Frederick v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KISSONE FREDERICK,

Petitioner,

MEMORANDUM & ORDER

-against-

14-cv-4216(KAM)

UNITED STATES OF AMERICA,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

On July 14, 2014 pro se petitioner Kissone Frederick

(“petitioner”), currently incarcerated at USP Big Sandy in Inez,

Kentucky, filed this petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2255. (ECF No. 1, Motion to Vacate, Set

Aside or Correct Sentence (“Pet. Mot.”).) Petitioner challenges

his conviction for multiple counts of robbery in violation of

the Hobbs Act on the grounds that he did not receive effective

assistance of counsel in violation of the Sixth Amendment of the

United States Constitution, the trial court provided improper

jury instructions to the jury, and that he is actually innocent

of one of the crimes for which he was convicted. For the

following reasons, the court finds petitioner’s claims are

without merit and denies his petition.

BACKGROUND

Petitioner’s conviction and the instant habeas

petition relate to two armed robberies, one attempted and one

completed, that occurred in Brooklyn, New York on May 14, 2006.

On April 24, 2009, a federal grand jury returned a six-count

indictment charging defendant and others with a conspiracy to

commit Hobbs Act armed robbery, attempted Hobbs Act armed

robbery, Hobbs Act armed robbery, and three related weapons

charges. (United States of America v. Kissone Frederick, No.

09-cr-258 (KAM) (“Criminal Case”), ECF No. 1, Indictment.)1

Specifically, Count Two of the Indictment charged petitioner

with using a firearm in an attempt to rob a retail store known

as Satellite Communications, in violation of the Hobbs Act, 18

U.S.C. § 1951(a). (Id. Count Two.) Count Four charged

petitioner with the completed robbery of another retail store

known as Card Corner, also in violation of the Hobbs Act. (Id.

Count Four.) Given petitioner’s prior felony conviction, his

alleged use of a firearm in connection with a robbery and

attempted robbery resulted in additional charges. (Id. Count

Three (18 U.S.C. § 924(c)(1)(A)(i)), Count Five (18 U.S.C. §

924(c)(1)(A)(ii)), Count Six (18 U.S.C. §§ 922(g)(1),

924(a)(2)).)

1 Unless noted otherwise, all citations to “ECF No. _” refer to the

electronic docket in Case No. 14-cv-4216.

Petitioner was also charged by the Kings County

prosecutor in New York State Court for crimes relating to the

completed armed robbery of Card Corner described in Count Four

of the Indictment, but was not prosecuted in connection with the

attempted robbery of Satellite Communications described in Count

Two. (Criminal Case, ECF No. 10, Government Motion in Limine,

3.) On October 3, 2007, petitioner pleaded guilty in New York

State Court to a lesser-included offense of attempted robbery in

the second degree in full satisfaction of all state charges.

(Id.) Following petitioner’s state conviction, the government

received authorization from the Department of Justice under the

Petite Policy to prosecute the petitioner in federal court.

(Id.)2 Petitioner was subsequently indicted by a federal grand

jury. (See generally Indictment.)

Petitioner was represented at the plea and trial

stages by Ephraim Savitt, Esq. (“Savitt”). (Pet. Mot. 10.)

Savitt remained petitioner’s counsel in the Criminal Case until

July 14, 2010, when petitioner requested new counsel. (Criminal

2 Under the Petite policy, the Department of Justice endeavors to reduce

the incidence of “same offense” prosecutions by pursuing federal prosecution

“based on substantially the same act(s) or transaction(s)” previously

prosecuted in state court only if the first prosecution left a “substantial

federal interest . . . demonstrably unvindicated” and a Department senior

official authorizes the prosecution. Gamble v. United States, 139 S. Ct.

1960, 1995, 204 L. Ed. 2d 322 (2019) (citing Dept. of Justice, Justice Manual

§ 9–2.031(A) (rev. July 2009)).

Case, Minute Entry dated July 14, 2010.) The court initially

appointed Dawn M. Cardi, Esq. as CJA counsel to represent

petitioner in the Criminal Case, but one week later, Joyce C.

