Stevenson v. United States of America
ORDER: For the reasons set out above, Defendant's pro se § 2255 petition [dkt. no. 172; dkt. no. 2 in 18-cv-1722] is denied. Because Mr. Stevenson has not "made a substantial showing of a denial of a constitutional right," a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2). The Court certifies that any appeal from this Order would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 444 -45 (1962). The Clerk of the Court shall close case number 18-cv-1722. The Clerk of the Court shall mail a copy of this order to Mr. Stevenson. SO ORDERED. (Signed by Judge Loretta A. Preska on 11/18/2021) (va) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
18 Civ. 1722 (LAP)
S2 13 Cr. 161 (LAP)
UNITED STATES OF AMERICA,
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Petitioner Eric Stevenson’s pro se
motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255. 1
(See dkt. nos. 19, 20 in 18-cv-1722 and dkt.
no. 172 in 13-cr-161.) 2
dkt. no. 174.)
The Government opposes the motion.
For the reasons set out below, the motion is
a. The Investigation and Indictment
From January 2011 until his conviction in January 2014, Mr.
Stevenson was a member of the New York State Assembly
representing District 79 in the Bronx.
(See dkt. nos. 34 at 1;
101; N.Y. Pub. Officers L. § 30(e) (“Every office shall be
vacant upon the happening of . . . [an Assemblyman’s] conviction
Unless otherwise specified, all citations to docket entries
herein refer to 13-cr-161.
Petitioner’s Memorandum of Law in Support of his 28 U.S.C.
§ 2255 motion (dkt. no. 20 in 18-cv-1722) is not docketed in 13cr-161.
of a felony.”).)
Beginning in early 2012, a group of
businessmen including twin brothers Igor and Rostislav
Belyansky, Igor Tsimerman, and David Binman (together, “the
Businessmen”) 3 sought then-State Assemblyman Nelson Castro’s
assistance in opening an adult day care center in the Bronx.
(Dkt. no. 174 at 4-5.)
Another politician, Sigfredo Gonzalez,
brokered meetings between the Businessmen and Mr. Castro.
Unbeknownst to the Businessmen and Mr. Gonzalez, Mr. Castro was
cooperating with the Government as an informant.
the Businessmen paid then-State Assemblyman Castro a bribe to
further their adult day care center in January 2012 -- of which
Mr. Gonzalez took a cut -- the Government subsequently secured
Mr. Gonzalez’s cooperation in April 2012.
(Id. at 5-6.)
Through Mr. Gonzalez’s cooperation, the Government surveilled
multiple bribes from the Businessmen to Mr. Stevenson.
In exchange for helping the Businessmen open their
adult day care center and introducing legislation in the New
York State Assembly (“the Moratorium Legislation”) that would
benefit them financially after the center’s opening, Mr.
Stevenson accepted four bribes from the Businessmen, totaling
The Businessmen were Mr. Stevenson’s co-defendants in the
underlying criminal case. (See dkt. no. 34 at 1-2.)
$22,000, between July 2012 and February 2013. 4
(See id. at 6-
On August 15, 2013, a grand jury charged Mr. Stevenson and
the Businessmen in a six-count superseding indictment.
dkt. no. 34.)
The indictment charged Mr. Stevenson in four
Count One charged Mr. Stevenson with Honest
Services Fraud Conspiracy, in violation of 18 U.S.C. §§ 1343 and
(Id. ¶¶ 6-9.)
Counts Two and Three charged Mr. Stevenson
with Federal Programs Bribery and Travel Act Conspiracy, in
violation of 18 U.S.C. §§ 666(a)(1)(B), 666(a)(2), and
(Id. ¶¶ 10-17.)
Count Five charged Mr. Stevenson
with Extortion Under Color of Official Right, in violation of 18
U.S.C. §§ 1951(b)(2) and (b)(3).
(Id. ¶¶ 20-21.)
initial indictment, the Court appointed Andrew G. Patel as
Criminal Justice Act (“CJA”) counsel to represent Mr. Stevenson.
