Lee v. United States of America

Filing 42

OPINION AND ORDER: For the foregoing reasons, Defendant's pro se § 2255 petition (Mot. Vacate; dkt. no. 1 in 17-cv-8567) is denied. Because Mr. Lee has not "made a substantial showing of a denial of a constitutional right," a c ertificate of appealability will not issue. See 28 U.S.C. § 2253(c) (2). The Court certifies under 28 U.S.C. § 1915(a) (3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied fo r purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of the Court is directed to close the open motions (dkt. no . 686 in 07-cr-0003; dkt. no. 1 in 17-cv-8567; dkt. no. 13 in 17-cv-8567) and close case number 17-cv-8567. The Clerk of the Court is further directed to mail a copy of this order to Mr. Lee. SO ORDERED. (Signed by Judge Loretta A. Preska on 3/17/2022) (kv) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HISAN LEE,
07-cr-0003

(LAP)

17-cv-8567

(LAP)

Petitioner,
-againstUNITED STATES OF AMERICA

OPINION & ORDER

Respondent.

LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Petitioner Hisan Lee's prose motion,
pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct
his sentence, primarily due to alleged ineffective assistance of
counsel and prosecutorial misconduct. 1

Mr. Lee also requests

discovery relating to his§ 2255 claims. 2
the motion. 3

The Government opposes

Mr. Lee replied to the Government's opposition. 4

1

(See Mot. to Vacate ("Mot. Vacate"), dated October 27, 2017
[dkt. no. 686 in 07-cr-0003]; dkt. no. 1 in 17-8567; see also
Pet'r's Mem. in Supp. of Mot. Vacate ("Pet. Mem."), dated Nov.
29, 2017 [dkt. no. 6 in 17-cv-8567] .)
Unless otherwise
specified, all citations to docket entries herein refer to 07cr-0003.
2 (See Mot.
for Appointment of Counsel, Disc. and Evidentiary
Hr'g in Furtherance of Mot. for§ 2255 ("Disc. Requ."), dated
July 3, 2018 [dkt. no. 13 in 17-cv-8567] .)
3 (See Mem.
in Opp'n to Mot. Vacate ("Opp'n Mem."), dated Sept.
18, 2018 [dkt. no. 764].)
4 (See Reply to Opp'n ("Pet. Reply"), dated Oct. 23, 2018 [dkt.
no. 7 7 4 J • )
1

For the reasons set forth below, Petitioner's§ 2255 motion
and request for discovery pertaining to his§ 2255 claims are
denied.
I.

Background
Mr. Lee and his co-defendants were involved in a

racketeering "enterprise," as defined by 18 U.S.C. § 1961(4),
known as the DeKalb Avenue Crew, which operated principally
around DeKalb Avenue in the Bronx during the 1990s and 2000s.
(See Superseding Indictment, dated Feb. 20, 2008 [dkt. no. 93],
at 2-3); United States v. Lee, 834 F.3d 145, 149 (2d Cir. 2016).
In furtherance of the enterprise, Mr. Lee and his co-defendants
"engaged in extensive drug dealing, violence, robberies of drug
dealers, and murders."

See Lee, 834 F.3d at 149.

a. Indictment
On February 20, 2008, a grand jury charged Mr. Lee and his
co-defendants in a thirty-five-count Superseding Indictment (the
"Indictment") .

(See dkt. no. 93.)

The Indictment charged the

defendants with engaging in "among other things, armed robbery,
narcotics trafficking, and murder."

(Id. at 2-3.)

himself was charged with fourteen counts.

Mr. Lee

The charges relevant

to this motion are briefly summarized below.
Count One charged Mr. Lee and his co-defendants with
racketeering through the commission of five acts, including
conspiracy to commit robbery, attempted robbery, robbery,

2

kidnapping, felony murder, and narcotics conspiracy.
at 2-11, 13-14, 22-22.)
racketeering conspiracy.

(See id.

Count Two charged Mr. Lee with
(See id. at 22-23.)

Counts Three and

Eight charged Mr. Lee with the murder of Patrick Taylor in aid
of racketeering,
drug crime,

(see id. at 24-25), and in connection with a

(see id. at 35), respectively.

Count Four charged

Mr. Lee with the murder of Oneil Johnson in aid of racketeering.
(See id. at 26.)
conspiracy.

Count Seven charged Mr. Lee with narcotics

(See id. at 29-30, 32.)

Count Nine charged Mr. Lee

with various robbery offenses, including robbery conspiracy,
attempted robbery, and robbery, in violation of 18 U.S.C. § 1951
(the "Hobbs Act").

(See id. at 35-38.)

charged Mr. Lee with attempted robbery,
robbery,

Counts Ten and Eleven
(see id. at 38), and

(see id. at 39), respectively, both in violation of the

Hobbs Act and 18 U.S.C. § 2.

Finally, Counts Twenty through

Twenty-Four charged Mr. Lee with various firearms offenses
involving the use, carrying, and possession of firearms in
furtherance of the offenses charged in Counts Seven, Ten, and
Eleven.

(See id. at 45-49.)
b. Trial and Sentencing

Following a six-week trial before Judge Barbara S. Jones,
on April 5, 2010, a jury found Mr. Lee guilty of all counts
against him.

(See dkt. no. 411; Opp'n Mem. at 1.)

On March 25,

2011, Judge Jones sentenced Mr. Lee to life imprisonment plus

3

thirty years, with ten years supervised release.

(See dkt. no.

500, at 3-4.)
c. The Defendant's Appeal
On January 16, 2013, Mr. Lee's case was reassigned to this
Court.

(See dkt. no. 589.)

Subsequently, on August 24, 2016,

Mr. Lee appealed his conviction.

(See Opp'n Mem. at 11.)

On direct appeal, Mr. Lee principally challenged (1) "the
sufficiency of the evidence to prove the interstate commerce
element of [the] various charged substantive Hobbs Act
robberies, " 5 (dkt. no. 637, at 6, 13-15, 20-21; see dkt. no. 93,
at 35-39); and (2) that the DeKalb Avenue Crew was an
"enterprise" within the meaning of the RICO statute,
no. 649, at 9-10).

( see dkt.

Mr. Lee also argued that the district court:

(1) failed to investigate an individual juror's mental state;
(2) provided insufficient jury instructions;
(3) unconstitutionally limited the cross-examination of a
witness; and (4) imposed an unreasonable sentence, namely that
stacking the§ 924(c) sentences was erroneous, a jury
instruction was erroneous, and that he received ineffective
assistance of trial counsel.

(See id. at 16-17, 21-25.)

The

(See Summ. Order, dated Nov. 8, 2016 [dkt. no. 649], at 22.)
Mr. Lee also disputed whether the Hobbs Act could "apply to
narcotics robberies because the victims do not have a lawful
property right or possessory interest in illegal goods or
criminal proceeds," an argument which the Court of Appeals
rejected as without merit.
(Id.)
5

4

(See dkt.

Court of Appeals denied each of Mr. Lee's arguments.
no. 637; Summary Order, dated Aug. 24, 2016)
Lee, 834 F.3d at 162.

[dkt. no. 649]);

However, the Court of Appeals further

held that Mr. Lee's ineffective assistance claims were not yet
ripe for review and "may be presented in a motion pursuant to 28

u.s.c.

§ 2255."

(See dkt. no. 649, at 25.)

d. The Instant Motion
Subsequently, on October 27, 2017, Mr. Lee filed the
instant prose motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.
also Pet. Mem.)

(See Mot. Vacate; see

Mr. Lee's motion raised claims of (1)

ineffective assistance of trial counsel;

(2) ineffective

assistance of appellate counsel; and (3) prosecutorial
misconduct.

(See Mot. Vacate; see also Pet. Mem.)

