Roberts v. United States of America
Filing
27
ORDER DISMISSING PETITION PURSUANT TO 28 U.S.C. § 2255 --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Petitioner's 28 U.S.C. § 2255 motion is denied in its entirety. Petitioner is further denied a certific ate of appealability as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); See Fed. R. App. P. 22(b); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). 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, and, therefore, in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United Stat es, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se Petitioner and to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/30/2018. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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O’NEAL ROBERTS, pro se,
:
:
Petitioner,
:
:
MEMORANDUM & ORDER
-against:
13-cv-0653 (DLI)
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
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DORA L. IRIZARRY, Chief United States District Judge:
On January 10, 2013, pro se Petitioner O’Neal Roberts (“Petitioner”) filed this Petition1
for a writ of habeas corpus, challenging his sentence pursuant to 28 U.S.C. § 2255. See generally,
Dkt. Entry No. 1 (“Pet.”).
On June 30, 2009, a jury convicted Petitioner after trial of two counts of conspiracy to
import cocaine, one count of importing cocaine, and one count of attempting to distribute cocaine,
in violation of 21 U.S.C. §§ 841, 846, 952, 960, and 963. (See generally, Dkt. 07-CR-425, Entry
Nos. 117, 149.) On March 30, 2010, this Court sentenced Petitioner to 240 months’ imprisonment
on each count, to run concurrently. (See Id., Dkt. Entry No. 149.) On March 31, 2010, Petitioner
appealed his conviction, which the Second Circuit Court of Appeals affirmed on September 29,
2011. (See Id. Notice of Appeal, Dkt. Entry No. 151; Judgment of USCA “Second Circuit
Opinion,” Dkt. Entry No. 164.) Upon Petitioner’s motion to reduce his sentence, on October 29,
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In reviewing Petitioner’s motion, the Court is mindful that, “[a] document filed pro se is to be liberally
construed . . . and a pro se [pleading], 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 citation
omitted). Accordingly, the Court interprets the Petition “to raise the strongest arguments that [it] suggest[s].”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis, citations and internal quotation
marks omitted).
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2015, the Court reduced Petitioner’s sentence to 235 months’ imprisonment. (See Id., Dkt. Entry
Nos. 173, 178.)
Petitioner now challenges his sentence based upon ineffective assistance of counsel against
attorney John Moore, Esq., and insufficient evidence of guilt. (Pet. at 4-8.) On May 16, 2013, the
government filed an opposition to the Petition. (See Opposition to Habeas Petition (“Opp.”), Dkt.
Entry Nos. 7-17.) On August 30, 2013, Petitioner filed a reply in further support of the Petition.
(See Petitioner’s Reply (“Reply”), Dkt. Entry Nos. 24, 25.) For the reasons set forth below, the
Petition is denied.
BACKGROUND
Petitioner was arrested on October 11, 2006 in connection with an investigation into the
importation of cocaine on an American Airlines flight into John F. Kennedy Airport, while he was
an American Airlines employee. (Opp. at 3.) Upon his arrest, United States Immigration and
Customs Enforcement (“ICE”) agents interviewed Petitioner regarding the drug transactions in
which he was involved.
(Id. at 3-4.)
Petitioner waived his Miranda rights prior to the
commencement of the interview. (Id.)
Following his arrest, Petitioner, accompanied by his attorney, John Moore, Esq. (“Moore”),
met with the government for three proffer sessions, each time pursuant to a proffer agreement. (Id.
at 4.) At these interviews, Petitioner admitted his involvement in the importation of cocaine on
the American Airlines flight. (Id.)
Subsequent to the three proffer sessions, Petitioner retained a new attorney. (Id. at 5.)
Petitioner recanted his prior statements and filed a motion to suppress the statements made during
the proffer sessions. (Id.) The Court held a two-day hearing on the motion. (Id. at 7.) Moore
testified that he had discussed the proffer agreements in private with Petitioner. (Id. at 9.) Moore
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also testified that he had discussed with Petitioner the advantages and disadvantages of cooperating
and entering into the proffer agreement. (Id.)
In a memorandum and order dated March 13, 2009, the Court denied Petitioner’s motion
to suppress. (Dkt. 07-CR-425, Entry No. 52.) The Court made factual findings regarding the
October 16, 2006 proffer session, including: (1) Petitioner was accompanied by Moore at the
proffer session; (2) the government gave Petitioner and Moore time to review a proffer agreement
in private; (3) Petitioner signed the proffer agreement; (4) the proffer agreement remained in place
for the next two proffer sessions; (5) no law enforcement officers threatened Petitioner with job
loss for failure to cooperate; and (6) no law enforcement officers questioned Petitioner until they
read him his Miranda rights, explained his rights to him, and Petitioner voluntarily and knowingly
waived his right to remain silent. (Id. at 15.)
The case proceeded to trial. On June 30, 2009, a jury convicted Defendant of two counts
of conspiracy to import cocaine, one count of importing cocaine, and one count of attempting to
distribute cocaine, in violation of 21 U.S.C. §§ 841, 846, 952, 960, and 963. (See generally, Dkt.
