Reyes v. United States of America

Filing 7

OPINION AND ORDER: For the reasons set forth above, petitioner's motion to vacate, set aside or correct his sentence is DENIED. The Court declines to issue a certificate of appealability, as Reyes has not made a substantial showing of a denia l of a federal right. See Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The Clerk of Court is directed to terminate Reyess petition at 16- cv-9468 No. 1 and 13-cr-982 ECF No. 60 and to terminate 16-cv-9468.. (Signed by Judge Katherine B. Forrest on 8/21/2017) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KENNEDY REYES
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Petitioner, :
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UNITED STATES OF AMERICA,
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Respondent. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 21, 2017

16-cv-9468 (KBF)
13-cr-0982 (KBF)
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
Kennedy Reyes, currently incarcerated at F.C.I. Fort Dix, brings a petition
under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Reyes was
sentenced on January 20, 2015 to 144 months for conspiracy to distribute and
possess with intent to distribute five or more kilograms of cocaine in violation of 21
U.S.C. § 841(b)(1)(A). Reyes contends that his 144-month sentence was the result of
his counsel’s failure to: (1) object to the Government’s position that he was not
entitled to a one-level reduction in his base offense level; (2) object to the imposition
of the statutory mandatory minimum for a crime involving five or more kilograms of
cocaine; and (3) investigate the factual recitation outlined in the PSR.
Having carefully reviewed Reyes’s petition, the Government’s opposition, and
the record, the Court finds that his motion is without merit and should be
summarily denied, without an evidentiary hearing. See Fed. R. Governing Sec.
2255 Proceedings in the U.S.D.C. 4(b) (“If it plainly appears from the motion, any

attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and direct the clerk to notify
the moving party.”). Thus, for the reasons set forth below, Reyes’s motion to vacate
is DENIED.
I.

BACKGROUND
The facts in this case have been laid out extensively elsewhere (see, e.g.,

Presentence Investigation Report (ECF No. 53) (“PSR”); Memorandum of Law of the
United States of America in Opposition to Kennedy Reyes’s Pro Se Motion Under
U.S.C. § 2255), so the Court will give just a brief overview. On July 2, 2014, Reyes
pled guilty to conspiracy to distribute and possess with intent to distribute five or
more kilograms of cocaine. Starting in 2011, and ending with his arrest on
December 6, 2013, Reyes acted as “both a broker of kilogram-quantities of cocaine”
from locations including Houston and Puerto Rico, as well as a seller of “small
amounts of cocaine to street-level customers out of his barbershop in the Bronx,
New York.” (PSR ¶ 9.) Five days before Reyes’s trial was scheduled to begin on
July 7, 2014, he pled guilty with the benefit of a plea agreement before a Magistrate
Judge. (See Plea Tr.) On January 20, 2015, this Court sentenced Reyes to 144
months of incarceration. (Sen. Tr. 22:7-10.)
II.

LEGAL PRINCIPLES
Pro se litigants, such as petitioner, are “entitled to a liberal construction of

their pleadings, which should be read ‘to raise the strongest arguments that they
suggest.’” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham

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v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Nevertheless, a Court may dismiss a
petition under § 2255 without holding an evidentiary hearing if “the motion and the
files and records of the case conclusively show that the prisoner is entitled to no
relief.” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28
U.S.C. § 2255); see also Fed. R. Governing Sec. 2255 Proceedings for the U.S.D.C.
4(b) (“If it plainly appears from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to relief, the judge must
dismiss the motion and direct the clerk to notify the moving party.”).
In order to properly demonstrate ineffective assistance of counsel, petitioner
“must [first] show that counsel’s representation fell below an objective standard of
reasonableness,” as measured against “prevailing professional norms.” Strickland
v. Washington, 466 U.S. 668, 688 (1984). In addition, he must demonstrate that
counsel’s “deficient performance prejudiced the defense,” id. at 687, meaning that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694. For the reasons set
forth below, Reyes cannot demonstrate that his counsel’s assistance fell below the
constitutional standard.
III.

ANALYSIS
In his petition, Reyes contends that his sentence is the result of ineffective

assistance of counsel. Specifically, he alleges that his counsel failed to object to: the
government’s withholding of an additional one-level reduction pursuant to U.S.S.G.
§ 3E1.1(b) (“Claim 1”); the imposition of a mandatory minimum sentence on the

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grounds that Reyes did not plead sufficient facts to warrant its imposition (“Claim
2”); and the PSR’s factual narrative (“Claim 3”).
Not one of Reyes’s three claims meets the Strickland standard. As to Claim
1, different action by Reyes’s counsel with regards to a one-level reduction from the
base-offense level would have been fruitless—the Government did not move for the
reduction, which is a prerequisite. Additionally, this Court noted at the sentencing
proceeding that the sentence was the “right sentence,” even if no minimum had
been available. Claim 1 thus does not sufficiently allege that Reyes’s counsel acted
objectively unreasonably or that, if counsel had objected, the outcome would—or
could—have been any different without a motion from the Government.
With regard to Claim 2, the Court finds a similar result. Reyes claims that
his counsel failed to object to the plea allocution, which resulted in the triggering of
enhanced penalties when it should not have, based on the amount of cocaine at
issue. However, the transcript of the plea proceedings demonstrates the clarity
with which the magistrate judge questioned Reyes, and thus the fact that Reyes
understood he was pleading guilty to conspiring with a group of people to
collectively distribute five or more kilograms of cocaine, and that this would trigger
the statutory minimum of 120 months. (ECF No. 30, Plea Tr. 17:14-19; id. 9:22 to
10:8.)
Finally, as to Claim 3, Reyes alleges no specific facts to convince the Court
that, had his counsel investigated more fully, he would have discovered evidence
that would have influenced the Court’s sentencing decision. To succeed on this

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claim, Reyes must demonstrate, by a preponderance of the evidence, that the PSR’s
factual assertions were incorrect, and that different facts would have influenced his
sentencing. Reyes does not allege any facts that do this.
With respect to all three claims of ineffective assistance of counsel, Reyes
fails to satisfy the Strickland standard and to raise any issues of fact that, if
resolved, would have affected his sentencing. The Court does not find that the
claim warrants an evidentiary hearing.
IV.

CONCLUSION
For the reasons set forth above, petitioner’s motion to vacate, set aside or

correct his sentence is DENIED. The Court declines to issue a certificate of
appealability, as Reyes has not made a substantial showing of a denial of a federal
right. See Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The Clerk
of Court is directed to terminate Reyes’s petition at 16-cv-9468 No. 1 and 13-cr-982
ECF No. 60 and to terminate 16-cv-9468.
SO ORDERED.
Dated:

New York, New York
August 21, 2017
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KATHERINE B. FORREST
United States District Judge

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