Mazier v. USA
MEMORANDUM AND ORDER: For the reasons stated above, petitioner's habeas petitionis denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C . § 2253 (c). Pursuant to 28 U.S.C. § 1915 (a)(3), it is hereby certified that any appeal from this Memorandum and Order would not be taken ingood faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Naomi Reice Buchwald on 8/8/2013) Copies Mailed By Chambers. (mt)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against 11 Civ. 3469 (NRB)
06 Crim. 80 (NRB)
UNITED STATES OF AMERICA,
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Ronnie Mazier (“petitioner” or “Mazier”) brings this pro se
petition to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255.
Petitioner challenges a sentence imposed
by this Court on July 17, 2008, after a jury found him guilty of
conspiracy to distribute 1,000 kilograms or more of marijuana in
petitioner not guilty of possession of a firearm in furtherance
of a drug trafficking crime in violation of 18 U.S.C. § 924.
This Court sentenced petitioner to a prison term of ten years,
the mandatory minimum sentence under 21 U.S.C. §§ 841(b)(1)(A)
grounds for habeas relief: (1) Petitioner was denied his Sixth
Amendment right to effective assistance of counsel because his
trial counsel failed to object to the total amount of marijuana
allocated to him; (2) petitioner was denied his Sixth Amendment
counsel failed to request a trial severance and petitioner was
charge on which petitioner was acquitted and (b) failed to apply
necessary reduction factors; (4) petitioner was denied his Sixth
Amendment right to effective assistance of counsel because his
trial counsel failed to request and secure a more desirable
prison facility for petitioner; and (5) the evidence presented
against petitioner is insufficient to uphold his conviction.
For the reasons stated below, the petition is denied.
A. Petitioner’s Underlying Criminal Conduct
A group of persons involved in the large-scale distribution
of marijuana, known as the “John Shop Crew,” operated out of the
Pet’r’s Mem. of Law in Supp. of Mot. to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, at 4
[hereinafter Pet’r’s Mot.].
From in or about 1997 until in or
about 2004, the John Shop Crew transported large quantities of
marijuana from California to New York, where the shipments were
repackaged and stored in numerous stash houses around New York
in preparation for retail.
Gov’t’s Response to Pet’r’s Mot. to
Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. §
2255, at 1-2 [hereinafter Gov’t’s Opp’n].
The stash houses,
including the 2748 Cruger Avenue residence that served as the
John Shop Crew headquarters, were secured by firearms kept on
Pet’r’s Mot. 4-5.
The Cruger Avenue building also housed a music-recording
studio, John Shop Records, which petitioner alleges was separate
from the marijuana business.
Id. at 5.
that, although “[t]here is no doubt that [he] spent time around
the house and studio no Cruger Avenue,” he was not involved in
“participat[ing] in Cruger Avenue’s vibrant and active music and
Id. at 5-6.
According to cooperating witness testimony, petitioner was
marijuana to and receiving payment from customers.
participated in the conspiracy by delivering purchase money to
petitioner stored and had access to firearms kept at 2748 Cruger
Citations to “Tr.” refer to the transcript of petitioner’s trial.
B. Petitioner’s Conviction and Sentencing
defendants, proceeded to a jury trial before this Court.
dissatisfaction with his first attorney, Mr. Jerry Tritz, who
had been appointed pursuant to the Criminal Justice Act.
from Pet’r to the Court (Nov. 16, 2006).
Mr. Tritz subsequently
withdrew as counsel for unrelated reasons.
Tritz to the Court (Jan. 18, 2007).
Letter from Jerry
Petitioner was represented
at trial by his second attorney, Mr. Howard Jacobs.
On March 4, 2008, petitioner was convicted by the jury of
distribute 1,000 kilograms or more of marijuana.
furtherance of the conspiracy.
Tr. at 2679: 7-9.
On July 17, 2008, the Court sentenced petitioner to ten
years in custody -- the statutory mandatory minimum and a term
of imprisonment significantly below the Guidelines range of 324
to 425 months.
Sent’g Tr. 6:1-4.
On petitioner’s request, the
Court recommended that he be housed at the prison facility at
Sent’g Tr. 7:6-9; see also Judgment in a Criminal Case
C. Post-Conviction Proceedings
Petitioner appealed his conviction, on two grounds.
petitioner argued that insufficient evidence was presented at
Br. of Appellant Mazier at 11, United States v.
