Jean v. United States of America

Filing 14

DECISION AND ORDER: For the reasons set forth above, Mr. Jean has failed to show a basis for relief under 28 U.S.C. § 2255. Accordingly, his motion for relief is DENIED. Because Mr. Jean has not made a substantial showing of the denial of a c onstitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (as amended by the Antiterrorism and Effective Death Penalty Act). I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal taken from this order would not be taken in good faith. (Signed by Judge Denny Chin on 1/8/2021) (nb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA

:

- against -

:
:

MAXO JEAN,
Defendant.

DECISION AND ORDER
20 Civ. 7569 (DC)
18 Civ. 2888 (DC)
13 Cr. 280 (DC)

:

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APPEARANCES:

Maxo Jean
Defendant Pro Se
DIN: 68120-054
Moshannon Valley Correctional Institution
Philipsburg, Pennsylvania 16866

CHIN, Circuit Judge:
On January 31, 2014, a jury convicted defendant Maxo
Jean of conspiracy to commit mail, wire, and health care fraud,
in violation of 18 U.S.C § 1349.

On December 4, 2014, I

sentenced Jean principally to 120 months' imprisonment and three
years' supervised release.

On October 3, 2018, I denied Jean's

motion pursuant to 28 U.S.C § 2255 to vacate, set aside, or
correct his sentence on the basis that his attorneys were
constitutionally ineffective.
Proceeding pro se, Mr. Jean now makes a nonsuccessive
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his conviction, arguing that (1) there is no record that

Case 1:18-cv-02888-DC Document 14 Filed 01/08/21 Page 2 of 9

he was properly indicted by a grand jury and (2) his lawyers
were ineffective for failing to obtain exculpatory evidence.
For the reasons set forth below, the motion is DENIED.1
BACKGROUND
As set forth in more detail in my 2018 order denying
Mr. Jean's first habeas petition, see Dkt. 13-cr-280, No. 96,
Mr. Jean's conviction stems from his participation in a
conspiracy to deliberately cause car accidents and defraud
insurance companies.

(Dkt. No. 33 at 16).

Mr. Jean was

indicted on April 15, 2013 and charged with one count of
conspiracy to commit mail, wire, and health care fraud, in
violation of 18 U.S.C. § 1349.

On October 17, 2013, the

government filed a superseding indictment against Mr. Jean.
(Dkt. No. 25).
On November 12, 2013, six days before trial, Mr. Jean
asked the court to relieve his then-counsel, Henry Steinglass.
He notified the court that he had hired a different attorney,
Carlos A. Martir, Jr., who would be representing him moving
forward.

The District Court granted Mr. Jean's motion to

substitute counsel and adjourned the trial.

1
Because I find that "it plainly appears from the face of
the [§ 2255] motion . . . and the prior proceedings in the case that
[Mr. Jean] is not entitled to relief," I do not order the United
States Attorney to file an answer to the instant motion. See Rules
Governing Section 2255 Proceedings for the U.S. Dist. Courts 4(b);
Armienti v. United States, 234 F.3d 820, 822-23 (2d Cir. 2000).

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On December 11, 2013, Mr. Jean was arraigned on the
superseding indictment in open court, waived a public reading of
the indictment, and pleaded not guilty.

Eight days later, the

case was transferred to the undersigned.
I presided over a four-day jury trial, and on January
31, 2014, the jury found Mr. Jean guilty.

On July 24, 2014,

Mr. Jean asked that Mr. Martir be relieved as his counsel.
(Dkt. No. 52).

The Court then appointed Neil Checkman to

represent Mr. Jean pursuant to the Criminal Justice Act.

(Id.).

Mr. Checkman represented Mr. Jean through his sentencing.
On September 23, 2014, Mr. Jean, with Mr. Checkman's
assistance, filed a motion for a new trial pursuant to Federal
Rule of Criminal Procedure 33.

(Dkt. No. 64).

