Jerry v. United States of America

Filing 31

MEMORANDUM DECISION AND ORDER. The petitioner's motion to vacate, set aside or correct his sentencing pursuant to 28 U.S.C. § 2255(a) is denied in its entirety. A certificate of appealability will not be issued. See 28 U.S.C. § 2253(c). 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. The Clerk of Court is directed to close this case. Ordered by Judge Ann M. Donnelly on 2/21/2020. (Greene, Donna)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK
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brooklmn)office

JERRY MCCULLOUGH,
Petitioner.

MEMORANDUM DECISION

- against -

AND ORDER

14-CV-01920(AMD)

UNITED STATES OF AMERICA,
Respondent.
X

ANN M,DONNELLY,United States District Judge:

The pro se petitioner, Jerry McCullough, petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2255(a). On October 20,2009, a jury convicted the petitioner of conspiracy to

commit postal robbery, 18 U.S.C. § 371, postal robbeiy, 18 U.S.C. § 2114(a),and brandishing a
firearm during a crime of violence, 18 U.S.C. § 924(c)(l)(A)(iii). On December 9, 2011,the

Honorable Sandra L. Townes sentenced him to 135 months in prison and five years ofsupervised
release. The petitioner's conviction was affirmed on appeal. United States v. McCullough,523
F. App'x 82(2d Cir. 2013). He was released from prison in July of2019 but remains on
supervised release until 2024.

The petitioner alleges in his pro se briefthat his trial counsel was ineffective, and that the
prosecutor committed misconduct. While the Supreme Court's decision in United States v.

Davis, 139 S. Ct. 2319(2019) was pending, the Federal Defender Services entered an appearance

and challenged the petitioner's conviction of brandishing a firearm during a crime of violence.'
For the reasons that follow, the petition is denied.

'The parties submitted supplementary memoranda on September 20,2019 and November 21,2019,
addressing only the petitioner's conviction under 18 U.S.C. § 924(c). (ECF Nos. 27,29.)

BACKGROUND

I. Overview^

In the early morning hours of June 8, 2007,the petitioner and accomplices robbed the
Archer Avenue Post Office in Jamaica, New York. The petitioner and other robbers held the
victims at gunpoint and stole $1,419.85.

The petitioner was arrested in January of2009 and charged with conspiracy to commit
postal robbery, postal robbery, and brandishing a firearm during a crime of violence. In October
of2009,ajury convicted the petitioner on all three counts.
II.

Trial

The petitioner, represented by Charles S. Hochbaum, went to trial before Judge Townes

and ajury in October of 2009.^ (CR EOF No. 84.) The evidence established the following
facts.^

The petitioner met Derek Cochran in 1991 when they worked for the New York City
Housing Authority. (CR ECF No.98 at 163:7-8,157:21-23.) Cochran's aunt, Susan McMillan,

^ Because the petitioner was convicted, 1 summarize the facts in the light most favorable to the
verdict. Garbutt v. Conway,668 F.3d 79,80(2d Cir. 2012).

^ On September 24,2018,the petitioner moved to expand the record to include the Second Circuit
Grievance Committee's decision publicly reprimanding Mr. Hochbaum for failing to file documents in a
timely fashion in other cases, failing to respond to the court's directions in 12 appeals, and for lack of
candor before two district courtjudges. (ECF No. 23.) I grant this motion and consider the grievances in
determining the petition.

The prosecution called ten witnesses, including three postal employee victims, a postal inspector who
investigated the robbery,two Nextel Sprint representatives who testified about cell phone data and
historical cell-site records, a hospital administrator who testified, based on medical records, that the
petitioner was late for a medical appointment the morning ofthe robbery, a parole officer who identified
one ofthe petitioner's co-conspirators, the lead New York City Police Department detective who
investigated the robbery, and the petitioner's co-conspirator, Derek Cochran. The prosecution also
introduced surveillance video footage ofthe robbeiy, cellular telephone records, and historical cell-site
records showing where the petitioner and his co-conspirators were the morning ofthe robbery. (CR ECF
Nos. 98 at 89;99 at 91.) The defense did not present any evidence.

worked at the Archer Avenue Post Office in Queens,and told Cochran that "there was money to
be taken" at the post office. (CR ECF No.98 at 171:2-8,172:1-4.) Cochran asked the petitioner
if he wanted to rob the post office. {Id. at 173:4-14.) The petitioner said that he was interested; a
few weeks later, they visited the post office to look around, and the petitioner asked another man,
"Rome," to assist in the robbery. {Id. at 174:15-175:4,176:22-177:7.) McMillan agreed to get
them the post office door's combination code. {Id. at 177:22-25.)

