Jordan v. United States of America
Filing
16
OPINION AND ORDER....The Court has considered each of the arguments made by Jordan regarding the performance of his trial counsel and finds no basis for concluding that this petition should be granted on the ground that they provided him with ineffec tive assistance. The request for a hearing is also denied.Because Jordan 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); Matthews v. United State s, 682 F.3d 180, 185 (2d Cir. 2012); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Or der would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). The Clerk of Court is hereby directed to close this case. (Signed by Judge Denise L. Cote on 8/30/2019) Copy Mailed By Chambers to Joseph Ray Jordan, 60818-054, FCI - Butner 1, PO Box 1000, Butner, NC 27509. (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- X
:
JOSEPH JORDAN,
:
Movant,
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
--------------------------------------- X
DENISE COTE, District Judge:
18Cv.3372(DLC)
08Cr.0124(DLC)
OPINION AND ORDER
Joseph Jordan filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2255 on April 16, 2018.
For the
following reasons, the petition is denied.
Background
This criminal case is over a decade old.
On February 14,
2008, Jordan was indicted in the Southern District of New York.
On August 26, 2008, a twelve-count superseding indictment
(“Indictment”) was filed against Jordan.
Trial on five counts
of the Indictment, counts which principally charged Jordan with
witness tampering and transmitting threatening communications,
began on October 6, 2008.
On October 16, the jury found Jordan
guilty of each of the five counts.
On September 16, 2009,
Jordan was sentenced to forty years’ imprisonment.
On March 9,
2016, the conviction was affirmed by summary order. 1
1As
described below, many of the arguments that Jordan raised in
his pro se appeal of his conviction are again raised in his
habeas petition.
Trial Evidence
In brief, the evidence at trial established that Jordan met
a woman (“Victim”) in New York City in July 2007.
Their
relationship quickly became verbally and physically abusive.
On
December 3, the Victim and her mother fled New York City,
arriving ultimately at her sister’s house in Virginia.
Jordan
located the Victim and harassed and threatened the Victim, her
mother, his sister and her brother-in-law with telephone calls.
Jordan posted the telephone number for the Virginia residence on
the website Craig’s List.
Strangers began to call that home in
response to advertisements for sex and for housing.
The
relatives changed their telephone number and contacted the
police, but Jordan found the new number.
During this same time, Jordan harassed the Victim’s former
boyfriend as well.
Jordan made threatening calls to him and
many strangers called the man in response to Craig’s List and
print advertisements for sex and housing.
Jordan also registered a domain name with the Victim’s name
and posted messages on the website explaining that he had hurt
her physically and emotionally.
Fearing for her life, in mid-
December the Victim fled to London to stay with her aunt in her
aunt’s official London residence.
The aunt was the Ambassador
of Trinidad and Tobago to Great Britain (“Ambassador”).
began calling the Ambassador’s residence and the Embassy.
Jordan
2
The
Ambassador called the police and changed the telephone number of
the official residence.
The Victim and the Ambassador then
began receiving facsimiles at the Embassy, as well as emails and
texts which contained threats to attack the Ambassador’s
residence and to kidnap the Victim.
Some of the facsimiles
contained allegations of misconduct by the Ambassador’s husband.
Jordan was arrested in New York on January 11, 2008, and
held in custody.
After his arrest, he began writing letters in
an unsuccessful effort to discourage the Victim and the
Ambassador from testifying against him.
In some of these
communications he used his own name; sometimes he forged the
names of others, including on an affidavit purporting to come
from his ex-wife (“Affidavit”).
Among other things, the
Affidavit asserted that his ex-wife would testify at trial to
the defendant’s good character.
The Affidavit’s assertions and
authenticity were refuted at trial by a testimonial stipulation
executed by Jordan, his counsel and the Government.
Jordan also sent fabricated documents to Trinidad and
Tobago government offices including a purported press release
from “Jordan Family Media Relations.”
