not have suffered prejudice from his attorney’s purported
failure, because petitioner was present when his attorney
confirmed to the court that counsel advised petitioner of the
importance of telling the truth, petitioner took an oath to
testify truthfully, and petitioner was ultimately advised of
this requirement by the court and indicated his understanding to
It is unclear how petitioner would have
otherwise proffered, and whether he would have changed his
“untruthful” safety valve testimony or admitted guilt.
petitioner is unable to show that but for counsel’s alleged
failure to advise him to be truthful, there is a reasonable
probability that the result of the safety valve and sentencing
proceeding would have been different.
App’x at 75.
Pozuelos-Morales, 526 F.
Consequently, petitioner’s ineffective assistance
claim fails to meet the prejudice prong of the Strickland test.
A claim of actual innocence “‘is not itself a
constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.’”
Bellnier, 508 F. App’x 23, 26 (2d Cir. 2013) (summary order)
(quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
other words, a claim of actual innocence may permit federal
habeas review of a procedurally-defaulted constitutional claim.
Thus, a petitioner who can demonstrate actual innocence
of the convicted crime is not required to demonstrate cause or
resulting prejudice, because the actual innocence claim belongs
to a “narrow class of cases . . . implicating a fundamental
miscarriage of justice.”
Schlup v. Delo, 513 U.S. 298, 314-15
(1995) (quoting McCleskey v. Zant, 499 U.S. 467, 493-494
(1991)); see Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012).
The “miscarriage of justice” exception applies only to cases
“where a constitutional violation has probably resulted in the
conviction of one who is actually innocent.”
Rivas, 687 F.3d at
Indeed, “[t]he gateway should open only when a petition
presents ‘evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless
Qadar v. United States, No. 13-CV-2967,
2014 WL 3921360, at *6 (E.D.N.Y. Aug. 11, 2014) (citing
McQuiggin v. Perkins, –– U.S. ––, 133 S. Ct. 1924, 1936 (2013))
(internal citation omitted).
A petitioner’s claim of actual innocence must be both
“credible” and “compelling.”
Rivas, 687 F.3d at 541.
claim to be ‘credible,’ it must be supported by new reliable
evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence –
that was not presented at trial.”
Id. ((citing House, 546 U.S.
at 538) (citing Schlup, 513 U.S. at 324)).
“For the claim to be
‘compelling,’ the petitioner must demonstrate that ‘more likely
than not, in light of the new evidence, no reasonable juror
would find him guilty beyond a reasonable doubt – or to remove
the double negative, that more likely than not any reasonable
juror would have reasonable doubt.’”
U.S. at 538).
Id. (quoting House, 547
At a minimum, a petitioner must “introduce new
evidence that thoroughly undermines the evidence supporting the
Id. at 543.
When a court seeks to weigh the effect of new
evidence, it must consider all new evidence, both admissible and
inadmissible, in light of the pre-existing evidence in the
Bower v. Walsh, 703 F. Supp. 2d 204, 221 (E.D.N.Y.
2010) (citing Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004)
(internal quotation marks omitted) (noting that a court
must “consider a petitioner’s claim in light of the evidence in
the record as a whole, including evidence that might have been
inadmissible at trial” because “[a]ctual innocence requires ‘not
legal but factual innocence’”).
Indeed, the court “must
consider all the evidence, old and new, incriminating and
exculpatory and make a probabilistic determination about what
reasonable, properly instructed jurors would do.”
WL 3921360, at *7; see House, 547 U.S. at 538-39 (“[T]he inquiry
requires the federal court to assess how reasonable jurors would
react to the overall, newly supplemented record.”).
evidence so requires, this may include consideration of the
credibility of the witnesses presented at trial.”
U.S. at 538-39.
“As to new witness testimony in particular, the
court considers the potential motives to be untruthful that the
witness may possess, corroboration or the lack thereof, internal
inconsistency, and the inferences or presumption that crediting
particular testimony would require.”
Lopez v. Miller, 915 F.
Supp. 2d 373, 401 (E.D.N.Y. 2013) (internal quotation marks and
A petitioner must claim factual innocence, not mere
See Bousley, 526 U.S. at 623-624.
the government should be “permitted to present any admissible
evidence of petitioner’s guilt” and is “not limited to the
existing record” when rebutting the petitioner’s claim on
Id. at 624.
Finally, a court is free to consider
“[u]nexplained delay in presenting new evidence as a factor in
making its determination.”
McQuiggin v. Perkins, 133 U.S. 1924,
Petitioner claims he is actually innocent and in
support submits as “new evidence” an affidavit by Marlon
Campbell, a federal prisoner serving a life sentence for his
conviction of murder, narcotics and firearms offenses.