Cochran, Rome and the petitioner met on Merrick Boulevard early the morning of June 8,
2007. {Id. at 177:22-25,178:13-19.) The petitioner drove the trio to the post office; Cochran

unlocked the post office door, and the petitioner and Rome covered their faces, pulled their guns,

and forced the employees to the ground.^ {Id. at 178:23-179:2,181:2-3,181:20-182:8.) They
ordered one employee to take them to a room ofsafe boxes. {Id. at 182:18-183:17.) The

petitioner and his accomplices stole $1,419.85,^ and fled after about ten minutes. {Id. at 185:118; ECF No.99 at 35:24-25.)

NYPD Detective Christopher Bollerman ofthe 103rd Precinct Detective Squad was
assigned to investigate the robbery. He arrived at the post office later that day, and collected

surveillance video footage ofthe robbery. (CR ECF No. 98 at 63:3-64:5.) Although the time on
the surveillance recording was off by 48 minutes—^for example, a video recorded at 6:55 a.m.

was marked 6:07 a.m.—^the video was complete. {Id. at 66:19-25,71:18-20.)
Cochran was arrested on June 24,2008 and admitted his role in the robbery. (ECF No.

98 at 113:1-6.) Investigators arrested McMillan and the petitioner on January 28,2009. {Id. at
113:5-17.)

^ Cochran did not have a gun. {Id. at 171:1-3.)
^ They overlooked approximately $60,000 in a nearby metal box. (ECF No.99 at 36:11-21.)

III. Verdict and Sentencing

On October 20,2009, ajury convicted the petitioner ofconspiracy to commit robbery,
robbery, and unlawful use of a firearm. (CR EOF No. 84.)
On December 9,2011, Judge Townes sentenced the petitioner to concurrent terms of51

months' imprisonment for conspiracy to rob a postal office and robbery ofa postal office,
followed by an 84-month term for unlawful use of a firearm. (CR BCF No. 136.)
IV. Second Circuit Appeal

The petitioner appealed his conviction, and argued that the court should not have
admitted his cell-site records into evidence, and that his lawyer was ineffective because he did

not move to suppress the records. McCullough,523 F. App'x at 83. The petitioner also
challenged the sufficiency ofthe evidence. Id, at 84.

The Second Circuit affirmed the petitioner's conviction in an April 23,2013 summary
order. Id at 85. The court held that the petitioner waived his claim about the cell-site records,
and that the records were in any event admissible because investigators obtained them in
reasonable reliance on the Stored Communications Act, 18 U.S.C. § 2703. Id. at 83. And

because the records were admissible, counsel could not have been ineffective for failing to object
to them. Id at 83. Finally, the court concluded that the evidence against the petitioner—^which
included testimony from three eyewitnesses and a co-conspirator, as well as video evidence—
was sufficient to support the conviction. Id. at 84.
DISCUSSION

Section 2255(a) permits a "prisoner in custody imder sentence of a court" to "move the

court which imposed the sentence to vacate, set aside or correct the sentence" on the "ground
that the sentence was imposed in violation ofthe Constitution or laws ofthe United States." 28

U.S.C. § 2255(a). The Court "shall vacate and set the judgment aside" ifthe Court finds that

"there has been such a denial or infringement ofthe constitutional rights ofthe prisoner as to
render the judgment vulnerable to collateral attack." Id. § 2255(b). The petitioner makes three
claims: that his conviction for unlawful use ofa firearm during a crime of violence was unlawful
because armed postal robbery is not a "crime of violence," that his trial counsel was ineffective

in violation ofthe Sixth Amendment, and that the prosecution violated his right to procedural
due process. (ECF Nos. 1, 27.)
I. Conviction under 18 U.S.C.§ 924(c)

The petitioner challenges his conviction for unlawfully using a firearm in furtherance ofa