Barris, 377 F. App’x 93 (2d Cir. 2010) (Nos. 08-4247-cr(L), 084251-cr(CON),
Additionally, he argued that a reasonable jury could
not have found him guilty on the conspiracy charge but not on
the firearm possession charge.
Id. at 10-11.
support each of the two charges, the testimony could not have
justified a conviction on one charge but not the other.
Second, petitioner argued that he was entitled to a retrial
because of possible jury tainting and this Court’s failure to
grant a hearing on the issue.
Id. at 16.
The Second Circuit rejected both of petitioner’s claims.
found that there was “ample evidence to support [petitioner’s]
Barris, 377 F. App’x at 95.
As to petitioner’s
jury misconduct claim, the Circuit found that this Court did not
abuse its discretion in declining to hold a hearing on the issue
and that a mistrial was not warranted.
See id. at 96.
pursuant to 28 U.S.C. § 2255.
A district court must liberally construe the claims put
forth in a pro se habeas petition.
See Parisi v. United States,
529 F.3d 134, 139 (2d Cir. 2008) (“[Petitioner] was acting pro
Cortez v. United States, Nos. 09 Civ. 7220 (DAB), 05 CR 55
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))
therefore “interpret[ed] . . . to raise the strongest arguments
that they suggest.”
Soto v. Walker, 44 F.3d 169, 173 (2d Cir.
1994)) (internal quotation mark omitted).
However, a habeas
petitioner still “bears the burden to prove his allegations by a
preponderance of the evidence.”
Gotti v. United States, 622 F.
Supp. 2d 87, 91 (S.D.N.Y. 2009) (citing Whitaker v. Meachum, 123
F.3d 714, 716 (2d Cir. 1997)).
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, establishes a
one-year period of limitation for motions filed pursuant to 28
U.S.C. § 2255.
28 U.S.C. § 2255(f).
Id. § 2255(f)(1).
The one-year period begins
If a conviction is appealed,
it becomes final when “the Supreme Court ‘affirms a conviction
on the merits on direct review or denies a petition for a writ
of certiorari, or when the time for filing a certiorari petition
Moshier v. United States, 402 F.3d 116, 118 (2d Cir.
2005) (quoting Clay v. United States, 537 U.S. 522, 527 (2003)).
This Court entered judgment on petitioner’s conviction on August
The Second Circuit affirmed petitioner’s conviction
and sentence by summary order on May 17, 2010.
See S. Ct. R. 13.1.
ninety days to seek certiorari.
He did not
do so, thus the judgment became final on August 16, 2010.
S. Ct. R. 13.1, 30.1.
The present habeas petition was filed by
conviction became final.
Thus, the petition is timely.
A prisoner in federal custody may file a motion for a writ
of habeas corpus on any the following grounds: “ that the
sentence was imposed in violation of the Constitution or laws of
jurisdiction to impose such sentence, or  that the sentence
otherwise subject to collateral attack.”
28 U.S.C. § 2255(a).
constitutional error, a lack of jurisdiction in the sentencing
miscarriage of justice.’”
Cuoco v. United States, 208 F.3d 27,
30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12
(2d Cir. 1995)) (internal quotation mark omitted).
Here, petitioner bases his motion for a writ of habeas
Therefore, these claims are grouped for the purpose of
the following analysis.
1. Ineffective Assistance of Counsel
A claim for ineffective assistance of counsel is analyzed
Washington, 466 U.S. 668 (1984).
Under Strickland, petitioner
must demonstrate (1) that counsel’s performance was deficient in
that it “fell below an objective standard of reasonableness,”
id. at 687-88, and (2) that the deficient performance resulted
in prejudice to petitioner such that he was denied a fair trial,
id. at 691-92.
outside the wide range of professionally competent assistance.”
Id. at 690.
When a court evaluates an ineffective assistance
claim, its “scrutiny of counsel’s performance must be highly
deferential,” and it “must indulge a strong presumption that
Id. at 689.
Further, the court must
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.”
Where an ineffective assistance claim is based on counsel’s
failure to raise a specific argument, the claim must be rejected
if that argument would have been meritless.