07-CR-425, Entry Nos. 117, 149.) On March 30, 2010, this Court sentenced Petitioner, below the
calculated guidelines range, to 240 months’ imprisonment on each count, to run concurrently. (See
Id., Dkt. Entry No. 149.) Upon Petitioner’s motion to reduce his sentence, on October 29, 2015,
the Court reduced Petitioner’s sentence to 235 months’ imprisonment. (See Id., Dkt. Entry Nos.
173, 178.)
On appeal to the Second Circuit Court of Appeals, Petitioner argued that his conviction
should be vacated and the case remanded, because: (1) the Court should have suppressed the
proffer session statements; (2) the Court should not have admitted Petitioner’s statements during
trial; and (3) the Court erroneously applied an abuse of trust sentencing enhancement in
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determining the applicable sentencing guidelines range. (Opp. at 28.) The Second Circuit rejected
Petitioner’s arguments and affirmed the conviction. (See generally, Second Circuit Opinion.)
On January 30, 2013, Petitioner filed the instant motion. Petitioner asks the Court to vacate
his conviction because he was deprived of effective assistance of counsel and there was insufficient
evidence of his guilt presented at trial. (Pet. at 4-8.) Specifically, Petitioner contends that Moore
was ineffective because Moore: (1) did not advise Petitioner of the consequences of the proffer
sessions; (2) “appeared to be working for the government”; (3) “did not know what he was doing”;
and (4) advised Petitioner to cooperate with law enforcement, compromising Petitioner’s right to
a fair trial. (Pet. at 4, 5.) Petitioner does not allege actual innocence as a basis for his petition,
but, in elaborating on his ineffective assistance of counsel claim, Petitioner twice asserts that he is
innocent. (Pet. at 4, 8.)
In his reply, Petitioner contends that not only was Moore ineffective, but Petitioner’s “three
defense counselors,” as well as his “appeal attorney,” were ineffective. (Reply at 1-2.) In support
of these assertions, Petitioner states that Stephanie Carvlin, his appellate attorney appointed from
the CJA panel, was ineffective for not visiting Petitioner, and, instead, speaking with him three
times on the phone. (Id. at 2.) Petitioner further alleges that his attorneys Blackman and Sneider
were ineffective because they failed “to effectively gain a reasonable plea and further failed to
adequately raise a defense at trial.” (Id.)
The Court will not address the ineffective assistance of counsel claims against attorneys
Carvlin, Blackman, and Sneider. Petitioner raises these claims for the first time in his reply papers,
and does not allege sufficient facts in support of his bare assertion. The Court is entitled to
disregard any legal argument raised for the first time on reply, particularly since the government
had no opportunity to oppose it. See In re Harris, 464 F.3d 263, 268 n.3 (2d Cir. 2006); Ernst
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Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999) (per curiam). See also
Melo v. United States, 825 F. Supp.2d 457, 464 (S.D.N.Y. 2011) (finding that pro se petitioner
waived arguments raised for the first time in the reply brief to his habeas petition).
Petitioner supports his assertion that insufficient evidence was used to convict him with
the following allegations: (1) the statements used against Petitioner from the proffer sessions were
made “under coercion by authorities”; (2) investigators violated Petitioner’s “right to remain silent
under threats of economic consequences by investigators”; (3) defense witness Clive Bedford lied
during his testimony; and (4) the prosecution knowingly used false evidence against Petitioner.
(Pet. at 4, 6, 8.)
For the reasons discussed below, Petitioner’s motion is denied in its entirety.
DISCUSSION
I.
Legal Standard
A.
Section 2255
Under § 2255, “a sentencing court may vacate, set aside or correct a conviction or sentence
imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. Relief
generally is “available only for a constitutional error, defect of jurisdiction, or an error of law
constituting a fundamental defect which inherently results in a complete miscarriage of justice.”
Scala v. United States, 2010 WL 3780320, at *1 (E.D.N.Y. Sept. 21, 2010) (citations and internal
quotation marks omitted).
B.
Issues Previously Raised on Appeal
It is well settled that a § 2255 motion may not relitigate issues previously raised on direct
appeal. See, e.g., Cantor v. United States, 205 F.3d 1321, *1 (2d Cir. 2000) (citing United States
v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) (“It is well-established that issues decided on direct
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appeal may not be relitigated in the context of a petition under § 2255.”), cert. denied, 530 U.S.
1245 (2000)); Simmons v. United States, 2014 WL 4628700, at *2 (E.D.N.Y. Sept. 15, 2014)
(“[H]aving rejected his objection [to the court’s application of the sentencing enhancement], he
cannot reargue it in his § 2255 petition.”). An exception to this rule exists for intervening changes
in the law. See Scala, 2010 WL 3780320, at *1 (citing Chin v. United States, 622 F.2d 1090, 1092
(2d Cir. 1980)). This exception is not applicable here.