"crime of violence," 18 U.S.C. § 924(c), on the theory that postal robbery, 18 U.S.C. § 2114(a),
is not a crime of violence. (ECF No.27 at 2.) The Government responds that the language of
the statute makes it clear that postal robbery is a crime of violence. (ECF No.29 at 1.)
Section 924(c) defines "crime of violence" as a federal felony that(A)has as an element

the use, attempted use, or threatened use of physical force against the person or property of
another, or(B)that by its nature, involves a substantial risk that physical force against the person
or property of another may be used in the course ofcommitting the offense. 18 U.S.C.
§ 924(c)(3). The Supreme Court has held that subsection(B),the residual clause, is
"unconstitutionally vague." United States v. Davis, 139 S. Ct. 2319,2326(2019). However, an
offense is still a "crime of violence" if it satisfies subsection(A),the elements clause. 18 U.S.C.
§ 924(c)(3)(A).

Courts employ a "categorical approach" to determine whether an offense is a crime of
violence. United States v. Hill, 890 F.3d 51, 55(2d Cir. 2018)(collecting cases). "Under the
categorical approach, courts identify the minimum criminal conduct necessary for conviction

under a particular statute by looking only to the statutory definitions—^i.e., the elements—ofthe

offense, and not to the particular underlying facts." Hylton v. Sessions, 897 F.3d 57,60(2d Cir.
2018)(citations and alterations omitted).

When a statute is "divisible"—^when it defines multiple offenses. United States v. Jones,

878 F.3d 10,16(2d Cir. 2017)(citing Mathis v. United States, 136 S. Ct. 2243,2249(2016))—
courts apply a "modified categorical approach," which "permits consideration of certain
materials that reveal which ofa statute's separate offenses served as the basis for the defendant's

conviction." Harbin v. Sessions, 860 F.3d 58,64(2d Cir. 2017)(citing Descamps v. United
States, 570 U.S. 254,257(2013)). This "limited class" of materials includes the underlying
indictment and the trial court's juiy instructions. Descamps,570 U.S. at 257.

The petitioner was convicted of violating 18 U.S.C. § 2114(a), which provides as
follows:

(a)Assault. A person who assaults any person having lawful charge, control, or
custody ofany mail matter or ofany money or other property ofthe United
States, with intent to rob, steal, or purloin such mail matter, money,or other
property ofthe United States, or robs or attempts to rob any such person of mail
matter, or ofany money,or other property ofthe United States, shall, for the first
offense, be imprisoned not more than ten years; and ifin effecting or attempting
to effect such robbery he wounds the person having custody ofsuch mail,
money,or other property ofthe United States, or puts his life in jeopardy by the
use ofa dangerous weapon,or for a subsequent offense, shall be imprisoned not
more than twenty-five years.
18 U.S.C. § 2114(a). Section 2114(a)is a divisible statute that defines two offenses:(1)assault
and robbery ofgovernment property, punishable by a term of not more than ten years'
imprisonment, and(2)assault and robbery of government property where the victim is wounded
or his life is put in jeopardy by the use of a dangerous weapon, punishable by a term of not more
than twenty-five years' imprisonment. 18 U.S.C. § 2114(a); see also Mathis, 136 S. Ct. at 2256

("If statutory alternatives carry different punishments,then ...they must be elements" of
different crimes.)(citations omitted).

The Second Circuit has not addressed whether Section 2441(a)is a crime of violence.

However,other circuit courts have ruled that the second offense in Section 2441(a)—^when a
defendant wounds a victim or puts his life in jeopardy—is a crime of violence under section

924(c)'s elements clause. See, e.g.. Knight v. United States, 936 F.3d 495, 500-01 (6th Cir.
2019); United States v. Enoch,865 F.3d 575,582(7th Cir. 2017);In re Watt, 829 F.3d 1287,

