ALLYNE R. ROSS, District Judge.
After a jury trial, the petitioner was found guilty of, inter alia, racketeering; unlawful use, possession, and discharge of firearms, including a machinegun, in furtherance of racketeering; three counts of attempted murder in aid of racketeering; and three counts of unlawful use, possession, and discharge of firearms, in furtherance of the three attempted murders. I sentenced the petitioner to 110 years in prison, of which 30 were the statutory minimum for the machinegun conviction and 75 were the statutory minimum for the three other firearm convictions. See 18 U.S.C. § 924(c). This judgment was affirmed on direct appeal to the Second Circuit. United States v. Mayes, 650 F. App'x 787 (2d Cir.), cert. denied, 137 S.Ct. 526 (2016). The petitioner now seeks to set aside these four gun convictions, which compose the vast majority of his sentence, on the grounds of ineffective assistance of counsel and lack of due process. For the reasons explained below, I deny the petition.
The defendants—the petitioner and his brother, Anthony Mayes Jr.—were jointly tried before a jury in my courtroom in Spring 2014. They stood accused of running a violent criminal enterprise that involved the selling of cocaine and guns in the East New York section of Brooklyn and in Williamston, North Carolina. They were also accused of numerous violent acts in support of their criminal enterprise. The defendants had separate counsel, and neither defendant testified in his defense.
The charges relevant to the petition mostly relate to a rivalry between members of the defendants' enterprise and another group that also sold drugs in East New York.
Hall, however, was friendly with a member of the Atkins group named Travis Timmons, and Hall approached Timmons and recommended that he distance himself from Gales. Id. at 2430-31, 2651-52. Timmons in turn warned Gales that Gales was in danger from the Ashford group, prompting Gales to decide to strike first. Id. at 2652-53.
In the evening of June 4, 2008, Gales, Timmons, and two of their associates went over to Ashford Street and shot three members of the Ashford group. Trial Tr. 1534-36, ECF No. 280; Trial Tr. 2431-32, 2552-57, 2653-56. That night, Hall and the defendants agreed that they needed to arm themselves, and the following day the petitioner gave Hall a.357. Trial Tr. 2434-35. At trial, counsel for the government asked Hall, "What kind of gun was that 357? Was it a revolver? A semiautomatic?" Id. at 2435. Hall responded that "[i]t was an automatic." Id.
Later that day, Hall encountered Gales on the street. Id. at 2435-36. Hall immediately retrieved a 9-millimeter handgun from a house used by the Ashford group and confronted Gales. Id. at 2436-37. This confrontation culminated in Hall shooting at Gales, who got away despite being hit in the arm. Trial Tr. 1537-38; Trial Tr. 2438, 2620, 2659.
Tensions continued. At some point later that summer, Timmons and Gales saw the defendants driving down the street, in separate cars, and shot at one of them. Trial Tr. 2445, 2669-70.
The third attempted murder came a year later. On September 20, 2009, Hall and the petitioner were riding in a van driven by another associate of theirs, Willie Flowers, when they unexpectedly saw Gales and other members of the Atkins group in a car. Trial Tr. 2240-42; Trial Tr. 2463-64, 2638-39. The petitioner had Flowers drive around the block, and the petitioner took a 9-millimeter from Hall, saying that he would "show [Hall] how to shoot." Trial Tr. 2463-64. When they came back around the block, they saw that the car had parked, and Flowers drove past it. Id. at 2465. The car then began following their van, including through a U-turn, at which point the petitioner had Flowers execute another U-turn and stop the van in the middle of the street. Id. The petitioner jumped out of the van and fired the gun at the car containing Gales and his associates. Id. at 2465-66. Gales and another man were hit. Trial Tr. 2242; see also Trial Tr. 1540-41.
In addition to the testimony about those shootings, there was also witness testimony that could support a jury finding that the petitioner had used a machinegun
After a two-week trial, the jury rendered a unanimous verdict of guilty on all counts for both defendants. Of relevance in this matter, the jury found the petitioner guilty of (1) racketeering, in violation of 18 U.S.C. § 1962(c); (2) unlawful use, possession, brandishing, and discharge of one or more firearms, including a machinegun, in furtherance of racketeering, in violation of § 924(c)(1); (3) three counts of attempted murder (of Gales, of Timmons, and then of Gales again) in aid of racketeering, in violation of § 1959(a)(5); and (4) three counts of unlawful use, possession, brandishing, and discharge of one or more firearms, in furtherance of attempted murder in aid of racketeering, in violation of § 924(c)(1).