(See dkt. no. 28.)
The late Judge William H. Pauley III initially presided
over Mr. Stevenson’s criminal case.
(See, e.g., dkt. no. 38.)
Mr. Stevenson’s assistance included recruiting his constituents
as customers for the adult day care center and facilitating the
Businessmen’s dealings with Con Edison and the New York City
Department of Buildings. (See dkt. no. 174 at 3, 6-8, 11, 15.)
The Moratorium legislation, if enacted, would have banned the
construction of other adult daycare centers within New York City
for three years, thus greatly reducing competition for the
Businessmen. (See id. at 3, 9, 14-15.)
On December 10, 2013, Judge Pauley ordered a conference to
discuss Mr. Stevenson’s dissatisfaction with his appointed
(See dkt. no. 63.)
At the conference, both Mr.
Stevenson’s CJA counsel and his proposed substitute counsel, Mr.
Muhammad Ibn Bashir, were present.
(See dkt. no. 74 at 2-3.)
Judge Pauley repeatedly asked Mr. Bashir if he would be ready
for trial on January 6, 2014.
(Id. at 5-6.)
answered affirmatively, stating that he had no intention of
delaying the trial.
(Id. at 5.)
Judge Pauley thus granted Mr.
Stevenson’s request for new counsel.
(Id. at 14.)
On December 18, 2013, Mr. Stevenson’s case was reassigned
to this Court.
(See dkt. no. 66.)
Thereafter, Mr. Bashir moved
for a trial adjournment of two weeks.
(Dkt. no. 174-1 at 18,
At a final pre-trial conference on January 2, 2014, the
Court denied that motion, noting that Judge Pauley had allowed
Mr. Bashir’s substitution on the condition that he would be
ready for trial on January 6, 2014.
(See id. at 28-29.)
c. Trial and Sentencing
Trial began on January 7, 2014.
(See dkt. no. 93.)
trial, the Government called seven witnesses: (1) Mr. Gonzalez,
the cooperating witness who participated in and recorded Mr.
Stevenson’s and the Businessmen’s conversations regarding
bribes; (2) the Government investigator who surveilled those
discussions; (3) a bill-writer from Albany, New York, who
converted Mr. Stevenson's proposed Moratorium Legislation into a
drafted bill that Mr. Stevenson introduced in the New York State
Assembly; (4) a Con Edison official who described how Mr.
Stevenson asked Con Edison to accelerate work on one of the
Businessmen's adult day care centers; (5) a New York State Board
of Elections employee, (6) an employee from the Legislative
Ethics Commission, who outlined public officials’ duty to
disclose certain payments, which Mr. Stevenson never made; and
(7) a car dealership employee from where Mr. Stevenson bought a
Jaguar sports car the day after he received a $10,000 cash bribe
from the Businessmen.
(See dkt. no. 174 at 3-4.)
Government introduced “numerous exhibits,” including recordings
of conversations between Mr. Stevenson, the Businessmen, and Mr.
(Id. at 4.)
Following the Government’s case in
chief, the defense did not call any witnesses.
(See dkt. no. 99
The jury found Mr. Stevenson guilty on all four
(See dkt. no. 101 at 140-42.)
On May 21, 2014, this Court sentenced Mr. Stevenson to an
aggregate term of 36 months imprisonment.
(See dkt. no. 133 at
The Court then issued a preliminary forfeiture order, which
included forfeiture of the substitute asset of Mr. Stevenson’s
pension fund held in an account with the New York State and
Local Retirement System.
(See dkt. nos. 150 at 2; 157 at 1-2.)