On July 8,

2018, Mr. Lee also filed a motion for appointment of counsel,
discovery, and an evidentiary hearing in furtherance of his
§ 2255 motion.

(See Disc. Requ.)

5

Mr. Lee's request for counsel

was denied.

(See dkt. no 40 in 17-cv-8567.)

Accordingly,

before the Court are Petitioner's remaining habeas claims.
II.

6

Legal Standards

a. The Habeas Statute and The Mandate Rule
Under 28 U.S.C. § 2255, a federal prisoner "may move the
court which imposed the sentence to vacate, set aside, or
correct the sentence" on the grounds, inter alia, that the
"sentence was imposed in violation of the Constitution or laws
of the United States .
attack."

. or is otherwise subject to collateral

28 U.S.C. § 2255(a).

Generally, however, a§ 2255 motion may not be used to
relitigate issues already decided on direct appeal.

See Burrell

v. United States, 467 F.3d 160, 165 (2d Cir. 2006); United
States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993).
known as the mandate rule.
53 (2d Cir. 2010).

This is

Mui v. United States, 614 F.3d 50,

The mandate rule "prevents re-litigation in

the district court not only of matters expressly decided by the
appellate court, but also precludes re-litigation of issues
impliedly resolved by the appellate court's mandate."

Id.; see

also United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001).

6

This Court will not address Petitioner's ineffective assistance
claim regarding appellate counsel's failure to petition for a
rehearing before the Second Circuit, (see Pet. Mem. at 9-11),
because that claim was previously resolved, (see Opp'n Mem. at
1, note 2; see also dkt. no. 7 in 17-cv-8567; dkt. no. 8 in 17cv-8567; dkt. no 717).
6

In the specific context of§ 2255 ineffective assistance of
counsel litigation, the Second Circuit has applied the mandate
rule "when the factual predicates of []claims, while not
explicitly raised on direct appeal, were nonetheless impliedly
rejected by the appellate court mandate."

Mui, 614 F.3d at 53;

see also, e.g., United States v. Pitcher, 559 F.3d 120, 124 (2d
Cir. 2009).
b. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the
right to effective assistance from counsel.
Senkowski, 321 F.3d 110, 124 (2d Cir. 2003).

See Eze v.
To establish a

claim for ineffective assistance of counsel, a petitioner must
meet the heavy burden of proving that the conviction "resulted
from a breakdown in the adversary process that renders the
result unreliable."
(1984).

Strickland v. Washington, 466 U.S. 668, 687

To satisfy the two-prong test set forth in Strickland,

a petitioner must show both that "counsel's representation fell
below an objective standard of reasonableness" and that he
Id. at 688, 693.

suffered prejudice as a result.

Assessment of

prejudice lies in whether there is a "reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different."

Id. at 694.

To assess whether counsel's performance fell below an
objective standard of reasonableness, the court must bear in

7

mind the "strong" presumption that "counsel has rendered
adequate assistance."

Id. at 690.

"Strategic choices made

after thorough investigation of [the] law and facts .

. are

virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation."

Id. at 690-91.

In other words,

counsel has a duty to investigate potentially relevant facts,
unless a reasonable judgment would render particular
investigations unnecessary.

Id. at 691.

To satisfy the second prong of the Strickland test, there
must be a reasonable probability, i.e., "a probability
sufficient to undermine confidence in the outcome," that "but
for counsel's unprofessional errors, the result of the
proceeding would have been different."

See id. at 694.

The

ultimate question in assessing prejudice is whether, "absent the
errors, the factfinder would have had a reasonable doubt" as to
the defendant's guilt.

Id. at 695.

The performance and

prejudice prongs need not be addressed in any particular order,
and "[i]f it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice,
should be followed."

See id. at 697.

8

. that course

The same inquiry applies

to both trial and appellate counsel.

See Turner v. Sabourin,

217 F.R.D. 136, 141 (E.D.N. Y. 2003).
c. Prosecutorial Misconduct
Pursuant to 28 U.S.C. § 2255, prosecutorial misconduct is
only a ground for relief if the conduct caused the defendant
"substantial prejudice by so infecting the trial with unfairness
as to make the resulting conviction a denial of due process."
United States v. Elias, 285 F.3d 183, 190 (2002)

(cleaned up)

Regarding allegations that the prosecution suppressed
evidence favorable to the defendant, the court will find a
violation of due process "where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution."
(1995).

Kyles v. Whitely, 514 U.S. 419, 432

Moreover, the Supreme Court has found three situations

that may support a claim of prosecutorial misconduct for alleged
suppression of material evidence:

(1) "where previously

undisclosed evidence revealed that the prosecution introduced
trial testimony that it knew or should have known was perjured";
(2) "where the Government failed to accede to a defense request
for disclosure of some specific kind of exculpatory evidence";
or (3) "where the Government failed to volunteer exculpatory
evidence never requested, or requested only in a general way,"

9

but only if suppression is significant enough to violate the
defendant's right to a fair trial.

Id. at 433.

To warrant reversal of claims alleging that the prosecutor
made improper comments, the petitioner must show "(1) that the
prosecutor's remarks were improper and (2) that the remarks,
taken in the context of the entire trial, resulted in
substantial prejudice."
732 (2d Cir. 1994).

United States v. Bautista, 23 F.3d 726,

To satisfy the substantial prejudice prong,

the Court considers "(1) the severity of the misconduct,

(2) the

measures adopted to cure the misconduct, and (3) the certainty
of conviction absent the improper statements."
Thomas, 377 F.3d 232, 245 (2d Cir. 2004).

United States v.

However,

inappropriate comments standing alone are generally an
insufficient basis for reversal; rather, the alleged misconduct
must "amount[] to prejudicial error."

United States v. Young,

470 U.S. 1, 12 (1985).
d. Discovery Requests
Generally, "[a] habeas petitioner, unlike the usual civil
litigant in federal court, is not entitled to discovery as a
matter of ordinary course," Bracy v. Gramley, 520 U.S. 899, 904
(1997), and must meet a heavy burden to establish their right to
discovery, see Pizzuti v. United States, 809 F. Supp. 2d 164,
176 (S.D.N.Y. 2011).

10

Rule 6 of the Rules Governing Section 2255 Proceedings
provides that a petitioner is entitled to discovery only if the
judge, "for good cause," grants leave to do so.
2255, Rule 6(a).

See 28 U.S.C. §

Good cause is shown only if the petitioner

presents "specific allegations .

. show[ing] reason to believe

that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is .

. entitled to relief."

Bracy, 520 U.S. at 908-09 (cleaned up).

However, "generalized

statements regarding the possibility of the existence of
discoverable material" are insufficient.

Pizzuti, 809 F. Supp.

2d at 176.
III. Discussion

a. Patrick Taylor Incident
In or about August 23, 2000, Patrick Taylor was the victim
of a robbery, kidnapping, and murder.
8.)

Subsequently,

racketeering,

(See dkt. no. 93, at 6-

Mr. Lee and Delroy Lee were charged with

(see id.), and the murder of Mr. Taylor in

furtherance of the robbery,

(see id. at 24-25).

In relation to the Patrick Taylor incident and pursuant to
Petitioner's§ 2255 motion, Mr. Lee raises several claims of
ineffective assistance of trial counsel, 7 primarily grounded in

Petitioner was represented at trial by Michael H. Sporn,
counsel appointed pursuant to the Criminal Justice Act.
(See
Deel. of Michael H. Sporn ("Sporn Deel."), dated July 19, 2018
[dkt. no. 751] .)
7

11

the following arguments:

(1) Mr. Sporn failed to establish the

fact that Maxine Clark could not and did not identify Mr. Lee as
the perpetrator of the crimes at issue;

(2) Mr. Sporn was

deficient for not cross-examining Detective Coffey as to Kasseem
Wellington's confession;

(3) Mr. Sporn failed to investigate

physical evidence, namely, fingerprints found at the crime
scene; and (4) the prosecutor committed misconduct, which
exacerbated Mr. Sporn's deficient performance.
at 5-6; Pet. Mem. at 15-29.)

