McKenzie v. United States of America

Filing 17

ORDER. For the reasons provided in the annexed memorandum and opinion, the court declines to grant petitioner a certificate of appealability on any of the claims raised in his motion seeking a certificate of appealability. Ordered by Judge Kiyo A. Matsumoto on 4/18/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
TROY MCKENZIE,
Petitioner,
MEMORANDUM & ORDER
-against12–CV-3221 (KAM)
UNITED STATES OF AMERICA,
Respondent.
---------------------------------------X
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 (“§ 2255”) seeking to vacate his sentence. (ECF No.
1.) On November 2, 2015, the court denied the petition, but did
not clarify whether a certificate of appealability should be
issued. (ECF No. 13, Memorandum and Order (“11/2/15 Op.”).) On
January 4, 2016, petitioner filed a motion seeking a certificate
of

appealability.

(ECF

No.

16,

Motion

for

Certificate

of

Appealability (“Pet. Mot.”).) Petitioner sought a certificate of
appealability

on

three

issues:

(1)

whether

his

counsel

was

ineffective for allegedly failing to permit petitioner to testify;
(2) whether his counsel was ineffective for failing to discover
and present evidence that would have impeached a key government
witness; and (3) whether certain “new evidence” establishes his
actual innocence.

LEGAL STANDARD
In

a

appealability

proceeding

may

issue

under

only

if

§ 2255,
“the

a

certificate

applicant

has

made

of
a

substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); see also United States v. Perez, 129 F.3d
255, 259–60 (2d Cir. 1997) (discussing the standard for issuing a
certificate of appealability).
DISCUSSION
The court presumes familiarity with the underlying facts
in this case as set out in the 11/2/15 Opinion denying petitioner
habeas

relief.

In

the

11/2/15

Opinion,

the

court

addressed

petitioner’s claim regarding his trial counsel’s ineffectiveness
for failing to permit him to testify as well as petitioner’s claim
regarding “new evidence” that he argues establishes his actual
innocence. For the reasons discussed in the 11/2/15 Opinion,
petitioner has not made a substantial showing of the denial of a
constitutional

right

with

regard

to

either

his

ineffective

assistance claim or his actual innocence claim. Therefore, a
certificate of appealability will not issue regarding petitioner’s
claim about his trial counsel’s ineffectiveness for failing to
permit him to testify or his claim regarding his actual innocence. 1

1

Petitioner has not sought a certificate of appealability on the third
and final ground raised in his original habeas petition, which sought
relief based on trial counsel’s ineffectiveness for failing to properly
advise him during his safety valve proffer. (See 11/2/15 Op. at 30-33.)

2

However, petitioner raises a new issue in his motion for
a certificate of appealability that was not raised in his June 25,
2012 habeas petition or addressed in the court’s 11/2/15 Opinion.
Specifically, petitioner appears to argue that his trial counsel
was ineffective for failing to introduce into evidence an affidavit
by Marlon Campbell, who avers that the government’s chief witness
Robert McCleary overstated the degree of petitioner’s involvement
in the charged offenses to secure favorable treatment on McCleary’s
own pending state and federal charges. (Pet. Mot. at 16-18.)
Petitioner summarizes Campbell’s significance as follows:
After trial, Petitioner obtained an affidavit from
Marlon Campbell, who was incarcerated with McCleary at
the Metropolitan Detention Center in Brooklyn, New York.
In sum, Campbell avers that McCleary told Campbell that
McCleary did not know Petitioner nor had any dealing
with him, except for his phone calls to give McCleary
directions, and that McCleary only implicated Petitioner
because McCleary was seeking substantial assistance from
the government and implicating Petitioner would maximize
his chances for same.
(Id. at 17.) Because Campbell’s affidavit formed the basis of the
actual innocence claim raised in petitioner’s habeas petition, the
court discussed the affidavit in detail in the 11/2/15 Opinion.
(See 11/2/15 Op. at 33-43.) Petitioner has essentially repackaged
the actual innocence claim rejected in the court’s 11/2/15 Opinion
as an ineffective assistance of counsel claim.
As an initial matter, a motion for a certificate of
appealability is an inappropriate mechanism for raising a new