London, Esq. (“London”) replaced Ms. Cardi as petitioner’s

criminal counsel. (Criminal Case, Minute Entry dated July 21,

2010.) London represented petitioner during his sentencing in

the Criminal Case and on appeal. (See generally Criminal Case.)

Petitioner’s four-day jury trial commenced on December

7, 2009. (Criminal Case, Minute Entry dated Dec. 7, 2009.)

During petitioner’s trial, the government offered extensive

testimony by a cooperating witness and co-conspirator who was

the getaway driver for the robberies, video surveillance footage

and victim witness testimony providing direct evidence that a

firearm was used or possessed in connection with the attempted

Satellite Robbery, and petitioner’s sworn statements made in

state court during his guilty plea to attempted robbery in the

second degree for the Card Corner robbery. See United States v.

Frederick, No. 09-CR258(KAM), 2010 U.S. Dist. LEXIS 58560, at

*3-8 (E.D.N.Y. June 14, 2010); United States v. Frederick, 702

F. Supp. 2d 32, 38 (E.D.N.Y. 2009).

At trial, the parties stipulated that retail store

Satellite Communications “engaged in interstate commerce and

sold a variety of items including cellular telephones and

cellular telephone products that were manufactured outside of

the State of New York” and that retail store Card Corner Three

likewise “was engaged in interstate commerce and sold a variety

of items, including greeting cards, that were manufactured

outside the State of New York.” (Criminal Case, ECF No. 132-2,

Trial Transcript (“Tr.”) 470-71.)3

On December 9, 2009, after the parties’ closing

arguments, but prior to jury deliberations, the court learned

that a juror (“Juror Number Eight”) had reportedly expressed

concern for his own safety and that of his fellow jurors to the

courtroom deputy. (Tr. 578.) Juror Number Eight’s reported

concern was apparently precipitated by an exchange between the

petitioner and individuals associated with the petitioner

situated in the courtroom’s rear, and while the court and

counsel were occupied in a sidebar. (See Criminal Case, ECF No.

44, Juror Concern Ltr. 1; see also Tr. 578-79 (“[AUSA Carter]

Burwell: I was informed by a colleague from the United States

Attorney’s Office who said that after argument when we came up

for a sidebar, the defendant was making a lot of gestures toward

his - - who I believe to be friends and family and that caught

[Juror Number Eight’s] attention.”).) At sidebar, the parties

and the undersigned registered concern that Juror Number Eight

may have expressed his concerns in the presence of other jurors.

3 The Trial Transcript is filed on the docket as ECF Nos. 132, 132-1,

132-2, and 132-3, corresponding to four trial dates, December 7, 2009 through

December 10, 2009, respectively.

(See Tr. 584.) The government proposed the court conduct a

brief voir dire hearing to inquire whether Juror Number Eight

made any statements, whether the juror discussed safety concerns

with fellow jurors, and whether Juror Number Eight’s concerns,

if any, would impact his ability to be fair and impartial.

(Juror Concern Ltr. 1.)

On the morning of December 10, the court held a closed

voir dire hearing with counsel and summoned Juror Number Eight

to appear. (Tr. 612.) Petitioner was present as well. (Id.

608:14.) At the hearing, Juror Number Eight testified to the

undersigned that he had indeed reported certain misgivings to

the courtroom deputy about the presence of individuals in the

courtroom gallery at petitioner’s trial. (Id. 614.) Juror

Number Eight informed the court that his concerns were not based

on any specific gestures or statements, that he had confined his

comments solely to the courtroom deputy, and that he had no

doubt that he could perform his duty as a juror to render a

verdict fairly and impartially based only on the evidence and

the law. (Id. 615-16, 620.) Juror Number Eight also confirmed

that he had not shared his concerns with other jurors, and that

no other jurors had shared similar concerns with him. (Id.

621.) Petitioner’s counsel, Savitt, nonetheless requested that

the court excuse Juror Number Eight “in the excess of caution,”

(id. 623), notwithstanding Savitt’s concession that Juror Number

Eight had likely provided candid testimony to the court. (Id.