After briefing from the parties, the Court signed its final
order forfeiting the substitute asset in July 2015.
nos. 148, 150, 156, and 162 at 4.)
d. The Defendant’s Appeals and the Instant Motion
On direct appeal, Mr. Stevenson advanced six principal
the district court’s calculation of his
sentencing guidelines was improper because two enhancements that
the court selected (“public official” and “elected public
official”) impermissibly overlapped (see U.S.S.G §§
2C.1.1(a)(1),(b)(3)); (2) a jury should have decided the amount
of forfeiture beyond a reasonable doubt; (3) the district
court’s denial of a trial adjournment deprived him of effective
counsel; (4) an adverse evidentiary ruling violated his Fifth
Amendment rights; (5) the evidence proffered at trial was
insufficient to sustain a guilty verdict; and (6) his counsel
was ineffective for failing to raise an entrapment defense.
generally United States v. Stevenson, 834 F.3d 80 (2d Cir.
2016), cert. denied, 137 S. Ct. 1212 (2017); United States v.
Stevenson, 660 F. App'x 4 (2d Cir. 2016), cert. denied, 137 S.
Ct. 1212 (2017).
In a published opinion and an unpublished
summary order, the Court of Appeals denied all but the last of
Mr. Stevenson’s arguments.
See Stevenson, 834 F.3d at 88;
Stevenson, 660 F. App’x at 8.
The Court of Appeals noted that
the “preferred means” for deciding ineffective assistance claims
is a 28 U.S.C. § 2255 motion, and, while briefly discussing
challenges that such a claim would face, the Court of Appeals
left Mr. Stevenson the choice to bring such a motion.
Stevenson, 660 F. App’x at 8.
Accordingly, on February 26, 2018, Mr. Stevenson filed the
instant pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.
(See dkt. no. 2 in 18-
Mr. Stevenson’s motion argues that (1) the evidence
introduced at trial was insufficient to sustain a conviction,
and (2) he received ineffective assistance of counsel.
The latter claim rests on the grounds that Mr.
Stevenson’s defense counsel failed to: (1) present an entrapment
defense; (2) object to the Court’s definition of “official act”
in its jury instructions; (3) object to the Court’s forfeiture
order; (4) challenge the Court’s decision precluding evidence of
Gonzalez’s racial bias; (5) present acquittal evidence; and (6)
challenge the Court's rejection of adjournment.
(See id. at 6-
After the Government filed its opposition, Mr. Stevenson
moved to strike the latter three grounds of his ineffective
assistance of counsel claim.
(See dkt. no. 19 in 18-cv-1722.)
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 . . . or is otherwise subject to collateral
28 U.S.C. § 2255(a).
In general, however, a § 2255 motion may not be used to
relitigate issues already decided on direct appeal.
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).
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.”
also United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001).
In the specific context of § 2255 ineffective assistance of
counsel litigation, the United States Court of Appeals for the
Second Circuit has applied the mandate rule in this manner,
including “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
b. Ineffective Assistance of Counsel
A criminal defendant has a Sixth Amendment right “to
effective assistance from his attorney at all critical stages in
(2d Cir. 2013).
Gonzalez v. United States, 722 F.3d 118, 130
To establish a claim for ineffective assistance
of counsel, a petitioner must show two elements.
v. Washington, 466 U.S. 668, 687 (1984).
First, a petitioner
must show that the attorney’s work did not meet “an objective
standard of reasonableness” under “prevailing professional
See id. at 688.
Second, prejudice must be established
because of the allegedly deficient representation.
See id. at
That test is conjunctive.
To determine whether a petitioner has satisfied
Strickland’s first prong, a reviewing court considers counsel’s
“duty to bring to bear such skill and knowledge as will render
the trial a reliable adversarial testing process” and that
counsel has discretion in making “tactical decisions.”
A defendant may “establish that counsel made omissions
that cannot be explained convincingly” as “sound trial strategy”
but are the results of “oversight, carelessness, ineptitude, or
United States v. Melhuish, 6 F.4th 380, 393 (2d Cir.
2021) (internal citation and quotation marks omitted).
Nonetheless, a reviewing court should “reconstruct the
circumstances of counsel’s challenged conduct, and  evaluate
the conduct from counsel’s perspective at the time,” while
“indulg[ing] a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
Accordingly, “strategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”
Id. at 690.