United States v. Campbell, No. 06-CR-41 (S.D.N.Y.) (McMahon).
Mr. Campbell avers that McCleary confided in him while he and
McCleary were incarcerated at the Metropolitan Detention Center
in Brooklyn, New York.
(Affidavit of Marlon Campbell (“Campbell
Aff.”), dated Oct. 22, 2008.)
Mr. Campbell claims McCleary told
him that James knew “fully well that Troy was not aware of any
transactions or business between McCleary and [James]” and that
McCleary “never knew [petitioner] and only because [petitioner]
called him on the phone was why [petitioner] became involved in
(Campbell Aff. at 1.)
Moreover, Mr. Campbell
states that shortly after James’s arrest, James “went on the
run” and “could not be found,” and McCleary “had no other
alternative but to testify against [petitioner].”
Petitioner contends that this affidavit evidences that McCleary
informed Campbell that McCleary “did not know the Petitioner
because the Petitioner was not involved in the cocaine
conspiracy,” and that “he was forced to testify falsely against
Petitioner because . . . James . . . was in hiding and he had to
testify against someone in order to receive” a reduced sentence.
(Pet. at 8.)
Although petitioner has proffered evidence not
presented at trial, the affidavit from Mr. Campbell is not
reliable evidence that excuses petitioner’s procedural default.
As an initial matter, Campbell’s affidavit is dated October 22,
2008, indicating that the evidence was available to the
petitioner at the time of his sentencing on August 13, 2009.
(Sent Tr. 1.)
In fact, petitioner told the court of the
“written testimony” of Mr. Campbell at the sentencing hearing in
August, and his attorney explained it further.
(Sent Tr. 36.)
See Qadar, 2014 WL 3921360, at *7 (finding “highly suspect” the
fact that petitioner’s affidavits were presented after
conviction, despite his “ample opportunity to investigate any
information that these witnesses had prior to trial” and calling
his explanations for the delay “mildly plausible” to “completely
Here, petitioner does not explain why he did not
present Campbell’s affidavit sooner, and instead argues that
because the affidavit was not available at trial, he was unable
to raise the issue of new evidence on direct appeal.
Response to the Government’s Opposition, 5-6.)
7 Moreover, the government contends that petitioner should have presented his
new evidence in a motion for a new trial pursuant to Rule 33 of the Federal
Rules of Criminal Procedure, which allows a defendant to move the court for a
new trial where new exculpatory evidence is discovered after trial, but that
petitioner’s evidence would fail to meet the threshold required for granting
such a motion. Rule 33 provides that “upon the defendant’s motion, the court
may vacate any judgment and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). “Generally, a motion for a new trial
should not be granted unless the trial court is convinced that the jury has
reached a seriously erroneous result or that the verdict is a miscarriage of
In any event, having reviewed the record as a whole,
including Mr. Campbell’s affidavit, the court finds petitioner’s
actual innocence claim neither credible nor compelling.
Campbell’s affidavit does not establish new evidence that is
likely to call into question the credibility of the trial
evidence, including McCleary’s sworn testimony, that was subject
to cross-examination at trial, and the corroborating telephone
conversations between petitioner and McCleary.
See Florez, 2009
WL 2228121, at *7 (finding that the petitioner’s new evidence,
in the form of his own testimony, was not sufficient to call
into question “sworn testimony subject to cross-examination and
upheld on appeal”).
justice.” Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003). A trial
court’s discretion to set aside a verdict and order a new trial must be
“exercised sparingly,” “with great caution, and only in the most
extraordinary circumstances.” United States v. Sanchez, 969 F.2d 1409, 1414
(2d Cir. 1992). Thus, a district court deciding a Rule 33 motion must ask
whether “it would be a manifest injustice to let the guilty verdict stand.”
Id. A “manifest injustice occurs where a trial court cannot be satisfied
that competent, satisfactory and sufficient evidence” supports the jury’s
finding of guilt beyond a reasonable doubt, and where a real concern exists
that an innocent person may have been convicted.” U.S. v. Kahale, No. 09-CR159, at *27 (E.D.N.Y. Sept. 27, 2010) (citing Sanchez, 969 F.2d at 1414)
(internal quotation marks omitted).
Accordingly, even if petitioner had moved for a new trial under
Rule 33 to present newly discovered evidence, his motion would likely have
been denied under the high threshold required for granting a motion for a new
trial. Indeed, “[a] new trial pursuant to Rule 33 based on newly discovered
evidence may be granted ‘only upon a showing that the evidence could not with
due diligence have been discovered before or during trial, that the evidence
is material, not cumulative, and that admission of the evidence would
probably lead to an acquittal.’” United States v. DiPietro, 278 F. App’x 60,
61 (2d Cir. 2008) (citing United States v. Alessi, 638 F.2d 466, 479 (2d Cir.