1290(11th Cir. 2016). These courts have emphasized that"the use ofa dangerous weapon to put
the victim's life in jeopardy transforms" whatever force that may be used in an assault and

robbery "into violent physical force." Knight,936 F,3d at 495. The Eleventh Circuit explained
that a defendant who enters a post office, instructs a postmaster, at gunpoint,to fill a bag with
cash,forces her to lie on the ground and threatens to shoot ifshe moves,indisputably commits a
crime of violence under section 924(c)(3)(A). See Watt,829 F.3d at 1289-90;see also Enoch,
865 F.3d at 582(when "a defendant... brandish[es] a gun... as to put the life ofa victim in
jeopardy," he commits"an offense that 'has as an element the use, attempted use, or threatened

use of physical force against the person or property ofanother.'")(citation omitted).
The petitioner was convicted under the second part ofsection 2441(a)—^putting "persons'
lives in jeopardy by the use ofa dangerous weapon" while robbing the United States Postal

Service.^ (ECF No.9^ 3.) Judge Townes instructed the jury in accordance with this charge:"in
carrying out the robbery,the [djefendant put in jeopardy by use ofa dangerous weapon the life
ofthe person having lawful charge" of United States property. (ECF No. 153 at 86:1-15.) She
defined a dangerous weapon as "anything capable of being readily operated, manipulated.

'
Because the petitioner was convicted under the second offense in section 2441(a), 1 decline to reach the
question of whether the.first offense in section 2441(a)constitutes a crime of violence.

wielded, or otherwise used by an individual to inflict severe bodily harm or injury upon another
person," and explained that "[t]o put a person's life in jeopardy by use ofa dangerous weapon
means to expose such a person to risk ofdeath by the use ofsuch a dangerous weapon." {Id. at
87:18-88:5.) The prosecution charged the petitioner with the second offense in section 2441(a),
the court instructed the jury accordingly, and the jury convicted him ofthat crime—^a crime of

violence under the elements clause of 18 U.S.C. § 924(c)(3)(A).
Accordingly,the petitioner's challenge to his conviction under 18 U.S.C. § 924(c)is
denied.

II.

Ineffective Assistance of Counsel

The "purpose ofthe Sixth Amendment guarantee ofthe Assistance of Counsel...is to

ensure that defendants have effective assistance of counsel." Henry v. Poole,409 F.3d 48,63
(2d Cir. 2005)(internal quotation marks and citations omitted). A petitioner claiming that his

lawyer was ineffective must meet the two-pronged test articulated in Strickland v. Washington:
(1)"that counsel's representation fell below an objective standard ofreasonableness," and
(2)"that there is a reasonable probability that, but for counsel's unprofessional errors, the result
ofthe proceeding would have been different." 466 U.S. 668,694(1984).

Under the first prong,"[a] convicted defendant... must identify the acts or omissions of
counsel that are alleged not to have been the result ofreasonable professionaljudgment." Id. at
690. "Judicial scrutiny of counsel's performance must be highly deferential," and courts "must

indulge a strong presumption that counsel's conduct falls within the wide range ofreasonable

professional assistance." Id. at 689. "[R]elief may be warranted when a decision by counsel
cannot be justified as a result ofsome kind ofplausible trial strategy." Jackson v. Leonardo, 162
F.3d 81,85(2d Cir. 1998)(citing Kimmelman v. Morrison, All U.S. 365,385(1986)).

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To satisfy the second prong,the petitioner must establish "a reasonable probability that,
but for counseTs unprofessional errors, the result ofthe proceeding would have been
different." Strickland^ 466 U.S. at 694. "The level of prejudice the defendant need demonstrate
lies between prejudice that 'had some conceivable effect' and prejudice that'more likely than

not altered the outcome in the case.'" Lindstadt v. Keane,239 F.3d 191,204(2d Cir. 2001)
(quoting Strickland, 466 U.S. at 693). "The benchmark for judging any claim ofineffectiveness
must be whether counsel's conduct so undermined the proper functioning ofthe adversarial
process that the trial cannot be relied on as having produced ajust result." Strickland,466 U.S.
at 686.

The petitioner argues that his trial counsel should have investigated whether the
indictment was"lawful" and whether there was "lawful jurisdiction." (ECF No. 1 at 4.) The

petitioner says that counsel should have obtained a grand jury concurrence form to make that
determination. Id. There is a "presumption ofregularity in grand jury proceedings," and the
petitioner does not cite any evidence to overcome that presumption. United States v. Archuleta,
02-CR-1060,2018 WL 8646703, at *7(S.D.N.Y. July 31,2018)(collecting cases). Nothing in
the record suggests that the government did not comply with Federal Rule of Criminal Procedure
6. See Kalani v. United States, No.02 CIV. 8663,2002 WL 31453094, at *10(S.D.N.Y. Oct.