Courts reviewing § 2255 claims will consider arguments not raised on direct appeal if the
petitioner can demonstrate “cause” for failing to raise the claims and “actual prejudice,” or that the
petitioner is “actually innocent.” See Bousley v. United States, 523 U.S. 614, 622-23 (1998)
(citations and internal quotation marks omitted). However, ineffective assistance of counsel
claims “may be brought in a collateral proceeding under § 2255, whether or not the petitioner could
have raised the claim on direct appeal.” See Massaro v. United States, 538 U.S. 500, 504 (2003).
Nonetheless, a petitioner cannot simply recast previously made arguments as ineffective assistance
claims. See Cakoni v. United States, 2015 WL 1726448, at *10 (S.D.N.Y. Apr. 15, 2015) (citing
Yick Man Mui v. United States, 614 F.3d 50, 55 (2d Cir. 2010)) (“The Second Circuit already
rejected these arguments . . . and they cannot be recast as ineffective assistance arguments and
relitigated via a § 2255 petition in the absence of an intervening change in the law.”); Brown v.
United States, 1996 WL 479248, at *4 (S.D.N.Y. Aug. 23, 1996) (“[Petitioner’s] attempt to recast
his substantive arguments regarding sentencing errors in terms of ineffective assistance of counsel
is unavailing.”).
C.
Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel, a petitioner must show that
(1) “his attorney’s performance ‘fell below an objective standard of reasonableness,’ in light of
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‘prevailing professional norms,’” and (2) “‘affirmatively prove prejudice’ arising from counsel’s
allegedly deficient representation.” United States v. Caracappa, 614 F.3d 30, 46 (2d Cir. 2010)
(quoting Strickland v. Washington, 466 U.S. 668, 693 (1984)) (citing United States v. Cohen, 427
F.3d 164, 167 (2d Cir. 2005)). Courts reviewing an ineffective assistance of counsel claim “must
‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound [legal] strategy.’” Strickland,
446 U.S. at 689. The Court must “be watchful to eliminate the distorting effects of hindsight.”
Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009) (citation and internal quotation marks omitted).
II.
Analysis
A.
Arguments Not Raised on Direct Appeal
Petitioner’s claims concerning the sufficiency of the evidence and the reasonableness of
his sentence are barred procedurally because he did not bring these challenges on direct appeal and
does not allege sufficient cause for failing to do so. Boursley, 523 U.S. at 621. Petitioner does not
explain why his appeal failed to raise these issues, other than to assert, in his reply, that his
appellate counsel was ineffective for speaking to him on the phone, rather than visiting him in
person. (Reply at 2.) Attorney ignorance or inadvertence is not “cause” for failing to raise claims
on direct appeal. See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (“Attorney ignorance or
inadvertence is not cause because the attorney is the petitioner’s agent when acting, or failing to
act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.”)
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(internal quotations and citations omitted). As such, Petitioner has not demonstrated why his
insufficient evidence arguments should not be barred procedurally.
B.
Ineffective Assistance of Counsel
Petitioner’s claims that Moore was ineffective are meritless. First, Petitioner’s assertion
that Moore did not advise him of the consequences of the proffer sessions was litigated already
before this Court at the two-day suppression hearing in January 2009. The Court found that the
government gave Petitioner and Moore time to review the proffer agreement in private. (Dkt. 07CR-425, Entry No. 52 at 15.) Furthermore, Moore affirms that he met with Petitioner alone for
about thirty minutes, during which time Moore advised Petitioner of the details of the proffer
agreement. (Opp. Ex. A1-C, Dkt. Entry No. 11, at 2.)
Second, Petitioner’s assertions that Moore “appeared to be working for the government”
and that Moore “did not know what he was doing” are insufficient. “Such bare assertions, offered
without detail or supporting documentation, have been found inadequate to support a claim of
ineffective assistance in the face of a credible and contradictory affidavit by counsel.” See
Lejhanec v. United States, 1999 WL 1487594, at *9 (E.D.N.Y. Nov. 29, 1999) (denying § 2255
claim where “the Court is faced with nothing more to support [petitioner’s] claim . . . than
[petitioner’s] ‘bare, unsubstantiated, thoroughly self-serving, and none too plausible statement.’”)
Third, Petitioner faults Moore for advising him to cooperate with law enforcement,
compromising his right to a fair trial. (Pet. at 5.) Advising a client to cooperate with law
enforcement certainly does not fall below an objective standard of reasonableness in light of
prevailing professional norms. See Caracappa, 614 F.3d at 46. Defense attorneys routinely advise
their clients to cooperate with the prosecution in an effort to obtain more favorable plea deals. See
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United States v. Heatley, 39 F. Supp.2d 287, 315-16 (S.D.N.Y. 1998) (finding that counsel was
not ineffective despite not stopping defendant from cooperating with law enforcement).
CONCLUSION
For the reasons set forth above, Petitioner’s § 2255 motion is denied in its entirety.
Petitioner is further denied a certificate of appealability as he fails to make a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); See Fed. R. App. P. 22(b); Lucidore
v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). 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, and,
therefore, in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
March 30, 2018
/s/
DORA L. IRIZARRY
Chief Judge
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