(See Mot. Vacate

The Court will address each

argument in turn.
1. Cross-Examination of Maxine Clark
Petitioner claims he received ineffective assistance from
Mr. Sporn, in part, because Mr. Sporn failed "to develop the
fact that [Government witness] Maxine Clark could not identify
[Petitioner] as the perpetrator" of the Patrick Taylor robbery
and homicide. 8

(See Pet. Mem. at 15-22.)

In so alleging, Petitioner relies on two assumptions. 9
First, Petitioner assumes that Mr. Sporn had not seen the New
York City Police Department (the "NYCPD") report (the "DD-5")
issued after the homicide of Mr. Taylor, recounting that the

8

Maxine Clark, Patrick Taylor's girlfriend, owned the apartment
in which the robbery and murder of Mr. Taylor occurred.
(See
Trial Tr. at 4757:11-12.)
9 Petitioner alleges that Mr. Sporn was alerted, through
discovery, to the fact that Mr. Lee was a suspect in the robbery
and homicide of Patrick Taylor.
(See Pet. Mem. at 19.)
12

NYCPD received a call from an individual naming Mr. Lee as the
perpetrator.

(See id. at 17; see also id. at Ex. D.)

Second,

Petitioner argues that because he was named as a suspect,
investigators must have shown Ms. Clark his photograph in
determining whether she could identify the perpetrator.
20.)

(Id. at

In sum, Petitioner alleges that Mr. Sporn provided

ineffective assistance for failing to develop the fact that
investigators showed Ms. Clark a photograph of Mr. Lee, but that
Ms. Clark failed to identify Mr. Lee as the perpetrator.

(See

id. at 20.)
First, Petitioner's allegation that Mr. Sporn had not seen
the DD-5 is undermined by the record because Mr. Sporn admits
that he reviewed the DD-5.

(See Sporn Deel. 1 3.)

Second, Mr.

Lee's argument that his photograph was among those shown to Ms.
Clark is speculation, not fact, as he suggests.
at 17-20; see also Sporn Deel. 1 4.)

(See Pet. Mem.

It is not certain that

merely because Petitioner was named as a person of interest in
the incident that Mr. Lee's photograph was among those in the
investigators' database, i.e., the PIMS system.

(See Opp' n Mem.

at 19; see also Trial Tr. at 1806:14-1807:9 (explaining the
mechanics of the PIMS system wherein photographs are pulled
based on a physical description provided by the witness and it
is "kind of a shot in the dark at that point if the viewer
recognizes anyone").)

13

Contrary to Mr. Lee's assertions, the record reflects that
Mr. Sporn acted reasonably at every step.

For example, only

after Ms. Clark testified and the defense received Ms. Clark's

§ 3500 materials did the defense realize that the investigators
showed Ms. Clark images based on her physical description of the
individuals she saw committing the robbery.
~

4.)

(See Sporn Deel.

Mr. Sporn then raised the possibility with the Court and

the Government that Mr. Lee's photograph was among that sample,
(see Trial Tr. at 1805:6-1806:6), upon which it became evident
that there was no way to confirm whether Mr. Lee's photograph
was in fact shown to Ms. Clark.

(See Sporn Deel.

~

4; Trial Tr.

at 1805-1808; see also Opp'n Mem. at 19 ("As represented to the
court during trial, it is the government's understanding that no
record was made of which photographs were shown to Clark.n) .)
While it is not apparent from the record whether Mr. Sporn
took further steps to investigate the circumstances of the PIMS
system, whether he did or did not is insignificant.

The law

does not require perfection but rather asks whether the
attorney's performance fell below an objective standard of
reasonableness, see Strickland, 466 U.S. at 687-88, which here,
it did not.
Further, there is no evidence that Mr. Lee suffered
prejudice because of Mr. Sporn's actions.

The jury was

presented with Ms. Clark's testimony that she had not identified

14

the men who entered her apartment on the day of the Patrick
Taylor incident.

(See Trial Tr. at 1708:22-24.)

In addition,

Mr. Sporn argued in closing that Mr. Lee's photograph likely had
been among those shown to Ms. Clark, and that she had failed to
identify him as a perpetrator.

(See id. at 4758:7-12.)

Accordingly, the record fails to support a finding of prejudice.
2. Cross-Examination of Detective Coffey
Further to the Patrick Taylor incident, Petitioner alleges
that Mr. Sporn was ineffective insofar as he neglected to crossexamine government witness Detective Coffey about Kasseem
Wellington's confession to possessing the drugs that the
Government alleged belonged to Mr. Lee. 10

(See Pet. Mem. at 23.)

At trial, the Government argued that Mr. Lee had stolen drugs
from Mr. Taylor to later sell for higher prices in Virginia.
(See Opp'n Mem. at 16.)

Accordingly, the Government proffered

that following the robbery and murder of Mr. Taylor, Mr. Lee and
his business associates traveled from New York to Virginia,
where Mr. Lee was later arrested.

(See id.)

In Mr. Lee's view,

testimony regarding Mr. Wellington's confession would have
undermined the Government's factual narrative, thereby "casting

Petitioner previously raised this claim, but the trial judge
rejected it primarily based on the testimony of Mr. Lee's former
girlfriend.
(See dkt. no. 491, at 5.)
Such testimony is
further explained below.
10

15

doubt on who [bore] ultimate responsibility" for the drugs
discovered in Virginia.

(See Pet. Mem. at 24.)

While not squarely addressing his decision not to crossexamine Detective Coffey on this issue, Mr. Sporn represents
that he attempted to pursue a counter-narrative, including
"sending an investigator to Virginia and tracking down a local
reporter to get the minutes of proceedings there," after which
it became apparent that Mr. Wellington "either could not be
found, did not want to testify or gave interviews inconsistent
with [his] purported statements to Detective Coffey."
Deel.

~

6.)

(Sporn

Not only does Mr. Sporn's decision not to further

pursue this lead fall within the "wide range of reasonableness"
against which counsel's conduct is adjudged, see United States
v. Carey, No. 09-cr-441 (DRH), 2018 WL 4863590, at *2 (E.D.N.Y.
Sept. 28, 2018), but the record also reflects that counsel made
a reasonable decision in light of the facts known to him at the
time. 11

Accordingly, counsel's decision not to cross-examine

Detective Coffey was a strategic trial decision that does not
support an ineffectiveness claim.

11

See Strickland, 466 U.S. at 681 ("[W]hen counsel's assumptions
are reasonable given the totality of the circumstances and when
counsel's strategy represents a reasonable choice based upon
those assumptions, counsel need not investigate lines of defense
that he has chosen not to employ at trial.").
16

Further, while Petitioner claims that counsel's inaction
prejudiced him in some capacity, he has failed to allege
sufficient support for this contention.
States, 875 F. Supp. 235, 238

See Matura v. United

(S.D.N.Y. 1995).

Mr. Lee's former

girlfriend's testimony regarding how she packaged the drugs and
later identified the package recovered in Virginia further cuts
against Petitioner's claim of prejudice.
March 24, 2011 [dkt. no. 491], at 5.)

(See Order, dated

Mr. Sporn and the trial

court described this evidence as "devastating," and
"sufficiently unique," such that any potential testimony put
forth regarding Mr. Wellington's confession would have been
substantially undercut.

(See id.; Sporn Deel. 'II 7.)

3. Insufficient Investigation of Fingerprints

Petitioner also alleges that Mr. Sporn failed effectively
to investigate the source of fingerprints found at the scene of
the Patrick Taylor incident.

(See Pet. Mem. at 28-29.)