31,2002)(rejecting petitioner's ineffective assistance ofcounsel claim because he failed to
provide "any specific factual allegations tending to show that the Indictment was retumed in
violation ofthe Local Rules in this District and Rule 6(f)..."). In fact, the Eastern District had

jurisdiction over the petitioner's case; he was charged with and convicted ofconspiring to rob a

post office in Queens—which is in the Eastern District ofNew York—and using a firearm

during the course ofthat robbery. See 28 U.S.C. 112(c).^
Similarly meritless is the petitioner's claim that his lawyer should have gotten the "Grand
Jury Master List" in order to "investigate whether there were grounds to seek dismissal ofthe
indictment [under]the Jury Selection and Service Act of 1968." (ECF No. 1 at 4.) He claims,

without citing any evidence, that "there was a systematic exclusion ofa disproportionate number
of students, Afiican-Americans, women,and people with Spanish surnames from the Grand Jury
Master List." (ECF No. 1 at 5.) As explained above,counsel is not required "to investigate
every line of defense a defendant suggests." Jacob v. LaClaire, No. 13-CV-4688,2014 WL
522777, at *13(S.D.N.Y. Feb. 11, 2014)(citing United States v. Romero,91-CR-586, 1993 WL

485677, at *7-8(S.D.N.Y. Nov. 22,1993),aff'd, 54 R3d 56(2d Cir. 1995), cert, denied,517

U.S. 1149(1996)). While claims of discrimination can support a writ of habeas corpus, the
petitioner must present a primafacie case of discrimination by showing that"that the procedure
employed resulted in substantial imderrepresentation of his race or ofthe identifiable group to
which he belongs." Rose v. Mitchell,443 U.S. 545,564-65(1986)("[I]t remains true that to be
entitled to habeas relief the present respondents were required to prove discrimination under the
standards set out in this Court's cases.").

The petitioner has not identified any evidence of discrimination in the grand jury process;
he has not pled statistical underrepresentation, racially-motivated strikes of certain jurors, or
offered any facts that give rise to an inference of discrimination. He merely alleges in
conclusory fashion the "systematic exclusion" of certain groups of people from the grand jury

® Technical errors in indictments," if any,"may be cured by the weight ofevidence presented at trial, the
'
jury instructions, and the verdict." Lugo v. United States, No.06-CV-5400,2008
(E.D.N.Y. Dec. 11,2008).
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5191684, at *7

and petitjury. (ECF No. 1 at 5.) Again,"[t]he grand jury proceeding is accorded a presumption
of regularity, which generally may be dispelled only upon particularized proofofirregularities in
the grand jury process." United States v. Mechanik,475 U.S. 66,75(1986)(citation

omitted). The petitioner identifies nothing in the record to suggest any unfairness in either the

grand jury or petitjury processes, so his lawyer could not have been deficient for failing to
pursue those claims. "Counsel [is] not required to investigate when there was nothing to be
gained by such an investigation." Jacob,2014 WL 522777, at *13 (citing Greiner v. Wells, 417
F.3d 305, 321 (2d Cir. 2005)("[Ajs a general matter, when there is 'reason to believe that
pursuing certain investigations would be fhiitless or even harmful, counsel's failure to pursue
those investigations may not later be challenged as unreasonable.'")(citation omitted), cert,
denied,546 U.S. 1184(2006)).
The petitioner also renews the argument that he made to the Second Circuit—^that his

lawyer should have moved to suppress the cell-site records. (ECF No. 1 at 6.) The Second

Circuit already rejected this claim as unpersuasive, McCullough,523 F. App'x at 83,and "relitigation ofissues already decided on direct appeal" is barred. Yick Man Mui v. United States,
614 F.3d 50,53(2d Cir. 2010)(mandate rule bars ineffective assistance of counsel claims raised

and resolved on direct appeal). In any event, the records were admissible, McCullough,523 F.

App'x at 83, so counsel could not have been ineffective for failing to challenge their
admissibility.

