KATHERINE B. FORREST, District Judge.
The Court has reviewed petitioner Jason Neal's motion,
On May 10, 2011, Neal was sentenced by Judge Miriam Goldman Cedarbaum principally to a term of 180 months' imprisonment, the mandatory minimum sentence applicable to the crimes of conviction. (ECF No. 35.) After Neal's counsel moved to withdraw, Neal subsequently appealed his conviction through newly appointed counsel, who submitted a brief pursuant to
Neal now argues that he received ineffective assistance of counsel from both his trial counsel and appellate counsel. Neal contends that his trial counsel was ineffective for failure to,
No evidentiary hearing is necessary in this action. The combined submissions of the parties provide a sufficient basis upon which to deny the petition, and the Court concludes that a full testimonial evidentiary hearing would not offer any reasonable chance of altering its view on the facts as alleged by Neal, including the details added in his petition.
On March 31, 2008, Neal was charged in a three-count Superseding Indictment (the "Indictment"). (Indictment, ECF No. 6.) Count One charged Neal with conspiracy to distribute, and possession with intent to distribute, five kilograms and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Indictment ¶¶ 1-3.) Count Two charged Neal with distribution, and possession with intent to distribute, less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and 18 U.S.C. § 2. (Indictment ¶ 4.) Count Three charged Neal with using, carrying, and possessing a firearm during and in relation to, and in furtherance of, a narcotics trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Indictment ¶ 5.)
Trial before a jury commenced on October 15, 2008, and ended on October 24, 2008, at which time Neal was convicted on all three Counts in the Indictment. The trial was presided over by Judge Miriam Goldman Cedarbaum; Neal was represented at trial by Paul S. Brenner. The evidence at trial included the testimony of law enforcement agents and two cooperating witnesses, Troy Hall and Tyco Hall (collectively, the "Hall brothers"), who participated in the charged drug conspiracy. The Government also offered,
In or about the summer of 2007, the Hall brothers entered into an agreement with Neal—whom they met through a mutual friend and through employment in the music business—to transport cocaine from California to New York. (Trial Tr. at 180-81, 185-86, 510-12.) In a series of meetings in or about September 2007, Neal told the Hall brothers that he had an opportunity for them that would allow them to make up to $10,000 per month transporting "things" from Los Angeles to New York. (Trial Tr. at 191-92.) Tyco Hall testified that Neal had purchased a van—which was put in Troy Hall's name because he didn't have a criminal record—for the Hall brothers to use to transport drugs from California to New York, and that Neal agreed to reimburse them for costs associated with the van. (Trial Tr. at 187-90, 197, 205, 213, 220-21, 513-15.) Neal arranged for a secret compartment to be built into the van so that drugs could be stored in it, but the Hall brothers did not know where it was and never put anything inside the compartment. (Trial Tr. at 99-100, 194, 513.)
In November 2007, the Hall brothers—at Neal's direction—drove the van to California to take a "trial run trip." (Trial Tr. at 195-96.) Neal paid for approximately $1,300 in expenses for the trip and spoke to Tyco Hall once or twice a day during the trip. (Trial Tr. at 197.)
In December 2007, the Hall brothers traveled to California a second time at Neal's direction, this time to bring drugs back to New York. (Trial Tr. at 204, 518-19.) During this trip, Neal again paid for expenses associated with the trip and regularly communicated with Tyco Hall by phone. (Trial Tr. at 205-06.) When they arrived in Inglewood, California, Neal directed the Hall brothers to meet an individual at a racetrack and casino who would put drugs inside the van. (Trial Tr. at 207-08, 521, 622.) Troy Hall delivered the van to a man he came to know only as "K," who took the van while the Hall brothers waited at the casino. (Trial Tr. at 521-23.) Neal called Tyco Hall about an hour and a half later to tell Tyco that the van was ready, at which time the Hall brothers retrieved the van and headed back to New York. (Trial Tr. at 524.) After experiencing delays due to some mechanical problems with the van (during which they were in contact with Neal), the Hall brothers arrived in New York in late December, at which time Tyco Hall delivered the van (which contained the drugs) to Neal. (Trial Tr. at 209, 213-14, 217, 525-26.) Neal paid Tyco Hall for the Hall brothers' work and reimbursed them for the repairs they had paid for on the return trip from California. (Trial Tr. at 218, 526.) When Tyco Hall returned the van, Neal told him that they would have to go back to California quickly because the things they had brought back were "snacks" and "were already accounted for." (Trial Tr. at 217-18.)
Subsequently, the Hall brothers again traveled to California to pick up drugs at Neal's direction. (Trial Tr. at 218.) Neal asked Troy Hall to "step up" and inspect the cocaine personally because there had been problems with the quality of the cocaine that they had transported the first time. (Trial Tr. at 218-20, 526.) Neal told Troy Hall to make sure that the cocaine was "hard and white." (Trial Tr. at 219, 526.) Neal gave the Hall brothers expense money and a sealed bag containing what looked like a large sum of money that would be used to purchase the cocaine. (Trial Tr. at 220-22, 527, 626-28.) During the trip to California, Neal again kept in contact with Tyco Hall, and instructed the Hall brothers to go to the same racetrack and casino to meet "K." (Trial Tr. at 223-24, 528.) Troy Hall met "K" at the racetrack—this time, with two Hispanic men also present—and inspected five kilograms of cocaine, in exchange for which Troy handed the sealed bag to "K"; "K" then drove off in the van and Troy went to wait at the racetrack with Tyco. (Trial Tr. at 528-30.) Neal called Tyco a couple of hours later to say that they could pick up the van; the Hall brothers did so, and began their trip back to New York. (Trial Tr. at 224-25, 531.)