The press release
contained defamatory allegations about the Ambassador’s husband
and predicted that those allegations would be explored at trial.
It asserted that the Ambassador’s transfer to a post in the
United States “has been delayed pending discussion to resolve
3
the legal case without trial -- a trial that may prove a huge
embarrassment for the government of Trinidad and Tobago.”
The
Ambassador testified to the emotional distress and professional
humiliation that these communications caused.
Motion for a New Trial
This Court has issued three prior Opinions in this case.
Of particular significance to this habeas petition, Jordan’s
motion to set aside the jury’s verdict was denied. 2
United
States v. Jordan, 591 F. Supp. 2d 686 (S.D.N.Y. 2008) (“December
2008 Opinion”).
As explained in the December 2008 Opinion, two
attorneys from the Federal Defenders represented Jordan at
trial.
Id. at 693.
Because the defendant had made several
complaints at trial about his representation, the Court
appointed CJA counsel to represent Jordan after the jury
returned the verdict.
Id. at 694.
The Court observed that it
did not find the defendant’s complaints about his representation
to be well founded, but believed appointment of new counsel was
the appropriate course of action.
Id.
The other two decisions are the following. An August 21, 2009
Opinion addressed Jordan’s pro se motion disputing the PreSentence Report’s calculation of the maximum sentence he could
receive. United States v. Jordan, No. 08cr124 (DLC), 2009 WL
2999753 (S.D.N.Y. 2009). A September 25, 2009 Opinion addressed
Jordan’s other pre-sentence requests. United States v. Jordan,
No. 08cr124 (DLC), 2009 WL 3169823 (S.D.N.Y. 2009).
2
4
In due course, CJA counsel for Jordan made a motion to set
aside the verdict or grant a new trial on several grounds,
including that Jordan’s trial attorneys were ineffective.
CJA
counsel attached to his submission nearly 100 pages that Jordan
wanted to be considered on the motion, and later submitted an
additional 25-page memorandum prepared by Jordan.
Id. at 704.
Many of the issues raised in those submissions are raised again
in this petition.
The pre-sentence motion for a new trial included the
following claims that his trial counsel was ineffective.
Jordan
argued that the representation they provided to him was
deficient because his defense counsel compelled him to accept
the testimonial stipulation that eliminated the need for his exwife to testify at trial; they decided not to contest the issue
of identity; they failed to prepare him adequately to testify;
they failed to call certain witnesses he had identified for his
defense; and generally they did not consult with him
sufficiently in preparation for the trial.
Id. at 711-12.
In addition to arguments regarding the deficiencies in
trial counsel’s performance, the motion for a new trial raised
other issues relevant to the pending petition.
These include
challenges to the trial’s fairness on the basis of the
Government’s summation arguments to the jury, the fears
5
expressed on one occasion by two jurors, and alleged
deficiencies in the jury charge.
Id. at 718-22.
Submissions in Connection with the Petition
Jordan has filed the following materials in connection with
this pro se petition. 3
On April 16, 2018, Jordan filed a motion
to vacate the judgment with supporting documents.
On May 14,
additional documents in support of his petition and his
affidavit were filed.
On May 30, he filed his memorandum in
support of the petition.
This Opinion principally relies on the
May 30 memorandum as the statement of the issues which Jordan
wishes to include in his petition.
The discussion below
attempts to address each of the principal arguments raised by
Jordan in the memorandum.
The Government’s opposition to the motion was filed on July
6, 2018.
On August 17, the Court granted Jordan’s request to
receive copies of the documents he had submitted to the Court in
support of his petition.
On August 17, Jordan’s time to reply
to the Government’s submission was extended to September 21.
