Tyson v. United States of America
MEMORANDUM OF DECISION AND ORDER - The Petitioners motion to vacate his conviction and sentence (Dkt. No. 1 ) is denied. The Court declines to issue a certificate of appealability because the Petitioner has not made a substantial showing that he wa s denied a constitutional right. See 28 U.S.C. § 2253(c)(2). The Court also certifies that any appeal of this Order would not be taken in good faith, and thus his in forma pauperis status is denied for the purposes of any appeal. Coppedge v. Uni ted States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962). Based on the Petitioners request, the Clerk of the Court is respectfully directed to mail a copy of the sentencing transcript (Dkt. No. 5-5) to the Petitioner. Also, the Clerk of the Court is respectfully directed to mail a copy of this Order to the Petitioner and close the case. So Ordered by Judge Arthur D. Spatt on 1/27/2017. c/m to Petitioner. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LEONARD TYSON, JR.,
11:41 am, Jan 27, 2017
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
DECISION & ORDER
-againstUNITED STATES OF AMERICA,
Leonard Tyson, Jr. Pro Se
Prisoner No. 76090-053
F.C.I. Fort Dix
Federal Correctional Institution
P.O. Box 2000
Fort Dix, New Jersey 08640
United States Attorney’s Office
Eastern District of New York
Attorneys for the Respondent
610 Federal Plaza
Central Islip, New York 11722
By: Charles N. Rose, Assistant U.S. Attorney
SPATT, District Judge.
On October 14, 2010, Leonard Tyson, Jr. (the “Petitioner”) pled guilty to one count of
conspiracy to distribute five kilograms or more of cocaine. Under the plea agreement, he waived
his right to file an appeal or otherwise challenge his sentence or conviction if the Court sentenced
him to 188 months or less. The Court imposed a 135-month prison sentence.
Under the provisions of 28 U.S.C. § 2255, the Petitioner moves to vacate his sentence and
conviction on two grounds: (1) his waiver was not made knowingly, voluntarily, and competently;
and (2) his trial counsel rendered ineffective assistance. The Petitioner also requests an evidentiary
hearing to further develop his case. For the reasons set forth below, the Petitioner’s motion is
denied in its entirety.
The Court assumes familiarity with the facts and procedural history of this case but
summarizes the relevant details below. Between January 1, 2009 and June 25, 2009, the Petitioner
participated in a large-scale cocaine trafficking organization on Long Island. After his arrest, the
Federal Bureau of Investigation searched his apartment and found, among other things, a Ruger
.44 Magnum revolver.
The Petitioner was indicted on July 23, 2009. (See Indict., Dkt. No. 5-1.) He was charged
with four counts, including conspiracy to distribute cocaine in violation of 21 U.S.C.
§§ 841(b)(1)(A)(ii)(II) & 846 (“Count One”). On March 2, 2010, the grand jury returned a
superseding indictment, which largely paralleled the original. (See Superseding Indict., Dkt. No. 52.)
At first, the Petitioner was represented by court-appointed counsel William Wexler, Esq.,
who handled discovery. (See Discovery Ltrs., Case No. 2:09-cr-00515-ADS-1, Dkt. Nos. 42, 50,
55.) On December 31, 2009, the Petitioner retained Aaron M. Goldsmith, Esq. and Louis V.
Fasulo, Esq. (the “trial counsel”). On June 30, 2010, they filed a motion to suppress the Ruger .44
Magnum revolver and drugs seized at the Petitioner’s apartment. (See Case No. 2:09-cr-00515ADS-1, Dkt. No. 124.) However, on October 7, 2010, the Petitioner withdrew the motion and
consented to a plea agreement.
On October 14, 2010, the Petitioner signed a plea agreement with the Government, which
provided that he would plead guilty to Count One. The Government agreed to dismiss the
remaining three counts, which were firearm charges, but the plea agreement did include a two-
point enhancement for possession of a dangerous weapon. (Plea Agmt., Dkt. No. 5-3, ¶ 2.) The
Petitioner “agree[d] not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C.
§ 2255 or any other provision the conviction or sentence in the event that the Court impose[d] a
term of imprisonment of 188 months or below.” (Plea Agmt. ¶ 4.)
On October 14, 2010, a plea hearing took place before Magistrate Judge William Wall. The
following exchange occurred:
Have you reviewed [the plea agreement] with
Mr. Fasulo and do you understand it?
Yes, your Honor.
And does that agreement fully and accurately
reflect the agreement that you have reached
with the government?
Yes, your Honor.
Has anyone made any promises to you as to
what your sentence will be?
No, your Honor.
Has anyone made any promises to you that
have caused you to plead guilty? 