Under 28 U.S.C. § 2255, a federal prisoner may petition his sentencing court to "vacate, set aside, or correct [his] sentence" "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." § 2255(a). Generally speaking, however, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). One important exception to this rule is that "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Id. at 509.
Here, the petitioner pro se seeks to set aside his sentences on his 18 U.S.C. § 924(c)(1) convictions, because, he argues, they were imposed in violation of his constitutional rights— namely, his Fifth Amendment right to due process and his Sixth Amendment right to assistance of counsel. For the reasons discussed below, they were not, so I deny the petition.
The Fifth Amendment's guarantee of due process is violated when the government imposes criminal penalties under a "law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States, 135 S.Ct. 2551, 2556 (2015). In Johnson, the Supreme Court considered § 924(e)(2)(B)(ii), which defined "violent felony" as a felony that "involves conduct that presents a serious potential risk of physical injury to another." See 135 S. Ct. at 2555-56. The Court ruled that this "residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges" and therefore that "[i]ncreasing a defendant's sentence under the clause denies due process of law." Id. at 2557.
The petitioner was sentenced not under § 924(e) but under § 924(c), which provides for increased sentences for the use of firearms in connection with "any crime of violence or drug trafficking crime." § 924(c)(1)(A). For this purpose, the statute defines "crime of violence" as one that "is a felony" and:
§ 924(c)(3). The petitioner received increased sentences under § 924(c)(1) based on my ruling at trial that his charges of racketeering and of attempted murder in aid of racketeering were crimes of violence.
The petitioner argues that these sentences should be vacated because attempted murder is not a crime of violence as defined in § 924(c)(3)(A) and because, in light of Johnson, § 924(c)(3)(B) is impermissibly vague. Mot. 5, ECF No. 306.
As a threshold matter, the government objects that this claim is "procedurally barred," as the petitioner failed to raise it in his direct appeal to the Second Circuit. Gov't Br. 6, ECF No. 310. The petitioner explains that his failure to raise this claim on direct appeal was due to the Johnson decision coming down after his trial was complete. Mot. 5. The petitioner was sentenced on January 8, 2015, and Johnson was decided on June 26, 2015 (135 S.Ct. 2551). But the petitioner's appeal was not filed in the Second Circuit until November 6, 2015 (see Brief and Appendix for Appellant Antoine Mayes, Mayes, 650 F. App'x 787 (No. 13-2331)), and the petitioner offers no justification for failing to raise this argument then. Because the argument was available to the petitioner at the time of his direct appeal, he is likely barred from raising it now. See United States v. Thorn, 659 F.3d 227, 233 (2d Cir. 2011).
Nevertheless, even were it not procedurally barred, the petitioner's argument would fail on the merits. Since the briefing of the instant petition, binding case law has resolved some of the issues that the petitioner presents. First, in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), the Supreme Court ruled that another, more similar statutory "crime of violence" definition was also unconstitutionally vague. Id. at 1223.
More recently, however, the Second Circuit decided United States v. Barrett, ___ F.3d ____, No. 14-2641-cr, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), a case that is even more directly on point, as it pertains to § 924(c)(3) itself. See 2018 WL 4288566, at *1. In Barrett, the Second Circuit distinguished the statutes at issue in Johnson and Dimaya as being applied by courts to determine whether "crimes . . . of prior conviction fit federal definitions of violent crimes so as to expose a defendant to enhanced penalties or other adverse consequences in subsequent federal proceedings." Id. at *12. By contrast, the court explained, § 924(c)(3) "is not concerned with prior convictions. It pertains only to § 924(c)(1) crimes of pending prosecution." Id. Therefore, "the trial jury, in deciding whether a defendant is guilty of using a firearm `during and in relation to any crime of violence,' can decide whether the charged predicate offense is a crime of violence as defined in § 924(c)(3)(B)." Id. (quoting § 924(c)(1)(A)). That obviates any due-process concerns, because "no constitutional vagueness inheres in a substantial-risk definition of a crime of violence when applied to case-specific conduct." Id. at *10.
In this case, of course, the question whether attempted murder was a crime of violence was not submitted to the jury. But the evidence at trial was that the petitioner encouraged, ordered, or participated in three attempted murders, each of which involved the victims being shot. It was thus "harmless error beyond a reasonable doubt" to "fail[] to submit a § 924(c)(3)(B) inquiry to the jury." Id. at *14. "[T]he trial evidence here admits no rational finding but that [each attempted murder] was a crime of violence under [§ 924(c)(3)(B)]". Id.