The petition is timely. Jordan’s conviction became final on
April 17, 2017, when the Supreme Court denied his petition for
certiorari. Jordan v. United States, 137 S. Ct. 1601, 1601,
reh’g denied, 137 S. Ct. 2287, 2287 (2017); Rosa v. United
States, 785 F.3d 856, 859 (2d Cir. 2015) (“[A] conviction
becomes final upon the denial of a petition for a writ of
certiorari without regard to any subsequent petition for
rehearing.”). Jordan filed his motion on April 16, 2018, just
before the expiration of the one-year limitations period under
28 U.S.C. § 2255(f)(1).
3
6
Jordan’s reply was received by the Court on October 1, and his
special appendix was filed on October 5.
On February 13, 2019,
Jordan requested appointment of counsel and an evidentiary
hearing.
On May 7, he requested a certificate of appealability
in the event his petition is denied.
Discussion
Jordan contends in this petition that the two Federal
Defenders who represented him at trial provided ineffective
assistance.
When making a claim of ineffective assistance, a
petitioner must show that “defense counsel’s performance was
objectively unreasonable” and that “the deficient performance
prejudiced the defense.”
Doe v. United States, 915 F.3d 905,
910 (2d Cir. 2019) (citation omitted).
“[T]here is no reason
for a court to address both components of the inquiry if the
defendant makes an insufficient showing on one.
In particular,
a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the
defendant.”
Garner v. Lee, 908 F.3d 845, 861 (2d Cir. 2018)
(citation omitted).
When evaluating the prejudice, “[t]he
likelihood of a different result must be substantial, not just
conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011).
7
1.
Prejudice
Jordan has failed to show that any of the alleged
deficiencies in his attorneys’ performance at trial prejudiced
him.
The Government’s evidence that Jordan committed the crimes
with which he was charged was substantial.
As the summary order affirming the conviction observed, the
Government’s evidence included Jordan’s transmission of seven
specific threats, such as the threat that he would take the
Victim “off the planet.”
The Court of Appeals observed that the
evidence that Jordan “knew that his communications would be
interpreted as threats was overwhelming and essentially
uncontroverted.”
Because Jordan has not shown that the jury
verdict would have been any different if his counsel had
performed differently at trial, this petition can be denied on
that ground alone.
In any event, as described below, Jordan has
also failed to show that his counsel’s performance was
constitutionally deficient.
2.
Decision Not to Testify
Jordan asserts that he was precluded from testifying and
that his counsel did not adequately prepare him to testify.
Jordan made this claim in his motion to set aside the verdict,
and it was rejected in the December 2008 Opinion.
2d at 714-17.
591 F. Supp.
On his direct appeal, he also asserted that there
had been a violation of his right to testify.
8
That claim was
considered and determined by the Court of Appeals to be without
merit.
As described in the December 2008 Opinion, Jordan requested
and was given an opportunity to consult with independent CJA
counsel regarding his right to testify.
That attorney assured
the Court that Jordan was aware of his right to testify or not
to do so.
The Court also gave Jordan detailed instructions
regarding his right to testify.
Jordan, who was an active
participant in his defense, had prepared a lengthy outline of
his anticipated testimony for his attorneys to review.
There
was a five-day break in trial proceedings just before the day on
which Jordan would have taken the stand and he consulted with
his attorneys about his possible testimony during that break.
His attorneys also gave Jordan a written outline of the
questions they planned to ask him should he decide to take the
stand.
In the end, fully advised of his rights, Jordan decided
not to take the stand.
In this petition, Jordan complains that his trial counsel
erred in listing a 1992 prior conviction for assault with a
dangerous weapon in their outline of his direct testimony.
Assuming that the inclusion of that conviction on the outline
was an error, that error does not provide a basis to find that
counsel was constitutionally deficient in advising Jordan about
his right to testify or in preparing him to take the stand.
9
Nor
is there any basis to find that the error had any impact on his
decision not to testify.
This issue was explored in detail in
the December 2008 Opinion, and it is rejected again for the
reasons explained there.
3.
Id.