Accordingly, I reject the petitioner's claim ofineffective assistance of counsel.
III.

Prosecutorial Misconduct

A conviction will be set aside when prosecutorial misconduct causes "substantial

prejudice" to the petitioner, thereby depriving him of his right to a fair trial.. United States v.

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Valentine, 820 F.2d 565,570(2d Cir. 1987)(citing United States v. Clark,613 F.2d 391,405(2d
Cir. 1975), cert, denied, 449 U.S. 820(1980)). The court must first determine whether there was

misconduct; if there was, a court must consider(1)the severity ofthe misconduct,(2)the
measures adopted to cure the effects ofthe misconduct, and(3)the certainty of conviction in its
absence. Id. The court may also consider whether the misconduct was intentional. Id.

"When prosecutorial misconduct claims are raised in the context of a section 2255
petition, the petitioner must also assert 'cause' for failure to raise such arguments on direct
appeal." Deida v. United States, No. 3:13-CV-1608,2017 WL 2661622, at *5(D. Conn. June
20,2017)(citing Coleman v. Thompson,501 U.S. 722,753 (1991)). "Cause" can be established

by showing that"some objective factor external to the defense impeded" counsel from raising
the claim earlier, Murray v. Carrier, All U.S. 478,489(1986), and "actual prejudice resulting
from the errors of which he complains," United States v. Frady,456 U.S. 152,168(1982).
The petitioner claims that the government concealed exculpatory evidence and
impeachment material imtil the day before trial, which denied him the chance to do a full

investigation into the case against him. (ECF No. 1 at 9.) Specifically, he claims that the
prosecutors did not tell him about two possible suspects—^"Mo" and "Unique"—^until the
trial. {Jd.) Under Brady v. Maryland,373 U.S. 83(1963),"the Government has a constitutional
duty to disclose favorable evidence to the accused where such evidence is 'material' either to
guilt or to punishment." United States v. Certified Envtl. Servs., Inc., 753 F.3d 72,91 (2d Cir.

2014)(quoting United States v. Coppa,267 F.3d 132,139(2d Cir. 2001)). Nevertheless,"a

constitutional error occurs... only ifthe evidence is material in the sense that its suppression
undermines confidence in the outcome ofthe trial." United States v. Bagley,473 U.S. 667,678
(1985).

12

As a general matter, the petitioner's prosecutorial misconduct claims are procedurally
barred because he did not raise them on direct appeal. In any event,they are meritless.

The Government produced evidence in the weeks leading up to trial, including
information about"Mo"and "Unique"(CR ECF Nos.66,67, 72), and defense counsel used the
evidence at trial. He cross-examined the witnesses extensively about"Mo"—a name Cochran

used in a proffer session when referring to "Rome"(ECF No.98 at 208:13-21, 210:2-19)—^and
"Unique"—a name that the postal inspector received from an informant,(Tr. 98 at 126:8-20).
Clearly, then, the defense had the information about which the petitioner complains, and used it.
Moreover,the fact that there may have been additional co-conspirators was not exculpatory in
the context ofthis case. Derek Cochran maintained that the petitioner participated in the

robbery, as did others, and cell-site records and video footage established that the petitioner was
in close contact with Cochran on the morning ofthe robbery.

The petitioner also challenges the general credibility oftwo witnesses—^Derek Cochran
and Detective Bollerman. (ECF No. 1 at 10.) The petitioner says Cochran lied to get the benefit
of a plea bargain, and that Detective Bollerman lied about the time discrepancy between the
surveillance video and cell-site records. (Id.) It was for the jury to determine witness credibility.

The jurors listened to the testimony, which included cross-examination, and made their
determination.
CONCLUSION

For the reasons set forth above,the petitioner's motion to vacate, set aside or correct his
sentencing pursuant to 28 U.S.C. § 2255(a)is denied in its entirety. A certificate of appealability
will not be issued. See 28 U.S.C. § 2253(c). The Court certifies pursuant to 28 U.S.C.

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§ 1915(a)(3) that any appeal from this Order would not be taken in good faith. The Clerk of
Court is directed to close this case.

SO ORDERED.

s/Ann M. Donnelly
ANNM.DONNELLY

United States District Judge

Dated: Brooklyn,New York
February 21,2020

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