Mr. Jean argued

that Mr. Martir had provided ineffective assistance.

(Id.)

On

November 3, 2014, following oral argument, I denied the motion
because Mr. Jean has not demonstrated prejudice from any alleged
ineffectiveness.

(Dkt. No. 75 at 8-10).

On December 4, 2014, I sentenced Mr. Jean to a term of
120 months' imprisonment and three years' supervised release.
(Dkt. No. 80).

Mr. Jean appealed his conviction and sentence to

the Second Circuit, challenging, among other things, my denial
of his motion for a new trial.

(Dkt. No. 82).

On April 22,

2016, the Second Circuit affirmed Jean's conviction and sentence

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in a summary order. United States v. Jean, 647 F. App'x 1, 4-5
(2d Cir. 2016) (summary order).
On March 20, 2018, Mr. Jean filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255
on the basis that Mr. Steinglass and Mr. Martir were
constitutionally ineffective (Dkt. No. 90).

On October 3, 2018,

I denied his motion as time-barred and because it failed on the
merits.

(Dkt. No. 96).

Mr. Jean, proceeding pro se, moved for

reconsideration, but I denied that motion on January 23, 2020.
(Dkt. No. 97).
Proceeding pro se, Mr. Jean moved for leave to file a
successive 28 U.S.C. § 2255 motion.
to the Second Circuit.

I transferred the request

(Dkt. Nos. 98-99).

The Second Circuit

denied the request for leave as unnecessary and transferred the
case back to me for consideration of Mr. Jean's motion as a
nonsuccessive motion.

(Doc. 100).
DISCUSSION

Mr. Jean's motion is denied.

First, it is untimely.

Second, even if it were timely, it would still be denied because
it fails on the merits.
A.

Timeliness
For the reasons I explained in my order on Mr. Jean's

previous habeas petition, his motion is time-barred.
96 at 5-6).

(Dkt. No.

His first petition, filed in 2018, was untimely,
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and he now seeks to file a petition more than two years later,
without providing any basis to reconsider my previous ruling.
For that reason alone, this petition is denied.
B.

Ineffective Assistance of Counsel
Even if Mr. Jean's petition were timely, his claim of

ineffective assistance of counsel would be rejected on the
merits.
1. Applicable Law
To demonstrate ineffective assistance of counsel, a
petitioner must satisfy the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).

First, "the

defendant must show that counsel's performance was deficient,"
and "fell below an objective standard of reasonableness."
at 687-88.

Id.

To prevail, a petitioner must "overcome the

presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'"

Id. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Thus,

"a guilty plea cannot be attacked as based on inadequate legal
advice unless counsel was not 'a reasonably competent attorney'
and the advice was not 'within the range of competence demanded
of attorneys in criminal cases.'"

Id. at 687 (quoting McMann v.

Richardson, 397 U.S. 759, 770-71 (1970)).
Second, "the defendant must show that the deficient
performance prejudiced the defense."
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Id. at 687.

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2. Application
Mr. Jean argues that his former trial counsel was
ineffective for failing to request in discovery exculpatory and
Jenks Act material.

But Mr. Jean does not point to any specific

evidence that was withheld or prior testimony that the
Government failed to produce, and this kind of conclusory
assertion is routinely rejected in this context.

See Harrington

v. United States, 689 F.3d 124, 129 (2d Cir. 2012)); Skinner v.
Duncan, No. 01-CV-6656, 2003 WL 21386032, at *25 & n.39
(S.D.N.Y. June 17, 2003) (collecting cases holding that
conclusory allegations that the government failed to disclose
evidence are insufficient to support a Brady violation); Franza
v. Stinson, 58 F. Supp. 2d 124, 154 (S.D.N.Y. 1999) (collecting
cases); Foy v. United States, 838 F. Supp. 38, 42 (E.D.N.Y.1993)
(denying petition alleging Brady and Jencks Act violations where
petitioner "failed to identify any specific document the
government failed to produce").