Jurors
Jordan asserts that his counsel failed to obtain the
dismissal of two jurors who mentioned during the trial that they
were concerned about Jordan’s access to their personal
information.
This claim is not properly brought as an
ineffective assistance claim through a habeas petition; it is
not actually a claim premised on defense counsel’s performance.
This claim, which challenges the fairness of the trial
proceedings, was raised in Jordan’s motion for a new trial and
rejected in the December 2008 Opinion.
591 F. Supp. 2d at 720.
In his direct appeal Jordan also asserted that the Court erred
in responding to this juror issue, and the Court of Appeals
rejected it on the merits. 4
This claim arises from the fact that two jurors expressed
fear of the defendant the day before deliberations began.
Id.
When advised by the Court of the issue, defense counsel moved
for a mistrial or, if that were not granted, an individual
Jordan’s June 10, 2014 Pro Se Brief, filed with the Court of
Appeals at Docket Number 82 (“June 2014 Brief”), raised this
claim as issue L at page 118.
4
10
interview of the jurors.
Id.
To the extent Jordan believes the
Court erred in its handling of the defense objection, that issue
had to be, and was, raised on direct appeal.
4.
Government Comment on Jordan’s Failure to Testify
Jordan complains that his attorneys should have but did not
object to a Government argument at summation, which Jordan
inaccurately describes in his petition as an argument that the
defendant “could not” dispute the evidence against him.
He
asserts that the prosecutor’s argument was an improper comment
on his failure to testify. 5
Jordan also argued on direct appeal
that this alleged comment by the Government was a violation of
his rights. 6
The Court of Appeals rejected this argument on the
merits.
In his petition, Jordan cites to pages 856-57 of the trial
transcript as the passage containing the objectionable comments
by the Government.
In this part of its summation, the
Government briefly outlined critical evidence on two of the five
counts tried before the jury, pointing out several times that
there was “nothing in dispute” or “no dispute” about portions of
the evidence.
For instance, “there’s no dispute that he sent
While Jordan’s new trial motion made several arguments about
the Government’s summation, he did not make this particular
argument. 591 F. Supp. 2d at 718-19.
5
6
See June 2014 Brief at pages 135 et seq.
11
the faxes,” referring to Jordan and faxed communications that
had been received into evidence.
The Government’s summation argument cannot fairly be
construed as a comment on the defendant’s failure to take the
stand in his own defense.
At no point during its summation did
the Government refer to Jordan’s failure to testify at trial,
and the passage to which Jordan points does not contain an
implicit comment on the matter.
The Government is entitled to
describe the evidence presented during trial and to draw the
jury’s attention to those facts in dispute and those about which
there is little or no dispute.
“Although the government cannot
comment on a defendant’s failure to testify, it is permissible
to draw the jury’s attention to the fact that a defendant did
not call witnesses to contradict the government’s case or
support his own theory of what happened.”
United States v.
Daugerdas, 837 F.3d 212, 227 (2d Cir. 2016).
5.
Witness Tampering Statute:
Counts Four and Five
Jordan makes several arguments regarding the scope of
Section 1512(b) of Title 18, United States Code, which is the
statute underlying his convictions on Counts Four and Five.
Among other things, § 1512(b) makes it a crime for a defendant
knowingly to use intimidation, threats, or corrupt persuasion
with the intent to prevent the testimony of a person in an
official proceeding.
18 U.S.C. § 1512(b).
12
The jury found that
Jordan knowingly used intimidation and threats with the intent
of influencing or preventing the testimony of the Victim and the
Ambassador, in Counts Four and Five, respectively.
2d at 700.
591 F. Supp.
Jordan made several arguments on direct appeal about
these two counts and § 1512(b). 7
The Second Circuit rejected his
challenges.
While Jordan has expanded on his protected speech argument
in the instant petition, the time to make these arguments was on
direct appeal.
The constitutional challenge to the statute,
which Jordan suggests, was rejected in United States v.