Sufficiently meeting Strickland’s second prong requires “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694.
“[A] reasonable probability of a different result
is a probability sufficient to undermine confidence in the
Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009)
(internal quotation marks omitted).
In the Second Circuit, a successful entrapment defense
contains two elements: “government inducement of the crime, and a
lack of predisposition on the part of the defendant to engage in
the criminal conduct.”
United States v. Cabrera, 13 F.4th 140,
146 (2d Cir. 2021) (quoting Mathews v. United States, 485 U.S.
58, 63 (1988)).
Predisposition is the “principal element” of
entrapment and “focuses upon whether the defendant was an unwary
innocent or, instead, an unwary criminal who readily availed
himself of the opportunity to perpetrate the crime.”
States v. Cromitie, 727 F.3d 194, 204 (2d Cir. 2013) (quoting
Mathews, 485 U.S. at 63).
When a petitioner claims that he
“would have pursued an [entrapment] defense but for his
lawyer” the Strickland “prejudice inquiry will depend largely
on whether the affirmative defense likely would have succeeded
Kovacs v. United States, 744 F.3d 44, 53 (2d Cir.
2014) (internal quotation marks and citation omitted).
Acknowledging that Mr. Stevenson is proceeding pro se, the
Court grants his request to no longer consider his ineffective
assistance claim as it relates to challenging the rejection of
racial bias evidence, acquittal evidence, and a failure to
object to a denial of adjournment.
(See dkt. no. 19 in 18-cv-
The Court addresses Mr. Stevenson’s remaining claims in
a. Procedurally Barred Claims
The mandate rule bars Mr. Stevenson’s first claim that the
evidence offered at trial was insufficient to support his
See Burrell, 467 F.3d at 165 (quoting United States
v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977)) (“When an appellate
court has once decided an issue, the trial court, at a later
stage in the litigation, is under a duty to follow the appellate
court's ruling on that issue.”)
The Court of Appeals squarely
decided Mr. Stevenson’s argument regarding the sufficiency of
the evidence on direct appeal, declaring that “Stevenson's
sufficiency challenge fails on the merits.”
Stevenson, 660 F.
App’x at 7.
Accordingly, Mr. Stevenson’s sufficiency claim is
denied because it is procedurally barred.
See Gunn v. United
States, No. 06-cr-0911 (WHP), No. 14-cv-3228 (WHP), 2017 U.S.
Dist. LEXIS 32345, at *9 (S.D.N.Y. Mar. 7, 2017) (holding
mandate rule barred sufficiency of the evidence claim).
Court thus turns to Mr. Stevenson’s ineffective assistance
The mandate rule also bars Mr. Stevenson’s ineffective
assistance claim insofar as it relies on his counsel’s lack of
objections to this Court’s forfeiture order and jury
instructions on the term “official act.”
See Mui, 614 F.3d at
53 (describing rejection of ineffective assistance claims where
the “factual predicates” are the same as on direct appeal).
Because the Court of Appeals considered and ruled on the
substance of these issues, 5 Mr. Stevenson’s framing of them
through the lens of ineffective assistance does not move the
“[A] habeas petitioner is barred from presenting an
ineffective assistance [of] counsel claim on collateral review
See Stevenson, 834 F.3d at 84-87 (holding that there is no
Sixth Amendment jury right for a judgment of forfeiture,
determining that the amount of forfeiture is in “the province of
the sentencing court,” and any conflicts between New York state
law and federal forfeiture law are resolved in favor of federal
supremacy); see also, Stevenson, 660 F. App’x at 7 n.1 (ruling
that the evidence was sufficient to support a rational jury
finding that Mr. Stevenson “took official action” and that his
“jury-instruction challenge cannot survive plain error review.”)
that is simply a slightly altered rearticulation of a claim that
was rejected on  direct appeal.”
Shapiro v. United States,
15-cv-7891 (KMW), 2018 U.S. Dist. LEXIS 228931, at *9 (S.D.N.Y
Aug. 7, 2018) (quotation marks and citation omitted).