No, your Honor.
* * *
Are you making this plea of guilty voluntarily
and of your own free will?
Yes, I am, your Honor.
Has anyone threatened or forced you to plead
No, your Honor.
And once again, has anyone made any
promises to you as to what your sentence will
No, your Honor.
(Plea Tr., Dkt. No. 5-4, at 10:6–19, 15:2–10.) The Petitioner also affirmed that he agreed to waive
his right to appeal if the Court sentenced him to 188 months or less:
It’s also my understanding, Mr. Tyson, that 
in the plea agreement you’ve agreed not to
file an appeal or otherwise challenge any
other provision of the sentence in the event
that the Court imposes a term of
imprisonment of 188 months or below.
Is that correct?
Yes, your Honor.
(Plea Tr. at 12:10–16.) Based on these statements under oath, Judge Wall accepted the Petitioner’s
Under the Federal Sentencing Guidelines, the Petitioner’s total offense level was 31.
Coupled with a criminal history category of IV, this calculation yielded an advisory guidelines
range of 151 to 188 months.
On November 18, 2011, the Court sentenced the Petitioner to 135 months of incarceration
followed by five years of supervised release. (Sen. Tr., Dkt. No. 5-5, at 32:25–33:2.) During the
sentencing proceeding, the Petitioner expressed dissatisfaction with his trial counsel due to their
alleged inability to return telephone calls. He stated no other complaints and chose to continue
with his sentence despite the Court’s offer to adjourn the sentencing. In this regard, the Court noted
that “Aaron Goldsmith did a very good job in representing his client.” (Sen. Tr. 28:18–19.)
On September 21, 2012, proceeding pro se, the Petitioner filed this motion to vacate his
sentence and conviction, which was docketed in this Court on October 1, 2012. In this motion the
Petitioner argues that his trial counsel rendered ineffective assistance during the plea process and
at the sentencing proceeding. The Petitioner has not asserted any claims against attorney William
On June 26, 2015, the Petitioner filed an additional motion for a sentence reduction. Under
the revised sentencing guidelines, the Petitioner’s offense level was reduced from 31 to 29,
resulting in an advisory guideline range of 121 to 151 months. The Petitioner requested a revised
sentence of 121 months, which the Government did not oppose. On July 7, 2015, the Court granted
this request and reduced the Petitioner’s sentence from 135 months to 121 months.
Under the terms of the pending motion, the Petitioner asks this Court to vacate the weapon
enhancement and resentence him to a 120-month prison term.
In light of the Petitioner’s pro se status, the Court must construe his submissions liberally
and interpret them “‘to raise the strongest arguments that they suggest.’” Kirkland v. Cablevision
Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)). This leeway, however, does not excuse the Petitioner “‘from compliance with
relevant rules of procedural and substantive law.’” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)
(quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981) (per curiam)).
A. As to the Petitioner’s Waiver
The Petitioner asserts that he “did not knowingly and voluntarily agree to a prison term to
be as high as 188 months.” (Pet. at 9.) His trial counsel allegedly stated that the “prison term would
not exceed 120 months.” (Id.) The Court finds that this argument is without merit.
As the Second Circuit has repeatedly emphasized, appeal waivers are presumptively
enforceable. Sanford v. United States, 841 F.3d 578, 579 (2d Cir. 2016) (per curiam); United States
v. Logan, 845 F. Supp. 2d 499, 506 (E.D.N.Y. 2012) (collecting cases). However, a waiver may
be unenforceable if it was not made “knowingly, voluntarily, and competently.” United States v.
Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). In making this determination, district courts may
rely upon a defendant’s sworn statements during a plea allocution. See Salerno v. Berbary, 389 F.
Supp. 2d 480, 484–85 (W.D.N.Y. 2005). These statements “carr[y] such a strong presumption of
accuracy that a district court does not, absent a substantial reason to find otherwise, abuse its
discretion in discrediting later self-serving and contradictory testimony as to whether a plea was
knowingly and intelligently made.” United States v. Juncal, 245 F.3d 166, 171 (2d Cir. 2001).
Based on this record, the waiver is enforceable. During the plea allocution, the Petitioner
unequivocally stated that he reviewed the plea agreement, accepted its terms, and made his
decision without any promises by third parties. See Logan, 845 F. Supp. 2d at 512 (“[H]is
statements during his guilty plea and sentencing confirmed that no one threatened him or forced
him to plead guilty.”). Thus, the Court finds that the Petitioner’s waiver was made knowingly,
voluntarily, and competently and is in full force and effect.