622.) The court granted Savitt’s request, excused Juror Number

Eight, and replaced him with an alternate juror. (Id. 632-33.)

Later on December 10, 2009, the undersigned charged

the jury with instructions, which had been discussed at a

charging conference, and following deliberations, the jury

returned a verdict convicting petitioner on all six counts of

the Indictment. (Id. 633-84, 698-99.)4 On June 19, 2012, the

petitioner, now represented by London, was sentenced to 32 years

in custody, based on statutory mandatory minimums of 25 years

pursuant 18 U.S.C. § 924(c)(1)(C)(i), and 7 years pursuant to 18

U.S.C. § 924(c)(1)(A)(ii). (Criminal Case, ECF No. 121, Minute

Entry dated June 19, 2012; id., ECF No. 123, Judgment; see also

id., ECF No 127, Sentencing Transcript 20:11, 36:5-8.) On June

26, 2012, London filed a notice of appeal to the Second Circuit

on behalf of petitioner. (Id., ECF No. 125, Notice of Appeal.)

On May 24, 2013, the Court of Appeals issued a mandate affirming

the trial court’s judgment. (Id., ECF No. 134, USCA Mandate.)

4 The government subsequently moved to dismiss Count Six of the

Indictment because petitioner was not apprised prior to trial of the

possibility that he could be deemed an Armed Career Criminal under the ACCA

if he were convicted of Count Six for being a felon in possession of a

firearm, and that such a designation would subject the defendant to a

mandatory 15-year sentence under 18 U.S.C. § 924(e)(1). (Criminal Case, ECF

No. 113, Memorandum & Order Denying Def.’s Rule 33 Motion for New Trial, 51-

52; id., ECF No. 120, Order Granting Motion to Dismiss Count Six.)

PROCEDURAL HISTORY

On July 14, 2014, petitioner filed the present

petition to vacate, set aside, or correct his sentence and

conviction. (Pet. Mot.) Petitioner brings this petition on

seven grounds, five of which are claims of ineffective

assistance of counsel. Specifically, petitioner asserts he

received ineffective assistance of counsel from:

(1) London, for her failure to appeal petitioner’s robbery

conviction on double jeopardy grounds;

(2) London, for her failure to raise jury contamination

claims on appeal;

(3) Savitt, for his failure to secure petitioner’s

presence during the “voir dire, in camera hearing of

juror number 8”;

(4) London, for her failure to bring an ineffective

assistance of counsel claim against Savitt for his

stipulation to the interstate commerce element of

petitioner’s Hobbs Act offenses;

(5) Savitt and London, respectively, for failing to raise

the proper cooperating witness jury instruction during

trial, and for failing to appeal petitioner’s

conviction on the basis of an improper cooperating

witness jury instruction.

In addition, petitioner claims that:

(6) the court’s aiding and abetting jury instruction

created a structural error by lowering the

government’s burden of proof; and

(7) he is actually innocent of the sentence he received

for brandishing a firearm.

(See generally id.)

Petitioner also requested that the court order London

to submit an affidavit responding to petitioner’s claims of

ineffective assistance of counsel. (Id. at 20, 24.) On August

21, 2014, the court issued an order instructing London and

Savitt to respond to petitioner’s allegations within 30 days of

the date of the order and requiring the government to show cause

why petitioner’s motion should not be granted. (ECF No. 3,

Order to Show Cause, ¶¶ 1-2.) London and Savitt filed responses

to the Order to Show Cause on September 19, 2014 and December

12, 2014, respectively, contesting petitioner’s claims that they

provided ineffective assistance of counsel. (ECF No. 4, London

Decl.; ECF No. 7, Savitt Ltr.)

On January 28, 2015, the government filed its response

to petitioner’s motion, arguing that neither Savitt nor London

rendered ineffective assistance of counsel, that petitioner’s

claims regarding the alleged improper jury instructions are

hopelessly vague, and asserting petitioner is not innocent of

brandishing a firearm. (See generally, ECF No. 10, Gov. Opp.)