Petitioner's argument fails both prongs of Strickland.
at 687.

466 U.S.

Pivotally, as Mr. Sporn highlights in his affidavit,

the evidence presented to the jury demonstrated that the
fingerprints did not belong to Mr. Lee,

(see Sporn Deel. 'II 5),

which Mr. Sporn further noted in summation,
4757:12-14).

(see Trial Tr. at

In counsel's view, that "was as good as we were

going to get, and a good reason to leave it alone."
Deel. 'II 5.)

(See Sporn

Counsel's professional judgment not to engage in a

17

potentially futile expedition for evidence of doubtful probative
value is objectively reasonable. 12

Given that there is no

indication of any additional probative value to be gained from
evidence identifying the individual to whom the fingerprints
belonged, Petitioner's argument falls short.
4. Prosecutorial Misconduct Exacerbated Trial Counsel's
Allegedly Deficient Performance
While not directly raising a prosecutorial misconduct
claim, Petitioner argues that the prosecutor committed
misconduct, namely, that (1) the Government withheld its
knowledge that Ms. Clark was shown photos of Mr. Lee but did not
identify him;

(2) misrepresented that Mr. Lee was not a suspect

in the Patrick Taylor investigation; and (3) misrepresented that
it would make available Detective Smith, the detective who
showed Ms. Clark the photographs contained in the PIMS system.
(See Pet. Mem. at 27.)

Petitioner claims the foregoing conduct

prejudiced him because Mr. Sporn relied "on the prosecutions
presumption of good faith," which led Mr. Sporn "to make a
serious error when he failed to investigate the available
material."

(See id. at 28.)

12

See Strickland, 466 U.S. at 690-91 ("Strategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.").
18

First, Petitioner's argument that the prosecutor withheld
its knowledge that his photo was included in those shown to Ms.
Clark, "thwart [ing]

[Mr.] Sporn' s attempts at settling the

identification issue," (see id.), fails for the same reasons
that his ineffective assistance claim, explained above, fails.
Second, Petitioner's assertion that the Government
knowingly misrepresented that he was not a suspect in the
Patrick Taylor investigation fails,
showing of prejudice.

at a minimum, to support a

While Ms. Garnett, an Assistant United

States Attorney, implied that that the police did not have a
suspect in mind,

(see Trial Tr. at 1806:14-1807:3), a report

describing the contents of a phone call implicating Petitioner
as a suspect was, as Mr. Lee concedes, turned over by the
Government,

(see Pet. Mem. at 28; see also id. at Ex. D).

Accordingly, the Government's alleged misrepresentation did not
"cause[] the court [] improperly [to] assess the identification
issue raised by [Mr. Sporn],"

(see Pet. Mem. at 27), and thus

Petitioner did not suffer prejudice as a result.
Finally, Petitioner's argument that the Government, in
response to Mr. Sporn's request, made a "false premise" that it
would make Detective Smith available also fails.
at 27.)

(See Pet. Mem.

As Mr. Sporn explained, the Government tried to locate

the detective but was unable to do so.
3343:2-6.)

(See Trial Tr. at

Moreover, the trial judge noted that "[t]he only

19

thing [the court was] trying to avoid [was] doing discovery on a
witness who doesn't know anything about PIMS."

(Id.)

And even

if Detective Smith was consulted, there is no guarantee that he
would have proffered evidence supporting Mr. Sporn's
speculations.

As such, Petitioner has not shown that the

prosecutor's conduct caused Mr. Sporn to act unreasonably or
that Petitioner suffered prejudice as a result.
b. Oneil Johnson Incident
In or about July 2003, Oneil Johnson was the victim of a
robbery and murder.

(See dkt. no. 93, at 8-9.)

Mr. Lee was charged with racketeering,

(see id.), and the murder

of Mr. Johnson in aid of racketeering activity,
2 6) .

Subsequently,

(see id. at 25-

In relation to that incident and pursuant to Petitioner's

§ 2255 motion, Mr. Lee raises claims of ineffective assistance

of both trial and appellate counsel.
1. Ineffective Assistance of Trial Counsel
Regarding the robbery and murder of Oneil Johnson,
Petitioner raises a claim of ineffective assistance of trial
counsel, asserting that Mr. Sporn (1) failed properly to
investigate and use available material;

(2) failed to object to

the Government's comment made during opening statements; and
(3) wrongfully entered into stipulation that Mr. Lee was lefthanded.

(See Pet. Mem. at 29-42.)

be addressed in turn.

20

Petitioner's arguments will

A. Insufficient Investigation and Use of Material
Petitioner asserts that Mr. Sporn's assistance was
ineffective, in part, because he "failed to investigate and use
available material to contest the government's case and impeach
government witnesses."

(See Pet. Mem. at 29.)

In so alleging,

Petitioner claims that Mr. Sporn failed to investigate the DD-5
reports and prepare a defense concerning inconsistencies in the
Government's case, namely that while the Government claimed that
Government witness Shanikwah Burke was not in the apartment in
question at the time of the murder, the responding EMS officers
and Officer Dowling, the first responding officer, claimed that
Mr. Johnson, in his "dying declaration," told them that Ms.
Burke opened the door for the men who shot him, placing her in
the apartment.

(See id. at 29-32; see also id. at Ex. F.)

In so alleging, Petitioner contests Mr. Sporn's decision
not to cross-examine Detective Coneeley, the individual who
interviewed the EMS officers, or, in the alternative, Mr.
Sporn's failure to subpoena the EMS officers.
id. at Ex. F.)

(Id. at 29-30; see

Petitioner further assumes that Mr. Sporn failed

to investigate the allegedly false testimony of Mark Gabriel and
Ms. Burke stating that Ms. Burke was at the movie theater with

21

Jasmine Parra at the time of the crimes. 13
also Trial Tr. at 2313:3-9, 2797:15-24.)

(See id. at 35; see
Finally, Petitioner

claims there was a party at the apartment in question the night
before the murder, arguing that Mr. Sporn's failure to interview
the guests inhibited him from discovering potentially crucial
information.

(See id. at 36.)

Petitioner's claim that Mr. Sporn did not investigate and
present evidence regarding inconsistencies in the Government's
case is, as the Government asserts, "factually inaccurate."
(See Opp'n Mem. at 21.)

Mr. Sporn did highlight these

inconsistencies at trial, which Mr. Lee conceded,

(see Pet. Mem.

at 31), by pointing to, inter alia, the testimony of Keith
Harry,

(see Trial Tr. at 1101, 4738-39), Ms. Burke,

4737), Mr. Gabriel,

(see id. at

(see id. at 4742-43), and Officer Dowling, 14

(see id. at 4751:22-4752:3).

(See also Sporn Deel.

~

8.)

Mr.

Sporn also informed the jury of his belief that the Government

13

Mark Gabriel was involved in the robbery and murder of Oneil
Johnson, which he conceded in his testimony during trial.
(See
Trial Tr. at 2313-21.)
He explained that he, along with
Petitioner, Hibah Lee, Jasmine Parra, Shanikwah Burke, and
Petitioner's "baby mother" planned the robbery and that he
executed the robbery with Petitioner, Hibah Lee, and Levar
Gayle, during which Petitioner shot and killed Mr. Johnson.
(See id.)
14 Importantly, Mr. Sporn also "pushed the theory" that Mark
Gabriel was responsible for murdering Mr. Johnson "by
highlighting Gabriel's numerous connections to the incident, his
motive to kill Johnson.
., and Johnson's dying declaration to
EMS officers naming 'Mark.'"
(See Opp'n Mem. at 21-22; see
Trial Tr. at 2196:2-4, 4736-37, 4751:22-4752:3.)
22

did not have evidence regarding Mr. Johnson's murder besides
witness testimony,

(see Trial Tr. at 689:8-15), which he further

explained was potentially unreliable,

(see id. at 697:22-698:5).