Thompson, 76 F.3d 442, 452 (2d Cir. 1996).
Jordan principally makes two arguments about his counsel’s
performance in connection with the § 1512(b) charges.
He
contends that his attorneys should have more actively pursued
the affirmative defense that the communications on which his
conviction was based, such as the press release sent to Trinidad
and Tobago government offices and his post-arrest correspondence
with the Victim, were “truth-seeking” communications.
On the
other hand, he also appears to argue that his counsel should not
have asked for a charge on the affirmative defense of truth
seeking unless counsel were going to argue in support of that
defense in the defense summation.
7
See June 2014 Brief at 30-31.
13
The draft jury charge, distributed to both Jordan and his
attorneys before the charging conference, contained a charge on
this affirmative defense.
In response to the Court’s inquiry,
Jordan’s counsel requested that the affirmative defense remain
in the charge.
Accordingly, the jury was instructed on the
affirmative defense.
The Court advised the jury, inter alia,
that it must find Jordan not guilty of the crimes charged in
Count Four and Count Five if he proved by a preponderance of the
evidence that his sole intent was to encourage a person to
testify truthfully, and that his conduct in seeking that
truthful evidence consisted solely of lawful conduct.
While
defense counsel addressed the defense in her opening statement,
it is true that there was no direct mention in the defense
summation.
The failure by defense counsel to argue on summation that
Jordan’s communications were intended to seek truthful
testimony, as opposed to an effort by Jordan to dissuade
witnesses from participating in the trial, does not constitute a
failure to represent him effectively.
represented Jordan vigorously.
Defense counsel
They were entitled to use their
best judgment about what arguments would have the most impact
during summation.
United States v. DiTomasso, ___ F.3d ___, No.
17-1699, 2019 WL 3417264, at *9 (2d Cir. July 30, 2019) (“Trial
counsel’s actions or omissions that might be considered sound
14
trial strategy . . . are ordinarily not viewed as a lapse in
professional representation.” (citation omitted)); Weingarten v.
United States, 865 F.3d 48, 53 (2d Cir. 2017) (“It is the very
function of an effective legal counselor to select among the
available arguments.”); United States v. Delva, 858 F.3d 135,
157 (2d Cir. 2017) (“An attorney’s strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” (citation omitted)).
Jordan does not explain how his attorney could have been more
effective in pursuing this defense and has not shown that it
would have succeeded had they emphasized it further.
6.
Count Five:
Lesser Included Offense
Jordan argues that his counsel should have sought a jury
charge on 18 U.S.C. § 1512(d) as a lesser-included offense of
Count Five, which was charged under § 1512(b).
In particular,
Jordan suggests that the press release sent to the Trinidad and
Tobago government offices constituted only “harassment”
punishable under § 1512(d), not an offense under § 1512(b).
A defendant is entitled to a lesser-included offense
instruction under federal law “only if (1) the elements of the
lesser offense are a subset of the elements of the charged
offense, and (2) the evidence at trial permits a rational jury
to find the defendant guilty of the lesser offense and acquit
him of the greater.”
United States v. Snype, 441 F.3d 119, 141
15
(2d Cir. 2006) (citation omitted).
“In determining, under the
first prong of the test, whether an offense constitutes a
lesser-included offense of the charged offense,” courts compare
“the statutory elements of the offenses in question, and not the
conduct proved at trial.”
United States v. Diaz, 176 F.3d 52,
101 (2d Cir. 1999) (citation omitted); see also Fed. R. Crim. P.
31(c) (defining lesser offense as “an offense necessarily
included in the offense charged”).
“Where the lesser offense
requires an element not required for the greater offense,” an
instruction on the lesser offense is not required.
Schmuck v.
United States, 489 U.S. 705, 716 (1989).
Applying this test, § 1512(d) is not a lesser-included
offense of § 1512(b).