The remainder of the petitioner's arguments pertain to his contention that he received ineffective assistance of counsel.
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient." Strickland v. Washington, 466 U.S. 668, 687 (1984). "The court must then determine whether, in light of all the circumstances," the complained-of conduct fell "outside the wide range of professionally competent assistance." Id. at 690. "Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The petitioner bears the burden of making both showings. If the court can "dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice," then it "need not determine whether counsel's performance was deficient." Id. at 697.
Here, the petitioner argues that his trial counsel was ineffective for: (1) failing to object to the jury instruction regarding § 924(c), (2) failing to conduct effective cross-examination of Hall and Johnson, (3) failing to make a hearsay objection to a portion of Johnson's testimony, (4) failing to move for a judgment of acquittal on the machinegun charge for lack of sufficient evidence, and (5) failing to call a firearms-and-ballistics expert to testify at trial. Mot. 3-8. Each of these arguments fails.
As discussed above, at the conclusion of the trial, I instructed the jury that the petitioner's racketeering and attempted-murder charges were crimes of violence under § 924(c)(3) and thus, if the jury found the petitioner guilty of those charges, those charges could validly serve as predicate offenses for the petitioner's § 924(c)(1) charges. Trial counsel did not object.
The petitioner argues that counsel's failure to object constituted defective performance, citing United States v. McDaniels, 147 F.Supp.3d 427 (E.D. Va. 2015), which found that "[t]he phrase `crime of violence' is an element of § 924(c)—rather than a sentencing factor—and therefore `must be submitted to a jury and found beyond a reasonable doubt'" (id. at 432 (quoting Alleyne v. United States, 570 U.S. 99, 108 (2013))). The reasoning of McDaniels is well taken—particularly in light of Barrett—but submitting § 924(c)(3) determinations to the jury was simply not the practice in the Second Circuit at the time of the petitioner's trial. See United States v. Dervishaj, 169 F.Supp.3d 339, 344 n.8 (E.D.N.Y. 2016) (observing that those courts that have held "that a determination under § 924(c)(3) must be `submitted to a jury properly instructed as to the definition of a crime of violence' . . . are not . . . in the Second Circuit, which, up to now, has repeatedly applied the categorical approach to § 924(c)(3)(B)" (quoting United States v. Monroe, 158 F.Supp.3d 385, 392 (W.D. Pa. 2016))). Trial counsel's failure to object thus did not "f[a]ll below an objective standard of reasonableness." Strickland, 466 U.S. at 688; see, e.g., Fore v. Ercole, 594 F.Supp.2d 281, 305 (E.D.N.Y. 2009) ("[T]rial counsel could have reasonably believed that [the objection] would have been utterly futile . . ., and counsel cannot be deemed incompetent for failing to predict [a change in law].").
The petitioner argues that trial counsel had a "constitutional duty" to object even if he believed that it would have been "futile." Reply Br. 2 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). But the petitioner misapprehends Bousley. That case bars a habeas petitioner from bringing a claim that he failed to bring on direct appeal simply because the "claim was `unacceptable to that particular court at that particular time.'" 523 U.S. at 623 (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)). It says nothing about ineffective assistance of counsel. The standard for procedural default under Bousley is more exacting than Strickland's requirement that counsel be "reasonably competent." Sanchez v. Lee, No. 10 Civ. 7719(PKC)(AJP), 2011 WL 924859, at *33 (S.D.N.Y. Mar. 16, 2011) (quoting Harrington v. Richter, 562 U.S. 86, 110 (2011)), adopted by 2011 WL 3477314 (S.D.N.Y. Aug. 8, 2011), aff'd, 508 F. App'x 46 (2d Cir. 2013).
In any event, the petitioner suffered no prejudice, since the jury, had they been instructed as the petitioner now wishes, would surely have found that the three attempted murders did amount to crimes of violence. For the same reason that the failure to submit the § 924(c)(3)(B) determination to the jury was harmless error (see supra Section A), trial counsel's failure to object to the jury instruction did not prejudice the petitioner. This ineffective-assistance claim thus fails.