On April 23, 2015, petitioner filed his reply. (ECF No. 12,

Petitioner’s Traverse (“Pet. Reply”).)

There was no activity on the docket for approximately

one year following petitioner’s response until May 6, 2016, when

petitioner filed a letter requesting that the court expedite

judgment in the instant case, as petitioner has not “heard

anything for a year.” (ECF No. 15, Petitioner’s Ltr.) From

June 2016 through September 2019, there were various delays and

updates in the case due to pending Second Circuit and Supreme

Court decisions that petitioner believed would affect his

petition.

First, on June 9, 2016, an Assistant Federal Defender

assigned to petitioner’s case informed the court of petitioner’s

intent to amend his motion to include claims of due process

violations at conviction and sentencing, pursuant to Johnson v.

United States, 135 S. Ct. 2551 (2015). (ECF No. 17, Fed.

Defender Ltr.) On October 20, 2017, the court then ordered that

the government file a response to the Federal Defenders’ June 9,

2016 letter. (Order dated Oct. 20, 2017.)

Second, on October 24, 2017, petitioner filed a

consent motion to stay proceedings in light of a pending

rehearing petition for the Second Circuit’s decision in United

States v. Hill, 832 F.3d 135 (2d Cir. 2016). The consent motion

asserted that, in light of Johnson, petitioner’s convictions on

Counts Three and Five, for violations of 18 U.S.C. § 924(c),

should be vacated since “Hobbs Act robbery . . . no longer

qualifies as a ‘crime of violence.’” (ECF No. 20, Consent Mot.

1.)5 Citing the Second Circuit’s acknowledgement in Hill that

5 Petitioner argued that in light of Johnson, his convictions on the §

924(c) counts should be vacated because Hobbs Act robbery no longer qualifies

there was a deep circuit split on the issue of whether Johnson

invalidated the residual clause in 18 U.S.C. § 924(c), the

consent motion explained that the continued validity of Hill,

and the Supreme Court’s then-pending decision in Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), could potentially vacate

petitioner’s convictions on Counts Three and Five of the

Indictment. (Id. 1-2.)

The court granted the motion to stay, and the parties

were ordered to advise the court of the Second Circuit’s

disposition of Hill within two business days of the court’s

final decision and how the parties wished to proceed. (Order

dated Oct. 25, 2017.) On May 17, 2018, following the Second

Circuit’s amended opinion in United States v. Hill, 890 F.3d 51,

52 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019), the

court ordered the parties to file a letter advising as to how

they intended to proceed. (Order dated May 17, 2018.) On May

18, 2018, the parties filed another consent motion to stay

petitioner’s case pending the Federal Defenders’ amended motion

in Hill for a rehearing or rehearing en banc. (ECF No. 21,

Consent Motion (2nd) 2.) The court granted the parties’ motion

and continued the stay. (Order dated May 18, 2018.)

as a “crime of violence,” which is an essential element of the charged §

924(c) crime. (Id.)

Third, on September 6, 2018, petitioner filed a motion

to stay pending the resolution of another Second Circuit case,

United States v. Barrett, No. 14-2641, involving the related

question of whether attempted Hobbs Act robbery qualifies as a

crime of violence under § 924(c). (ECF No. 22, Motion to Stay

3.) The court denied the motion; however, by consent of the

parties, the court ordered that the stay remain in effect until

the Second Circuit issued a mandate in the Barrett case. (Order

dated Sept. 18, 2018.)

On April 3, 2019, the court ordered the parties to

file a joint status report as to how they intended to proceed.

(Order dated Apr. 3, 2019.) On April 5, 2019, petitioner sought

leave to voluntarily dismiss his Johnson-based claims without

prejudice, and requested that the court proceed with

petitioner’s remaining claims, originally filed pro se. (ECF

No. 24, Ltr. Requesting Dismissal.) The court granted

petitioner’s request and lifted the stay, deeming the

petitioner’s motion ripe for adjudication. (Order dated May 8,

2019.)