1980)); United States v. Owen, 500 F.3d 83, 87 (2d Cir. 2007).
Indeed, although the sentencing court was advised of
the Campbell statement and this court has considered it in the
context of petitioner’s habeas claim, the “new” evidence relied
on by petitioner consists of hearsay statements lacking in
indicia of reliability, that are neither “trustworthy eyewitness
accounts” nor statements by “firsthand alibi witnesses.”
2014 WL 3921360, at *7 (finding new affidavits to be “unreliable
hearsay statements lacking in indicia of reliability,” and
contrasting them with “trustworthy eyewitness accounts” or
“firsthand alibi witnesses”).
Campbell’s claims that McCleary
did not know petitioner is also contradicted by the taped
telephone conversations made by McCleary on the day of
petitioner’s arrest, in which petitioner directed McCleary to a
location where the two had previously met in connection with
(See Tr. 100-02, 151-52, 155; Govt. Opp.
Exs. D, E, F, Transcripts of Consensually Taped Conversations
Between McCleary and Petitioner.)
Moreover, as the government
noted at the safety valve hearing in response to petitioner’s
contention that “McCleary told the prisoner that he was
fabricating testimony against [petitioner] to retaliate against
James for cooperating with the government,” McCleary had
cooperated first, leading to the arrest of petitioner and James.
(Sent. Tr. 38.)
In any event, Campbell’s affidavit only challenges the
credibility of McCleary’s statements at trial.
Where the new
evidence only speaks to a witness’s credibility, and not to the
petitioner’s innocence, the evidence is insufficient to excuse a
Donato v. United States, No. 09-CV-5617,
2012 WL 4328368, at *3 (E.D.N.Y. Sept. 20, 2012) (rejecting
actual innocence claim on grounds that witness letter would have
undermined witness’s credibility at trial); see also United
States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006), cert.
denied, 549 U.S. 1040 (2006) (internal quotations marks
omitted)) (“The law is well established that a federal
conviction may be supported by the uncorroborated testimony of
even a single accomplice witness if that testimony is not
incredible on its face and is capable of establishing guilt
beyond a reasonable doubt.”).
Moreover, even assuming that petitioner’s asserted
evidence was new, credible and would have been admissible at
trial, it is not sufficiently compelling to warrant a conclusion
that “more likely than not, in light of the new evidence, no
reasonable juror would find [petitioner] guilty beyond a
House, 547 U.S. at 538.
Indeed, the new
affidavit cannot overcome the substantial evidence of
petitioner’s guilt adduced trial.
Mr. Campbell’s affidavit,
though notarized pursuant to 18 U.S.C. § 4004, which authorizes
wardens and superintendents . . . [to] administer oaths . . .
[of] inmates,” consist merely of statements are inconsistent
with the more reliable firsthand accounts of McCleary, that were
both corroborated by other evidence presented by the government
at trial, such as consensually recorded telephone calls and the
testimony of law enforcement witnesses, and that were subject to
See Trisvan v. Ercole, No. 07–CV–4673, 2015
WL 419685, at *10 (E.D.N.Y. Jan. 30, 2015) (“[N]ew evidence
cannot be viewed in isolation.
It must be arrayed against the
forceful evidence supporting the jury’s guilty verdict.”).
Petitioner does not explain why or how Mr. Campbell’s testimony
would be more credible to a jury than the evidence presented at
Further, petitioner attempts to impeach McCleary’s
testimony by suggesting that McCleary fabricated his testimony
against petitioner in order to obtain a more lenient sentence.
The jury, however, was made aware of McCleary’s cooperation with
the government, as well as McClearly’s belief that if he
cooperated and testified truthfully, the sentencing judge may be
(See Tr. 44-50.)
Indeed, the jury already
considered this information when weighing McCleary’s credibility
and finding defendant guilty of Counts One and Three.
petitioner has not established that, in light of the full
record, including the new evidence, “it is more likely than not
that no reasonable jury would vote to convict him” and his claim
of actual innocence must be denied.
For the foregoing reasons, petitioner’s petition for
habeas corpus relief pursuant to 28 U.S.C. § 2255 is denied.
The Clerk of the Court is respectfully requested to dismiss the
petition, enter judgment in favor of respondent, and close this
The Clerk of the Court shall serve a copy of this
Memorandum and Order upon petitioner and file a declaration of
service within two days of the date of this Memorandum and
Kiyo A. Matsumoto
United States District Judge
November 2, 2015
Brooklyn, New York
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