Further, while Mr. Sporn did not cross-examine Detective
Coneeley, his other attempts to highlight these inconsistencies,
as previously explained, indicate that his conduct was
objectively reasonable.
Next, Mr. Lee's argument that Mr. Sporn should have
interviewed guests from the alleged party lacks merit. The Court
agrees with the Government that

(1) even if these unnamed

witnesses were interviewed, the content of their statements is
wholly unknown, and (2) the Government stipulated at trial that
this alleged party never actually took place.
at 22; see also Trial Tr. at 4709.)

(See Opp'n Mem.

"[R]easonably diligent

counsel may draw a line when they have good reason to think
further investigation would be a waste," Rompilla v. Beard, 545
U.S. 374, 383 (2005), and here, "investigating unnamed guests
from a non-existent party would have been a waste," 15 (Opp'n Mem.
at 23).

("[A]rguing now in hindsight that Sporn should have cross
examined witnesses on a few additional topics is a 'kind of
strategic decision[] left to the discretion of the trial
counsel.'"
(Opp'n Mem. at 22 (quoting United States v. Walker,
24 F. App'x 57, 60 (2d Cir. 2001)) .)
15

23

In light of the foregoing, Mr. Sporn acted reasonably at
every step, and thus his.conduct did not cause Petitioner to
suffer prejudice.

Accordingly, Mr. Lee's ineffective assistance

claim, grounded in Mr. Sporn's alleged failure to investigate
and use available materials, fails.
B. Failure to Object to Government's Comment
Petitioner claims that Mr. Sporn's assistance was deficient
because he did not object to the Government's comment made
during opening arguments about Mr. Lee's involvement in the
robbery and murder of Oneil Johnson, which he argues exacerbated
an alleged Bruton violation of his due process rights under the
Sixth Amendment's Confrontation Clause. 16
39.)

(See Pet. Mem. at 38-

The comment at issue is as follows: "[W]e will prove that

[Levar Gayle] is guilty .

of participating in a murder of

and during an armed robbery in which Hisan Lee shot and killed a
victim, a murder that Levar Gayle confessed to in writing to

16

See U.S. Const. art. VI ("In all criminal prosecutions, the
accused shall enjoy the right .
. to be confronted with the
witnesses against him.
."); Bowen v. Phillips, 572 F. Supp.
2d, 412, 418 ("In Bruton v. United States, the Supreme Court
interpreted [the right to confrontation] to prohibit the
introduction of a defendant's confession that tends to
incriminate a co-defendant when the party incriminated by the
statement cannot cross-examine the declarant." (citing 391 U.S.
123 (1998))).
However, admission of "statements that [do] not
refer directly to the defendant himself, but [become]
incriminating only when linked with evidence introduced later at
trial" do not amount to a Bruton violation. Gray v. Maryland,
523 U.S. 185, 196 (1998) (cleaned up).
24

federal agents."
39.)

(Trial Tr. at 663:7-12; see Pet. Mem. at 38-

The confession referred to in that statement confirmed Mr.

Gayle's involvement in the Oneil Johnson incident, but it was
redacted when read to the jury, replacing Mr. Lee's name with "a
guy" or "the guy."
2673:24-2674:8.)

(See Pet. Mem. at 38-39; Trial Tr. at
However, Petitioner argues that the redaction

was not enough to cure the alleged Bruton violation because
(1) the prosecutor "explicitly identified the petitioner as the
shooter in the confession to be introduced," and (2) Mark
Gabriel had already testified that Petitioner was the shooter,
which, when combined, made it "very easy for the jury to connect
the dots."

(See Pet. Mem. at 39-40; Trial Tr. at 2591:21-23.)

Petitioner's claim of ineffective assistance lacks merit.
As asserted by the Government, either no Bruton violation
existed at all, or, even if one did, the outcome of the
proceeding was unaffected.

(See Opp'n Mem. at 24.)

First,

assuming there was a Bruton violation, Petitioner himself
conceded that Mr. Sporn objected to the admission of statements
referencing Mr. Gayle's confession.

(See Pet. Mem. at 38; see

e.g., Trial Tr. at 2428:6-8, 4728:18-4729:6.)

Alternatively,

even if Mr. Sporn did not object to the comment, there was no
Bruton violation to begin with, and thus Mr. Sporn's failure to
object was objectively reasonable. Although the Government named
Mr. Lee and mentioned Mr. Gayle's confession, it did not state,

25

or even imply, that the confession itself named anyone else as
being involved in the murder. 17

(See Trial Tr. at 663:7-12.)

Further, while Mr. Gabriel's testimony naming Mr. Lee was made
before the introduction of Mr. Gayle's redacted confession, Mr.
Lee was only incriminated by the confession after it was tied to
other evidence presented at trial.

(See id. at 4701-07.)

Moreover, even if introducing Mr. Gayle's confession was a
Bruton violation, Petitioner has not shown that he suffered
prejudice because of Mr. Sporn's alleged failure to object.

The

jury was made aware of substantial additional evidence,
proffered by the Government after Mr. Gayle's confession was
introduced, indicating that Mr. Lee was Mr. Johnson's shooter,
including witness testimony and evidence supporting the
likelihood that Mr. Lee was left-handed. 18

17

(See Opp'n Mem. at

Petitioner relies on Gray, 523 U.S. 185, to assert that
"redacting a codefendant's statement by simply replacing
references to the defendant may not be enough .
"
(Pet.
Mem. at 40.)
However, this argument is misguided because the
facts here are distinguished from those in Gray.
See id.
There, the redaction merely replaced the defendant's name with
"deleted" or with "a blank space set off by commas." Id. at
192. Here, Petitioner's name was replaced with neutral pronouns
and no descriptive terms.
(See Trial Tr. at 2673:24-2674:8.)
18 Such evidence included Shinikwah Burke's testimony that
Petitioner told her he was the shooter, (see Trial Tr. at
4703:24-4704:2), Mr. Gabriel's testimony that he was involved in
planning the robbery with Hisan and Hibah Lee and that Hisan Lee
shot Mr. Johnson, (see id. at 4702:3-6, 4702:22-4703:5), and Dr.
Smiddy's testimony that the shooter was likely left-handed,
which was consistent with the video introduced showing Mr. Lee
throwing a ball with his left hand, (see id. at 1761:11-16,
4704:18-4705:4).
26

24-25; see also Trial Tr. at 4701-07.)

As such, Petitioner's

claim that he suffered prejudice also fails.
C. Stipulation that Petitioner is Left-Handed
Petitioner also alleges that Mr. Sporn wrongfully entered a
stipulation that Petitioner was left-handed.
41-42.)

(See Pet. Mem. at

This issue arose out of the testimony of Dr. Smiddy-

the Government's medical examiner-which noted that the location
of Mr. Johnson's gunshot wound was consistent with the shooter's
being left-handed.

(See Trial Tr. at 1761:11-20.)

supports his claim as follows:
Mr. Lee was left-handed;

Petitioner

( 1) It was never established that

(2) Dr. Smiddy noted that the shooter

also could have been right-handed; and (3) Mr. Sporn never
consulted Mr. Lee to establish whether he was left-handed.

(See

Pet. Mem. at 41-42.)
The record undermines Petitioner's arguments.

First, Mr.

Sporn established through Dr. Smiddy's cross-examination that
Mr. Johnson could have been shot by a right-handed individual as
well.

(See Trial Tr. at 1761:11-20.)

Additionally, although

Petitioner alleges that Mr. Sporn did not consult him about the
matter, Mr. Sporn explained that his stipulation was due, in
part, to the video introduced showing Mr. Lee throwing a rock
with his left hand.

(See Sporn Deel.

~

9.)