See United States
v. Arena, 180 F.3d 380, 396 (2d Cir. 1999), abrogated in part on
other grounds by Scheidler v. Nat’l Org. for Women, Inc., 537
U.S. 393 (2003).
Counsel is not required to make every argument
Second, to demonstrate prejudice, petitioner must show “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.
“A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Therefore, “[e]ven serious errors by counsel do not warrant
overwhelming evidence of guilt.”
Lindstadt v. Keane, 239 F.3d
191, 204 (2d Cir. 2001).
Petitioner’s first, second, and fourth claims each assert
petitioner asserts that counsel was ineffective by failing to
object to or properly argue the amount of drugs attributed to
In his second claim, petitioner argues that counsel was
ineffective in that counsel failed to sever petitioner’s trial
from that of his co-defendants. In his fourth claim, finally,
petitioner states that his counsel was ineffective by failing to
secure his placement in a more desirable prison facility.
analyze each of these arguments in turn.
a. Counsel’s Failure to Object to the Amount of
Drugs Attributed to Petitioner
Petitioner argues that his trial counsel was ineffective
because he “failed to object or properly argue or challenge the
amount of drugs attributed to [petitioner].”
Pet’r’s Mot. 15.
Petitioner asserts that he should have been held responsible for
only the quantity of drugs that he personally handled and not
the total amount attributed to all conspirators.
amount to ineffective assistance.”
Id. at 13-16.
Arena, 180 F.3d at 396.
Here, any objection by petitioner’s counsel to the amount of
drugs attributed to petitioner would have been meritless.
the context of a drug conspiracy, a participant is responsible
for all reasonably foreseeable quantities of drugs within the
conspiracy, regardless of the amount the participant personally
See United States v. Jackson, 335 F.3d 170, 183 (2d
Cir. 2003) (“Under fundamental conspiracy law [the defendant] is
responsible for any amount of [drugs] that his co-conspirators
agreed to import so long as these amounts were within the scope
of the conspiracy and reasonably foreseeable by him.”).
petitioner knowingly participated in the conspiracy, that the
conspiracy distributed 1000 kilograms or more of marijuana, and
that this amount was reasonably foreseeable to petitioner.2
Second, and relatedly, even if counsel somehow performed
indeed, the evidence presented at trial established that he was
properly held accountable for at least this quantity.
petitioner’s conviction was affirmed on appeal.
above, a quantity of 1000 kilograms of marijuana was sufficient
to trigger the mandatory minimum sentence of ten years that
See 21 U.S.C. § 841(b)(1)(A).
b. Counsel’s Failure to Move to Sever
Petitioner’s Trial from that of His Co-Defendants
ineffective assistance by failing to move to sever his trial
from that of his co-defendants.
Pet’r’s Mot. 17-20.
spillover of evidence and testimony admitted at trial that was
not relevant to his involvement.
To the extent that petitioner argues that his counsel performed deficiently
by failing to object to quantities of marijuana attributed to him in excess
of 1000 kilograms, we need not consider whether counsel performed deficiently
because, as discussed below, such a failure by counsel could not have
affected the sentence petitioner received and thus petitioner could not have
Petitioner’s argument is not convincing.
First, he fails
identity of facts or participants, or arise out of a common plan
United States v. Mason, No. S1 06 CR 80 (NRB), 2007
WL 541653, at *6 (S.D.N.Y. Feb. 16, 2007) (quoting United States
quotation marks omitted).
A motion to sever should be granted
only when there is a “serious risk that the joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
Id. at *7 (quoting Zafiro v. United States, 506
trial and, standing alone, are insufficient grounds for separate
Id. (quoting United States v. Scarpa, 913 F.2d 993,
1015 (2d Cir. 1990)) (internal quotation marks omitted); see
Locascio, 6 F.3d 924, 947 (2d Cir. 1993)) (internal quotation
Applying these standards here, it is clear that a motion to
sever by petitioner’s counsel would have been meritless.
all conspiracy cases, evidence of the activities of petitioner’s
petitioner been tried separately, much of the evidence involving
petitioner’s co-defendants might have been more culpable than he
does not justify severance.