Section 1512(d) requires proof that the
defendant (1) intentionally harassed another person, (2) thereby
hindering, delaying, preventing, or dissuading any person, (3)
from attending or testifying in an official proceeding.
Section
1512(b), by contrast, requires proof that the defendant (1)
knowingly used intimidation, threatened, corruptly persuaded, or
engaged in misleading conduct towards a person, (2) with the
intent to influence, delay, or prevent the testimony of any
person in an official proceeding.
In short, § 1512(d) requires
proof that the defendant engaged in intentional harassment,
while § 1512(b) contains no such element and can instead be
violated through knowing corrupt persuasion or misleading
16
conduct.
Thus a violation of § 1512(b) does not necessarily
entail a violation of § 1512(d), and no instruction on the
latter would have been appropriate under Rule 31(c).
Jordan’s
attorneys therefore committed no error in declining to seek such
an instruction.
It is true that the Second Circuit has, in dicta, observed
that the same conduct may be punishable under more than one
subsection of § 1512.
See United States v. Veliz, 800 F.3d 63,
71 (2d Cir. 2015) (holding that solicitation of a person to
murder a witness is punishable under § 1512(b)).
The Second
Circuit suggested that “a defendant who follows a witness’s
every move might be guilty of ‘intimidation’ under subsection
(b) or ‘harassment’ under subsection (d).”
Id. at 72.
In doing
so, the Second Circuit cited a Ninth Circuit case that held that
§ 1512(d) was a lesser-included offense of § 1512(b).
Id.
(citing United States v. Chaggar, 197 Fed. Appx. 704, 707 (9th
Cir. 2006))).
But, applying the elements-based approach called
for by the Supreme Court, it does not follow that § 1512(d)
constitutes a subset of § 1512(b).
As the Second Circuit has
not more directly addressed the question of whether § 1512(d) is
a lesser-included offense of § 1512(b), and the Ninth Circuit
authority is not binding, it is here concluded that Jordan would
not have been entitled to a lesser-offense instruction.
Further, because the Second Circuit case that Jordan cites here
17
had not been decided at the time of his trial, his counsel could
not have relied upon it.
See Weingarten, 865 F.3d at 53 (“A
reviewing court must . . . evaluate an attorney’s performance in
light of the state of the law at the time of the attorney’s
conduct.”); Sellan v. Kuhlman, 261 F.3d 303, 315-17 (2d Cir.
2001).
In any event, Jordan was not prejudiced by the fact that
counsel did not request an instruction on § 1512(d) because -even had such an instruction been given -- there is no
reasonable probability that a jury would have acquitted him of
the offense charged in Count Five.
As described above, the
press release sent to government offices of the Trinidad and
Tobago made defamatory allegations about the Ambassador’s
husband and predicted that those allegations would be explored
at Jordan’s trial.
It also asserted that the Ambassador’s
transfer to the United States had been delayed pending
discussions “to resolve the legal case without trial –- a trial
that may prove a huge embarrassment for the government of
Trinidad and Tobago.”
The press release provided compelling evidence that Jordan
acted knowingly to intimidate the Ambassador, which requires
proof that his threatening words created a reasonable likelihood
that the Ambassador would be in fear of harm; to threaten her,
which requires proof that the words were designed to arouse fear
18
that he would cause harm; and to corruptly persuade her, which
requires proof that he acted with wrongful intent while
conscious that his conduct was wrongful.
See United States v.
Johnson, 968 F.2d 208, 211-12 (2d Cir. 1992) (defining
intimidation and threatening); United States v. Quattrone, 441
F.3d 153, 176 (2d Cir. 2006) (defining corrupt persuasion).
The
jury also heard ample evidence that the press release
constituted misleading conduct, which may consist of knowingly
making a false statement; knowingly, with intent to mislead,
inviting reliance on a writing that is lacking in authenticity;
or knowingly using a trick, scheme, or device with intent to
mislead.
