Sessoms v. United States of America

Filing 24

MEMORANDUM and ORDER: Sessoms petition is DENIED. Because the petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253. Ordered by Judge Frederic Block on 7/5/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAMES SESSOMS,
Petitioner,

MEMORANDUM & ORDER
14-CV-06658-FB

-againstUNITED STATES OF AMERICA,
Respondent.
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Appearances:
For the Petitioner:
SAM ALLEN SCHMIDT
Law Office of Sam A. Schmidt
111 Broadway, Suite 1305
New York, NY 10006

For the Respondent:
JAMES PATRICK LOONAM
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

JILLIAN SPITZER HARRINGTON
P.O. Box 6006
Monroe Township, NJ 08831

BLOCK, Senior District Judge:
On August 16, 2011, a jury convicted James Sessoms (“Sessoms” or
“petitioner”) of violating 18 U.S.C. §§ 1962(c), 1962(d), 1959(a)(5), 1959(a)(1),
1951(a), 924(c)(1); 21 U.S.C. § 846; and 18 U.S.C. § 924(c)(1). These criminal
offenses arose from Sessoms’ actions during his time with the Cash Money Brothers
(“CMB”), a violent gang led by Damion Hardy (“Hardy”). On August 18, 2011,
Sessoms was sentenced to thirty-five (35) years of imprisonment and four (4) years of

supervised release. His conviction was affirmed on appeal. See United States v.
Sessoms, 488 F. App’x 539 (2d Cir. 2015).
In this habeas proceeding under 28 U.S.C. § 2255, Sessoms contends that his trial
counsel, Gregory Cooper (“Cooper”), was constitutionally ineffective for several
purported mistakes. Cooper’s alleged errors included failing to (1) provide Sessoms
with adequate advice before and during trial; (2) relay a plea offer with a recommended
sentence of a seventeen-year term of incarceration from the Government; (3) advise the
Court that he was under investigation by the United States Attorney’s Office for the
Southern District of New York (“SDNY”) as to an unrelated and ultimately abandoned
civil matter; (4) request that the jury be informed that venue constituted an element of
the crimes charged; and (5) ask the Court to grant immunity to a prosecution witness
so as to compel that witness’ testimony. A hearing, confined to the issue of whether
Cooper transmitted the Government’s plea offer to Sessoms, was held on February 3,
2016. For the reasons set forth below, Sessoms’ habeas petition is DENIED.
I
To prevail on his ineffective assistance claim, Sessoms must satisfy the familiar
Strickland test by showing “(1) that his attorney’s performance fell below an objective
standard of reasonableness, and (2) that as a result he suffered prejudice.” Raysor v.
United States, 647 F.3d 491, 495 (2d Cir. 2011) (citing Strickland v. Washington, 466

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U.S. 668, 687 (1984)). Both Strickland requirements must be shown before
constitutionally recognizable ineffectiveness can be found. Strickland, 466 U.S. at 687;
United States v. Jones, 482 F.3d 60, 76 (2d Cir. 2006). Accordingly, either requirement
may be used to dispose of a claim. Bennett v. United States, 663 F.3d 71, 85 (2d Cir.
2011).
“[C]ounsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. Errors that “cannot be explained convincingly as resulting
from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude,
or laziness” contravene this standard. Cornell v. Kirkpatrick, 665 F.3d 369, 377 (2d Cir.
2011) (quoting Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009)). However, “[t]he
decision whether to call any witnesses on behalf of the defendant, and if so, which
witnesses to call,” is generally considered “a tactical decision of the sort engaged in by
defense attorneys in almost every trial.” United States v. Eisen, 974 F.2d 246, 265 (2d
Cir. 1992). It is thus “ordinarily not viewed as a lapse in professional representation.”
United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000); see also, e.g., Eze v. Senkowski,
321 F.3d 110, 129 (2d Cir. 2003) (“A defense counsel’s decision not to call a particular
witness usually falls under the realm of trial strategy that we are reluctant to disturb,”
provided “the decision not to call a witness . . . [is] grounded in some strategy that
advances the client’s interests.”). In addition, “while counsel has a duty ‘to consult with
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the defendant on important decisions and to keep the defendant informed of important
developments,’ a reviewing court asks only ‘whether counsel’s assistance was
reasonable considering all the circumstances.’” Samet v. United States, 559 F. App’x
476, 50 (2d Cir. 2014) (emphasis added).
Prejudice is shown if “there is a reasonable probability that, but for counsel’s
unprofessional error, the outcome of the proceeding would have been different.”
Wiggins v. Smith, 539 U.S. 510, 534 (2003).
A.