Further, as noted in my order

on Mr. Jean's previous § 2255 petition and by the Second Circuit
on appeal, the evidence against Mr. Jean at trial was
overwhelming, and thus Mr. Jean cannot show that the outcome at
trial would have been different absent the alleged deficiencies.
Accordingly, Mr. Jean's ineffective assistance of counsel claim
is rejected.

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C.

Grand Jury
Mr. Jean also argues that the court lacked

jurisdiction over him because there is no record that a grand
jury comprised of twelve or more members indicted him.
Specifically, he argues that the court lacked jurisdiction
because the indictment was not presented in open court and the
transcript of the grand jury proceedings was never given to him.
(Dkt. No. 98 at 1-4; Dkt. No. 102 at 6).

This argument is also

rejected.
1. Applicable Law
The Supreme Court has consistently "recognized that
the proper functioning of the grand jury system depends upon the
secrecy of the grand jury proceedings."

Douglas Oil Co. of Cal.

v. Petrol Stops Nw., 441 U.S. 211, 218 (1979).

Further, there

is a "general presumption of regularity afforded grand jury
proceedings."
Cir. 1971).

United States v. Dzialak, 441 F.2d 212, 217 (2d
Thus, "the Supreme Court has consistently refused

to breach the walls of grand jury secrecy absent a showing of
particularized need."

In re Grand Jury Investigation of

Cuisinarts, Inc., 665 F.2d 24, 33 (2d Cir. 1981).

"[D]isclosure

is appropriate only in those cases where the need for it
outweighs the public interest in secrecy, and that the burden of
demonstrating this balance rests upon the private party seeking
disclosure."

Douglas Oil Co., 441 U.S. at 223.
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2. Application
Mr. Jean argues that his conviction should be vacated
because his indictment was not presented in open court.
No. 98 at 2).

(Dkt.

But on December 11, 2013, Mr. Jean was arraigned

on the superseding indictment in open court, at which time he
waived a public reading.

Accordingly, this argument is without

merit.
Mr. Jean also argues that his conviction should be
vacated because he never received the transcript from the grand
jury proceedings.

(Dkt. No. 98 at 1).

As a threshold matter,

Mr. Jean did not request the grand jury minutes until 2016,
nearly two years after conviction and sentencing.
98 Ex. A).

(See Dkt. No.

But even had Mr. Jean requested the grand jury

transcript before he was convicted, he would not be entitled to
it.

He has not come close to showing that there was any grand

juror misconduct, and "[u]nsupported suspicions of grand jury
abuse are insufficient to justify disclosure of the
proceedings."

United States v. Abrams, 539 F. Supp. 378, 389

(S.D.N.Y. 1982).

Further, Mr. Jean is not permitted "to engage

in a fishing expedition in hopes of uncovering an impropriety or
defect in the proceeding where he has no basis to conclude that
an impropriety or defect exists."

United States v. Faltine, No.

13-CR-315, 2014 WL 4370811, at *5 (E.D.N.Y. Sept. 2, 2014).
Accordingly, Mr. Jean was not entitled to his grand jury minutes
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prior to his conviction, nor is he entitled to them now, and his
failure to receive them is not grounds to vacate his conviction.
CONCLUSION
For the reasons set forth above, Mr. Jean has failed
to show a basis for relief under 28 U.S.C. § 2255.
his motion for relief is DENIED.

Accordingly,

Because Mr. Jean has not made

a substantial showing of the denial of a constitutional right, I
decline to issue a certificate of appealability.

See 28 U.S.C.

§ 2253 (as amended by the Antiterrorism and Effective Death
Penalty Act).

I certify pursuant to 28 U.S.C. § 1915(a)(3) that

any appeal taken from this order would not be taken in good
faith.
SO ORDERED.
Dated:

New York, New York
January 8, 2021
S/ Denny Chin ______________
DENNY CHIN
United States Circuit Judge
Sitting by Designation

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