§ 2255 petition, Mr. Stevenson continues to attack substantively
the Court of Appeals’ affirmance of this Court’s forfeiture
order and jury instructions on the term “official act.” 6
However, the mandate rule bars him from doing so, leaving only
the entrapment ground of his ineffective assistance claim left
to be decided on the merits. 7
See Rivera v. United States, 18-
CV-5252 (KMW), 18-CV-5996 (KMW), 2021 U.S. Dist. LEXIS 80479, at
*7-15 (S.D.N.Y Apr. 27, 2021) (addressing the remainder of
petitioner’s ineffective assistance claim on the merits despite
applying the mandate rule to three of his other claims).
Mr. Stevenson argues that if Mr. Bashir was more prepared
for trial, he could have mounted a successful entrapment
(See dkt. no. 20 at 15-18 in 18-cv-1722.)
Specifically, Mr. Stevenson asserts that (1) the Government’s
(See, e.g., dkt. no. 172 at 7-8.) (“The definition of
‘official act’. . . was clearly improper because it permitted
the jury to find Mr. Stevenson guilty.”) (“Forfeiture must be
decided by a jury beyond a reasonable doubt.”)
7 The Court also notes that petitioner’s forfeiture objection
challenge ignores the record: Mr. Stevenson’s appellate counsel
opposed the Court’s preliminary forfeiture order in her briefing
on the issue. (See dkt. no. 150 at 2.)
cooperating witness, Mr. Gonzalez, aggressively pursued him to
avoid serving jail time himself, and (2) that Mr. Stevenson
lacked the requisite predisposition to commit crimes.
With respect to predisposition, the trial record does not
support Mr. Stevenson’s position.
For example, Mr. Stevenson
asked Mr. Gonzalez to “be careful” of “recorders” and tapped
phones during their discussions regarding the bribery scheme.
(See dkt. no. 95 at 288:11-18.)
On separate occasions, Mr.
Stevenson asked Mr. Gonzalez if the Businessmen were “putting
together a nice little package” for him and exclaimed to Mr.
Gonzalez that he wanted “a blessing in place.”
95 at 274;6-7, 289:20; 174 at 10.)
(See dkt. nos.
While Mr. Stevenson asserts
that Mr. Gonzalez overcame Mr. Stevenson’s will to effectuate
the bribe scheme, this Court and the Court of Appeals rejected
this line of argument.
See Stevenson, 660 F. App’x at 8 (“[T]he
district court at sentencing explained that, even assuming that
the government cooperator initiated the bribe scheme, the
evidence of Stevenson’s predisposition was compelling.”)
Considering the record and a lack of new evidence to rebut the
readily apparent evidence of predisposition, it is highly
unlikely that an entrapment defense would have succeeded at
See id. (“In the face of this record, it would appear
difficult for Stevenson to show that it was objectively
unreasonable for counsel not to pursue an entrapment defense or
that Stevenson was prejudiced by the decision.”) (citation
In short, Mr. Bashir’s decision to forgo an
entrapment defense was a reasonable strategic choice.
Stevenson has thus not satisfied either prong of the Strickland
test, See Strickland, 466 U.S. at 688, 692, foreclosing his
ineffective assistance claim.
For the reasons set out above, Defendant’s pro se § 2255
petition [dkt. no. 172; dkt. no. 2 in 18-cv-1722] is denied.
Because Mr. Stevenson has not “made a substantial showing of a
denial of a constitutional right,” a certificate of
appealability will not issue.
See 28 U.S.C. § 2253(c)(2).
Court certifies that any appeal from this Order would not be
taken in good faith.
See 28 U.S.C. § 1915(a)(3); Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
Court shall close case number 18-cv-1722.
The Clerk of the
The Clerk of the Court shall mail a copy of this order to
November 18, 2021
New York, New York
LORETTA A. PRESKA
Senior United States District Judge
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