Cooper’s General Performance
In his broadest attack on Cooper’s competence, Sessoms accuses his counsel of

failing to have a trial strategy or complete the most basic homework. Obviously,
Sessoms’ displeasure with Cooper was and remains manifest. The overall record,
however, contains no proof of constitutionally recognizable ineffectiveness.
In the months leading to Sessoms’ trial, Cooper undertook several pivotal tasks.
He met with his client on six occasions (though Sessoms had remembered only four).
He unsuccessfully challenged the Government’s motion to deem Sessoms’ case
complex and explicitly accused the Government of failing to meet its statutory
discovery obligations, thereby raising the specter of sundry sanctions. Cooper thereafter
moved to suppress Sessoms’ post-arrest statement by motion and at oral argument.
During voir dire, he even requested two extra preemptory challenges.
At the trial Cooper ably performed the most significant tasks required of a
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criminal defendant’s counsel. He and his co-counsel vigorously cross-examined every
prosecution witness, impeaching each for prior false statements and prior bad acts; not
a single witness testified without suffering from the inquisitorial scrutiny of Sessoms’
lawyers, including Cooper. However effective such inquisitions and efforts proved to
be, Cooper was clearly prepared to try his client’s case, given his meticulous
questioning, effective presentation, and persistent arguments on Sessoms’ behalf.
Admittedly, Sessoms’ claims, if honestly believed and amply supported, would
damn Cooper as a less than exemplary member of this state’s bar. But, within this
case’s voluminous record, no “actual lapse in representation” can be discerned, Cuyler
v. Sullivan, 446 U.S. 335, 349 (1980), and the Court may not now “use hindsight to
second-guess [counsel’s] strategy choices,” Mayo v. Henderson, 13 F.3d 528, 533 (2d
Cir. 1994), or rely solely upon Sessoms’ beliefs and accusations to the contrary, each
of which is contested by both Cooper and the Government, see, e.g., Paige v. Lee, 99
F. Supp. 3d 340, 349 (E.D.N.Y. 2015) (collecting cases standing for the proposition
that an ineffective assistance claim cannot survive where there is “no evidence that
avenues suggested by the client [and] which might have altered the outcome were
ignored”).
In sum, because Cooper provided an “adequately vigorous defense,” United
States v. Griffin, No. 98–1460, 1999 WL 972675, at *2 (2d Cir. Oct. 1, 1999), none of
his more debatable actions can constitute ineffective assistance, see Henry v. Poole, 409
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F.3d 48, 63 (2d Cir. 2005) (stating rule).
B.

Conveyance of Plea Offer
Sessoms also accuses Cooper of failing to transmit a plea offer that he would