While trial counsel

has a duty to investigate potentially relevant facts, assistance
may still be effective even if ~counsel does not conduct a

27

substantial investigation into each of several plausible lines
of defense."

Strickland, 466 U.S. at 681.

Accordingly, Mr.

Sporn's decision not to dispute the Government's assertions was
objectively reasonable.
Petitioner also fails to support his contention that he was
prejudiced because of Mr. Sporn's stipulation.

As the

Government argued, even if Mr. Sporn had not entered this
stipulation, it is "extremely unlikely that a jury would have
been persuaded that Lee is not left-handed after viewing a video
in which he favors his left hand."

(See Opp'n Mem. at 25.)

Accordingly, Petitioner's ineffective assistance claim regarding
Mr. Sporn's stipulation fails.
2. Ineffective Assistance of Appellate Counsel
Petitioner claims that Mr. Seidler was ineffective because,
despite Mr. Lee's requests, Mr. Seidler did not raise a Bruton
violation on appeal. 1 9

(See Pet. Mem. at 38-41.)

Mr. Lee relies

on the same facts and arguments proffered for his claim of
ineffective trial counsel assistance regarding Mr. Sporn's
alleged failure to object to the Government's reference to Mr.
Gayle's confession.

(See id.)

Accordingly, Petitioner's claim

fails for the same reasons his ineffective assistance claim
regarding trial counsel fails.

19

See Bowen, 572 F. Supp. 2d; see also supra note 23 (describing
the essence of a Bruton violation).
28

c. Bunny Campbell Incident
In March 2005, Mr. Lee, his co-defendants, and other
unknown business associates discussed the robbery of Bunny
Campbell.

(See dkt. no. 93, at 9-11.)

In April 2005, Mr. Lee's

co-defendants robbed and murdered Mr. Campbell.

(See id.)

Subsequently, Mr. Lee was charged with racketeering, namely,
conspiracy to commit the robbery of Mr. Campbell.

(See id.)

However, Mr. Lee was not charged with the actual robbery or
murder of Mr. Campbell.

(See id.)

In relation to that incident and pursuant to Petitioner's
§ 2255 motion, Mr. Lee raises claims of (1) prosecutorial
misconduct, and (2)

ineffective assistance of both trial and

appellate counsel.
1. Prosecutorial Misconduct
Petitioner argues that the Government's comments during
summation regarding the robbery and murder of Bunny Campbell
amounted to prejudicial error because it insinuated his
involvement in those crimes, despite the fact that he had not
been charged with them.

(See id. at 45.)

For example, the

prosecutor stated, inter alia, "Do we know the third person
[ involved] ? No.

Based on phone records and the other

evidence in the case, we think it's Hisan Lee.n

(Trial Tr. at

4713:14-17; see id. at 4715:21-23; see also Pet. Mem. at 45-47.)

29

First, Mr. Lee claims that the prosecutor made factual
assertions that were "not based on record evidence or any
reasonable inference."

(See Pet. Mem. at 47.)

Petitioner

points to the Government's reliance on phone records that were
not in evidence,

(see e.g., Trial Tr. at 4713:14-17, 4717:25-

4718:3), and Jonathan Headley and Dwayne Brown's testimony,
which did not suggest Petitioner was involved in the crimes,
(see Pet. Mem. at 46-48; Trial Tr. at 3509-12).

Second,

Petitioner argues that the timing of the statements at issue,
i.e., during summation, was improper because he and his attorney
"were blindsided when it was [too] late to investigate the
matter and present a defense."

(See Pet. Mem. at 48.)

As a

result, Mr. Lee claims he suffered prejudice because the
Government's comments and reliance on the foregoing evidence
framed him as a murderer to the jury.

(See id. at 46-48.)

Petitioner's claim is undermined by the record.

First, the

Government did not allege that Mr. Lee killed Mr. Campbell;
rather, it explained that Selbourne Waite told Dwayne Brown he
was with Mr. Lee, Delray Lee, and Bunny Campbell at the time of
the murder.

(See Trial Tr. at 4715:10-15.)

Moreover, and

contrary to Mr. Lee's contention, the Government explicitly
stated that Petitioner was not charged with Campbell's murder.
(See id. at 4713:13-19.)

30

Generally, it is "unprofessional conduct for the prosecutor
to express his or her personal belief or opinion as to.
guilt of the defendant."

the

Young, 470 U.S. at 8 (cleaned up).

However, even if the prosecutor's comments were improper,
Petitioner has not sufficiently alleged that he suffered
prejudice because purported misconduct must be analyzed in the
context of the trial as a whole to determine whether the
proceeding was "so infected with unfairness as to make the
resulting conviction a denial of due process."
at 190 (cleaned up).

Elias, 285 F.3d

The jury was already aware that Mr. Lee

was charged with the murders of Patrick Taylor and Oneil
Johnson, (see dkt. no. 93), and was presented with substantial
evidence supporting those charges,

(see Opp'n Mem. at 31).

These circumstances alone could have "painted him as a killer",
and thus "[a]ny suggestion that Lee was in the room when Bunny
Campbell was killed does not amount to any new suggestion that
would have unfairly prejudiced the proceedings."
31-32.)

(See id. at

Moreover, the Government took steps to avoid misconduct

by reminding the jury that Petitioner was not charged with Mr.
Campbell's murder. 20

(See Trial Tr. at 4713:13-19.)

Finally, Petitioner's assertion regarding phone calls not
in evidence fails because the call records themselves were

20

See Thomas, 377 F. 3d at 245.
31

introduced in evidence; the only information not introduced was
a summary of the calls showing the caller and recipient.
id. at 4718:13-18.)

(See

And the Government explicitly informed the

jury that it did not know what was being said in such calls.
(See id. at 4721:2-9.)

Accordingly, because Mr. Lee has not, at

a minimum, sufficiently alleged prejudice, this claim fails.
2. Ineffective Assistance of Trial and Appellate
Counsel
Regarding the prosecutorial misconduct claim described
above, Petitioner claims trial counsel provided ineffective
assistance for not objecting to the Government's comments and
that appellate counsel provided ineffective assistance for not
raising a prosecutorial misconduct claim on appeal, despite Mr.
Lee's requests for Mr. Seidler to do so.
43.)

(See Pet. Mem. at 42-

Petitioner relies on the same arguments explained above.

However, because Mr. Lee's prosecutorial misconduct claims
regarding the Bunny Campbell incident fail, his ineffective
assistance claims also fail.
d. 3770 Decatur Avenue Robbery
To support the various conspiracy charges against
Petitioner, the Government introduced evidence regarding an
attempted robbery at 3370 Decatur Avenue.
27; see also Trial Tr. at 4667-69.)

(See Opp'n Mem. at

In relation to that

incident and pursuant to Petitioner's§ 2255 motion, Mr. Lee

32

asserts that he received ineffective assistance of appellate
counsel, grounded in appellate counsel Alan Seidler's decision
not to raise claims Petitioner believes were vital to his case.
(See Pet. Mem. at 9-15.)
First, Petitioner alleges that Mr. Seidler "ignored strong
issues in favor of weaker ones," notwithstanding Petitioner's
requests to Mr. Seidler to raise certain issues on appeal.

(See

id. at 11; see also id. at Ex. B.)
Second, Petitioner claims that, despite his requests, Mr.
Seidler did not raise a Brady violation in response to the
Government's alleged suppression of Hanania Nicholas's
statements regarding the 3370 Decatur Avenue robbery, which were
introduced at trial to support the conspiracy charge against Mr.
Lee. 21

(See id. at 11-15; see also id. at Ex. C.)

In so

alleging, Petitioner relies on the Government's representation
during trial that Petitioner, Mr. Nicholas, Hibah Lee, and Levar
Gayle were involved in the 3370 Decatur Avenue robbery, about
which the Court heard extensive testimony.
4667-70; see also Pet. Mem. at 11-13.)