Next the petitioner asserts that trial counsel failed him through deficient cross-examination of Hall and Johnson. On cross-examination, trial counsel did not inquire into (a) Johnson's testimony that a "Tec" is "a fully auto gun" and that he heard that the petitioner "shot a block up with a Tec" (Trial Tr. 487), (b) Hall's testimony that the petitioner gave him a .357 that "was an automatic" (Trial Tr. 2435), or (c) Hall's confused testimony that he saw the petitioner either with an Uzi or with a Tec-9 (see id. at 2467-69). The petitioner argues that the "Tec" and the .357 in question were not automatic, and that trial counsel should have asked Johnson and Hall on cross-examination to describe these guns in order to determine whether they truly fit the statutory definition of a "machinegun." Mot. 7.
The government makes no cogent response to this argument.
"Decisions whether to engage in cross-examination, and if so to what extent and in what manner" "`fall squarely within the ambit of trial strategy, and, if reasonably made' cannot support an ineffective assistance claim." United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (quoting United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)). Here, the petitioner gives no indication that trial counsel had any idea that these were not automatic guns, without which there is no reason for trial counsel to have believed that further testimony about the guns would have helped his client's cause. With regard to Johnson's testimony, the petitioner also presents no basis for believing that cross-examination would have been fruitful. Johnson had no first-hand knowledge of the gun; he testified that he was "told" by Mayes Jr. that the petitioner had "shot a block up with a Tec." Trial Tr. 487. The petitioner would have had trial counsel ask Johnson whether "the particular `Tec' that coconspirator Anthony Mayes described" was "a `fully auto gun'" (Mot. 7), but the petitioner offers no evidence that Johnson wouldn't have affirmed that it was, or that he had been told that it was.
"Although it may have been preferable for [trial] counsel to pursue this line of questioning, the failure to do so does not rise to the level of deficient representation." Eze v. Senkowski, 321 F.3d 110, 127 (2d Cir. 2003). This claim is denied.
The petitioner also objects to trial counsel's lack of a response to Johnson's testimony in a second way: he argues that trial counsel should have objected that it was inadmissible hearsay. See Pet'r Br. 7, ECF No. 306-1. The government responds that the testimony was not hearsay because it "furthered the criminal conspiracy." Gov't Br. 9; see Fed. R. Evid. 801(d)(2)(E) (defining as not hearsay statements "offered against an opposing party" that are "made by the party's coconspirator during and in furtherance of the conspiracy"). In reply, the petitioner argues that Johnson's conversation with Mayes Jr. was merely "idle chatter." Reply Br. 3.
"[S]tatements between coconspirators that may be found to be in furtherance of the conspiracy include statements that provide reassurance, or seek to induce a coconspirator's assistance, or serve to foster trust and cohesiveness, or inform each other as to the progress or status of the conspiracy." United States v. Maldonado-Rivera, 922 F.2d 934, 958-59 (2d Cir. 1990). Among the types of statements that the Second Circuit has ruled further a conspiracy are those made to a coconspirator "to identify other co-conspirators" and "to inform [a coconspirator] about the persons with whom he would be working." United States v. Diaz, 176 F.3d 52, 87 (2d Cir. 1999). Mayes Jr.'s statements to Johnson about the petitioner could easily be classified as such.
Accordingly, "there were sound evidentiary bases for the admission of the challenged co-conspirator statements and, therefore, trial counsel was not ineffective for failing to object." Id. at 113. The claim fails.
The petitioner also argues that trial counsel should have moved for a judgment of acquittal on the ground that there was insufficient evidence for the jury to find the petitioner guilty of possessing a machinegun in furtherance of racketeering. Mot. 6. Trial counsel did move for a directed verdict after the trial, but the motion focused on the purported insufficiency of the evidence for a conviction on racketeering and, thus, on all the "racketeering-dependent counts." Pet'r's 29(c) Br. 2, ECF No. 208. That is, trial counsel attempted to obtain an acquittal for the petitioner on the vast majority of the counts on which he was found guilty, rather than the single machinegun count.
It was far from unreasonable for trial counsel to attempt to knock out at once nearly all the charges against his client—including the machinegun charge—rather than making a particular argument that would, if accepted, have reduced the petitioner's lengthy mandatory sentence by less than a third. Cf. 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 and raise only `the most promising issues for review.'" (quoting Jones v. Barnes, 463 U.S. 745, 752 (1983))), cert. denied, 138 S.Ct. 1309 (2018). With the benefit of hindsight, the petitioner may now wish that trial counsel had made a particular argument about the machinegun evidence, but trial counsel's failure to do so did not render his performance "objectively unreasonable." Id.