have readily signed. “[I]t is clear that failure to advise a client as to a plea offer is
unreasonable performance.” Raysor, 647 F.3d at 496 (citing Cullen v. United States,
194 F.3d 401, 404 (2d Cir. 1999)). And a large sentencing disparity “provides sufficient
objective evidence - when combined with a petitioner’s statement concerning his [or
her] intentions [to plead guilty] - to support a finding of prejudice under Strickland.”
United States v. Gordon, 156 F.2d 376, 381 (2d Cir. 1998). However, such a showing
will do no more than establish the need for a full hearing, as took place here, at which
a petitioner’s credibility must still be assessed and set against other witnesses’ apparent
veracity. See, e.g., Raysor, 647 F.3d at 496;Cullen, 194 F.3d at 407–08. In this analysis,
“[a] convicted felon’s self-serving testimony” is usually seen as “not likely to be
credible”; evidence of a more definitive and objective kind must eventually be
presented. Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003); see also Samet, 559 F.
App’x at 49 (invoking Purdy when a petitioner alleged that his counsel failed to inform
him of a formal plea offer in which a punishment less than that ultimately inflicted was
seemingly promised). To summarize, for Sessoms to demonstrate his second ground for
ineffectiveness, compelling proof of two facts must be given: (1) the existence of an
actual and concrete offer, and (2) the petitioner’s unconditional readiness to accept that
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offer, but for his or her counsel’s advice, at the time of its transmission. See United
States v. Frederick, 526 F. App’x 91, 93 (2d Cir. 2013) (invoking such a rule and citing
Purdy, 208 F.3d at 49, and United States v. Arteca, 411 F.3d 315, 321 (2d Cir. 2005)).
Here, in striving to meet this “high burden,” Sessoms has faltered twice. Lynn v. Bliden,
443 F.3d 238, 247 (2d Cir. 2006).
Primarily, Sessoms has failed to establish the drafting and finalization of any
formal and definite plea to which he would have acquiesced. See, e.g., Samet, 559 F.
App’x at 49 (distinguishing between formal plea offers and informal plea negotiations).
Rather, both his counsel and a United States Assistant Attorney credibly attest that the
Government never proposed more than a global plea that Sessoms rejected due to his
unwillingness to cooperate against his co-defendants, as this first (and only) offer
expressly required. Cooper Aff. ¶ 4; Loonam Aff. ¶ 4; Def.’s Letter, United States v.
Sessoms, No. 04-cr-706 (May 5, 2007). Sessoms has implicitly conceded this fact
before the Court, see Sessoms’ Post-Hrg. Br. 22–23 (maintaining that he kept
demanding an offer from the Government after it had withdrawn its first and only other
offer); see also, e.g., Govn’s Post-Hrg. Memo. 13, 16; Hr’g Tr. 133:24–134:17, Feb.
3, 2016, and, in a telling omission, made no reference to any prior plea offer when he
first appealed his conviction.1 Accordingly, because Sessoms has failed to provide any
evidence of a plea offer’s existence beyond his own questionable attestations, his claim
Notably, this failure is at odds with Sessoms’ claim that he had “just
wanted to admit his guilt and move on” in August of 2011. Hr’g 125:10.
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must fail. See, e.g., Murph v. United States, 12 F. Supp. 3d 557, 572 (E.D.N.Y. 2014)
(holding that “that there can be no ineffective assistance of counsel claim if, as here,
there is no actual plea offer that, but for the attorney’s deficient assistance, would, with
reasonable probability, have been accepted by the [d]efendant”); Merzbacher v.
Shearin, 706 F.3d 356, 369–70 (4th Cir. 2013) (reversing grant of habeas relief for
ineffective assistance due to failure to communicate offer after finding that no formal
plea offer was made where prosecution’s offer “finalized only one leg of a putative plea
agreement, the length of sentence [,] and did not finalize the other legs”); see also
United States v. Suri, Nos. 09–Cr–1190 (SHS), 13–Cv–8454 (SHS), 2014 WL
3928605, at *5 (S.D.N.Y. Aug.11, 2014) (denying ineffective assistance of counsel
claim because “[petitioner] has not plausibly alleged that he would have accepted any
actual plea offer”).
Further weakening his case, Sessoms’ accusation is seemingly predicated on a
crucial misunderstanding. True, any plea agreement may have provided for a lower
recommended minimum. Yet, as the Government has shown that it would not have
accepted anything but a plea of guilty as to every count, such an agreement would not
necessarily have produced a lower ultimate sentence. See United States v. Gordon, 156
F.3d 376, 381 (2d Cir. 1998) (stressing the relevance of this fact). As a matter of law,
the lowest mandatory minimum applicable to the crimes to which Sessoms would have
had to plead guilty would have been twenty-five years, and Sessoms’ criminal history
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and offense level would have always left open the possibility of a maximum sentence
of life imprisonment. See United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989)
(holding that a mistaken prediction about a petitioner’s guidelines range cannot
constitute ineffective assistance of counsel when the statutory minimums are clear).
Consequently, since any plausible plea agreement would have required Sessoms to
accept the possibility that this Court would impose a greater than minimal sentence,
Sessoms’ refusal, even now, to affirm his willingness to accept the twenty-five year
minimum applicable to the crimes actually charged in the superseding indictment is
fatal to his cause.
C.

Remaining Claims
Sessoms faults Cooper for not requesting that the jury be charged regarding

venue, asking that the Court grant immunity to a prosecution witness, and advising the
Court that he was being investigated by the SDNY in regards to an unrelated civil
matter, which ultimately concluded without the filing of a single charge, see, e.g.,
Cooper Aff. ¶ 8; Gov’n Br. at 33–36. Required to strongly presume that counsel
provided sufficiently minimal assistance, the Court must “focus on the fundamental
fairness of the proceeding being challenged.” Strickland, 466 U.S. at 696. If none of
these errors, even if true and whether individually or cumulatively considered, rendered
Sessoms’ trial unfair, Sessoms’ conviction cannot now be nullified. See id.
1.