(See Trial Tr. at

However, at Mr. Gayle's

sentencing, the Government allegedly "changed [its] entire

See Brady v. Maryland, 373 U.S. 83, 87 (1963) (" [S]uppression
by the prosecution of evidence favorable to an accused.
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.").
21

33

theory of what happened," claiming instead that only Mr. Gayle
and Mr. Nicholas were involved.

(See Pet. Mem. at 12.)

Mr.

Nicholas had told detectives he was with a "John" and a "Peter"
but he was unclear as to which name was accurate, and Detective
Murray confirmed this fact,

adding that Mr. Nicholas further

claimed to have been with a "Kevin," whom he also referred to as
"Lloyd."

(See id.; see also id. at Ex. C.)

Petitioner argues

that Mr. Seidler should have contested the Government's omission
of Mr. Nicholas's statements because disclosure "would have been
sufficiently vital" to his case since "so much of the 404(b)
evidence was uncorroborated and uncontested."

(See id. at 13.)

Petitioner's claim that Mr. Seidler raised weaker issues
and ignored stronger ones fails because he did not support this
allegation in any way; his memorandum merely states that
"[a]ppellate counsel ignored the stronger issues for weaker
ones," relying solely on his communications with Mr. Seidler and
without providing further explanation to support this claim.
(See id. at 11; see also id. at Ex. B.)

Strickland requires a

petitioner to show that counsel's representation "fell below an
objective standard of reasonableness," 466 U.S. at 688, and that
such ineffectiveness caused the petitioner to suffer prejudice,
see id. at 693.

However, because Petitioner here has not

supported his claim with any facts,
either prong of Strickland.

34

Petitioner has not satisfied

Petitioner's second assertion that Mr. Seidler wrongfully
failed to raise a Brady violation also lacks merit because, at a
minimum, Petitioner has not shown that he suffered prejudice as
a result.

As the Government contends, Mr. Lee "was not alleged

to have participated directly in the robbery;" rather,
Nicholas's statements indicate that only he and Levar Gayle were
involved.

(See Opp'n Mem. at 27; see also Pet. Mem. at Ex. C.)

Accordingly, "Nicholas's statements that someone else was
involved.

had no impact as to Lee, against whom the 3370

Decatur Avenue robbery was offered only in support of the
conspiracy charge."

(Opp'n Mem. at 27-28.)

Moreover, the jury heard Mark Gabriel's testimony that
Hisan and Hibah Lee informed him about the robbery, evidencing
Petitioner's potential involvement.

(See Trial Tr. at 4668-70.)

And there was additional evidence against Mr. Lee evidencing his
involvement in other robberies related to the conspiracy charge,
(see e.g., id. at 817-19, 1858-61, 1888-90, 2239-41, 2253-55,
2289-91, 3060-62, 3695-99), making it unlikely that Mr.
Nicholas's statements would have had any impact on Petitioner's
case to begin with.

As such, even if Mr. Seidler had raised the

issue on appeal, there is not a "reasonable probability" that
the outcome of the conspiracy charge would have been different.
See Strickland, 466 U.S. at 669.

As such, Mr. Lee has not shown

35

that he suffered prejudice because of Mr. Seidler's decision not
to raise a Brady violation, and thus his claim fails.
e. 2041 Strang Avenue Robbery
From approximately March through May 2003, Mr. Lee, his codefendants, and other business associates conspired to rob
suspected narcotics dealers at 2041 Strang Avenue, and in May
2003, they attempted to rob that location.
13-14, 38.)

(See dkt. no. 93, at

Subsequently, Mr. Lee was charged with racketeering

and attempted robbery.

(See id.)

In relation to the foregoing

incident and pursuant to Petitioner's§ 2255 motion, Mr. Lee
raised a claim of ineffective assistance of trial counsel,
grounded in Mr. Sporn's alleged failure to cross-examine further
Duane Nunes, the robbery victim, as to whether Mr. Lee's face
was one of the faces he saw at the time of the robbery.

(See

Pet. Mem. at 50-51.)
Petitioner relies on the testimony of Mr. Nunes, Bobby
Moore, Mark Gabriel, and Keith Harry to support this contention.
(See id.)

Mr. Nunes claimed he saw four perpetrators but only

saw three of their faces, none of which he recognized.
at 2755:11-12, 2760:7-10.)

Further, Mr. Moore and Mr. Gabriel

both confessed to their involvement in the robbery and testified
that Mr. Lee was in the car with Mr. Harry, who was also
participating in the robbery, at the time.
1155:1, 2603:21-23.)

(See id. at 1154:21-

However, Mr. Harry claimed he does not

36

remember being in the car with Mr. Lee.
4761:1.)

(See id. at 4760:24-

Due to the foregoing inconsistencies, Petitioner

argues that Mr. Sporn should have cross-examined Mr. Nunes
specifically as to whether Mr. Lee's face was one of the faces
he saw.

(See id. at 2758-61.)

Petitioner's claim fails both prongs of Strickland.
466 U.S. at 687. 22

See

First, Mr. Sporn's decision not to question

Mr. Nunes further was reasonable given that Mr. Sporn had
already established that Mr. Nunes did not recognize any of the
men.

(See Trial Tr. at 4755:8-12.)

Moreover, Mr. Sporn

established the inconsistencies between Mr. Gabriel and Mr.
Moore's testimony,

(see id. at 1154:21-1155:1, 2603:21-23), and

Mr. Harry's conflicting testimony,

(see id. at 4760:24-4761:1)

Thus, Mr. Sporn's decision not to press further the issue of
whether Mr. Nunes identified Mr. Lee was reasonable.
There is also no evidence to support Petitioner's claim that he
suffered prejudice because of Mr. Sporn's conduct.

Even if Mr.

Sporn had further cross-examined Mr. Nunes, the outcome of the
proceeding likely would have remained the same because the
Government presented substantial additional evidence supporting

See United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.
1987) (~Decisions whether to engage in cross-examination, and if
so to what extent and in what manner, are.
. strategic in
nature.n).

22

37

Petitioner's involvement in the robbery,

23

(see id. at 4676-77),

which, on its own, could have instilled doubt in the minds of
the jury.

In sum, Mr. Sporn's decision not to further cross-

examine Nunes was objectively reasonable and did not result in
prejudice to Mr. Lee.

Accordingly, Petitioner's claim of

ineffective assistance fails.
f. Trial Counsel's Failure to Call Potential Witnesses
1. Suzette Rose
Petitioner argues that Mr. Sporn failed to call several
witnesses whose testimony he claims would have cast doubt as to
Petitioner's involvement in the crimes at issue.
at 51-58.)

(See Pet. Mem.

In the context of an attorney's alleged failure to

call witnesses, "a petitioner ordinarily must show not only that
the testimony of uncalled witnesses would have been favorable,
but also that those witnesses would have testified at trial."
Rosario v. Bennett, No. 01 Civ. 7142, 2002 WL 31852827, at *33
(S.D.N.Y. 2002)

(cleaned up).

First, regarding Petitioner's narcotics charges, Petitioner
claims that had Mr. Sporn called Suzette Rose as a witness, her
testimony "would have discredited the government's attempt to

23

This evidence included witness testimony by Shanikwah Burke,
(see Trial Tr. at 2811-13), and Mark Gabriel, (see id. at
2603:21-23), both evidencing Petitioner's involvement in the
robbery, as well as Keith Harry's testimony that Petitioner was
involved in planning the robbery, (see id. at 865-66).
38

link [Mr. Lee] to the drugs found at [the residence he is
allegedly associated with]," (see Pet. Mem. at 52), noting that
the only physical evidence presented to the jury as to the
residence was that marijuana, scales, and thousands of dollars
were found there,
18, 4305:5-8).