On January 9, 2008, during the Hall brothers' return trip to New York, they were stopped by a sergeant with the Utah Highway Patrol, who—with Tyco Hall's consent—searched the van and located a secret compartment under the passenger seat that contained just shy of five kilograms of cocaine, two loaded handguns, and a quantity of marijuana. (Trial Tr. at 97-109, 226-27, 533-34; GX 18-29, 33, 34, 36A, 36B, 36C, 37, 120.) At trial, the Hall brothers testified that the officers showed them the firearms found in the van, which they recognized as guns that Neal had previously shown them. (Trial Tr. at 222, 534.) After their arrest, the Hall brothers each agreed to cooperate with law enforcement, and agreed to allow law enforcement to record telephone conversations they had with Neal (Trial Tr. at 228-29, 538-39); those recordings were offered into evidence at trial (GX 1-6, 8-15).
The Hall brothers also agreed to participate in a "controlled delivery" to Neal. On January 14, 2008, the Hall brothers arrived in New York, at which time Neal directed them to several locations, eventually leading them to a gas station in the Bronx. (Trial Tr. at 277-78, 411-13, 568-69.) Neal arrived at the gas station and eventually got into the van, at which time he was arrested. (Trial Tr. at 277-79, 362-63.) During a search of Neal's vehicle, agents found a handgun in a secret compartment in the center console. (Trial Tr. at 364-67, 377-78; GX 39-43, 45.) Neal subsequently consented to a search of his residence; during that search, law enforcement agents uncovered approximately six pounds of marijuana, approximately 132 rounds of ammunition, a bullet-proof vest, scales, drug records, and other drug paraphernalia, most of which was hidden in a secret compartment that was concealed in an end-table. (Trial Tr. at 420-23, 428-33, 440-44, 453-54; GX 60, 61, 63, 71A-D, 72, 74, 74A, 74B, 75, 77-78, 80-82, 85, 200-01.) The drug ledgers contained references to "powder," supporting the inference that they related to cocaine sales. (Trial Tr. at 437-38.) After his arrest, Neal made a statement in which he admitted that the Hall brothers worked for him driving his van, he owned the handgun that was found in his vehicle and that he bought the gun from a person in the Bronx. (Trial Tr. at 506.)
The defense case rested primarily on the theory that, to the extent that Neal had any agreement with the Hall brothers, it was to deliver marijuana, not cocaine. (Trial Tr. at 307-11, 597-98.) The defense also challenged the credibility of the cooperating witnesses on cross-examination. (
After an adjournment of sentencing to allow for the Court to further consider the defense's challenge to the jury's verdict with respect to Count One (
Neal filed a notice of appeal on May 19, 2011. (ECF No. 37.) On October 24, 2011, Mr. Seidler moved to withdraw as counsel. After Neal failed to respond to counsel's motion, on December 16, 2011, the Second Circuit granted Mr. Seidler's motion and directed Neal to proceed
On April 25, 2012, the Second Circuit reinstated Neal's appeal, and appointed Paul Camarena to represent him. On July 14, 2012, Mr. Camarena submitted a brief pursuant to
On September 24, 2015, Neal filed the instant motion,
"In general, a defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal."
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his or her counsel's performance "fell below an objective standard of reasonableness" measured under "prevailing professional norms," and (2) he or she was prejudiced by counsel's deficient performance such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
As to the first prong of
As to the second prong of
Neal argues that he received ineffective assistance of counsel at trial, sentencing, and in his direct appeal on several grounds. Neal contends that his counsel's performance at trial was constitutionally deficient for failing to fully investigate certain telephone records, present evidence to the jury that he was a marijuana dealer instead of a cocaine dealer, and effectively challenge the credibility of the Hall brothers' testimony.
Neal argues that he received ineffective assistance because his trial counsel failed to fully investigate records of telephone contact between the Hall brothers and the cocaine supplier and to compare those contacts with Neal's phone records. (Pet'r's Mem. of Law at 6-8.) This claim is without merit. Although counsel has a general duty to conduct reasonable investigation, a claim of ineffective assistance based on such an argument requires that the petitioner provide evidence that undermines confidence in the jury's verdict.
Neal further argues that he received ineffective assistance on the ground that his counsel did not present a theory that Neal was only a marijuana dealer instead of a cocaine dealer and did not address certain alleged inconsistencies when crossexamining the Hall brothers. (Pet'r's Mem. of Law at 8-9, 11-13.) Based on a review of the record, counsel's conduct in relation to these points were wholly reasonable under the circumstances, and thus do not constitute ineffective assistance. First, the record reflects that counsel did attempt to pursue a theory that Neal was only a marijuana dealer instead of a cocaine dealer. (
Neal next argues that he received ineffective assistance in relation to sentencing on the ground that counsel should have challenged the determination that the amount of cocaine involved in the conspiracy was five or more kilograms, given that the Government seized only 4,990 grams of cocaine from Neal and the Hall brothers. (Pet'r's Mem. of Law at 10-11.) This argument is meritless on multiple grounds. First, counsel did in fact raise this issue by filing a post-trial motion that challenged,
In addition to Neal's arguments relating to his trial and sentencing, Neal also argues that his appellate counsel's performance was constitutionally deficient because counsel failed to challenge the sufficiency of the evidence supporting his conviction on Count One on direct appeal, and instead filed an
For the reasons set forth above, Neal's petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is DENIED.
The Court declines to issue a certificate of appealability because there has been no "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2);
The Clerk of the Court is directed to terminate the motion at ECF No. 42 in 08-cr-0086 and to terminate the action in 15-cv-7665.
SO ORDERED.