B. As to Ineffective Assistance of Counsel, Generally
“Claims of ineffective assistance of counsel can survive § 2255 waivers, but only when the
claim relates to the negotiation and entry of a plea or sentencing agreement.” United States v.
Cano, 494 F. Supp. 2d 243, 248 (S.D.N.Y. 2007). Therefore, to the extent that the Petitioner
challenges his sentence generally, those claims are barred.
As for the plea agreement, the Petitioner contends that his trial counsel: (1) misled him as
to the possible sentence; (2) neglected to provide the Petitioner with any evidence; and (3) failed
to argue against a weapon enhancement at the Petitioner’s sentencing. (Pet. at 12–13.)
The Court finds that the Petitioner’s arguments are without merit. To establish ineffective
assistance of counsel, the Petitioner must establish two elements: deficient performance and
prejudice. Strickland v. Washington, 466 U.S. 668, 688–92, 104 S. Ct. 2052, 2064–67, 80 L. Ed.
2d 674 (1984).
As for deficient performance, the Petitioner must establish that “counsel’s representation
fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.
This inquiry embraces “a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689, 104 S. Ct. at 2065. In that regard, reviewing courts
must be wary of the “distorting effects of hindsight,” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir.
2005) (internal quotation marks omitted), as “[t]here are countless ways to provide effective
assistance in any given case and that [e]ven the best criminal defense attorneys would not defend
a particular client in the same way.” United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990)
(alterations in original) (internal quotation marks omitted).
Even if the Petitioner can show deficient performance, he must also establish prejudice—
that is, “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A
reasonable probability “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, 199
(2d Cir. 2001) (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067–68)). “‘[I]n the context of
plea negotiations, the defendant must show that there is a reasonable probability that were it not
for counsel’s errors, he would not have pled guilty and would have proceeded to trial.’” Abramo
v. United States, No. 12 Civ. 1803(JSR)(HBP), 2014 WL 1171735, at *11 (S.D.N.Y. Mar. 21,
2014) (Rakoff, D.J. & Pitman, M.J.) (alteration in original) (quoting United States v. Arteca, 411
F.3d 315, 320 (2d Cir. 2005)). Also, “‘[i]n the context of sentencing, the petitioner must show that
but for counsel’s ineffectiveness, there is a reasonable probability that the sentence imposed would
have been different.’” Id. (quoting Garafola v. United States, 909 F. Supp. 2d 313, 331 (S.D.N.Y.
1. As to the Petitioner’s Prison Term
The Petitioner contends that his trial counsel led him “to believe his prison term would be
limited to 120 months.” (Pet. at 12.) This argument is unavailing. The Petitioner discloses no facts
that undermine the Court’s finding that the Petitioner’s waiver was made knowingly, voluntarily,
and competently without coercion by any third parties. Indeed, as discussed above, the Petitioner’s
allegations are belied by the record. (See, e.g., Plea Tr. at 10:13–15 (“THE COURT: Has anyone
made any promises to you as to what your sentence will be? DEFENDANT: No, your Honor.”).)
Accordingly, the Petitioner has established neither deficiency of his representation nor prejudice
to the Petitioner.
2. As to the Production of Evidence
The Petitioner also contends that his trial counsel “neglected to provide [him] with any
evidence.” (Pet. at 12.) However, “[i]n considering an ineffective counsel claim, a court need not
accept a petitioner’s uncorroborated, self-serving [statement] as true.” See Grullon v. United
States, No. 99 Civ. 1877(JFK), 2004 WL 1900340, at *6 (S.D.N.Y. Aug. 24, 2004).
Here, the Government provided attorney Wexler with items of discovery on September 10,
2009, October 2, 2009, and November 10, 2009. (See Discovery Ltrs., Case No. 2:09-cr-00515ADS-1, Dkt. Nos. 42, 50, 55.) After new trial counsel were retained, they filed a motion to suppress
on behalf of the Petitioner, who chose to withdraw the motion and plead guilty. Further, at the
sentencing proceeding, the Petitioner only lodged complaints with regard to his trial counsel’s
purported inability to return phone calls, not their failure to produce evidence. Despite the Court’s
offer to adjourn the proceeding, the Petitioner chose to continue with his guilty plea. In light of
these occurrences, the Court finds that the Petitioner’s argument is totally without merit.
3. As to the Weapon Enhancement
The Petitioner’s final argument is that his trial counsel “fail[ed] to argue against the Court’s
weapon enhancement” at sentencing. (Pet. at 13.) In the Petitioner’s view, the Government
dismissed the firearm offenses in the original indictment “but then resurrected them at sentencing,”
violating the Fifth Amendment of the Constitution. (Id. at 16.)