(see id. at 51; see also Trial Tr. at 4003:5-

Mr. Lee further relies on Ms. Rose's affidavit

in which she described numerous circumstances casting doubt on
the Government's assertion that the residence belonged to
Petitioner.

(See Pet. Mem. at 52.)

However, the record undermines Petitioner's claim.

Mr.

Sporn submits that he chose not to question Ms. Rose because
"she was not especially cooperative or enthusiastic about
helping [them]," likely because cross-examination would have
induced a discussion of the marijuana found in her apartment.
(Sporn Deel.

~

12.)

Mr. Sporn also recognized the risk that if

Ms. Rose was called, the Government would likely question her to
establish a different narrative, which he did not believe "was
[] worth the risk."

(See id.

~

13.)

As such, Petitioner has

not shown either that Ms. Rose's testimony would have been
favorable or that she would have testified to begin with.
Rosario, 2002 WL 31852827, at *33 (cleaned up).

See

The decision of

who to call as a witness "is a matter of trial strategy," see
id., and Mr. Sporn's decision here not to call Ms. Rose
constitutes such a decision.

39

Further, while Mr. Sporn asserted that Petitioner stayed at
the residence at times, despite Ms. Rose's affidavit, Mr. Sporn
also noted that speculation exists as to whether the residence
was Petitioner's, explaining that the apartment and the "Con Ed
account" linked to the apartment were both in Ms. Rose's name.
(See Trial Tr. at 4745:1-14; Pet. Mem. at 52.)

It is not

apparent from the record whether Mr. Sporn corroborated the
contents of Ms. Rose's affidavit, but trial counsel's
performance need not be perfect; rather, the law only requires
assistance to be objectively reasonable.
U.S. at 687-88.

See Strickland, 466

Moreover, Mr. Sporn's cross-examination of

Agent Zeppieri, one of the individuals who searched the
residence, established that the search did not uncover any
evidence linking Mr. Lee to the residence.
4305-4312.)

(See Trial Tr. at

Accordingly, Mr. Sporn's decision not to question

Ms. Rose was objectively reasonable because it was made for the
benefit of his client, and he took steps to establish the
speculation that existed as to the drugs found at the residence.
2. Paul Love, Anthony Diaz, Bobby Saunders, Neuron
Christie, and Ava Bright
Next, Mr. Lee claims Mr. Sporn should have called Paul
Love, Anthony Diaz, Bobby Saunders, Neuron Christie, and Ava

40

Bright as witnesses. 24

(See Pet. Mem. at 55-58.)

This claim is

premised on the cumulative effect of trial counsel's failure to
call these individuals, not on "whether one or another or less
than all of these errors would suffice.n

(Id. at 57.)

First, Petitioner claims Mr. Love "was willing to testify
that the cooperators were going to lie [about Petitioner's
involvement in the conspiracy] to get out of jail,n (id. at 54;
see id. at Ex. I), and that Mr. Diaz's wanted to testify "to
expose the cooperators conspiracy to secure a 5Kl agreement by
deceptive means,n (id. at 55; see id. at Ex. J).
fail,

These claims

however, because Mr. Sporn attempted to contact both

individuals through case investigator Ron Dwyer, but neither was
willing to speak to him or confirm Petitioner's assertions that
they were willing to testify, leading to Mr. Sporn's reasonable
decision to "not pursue it further.n
Opp'n Mem. 28-29.)

(See Sporn Deel.

~

15;

Because these attempts "did not yield any

information that Sporn could have presented to the jury,n the
outcome of the proceeding likely would have remained the same,
undermining a claim of prejudice.

(See Opp'n Mem. at 29.)

Next, Petitioner claims Mr. Sporn was ineffective for
failing to question Mr. Saunders, implying that his testimony

Petitioner previously raised these claims, but the trial judge
rejected them when denying his motion for relief pursuant to
Federal Rules of Criminal Procedure 29 and 33.
(See dkt. no.
491, at 4-5; see also Opp'n Mem. at 28.)

24

41

would have cleared up Keith Harry's testimony "that he heard
Bobby say that Mark robbed and killed Oneil Johnson."
Mem. at 56.)

(See Pet.

Petitioner further contests Mr. Sporn's decision

not to call Mr. Christie as a witness because Christie's
identification was found in the bag of narcotics found at the
Patrick Taylor crime scene.

(See id. at 57.)

Finally,

Petitioner argues that Mr. Sporn should have questioned Ava
Bright due to Keith Harry's allegedly false testimony that Ms.
Bright carried the drugs at issue in her body, after which she
disposed of them upon her arrest in Virginia.

(See id. at 57.)

Petitioner assumes her testimony may have indicated "that Keith
Harry was lying."

(Id.)

However,

Petitioner has not shown that

Mr. Saunders, Mr. Christie, or Ms. Bright would have been
willing to testify or that their testimony, had they provided
it, would have been favorable.
at *33 (cleaned up).

See Rosario, 2002 WL 31852827,

Accordingly, Petitioner's claims regarding

these individuals fails, at a minimum, to support a showing of
prejudice.
g. Discovery Requests
Petitioner requests discovery of information the Government
or Mr. Sporn allegedly "has or had in their possession."
Disc. Req.)

Petitioner seeks disclosure of:

(See

(1) "any and all"

information about the Government's interactions with Maxine
Clark "concerning the identification of the perpetrators of the

42

robbery," ( see id.; see also Pet. Mem. at 15-22) ;

( 2) Suzette

Rose's affidavit regarding what the Government represented as
Mr. Lee's residence,

(see Disc. Req. at 2-3; see also Pet. Mem.

at 51-54); and (3) "all investigative steps taken [by Mr. Sporn]
regarding [Duane Nunes] to identify the perpetrators .

[and]

any and all consideration or promise of consideration given to
or on behalf of Nunes particularly, and all witnesses that
testified against Petitioner," (see Disc. Req. at 3-4; see also
Pet. Mem. at 50-51).
The Court agrees with the Government that "[f]or the same
reasons that Petitioner's ineffective assistance claims
concerning Maxine Clark, Suzette Rose, and Duane Nunes lack
merit," (see supra at 12-15, 36-41), "so does Petitioner's
request for discovery," ( see Opp' n Mem. at 32) . 25

Petitioner has

not shown good cause because his allegations are insufficient to
give reason to believe he would be entitled to relief if the
facts were "fully developed."

See Bracy, 520 U.S. at 908-09

"Petitioner has failed to establish good cause, and his
request for discovery should be denied as nothing more than a
fishing expedition."
(Opp'n Mem. at 32-33.)

25

43

(quoting Harris, 394 U.S. at 300).

Accordingly, Mr. Lee's

request for discovery is denied.
IV. Conclusion

For the foregoing reasons, Defendant's prose§ 2255
petition (Mot. Vacate; dkt. no. 1 in 17-cv-8567) is denied.
Because Mr. Lee has not ~made a substantial showing of a denial
of a constitutional right,ll a certificate of appealability will
not issue.

See 28 U.S.C. § 2253(c) (2).

The Court certifies

under 28 U.S.C. § 1915(a) (3) that any appeal from this order
would not be taken in good faith, and therefore in forma
pauperis status is denied for purpose of an appeal.

Cf.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962)

(holding

that an appellant demonstrates good faith when he seeks review
of a nonfrivolous issue).

44

The Clerk of the Court is directed to close the open
motions (dkt. no. 686 in 07-cr-0003; dkt. no. 1 in 17-cv-8567;
dkt. no. 13 in 17-cv-8567) and close case number 17-cv-8567.
The Clerk of the Court is further directed to mail a copy of
this order to Mr. Lee.

SO ORDERED.

Dated: March 17, 2022
New York, New York

~a~

LORETTA A. PRESKA
Senior United States District Judge

45