3

ground for habeas relief. See Chue v. United States, 894 F. Supp.
2d 487, 492 (S.D.N.Y. 2012) (“The petitioner cannot raise a new
ground for relief at the stage of an application for a certificate
of appealability.”). In any event, for the reasons discussed below,
petitioner’s

new

ineffective

assistance

claim

based

on

trial

counsel’s failure to discover Campbell or elicit his statement is
meritless.
A
governed

claim

by

the

for

ineffective

framework

set

out

assistance
by

the

of

counsel

Supreme

Court

is
in

Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the
Court articulated a two-prong test to determine whether an attorney
has provided effective assistance of counsel. The Strickland test
evaluates 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”); nor (2) resulted in a reasonable probability
that the outcome of the trial would have been different but for
counsel’s unprofessional errors (the “prejudice prong”). 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

Strickland standard is rigorous, and the great majority of habeas
petitions that allege constitutionally ineffective counsel founder
on that standard.”). The petitioner bears the burden of proving
4

that both Strickland prongs are met. See Byrd v. Evans, 420 F.
App’x 28, 30 (2d Cir. 2011) (citing Kimmelman, 477 U.S. at 381).
In

considering

the

performance

prong,

a

court

must

“indulge a strong presumption that counsel’s conduct falls within
the

wide

range

of

reasonable

professional

assistance.”

Strickland, 466 U.S. at 689. Counsel “has a duty to make reasonable
investigations

or

to

make

a

reasonable

decision

that

makes

particular investigations unnecessary.” Id. at 691. The duty to
investigate is crucial to the adversarial testing process because
the “testing process generally will not function properly unless
defense counsel has done some investigation into the prosecution’s
case and into various defense strategies.” Kimmelman, 477 U.S. at
384. The duty to investigate does not “compel defense counsel to
investigate

comprehensively

every

lead

or

possible

defense,”

Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005), or to “scour
the globe on the off chance something will turn up.” Rompilla v.
Beard, 545 U.S. 374, 383 (2005). “[R]easonably diligent counsel
may draw a line when they have good reason to think further
investigation would be a waste.” Id.
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.” Strickland, 466 U.S. at 686. To establish
prejudice,

a

petitioner

must

demonstrate
5

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 695). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at
694.
Petitioner’s claim for ineffective assistance of counsel
fails under both the performance and prejudice prongs of the
Strickland analysis.
A.

Performance
As to the performance prong, petitioner only argues, in

a conclusory manner, that “had defense counsel performed any
reasonable investigation, he could have discovered this vital
witness, Campbell, and timely moved for a new trial.” (Pet. Mot.
at 17.) Petitioner has not provided any explanation as to how his
trial counsel could have discovered Campbell — who was incarcerated
at the time — or elicited his statement arguably undermining
McCleary’s credibility. Campbell’s affidavit was dated October 22,
2008, months after petitioner’s trial came to an end. (11/2/15 Op.
at 38.) Further, petitioner’s counsel discussed the affidavit with
the court at the sentencing hearing on August 13, 2009. (See Sent.
Tr. at 36.) More fundamentally, the court has already concluded
that even if petitioner had moved for a new trial based on
Campbell’s affidavit, “his motion would likely have been denied
6

under the high threshold required for granting a motion for a new
trial.” (11/2/15 Op. at 38-39 n. 7.) Accordingly, petitioner has
failed to establish that his trial counsel’s performance was
deficient. See Rompilla, 545 U.S. at 383 (holding that trial
counsel need not “scour the globe on the off chance something will
turn up”).
B.

Prejudice
As

the

court

discussed

in

the

11/2/15

Opinion,

Campbell’s affidavit does not constitute “evidence that is likely
to call into question the credibility of the trial evidence,
including McCleary’s sworn testimony, that was subject to crossexamination at trial, and the corroborating conversations between
petitioner and McCleary.” (11/2/15 Op. at 39.) For essentially the
same reasons that the affidavit proved an insufficient vehicle for
petitioner’s actual innocence claim, petitioner cannot establish
here that, had counsel been able to introduce the affidavit, “the
factfinder would have had a reasonable doubt respecting guilt.”
Henry, 409 F.3d at 63-64 (internal quotation marks and citation
omitted). Petitioner has therefore failed to carry his burden on
the prejudice prong.
CONCLUSION
For the reasons provided in this memorandum and opinion,
the

court

declines

to

grant

petitioner

a

certificate

of

appealability on any of the claims raised in his motion seeking a
7

certificate

of

appealability.

Further,

the

Court

certifies

pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith. See Coppedge v. United States,
369 U.S. 438, 444 (1962).
SO ORDERED.

_____________/s/________________
Kiyo A. Matsumoto
United States District Judge
Dated:

April 18, 2016
Brooklyn, New York

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