What is more, trial counsel's failure to raise this argument did not prejudice the petitioner. The court of appeals determined that "a reasonable jury could find that Antoine Mayes possessed a machinegun in furtherance of the racketeering enterprise." Mayes, 650 F. App'x at 789. Accordingly, there was no basis for a directed verdict of acquittal on this charge.
The petitioner's final ineffective-assistance argument is that trial counsel "agreed to obtain a firearms expert" but later, "without first discussing/consulting with" the petitioner, "decided not to call [the] firearms expert . . . to the stand." Pet'r Br. 9-10.
The Supreme Court has recently reaffirmed that trial decisions regarding "the objections to make, the witnesses to call, and the arguments to advance" "do not require client consent." McCoy v. Louisiana, 138 S.Ct. 1500, 1509 (2018) (quoting Gonzalez v. United States, 553 U.S. 242, 249 (2008)). It is true that "[i]mportant strategic and tactical decisions should be made only after a lawyer consults with his client." Virgin Islands v. Weatherwax, 77 F.3d 1425, 1436 (3d Cir. 1996). But even where no consultation occurs, the petitioner "has the burden of proving that the alleged lack of communication with counsel prejudiced his defense." Rosario v. Bennett, No. 01 Civ. 7142(RMB)(AJP), 2002 WL 31852827, at *30 (S.D.N.Y. Dec. 20, 2002).
The testimony that the petitioner asserts would have been provided by an expert witness would not have been proper expert testimony. See Fed. R. Evid. 702(a) (requiring that "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue"). That the petitioner must have possessed a gun that met the statutory definition of a "machinegun" in order to be convicted of the machinegun charge requires no specialized knowledge to understand, and moreover the jury was so instructed. Testimony from an expert to this effect would have been cumulative and unnecessary. Similarly, any lack of gun evidence at trial would have been apparent to the jury and could have been highlighted by trial counsel without the need for any expert testimony.
Because the petitioner has not explained what helpful testimony an expert witness would have offered, I find that trial counsel's failure to call an expert witness did not constitute ineffective assistance.
In addition to his substantive legal claims, the petitioner argues that, "in the interest of justice, judicial economy and time, an evidentiary hearing should be conducted" on his ineffective-assistance claims. Pet'r Br. 12.
A court may order "a hearing on an ineffective assistance of counsel claim" where a petitioner makes "a `plausible' claim of ineffective assistance of counsel." Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (quoting Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000)). "To obtain an evidentiary hearing," then, a petitioner "must establish that he has a `plausible' claim and must set forth in an affidavit specific facts supported by competent evidence, raising detailed and controverted issues of fact which, if proved at a hearing, would entitle him to relief." Boakye v. United States, No. 09 Civ. 8217, 2010 WL 1645055, at *6 (S.D.N.Y. Apr. 22, 2010) (quoting United States v. Tarricone, 996 F.2d 1414, 1418 (2d Cir. 1993)). "Airy generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing." United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987). And "no hearing is required where (1) the allegations of the motion, accepted as true, would not entitle the petitioner to relief; or (2) the documentary record renders a testimonial hearing unnecessary." Boakye, 2010 WL 1645055, at *6. In particular, where, as here, "the judge who tried the underlying proceedings also presides over a § 2255 motion, a full-blown evidentiary hearing may not be necessary." Raysor v. United States, 647 F.3d 491, 494 (2d Cir. 2011). "It is within the district court's discretion to determine whether a hearing is warranted." Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003); see also Jolaoso v. United States, 142 F.Supp.2d 306, 308 n.2 (E.D.N.Y. 2001) (finding no need to "invit[e] a response from counsel" except where "there is a real possibility that the claim may be upheld").
The petitioner is not entitled to a hearing. For the reasons already described (see supra Section B), even taking all the petitioner's factual, non-conclusory assertions as true, I find that the petitioner has not made out a plausible claim of ineffective assistance of counsel.
For the foregoing reasons, the petition is denied in full. Because the petitioner has not made "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), no certificate of appealability shall issue, although the petitioner may make such an application to the Second Circuit. The Clerk of Court is directed to enter judgment accordingly.
So ordered.
In any event, none of the grounds for relief presented in the § 2255 petition include prosecutorial misconduct. And to bring such claims now, the petitioner would need to "establish `cause and prejudice' or `actual innocence.'" Garafola v. United States, 909 F.Supp.2d 313, 328 (S.D.N.Y. 2012). His petition argues neither, and thus any implied prosecutorial-misconduct claims are procedurally barred.