Finally, we note that, although
petitioner’s counsel did not move for severance, one of his codefendants did, and we denied that motion.
a motion for severance would have been futile, and counsel did
not perform deficiently by failing to make such a motion.
discussed above, had petitioner’s counsel made a motion to sever
petitioner’s trial, the Court would probably have denied it.
motion, much of the same evidence would have been admissible in
a trial against petitioner alone.
As such, even if counsel
performed deficiently, petitioner’s defense was not prejudiced.
c. Counsel’s Failure to Request Better Prison
failing to secure his placement in a more desirable prison.
Pet’r’s Mot. 22-24.
Again, however, petitioner has demonstrated
neither deficient performance nor prejudice.
First, petitioner fails to show that counsel’s performance
Petitioner’s counsel did, in fact, request that
request was granted.
Sent’g Tr. 7:6-9; Judgment in a Criminal
Case at 2 (“The court makes the following recommendations to the
Bureau of Prisons: The defendant should be housed at the federal
counsel did exactly what petitioner is now claiming he should
have done, petitioner cannot demonstrate deficient performance.3
See 18 U.S.C. § 3621.
Prisons, not with the Court.
the Court may recommend a specific placement to the Bureau of
“The Court’s recommendation is just that,
To the extent that petitioner objects to conditions of his imprisonment that
are based on his lack of United States citizenship, see Pet’r’s Mot. 23-24,
there was obviously no argument his counsel could have advanced, nor Order
this Court was authorized to issue, that would have improved petitioner’s
Bowker v. United States, Nos. 4:01CR441,
4:12CV612, 2012 WL 1552516, at *2 (N.D. Ohio Apr. 30, 2012); see
also United States v. Alcantar, Nos. CV 10–7765 CAS, CV 10–8073
CAS, (CR 09–306 CAS), 2011 WL 2448247, at *3 (C.D. Cal. June 17,
As this Court did not have the authority to designate
the facility in which petitioner would be housed, his assertion
facility, even if true, cannot sustain a claim for ineffective
2. Improper Application of the Sentencing
Pet’r’s Mot. 12, 19-20.
As discussed above,
however, the Court sentenced petitioner to the mandatory minimum
term of imprisonment, and the Guidelines played no role in the
sentence petitioner received.
statutory safety-valve, which would have allowed the Court to
sentence him “without regard to any statutory minimum sentence.”
18 U.S.C. § 3553(f); see also Pet’r’s Mot. 19-20.
order to qualify for the safety-valve, a defendant must satisfy
a number of criteria, one of which is that he has no more than
one criminal history point.
18 U.S.C. § 3553(f)(1).
had two criminal history points.
Therefore, he was ineligible
for the safety-valve.
3. Insufficiency of the Evidence
presented at trial to support his conviction.
Pet’r’s Mot. 6,
However, “section 2255 may not be employed to relitigate
questions which were raised and considered on direct appeal.”
(quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir.
1986)) (internal quotation marks omitted).
Here, this claim was
previously raised on direct appeal, and the Second Circuit noted
United States v. Barris, 377 F. App’x 93, 95 (2d
Petitioner’s claim is therefore barred.
4. Request for Hearing
Petitioner requests a hearing on the issues raised in his
Pet’r’s Mot. 3, 20-21.
However, a hearing is
Section 2255 “requires the district court to hold
a hearing ‘[u]nless the motion and the files and records of the
Chang v. United States, 250 F.3d 79, 85 (2d Cir.
2001) (quoting 28 U.S.C. § 2255(b)).
The district court must
exercise its discretion to determine whether, in light of the
record, a hearing would "offer any reasonable chance of altering
its view of the facts."
Id. at 86.
the record conclusively shows that petitioner is not
petitioner's request for a hearing is denied.
For the reasons stated above,
petitioner's habeas petition
showing of the denial of a constitutional right,
Pursuant to 28 U.S.C.
1915 (a) (3),
2253 (c) .
it is hereby certified that
any appeal from this Memorandum and Order would not be taken in
United States, 369 U.S. 438, 444-45
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
mailed on this
foregoing Memorandum and Order have been
to the following:
No. 52097 054
MVCC Unit A-5
555 I Geo Drive
Philipsburg, PA 16866
for the Government:
Julian J. Moore,
John T. Zach, Esq.
U.S. Attorney's Off
One Saint Andrew's Plaza
New York, NY 10007
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