Venue
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Sessoms’ first argument fails for two reasons. First, the record establishes the
opposite: Cooper did make a change-of-venue motion. Second, because the Eastern
District of New York constituted a proper venue for Sessoms’ prosecution, see United
States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994) (holding venue is generally “proper
in any district in which an overt act in furtherance of the conspiracy was committed by
any of the coconspirators), no prejudice can possibly be attributed to any purported
failure to make such a motion, see United States v. Cohen, 427 F.3d 164, 170 (2d Cir.
2005) (holding that the failure to raise an objection to which no prejudicial error could
be attributed cannot render counsel ineffective).
2.

Witness Immunity
Sessoms’ second argument is foreclosed by the Second Circuit’s decision

affirming the conviction of one of Sessoms’ co-defendants. There, the circuit held that
“no evidence here” has ever existed “of the type of overarching or manipulation of the
immunity device for tactical reasons by the prosecution that might require the court to
compel the government to immunize its witnesses” in its concurrent prosecutions of the
various members of Hardy’s gang, including Sessoms. United States v. Jones, 375 F.
App’x 95, 96 (2d Cir. 2010). Because no such ground could be conjectured, any
motion so requesting would have been futile, and Cooper’s failure to seek one witness’
immunization cannot prove his ineffectiveness. See, e.g., Cohen, 427 F.3d at 170
(holding that the lack of a colorable ground for a motion negates any case for counsel’s
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ineffectiveness for not advancing such a motion); Maldonado v. Burge, 697 F. Supp.
2d 516, 541 (S.D.N.Y. 2010) (same).
3.

Cooper’s Investigation by SDNY
In regards to Sessoms’ final contention, Cooper’s investigation by SDNY as

Sessoms was being prosecuted by the Government here does not rise to the level of an
unconstitutional conflict of interest for two reasons.
First, no adverse effect has been credibly demonstrated. See Cuyler, 446 U.S. at
350 (establishing this requirement); see also United States v. Levy, 25 F.3d 146, 152
(2d Cir. 1994) (“An attorney has an actual, as opposed to a potential, conflict of interest
when, during the course of the representation, the attorney’s and the defendant’s
interests diverge with respect to a material factual or legal issue or to a course of
action.”). As soon as Cooper discovered that probe’s existence and informed the Court,
new counsel was appointed. Until that point, Cooper’s performance was adequate, and
not an iota of data suggests Cooper somehow compromised Sessoms’ defense as a
result of the SDNY’s unknown inquiry. See supra Part I.A.
Second, Sesssoms has not shown the elements required for a conflict to be
established. Above all, the office which prosecuted him and the office that investigated
Cooper are two legally and formally distinct entities. See Armienti v. United States, 234
F.3d 820, 824–25 (2d Cir. 2000) (holding that a conflict only exists when an attorney
is being criminally investigated by the same office prosecuting his client). “To rise to
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the level of an actual conflict the agency or office prosecuting the attorney must be the
same as the agency or office prosecuting the defendant.” Beatty v. United States, 142
F. Supp. 2d 454, 459 (S.D.N.Y. 2001) (emphasis added). Furthermore, no cognizable
conflict can be found in the absence of a related criminal investigation or a substantial
fear of pursuit by the client’s own prosecutors. See United States v. Fulton, 5 F.3d 605,
609–12 (2d Cir. 1993) (actual conflict existed where defendant alleged that counsel was
engaged in the heroin trafficking with which he was charged); Skinner v. Duncan, No.
01 Civ. 6656 (DAB) (AJP), 2003 WL 21386032, at *44 (S.D.N.Y. June 17, 2003)
(declining to find a conflict when the charges actually filed against an attorney were
unrelated to the charges that his client was facing). In the end, because Sessom’s
prosecutors were not Cooper’s own, and because no evidence for either such a fear or
such a connection can be found in this matter’s cumbersome record, Cooper’s
investigation cannot give reason to overturn Sessoms’ conviction.
III
For the foregoing reasons, Sessoms’ petition is DENIED. Because the petitioner
has failed to make a substantial showing of the denial of a constitutional right, a
certificate of appealability will not issue. 28 U.S.C. § 2253©.
SO ORDERED
_/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
June 23, 2017
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