Boodie v. United States of America

Filing 22

MEMORANDUM and ORDER: The petition, the motion 16 to amended and request 15 for counsel are all DENIED. Because Boodie 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(c). A copy of this memorandum and order was mailed to the pro se petitioner from chambers and by regular mail. Ordered by Judge Frederic Block on 2/7/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------x
ROBERT BOODIE, a/k/a/ REGINALD
WHITE,
MEMORANDUM & ORDER
15-CV-02864-FB
Petitioner,
-againstUNITED STATES OF AMERICA,
Respondent.
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Appearances:
For the Petitioner:
ROBERT BOODIE, Pro Se
#70867-053
United States Penitentiary McCreary
P.O. Box 3000
Pine Knot, Kentucky 42635

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

BLOCK, Senior District Judge:
In this proceeding under 28 U.S.C. § 2255, petitioner (“Boodie”) advances three
claims: (1) his trial counsel, Mark S. DeMarco (“DeMarco”) and Eric M. Schlosser
(“Schlosser”),1 were constitutionally ineffective for failing to file a motion to withdraw
his plea of guilty prior to his sentencing; (2) via a proposed amendment to his petition,
that his sentence contravenes Johnson v. United States, 135 S. Ct. 2551 (2015); and (3)

DeMarco represented Boodie at his sentencing, and Schlosser did so at
Boodie’s preliminary hearing and arraignment.
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that the Court should appoint counsel to represent him. For the reasons set forth below,
Boodie’s petition (“Petition”), motion to amend the petition (“Motion”), and request
for counsel are DENIED.
On November 9, 2004, Boodie pled guilty to conspiracy to distribute and possess
with intent to distribute cocaine base (Count One), conspiracy to commit robbery
(Count Two), and conspiracy to use interstate commerce facilities in the commission
of murder-for-hire (Count Three) in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B)(iii), 18 U.S.C. § 1951, and 18 U.S.C. § 1958(a), respectively. Almost
nine years later, on September 27, 2013, Boodie was sentenced to 360 months’
imprisonment and five years’ supervised release. His conviction was affirmed on
appeal. See United States v. Boodie, 590 F. App’x 67 (2d Cir. 2015).
I
A.

Ineffective Assistance of Counsel
To prevail on his ineffective assistance claim, Boodie 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.” United States
v. Jones, 482 F.3d 60, 76 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). Either Strickland requirement may be used to dispose of a claim.
Strickland, 466 U.S. at 670. Prejudice is shown if “there is a reasonable probability that,

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but for counsel’s unprofessional error, the outcome of the proceeding would have been
different.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
Because the Petition bases Boodie’s ineffectiveness claim on his counsel’s
alleged failure to move to withdraw his plea, Boodie must show a reasonable
probability that the motion would have been granted. See Gonzalez v. United States,
722 F.3d 118, 130–33 (2d Cir. 2013). This requires the petitoner to “show a fair and
just reason for requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B); see United
States v. Quinones, 906 F.2d 924, 928–29 (2d Cir. 1990) (burden on petitioner to prove
“fair and just reason[s]”).
Looking at the totality of the circumstances, none of the factors typically
considered by the Second Circuit favors a finding of the kind of “fair and just reason”
that Rule 11(d)(2)(B) requires. The first factor–whether defendant has made an
assertion of actual innocence, see United States v. Lopez, 385 F.3d 245, 253–54 (2d Cir.
2004)–militates against withdrawal. Boodie does not advance a claim of actual
innocence, see, e.g., Def.’s Sentencing Memo. at 1, 6–9; Sent. Tr. 9:2–11:10, 20:15–24,
and conceded his guilt during his plea allocution. See Plea Hr’g 19:11–20:21. At the
time that he entered his plea, moreover, he was seemingly concerned that there was a
“chance that he would be sentenced to life imprisonment.” DeMarco Affirmation ¶¶
5–8; see also Memo. Supp. Petition at 4. Such “a change of heart” is insufficient.

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Gonzalez, 970 F.2d at 1100.
The second factor–that “a significant question about the voluntariness of the
original plea” reasonably exists, Lopez, 385 F.3d at 354–is belied by the overall record
since Boodie’s plea was entered into voluntarily and freely. See Plea Tr. 20:15–21:10;
Sent. Tr. 33:10–12. A trial court may rely upon a petitioner’s sworn statements made
in open court, see United States v. Logan, 845 F. Supp. 499, 512–13 (E.D.N.Y. 2012),
rather than a petitioner’s post-dated self-serving statements, see United States v. Juncal,
245 F.3d 166, 171 (2d Cir. 2001).
The third and fourth factors also count against Boodie. First, the length of time
that had elapsed before Brodie challenged the plea was about nine years. Courts have
rejected withdrawal applications when just months have passed. See, e.g., United States
v. Santos, 152 F. App’x. 24, 26 (2d Cir. 2005) (eight months); United States v. Grimes,
225 F.3d 254, 259 (2d Cir. 2000) (five months). Lastly, by virtue of this same passage
of time, the government would likely suffer substantial prejudice, see, e.g., United
States v. Couto, 311 F.3d 179, 185 (2d Cir. 2002). The prosecution of Boodie’s coconspirators’ has ended, and the government would be hard-pressed to retry the case,
especially given the likelihood of faded memories by its witnesses. This is textbook
prejudice. See Lopez, 385 F.3d at 254.

B.

Viability of Boodie’s Proposed Amendment
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A proposed amendment should be denied “for good reason,” including futility.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200–01 (2d Cir. 2007). Predicated
solely on Johnson, Petitioner’s amended pleading would be legally insufficient and
hence futile for two reasons. First, Boodie’s sentence fell within the governing
statutory range, one calculated without reference to the Armed Career Criminal Act
construed in Johnson. See PSR ¶ 176; 21 U.S.C. § 841(b)(1)(B)(iii). Second, the
sentence did not take into account Boodie’s possible status as a career offender. PSR
¶¶ 120–23, 177; see also U.S.S.G. § 4B1.1(b).
C.

Lawyer’s Appointment (Request for Counsel)
A court may appoint counsel for petitioner seeking to challenge his conviction

under § 2255 if that person is “financially unable to obtain adequate representation”
and such appointment is in the interests of justice. 28 U.S.C. § 2255(g); 18 U.S.C. §
3006A(a). A court, however, must first decide whether a petitioner’s claim “seems
likely to be of substance.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).
Because the Court has found no merit to petitioner’s arguments, his request is denied.
II
For the foregoing reasons, the Petition, Motion, and request for counsel are
DENIED.2 Because Boodie has failed to make a substantial showing of the denial of

Because documentary evidence resolves petitioner’s claims, no hearing is
necessary, and Boodie need not appear. See, e.g., 28 U.S.C. § 2255(b)–(c).
2

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a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c).

SO ORDERED
/S/ Frederic Block__________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
February 7, 2017

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