However, the Petitioner did not object to the two-point sentencing enhancement for the
Ruger .44 Magnum revolver. (Sen. Tr. at 6:15–21, 16:8–11; see also Case No. 2:09-cr-00515ADS-1, Pet’r’s Nov. 15, 2011 Ltr., Dkt. No. 183, at 1 (raising no objection as to “the inclusion of
enhancement points for the firearm found at [his] apartment during the arrest and seizure”)).
Moreover, the Court finds no due process or double jeopardy violations because both the original
indictment and the superseding indictment contained the firearm offense.
Furthermore, if the Petitioner’s trial counsel argued against the weapon enhancement, the
Petitioner may have faced a higher sentence. Under the plea agreement, the Petitioner benefitted
from a three-point reduction for acceptance of responsibility. With this downward variance, his
total offense level was 31, resulting in an advisory guidelines range of 151 to 188 months. Without
it, his total offense level would be 34, which results in an advisory guidelines range of 210 to 262
months. U.S.S.G. § 5, Pt. A, 18 U.S.C.A. Thus, trial counsel’s decision was neither deficient nor
prejudicial. See, e.g., United States v. Jin Chen, Nos. 03 Cr. 567(DC), 09 Civ. 10278(DC), 2011
WL 5865732, at *6 (S.D.N.Y. Nov. 22, 2011) (“Counsel’s failure to challenge a sentencing
enhancement . . . is not prejudicial unless it increases the defendant’s sentence.”).
Alternatively, the Petitioner asserts that the Government could not establish the weapon
enhancement because “[t]he evidence is void that [he] used his firearm during the commission of
drug trafficking.” (Pet. at 15.) Even if these assertions were true, the Petitioner’s trial counsel did
not act deficiently because the Petitioner signed a plea agreement, which included the weapon
enhancement. See Albanese v. United States, 415 F. Supp. 2d 244, 251 (S.D.N.Y. 2005) (rejecting
a challenge to a sentence enhancement because the defendant signed a plea agreement and
“knowingly and voluntarily agreed to abide by its terms”). At the plea allocution, the Petitioner
explicitly affirmed that he read and understood all aspects of the agreement. (See, e.g., Plea Tr. at
10:9–12 (“THE COURT: And does that agreement fully and accurately reflect the agreement that
you have reached with the government? DEFENDANT: Yes, your Honor.”).)
Moreover, “‘no prejudice exists when a plea agreement lessens the severity of the sentence
defendant would face if convicted at trial.’” Padilla v. Keane, 331 F. Supp. 2d 209, 217 (S.D.N.Y.
2004) (quoting Feliz v. United States, Nos. 01 Civ. 5544(JFK), 00 CR. 53(JFK), 2002 WL
1964347, at *7 (S.D.N.Y. Aug. 22, 2002)). Indeed, if the case proceeded to trial, the Petitioner
could have faced a harsher sentence based on Counts One and Two. See 21 U.S.C. §
841(b)(1)(A)(ii)(II) (“a term of imprisonment which may not be less than 10 years”) & 18 U.S.C
§ 924(c)(1)(A)(i) (“a term of imprisonment of not less than 5 years”). Thus, the Petitioner’s
weapon enhancement argument is denied.
C. As to the Petitioner’s Request for an Evidentiary Hearing
The Petitioner also requests an evidentiary hearing to present his weapon enhancement
argument to the Court. (Pet. at 18.) However, an evidentiary hearing is not required where, as here,
“the motion and the files and records of the case conclusively show that the prisoner is entitled to
no relief.” 28 U.S.C. § 2255(b).
Here, the Petitioner has not raised any issues of material fact. The Court has considered the
parties’ submissions, the superseding indictment, the plea agreement, and the transcripts for the
plea allocution and the sentencing proceeding. All of these documents present facts and legal
conclusions that are contrary to the Petitioner’s allegations. Thus, in the exercise of this Court’s
discretion, his request for an evidentiary hearing is denied.
The Petitioner’s motion to vacate his conviction and sentence (Dkt. No. 1) is denied.
The Court declines to issue a certificate of appealability because the Petitioner has not
made a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c)(2).
The Court also certifies that any appeal of this Order would not be taken in good faith, and thus
his in forma pauperis status is denied for the purposes of any appeal. Coppedge v. United States,
369 U.S. 438, 444–45, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962).
Based on the Petitioner’s request, the Clerk of the Court is respectfully directed to mail a
copy of the sentencing transcript (Dkt. No. 5-5) to the Petitioner. Also, the Clerk of the Court is
respectfully directed to mail a copy of this Order to the Petitioner and close the case.
Dated: Central Islip, New York
January 27, 2017
/s/ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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