See 18 U.S.C. § 1515(a)(3) (defining misleading
conduct).
The jury was instructed that it could find him guilty
of this crime if it were satisfied that he had acted in only one
of these four ways, so long as it was unanimous as to which of
ways the Government had proven that he acted.
In short, even if
Jordan’s counsel had performed as he asserts they should have,
there is no reasonable probability that the jury would have
returned a different verdict.
See Garner, 908 F.3d at 871
(“[T]o establish prejudice . . . [t]he likelihood of a different
result must be substantial.”).
7.
Count Four:
Jordan’s Letters
Jordan complains that his attorneys erred in not moving to
suppress mail he sent to the Victim following his arrest.
19
Jordan explains that these letters were part of the evidence
supporting Count Four’s witness tampering charge.
As described in the December 2008 Opinion, following his
arrest, Jordan began to write letters to dissuade the Victim and
the Ambassador from testifying against him at trial.
Supp. 2d at 702.
591 F.
Jordan mailed some of those letters to a
friend with directions on how to locate the necessary addresses
and instructions to forward them to their intended recipients.
Id. at n.15.
That friend provided letters to the Government and
the friend testified at trial.
Jordan has failed to show that any motion to suppress the
correspondence provided to the Government by a third party would
have succeeded.
Jordan had no expectation that the letters
would remain private after they left his possession.
United
States v. Knoll, 16 F.3d 1313, 1321 (2d Cir. 1994) (“[W]hen one
party relinquishes control of a letter by sending it to a third
party, the reasonableness of the privacy expectation is
undermined.”); see also United States v. Lifshitz, 369 F.3d 173,
190 (2d Cir. 2004) (suggesting that individuals lack “an
expectation of privacy in transmissions over the Internet or email that have already arrived at the recipient”).
8.
Stipulation
Jordan contends that his attorneys provided ineffective
assistance when they stipulated regarding the testimony that his
20
ex-wife would provide if called as a trial witness.
Jordan
raised this same issue to attack his trial attorneys’
performance in his motion for a new trial, and it can be
rejected again for the reasons previously given.
591 F. Supp.
2d at 712-13.
In brief, as part of the evidence offered in support of
Count Four, which charged Jordan with using intimidation and
threats with the intent of preventing or interfering with the
Victim’s testimony, the Government introduced into evidence the
Affidavit, purportedly from his ex-wife, that Jordan fabricated
and sent to the Victim.
The stipulation, which Jordan
personally executed, made the ex-wife’s testimony about the
authenticity and accuracy of the Affidavit unnecessary.
As explained in the December 2008 Opinion, there were
compelling reasons why Jordan would have wanted to keep his exwife from testifying about the Affidavit.
Moreover, Jordan not
only signed the stipulation that made her testimony unnecessary,
but also affirmed to the Court several hours after he executed
the stipulation that he stood by it.
Id. at 712.
In his petition, Jordan does not acknowledge that he
himself signed the stipulation and that he was examined about
his execution of the stipulation by the Court.
Nor does the
petition acknowledge that the ex-wife had flown to New York and
was at the courthouse and prepared to testify if the stipulation
21
had not been executed.
Id.
In sum, there is no basis to find
that Jordan’s counsel provided him with ineffective assistance
regarding the stipulation.
Conclusion
The Court has considered each of the arguments made by
Jordan regarding the performance of his trial counsel and finds
no basis for concluding that this petition should be granted on
the ground that they provided him with ineffective assistance.
The request for a hearing is also denied.
Because Jordan 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); Matthews v. United
States, 682 F.3d 180, 185 (2d Cir. 2012); Tankleff v. Senkowski,
135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d
24, 24 (2d Cir. 1990).
The Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order
would not be taken in good faith.
See Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court is
hereby directed to close this case.
Dated:
New York, New York
August 30, 2019
________________________________
DENISE COTE
United States District Judge
22
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