Then, on September 16, 2019, petitioner moved to amend

his motion to challenge his § 924(c) convictions in light of

Barrett’s holding that, pursuant to the Supreme Court’s decision

in United Sates v. Davis, 139 S.Ct. 2319 (2019), Hobbs Act

conspiracy is not a crime of violence, which led the Barrett

court to vacate a § 924(c) conviction premised on conspiracy to

commit Hobbs Act robbery. (ECF No. 26, Motion to Amend.) The

court nevertheless denied petitioner’s motion to amend, and

noted that the Second Circuit in Barrett had affirmed the

defendant’s other counts of conviction under § 924(c) that were

based on the predicate offense of substantive Hobbs Act robbery.

(Order dated Oct. 15, 2019.) Because petitioner’s two counts of

conviction pursuant to § 924(c) were predicated on his two

counts of substantive Hobbs Act robbery, and not his single

count of conspiracy to commit Hobbs Act robbery, Barrett’s

holding would not relieve petitioner from his § 924(c)

convictions and sentence, rendering an amendment futile. (Id.)

Therefore, what remains for the court’s review are

petitioner’s original pro se claims that pre-date his June 9,

2016 amendment.

LEGAL STANDARD

A prisoner in federal custody may challenge the

validity of his sentence by petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct

his sentence on the basis “that the sentence was imposed in

violation of the Constitution or laws of the United States, or

that the court was without jurisdiction to impose such sentence,

or that the sentence was in excess of the maximum authorized by

law, or is otherwise subject to collateral attack.” 28 U.S.C. §

2255(a); Reisman v. United States, No. 12–CV–291, 2013 WL

5774592, at *3 (E.D.N.Y. Oct. 24, 2013) (citing Adams v. United

States, 372 F.3d 132 (2d Cir. 2004)). Collateral relief from a

final judgment is available only “for a constitutional error, a

lack of jurisdiction in the sentencing court, or an error of law

or fact that constitutes ‘a fundamental defect which inherently

results in a miscarriage of justice.’” United States v. Bokun,

73 F.3d 8, 12 (2d Cir.1995) (quoting Hill v. United States, 368

U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). The grounds

for relief under § 2255 are limited out of “respect for the

finality of criminal sentences, the efficient allocation of

judicial resources, and an aversion to retrying issues years

after the underlying events took place." Davis v. United

States, No. 13-CR-986, 2019 WL 1533073, at *2 (S.D.N.Y. Apr. 9,

2019) (quoting Bokun, 73 F.3d at 12).

Section 2255 petitions must be filed in the district

court “which imposed the sentence” being challenged. 28 U.S.C.

§ 2255(a). Additionally, prisoners may not use Section 2255 as

a substitute for a direct appeal. Marone v. United States, 10

F.3d 65, 67 (2d Cir. 1993) (citing United States v. Frady, 456

U.S. 152, 165 (1982)). Generally, with the exception of

ineffective assistance claims, “a claim may not be presented in

a habeas petition where the petitioner failed to properly raise

the claim on direct review.” Zhang v. United States, 506 F.3d

162, 166 (2d Cir. 2007) (citation omitted). “Where a defendant

has procedurally defaulted a claim by failing to raise it on

direct review, the claim may be raised in habeas only if the

defendant can first demonstrate either ‘cause’ and actual

‘prejudice,’ or that he is ‘actually innocent.’” Bousley v.

United States, 523 U.S. 614, 622 (1998) (citations omitted).

Further, it is well established that Section 2255 may

not be used to litigate issues that have been decided adversely

to a defendant on direct appeal. United States v. Sanin, 252

F.3d 79, 83 (2d Cir. 2001); see Reese v. United States, 329 F.

App'x 324, 326 (2d Cir. 2009); United States v. Natelli, 553

F.2d 5, 7 (2d Cir. 1977) (per curiam) (“[O]nce a matter has been

decided adversely to a defendant on direct appeal it cannot be

relitigated in a collateral attack under section 2255.”). “[A]

petitioner may bring an ineffective assistance of counsel claim

[in a petition pursuant to Section 2255] whether or not the

petitioner could have raised the claim on direct appeal.” Mui

v. United States, 614 F.3d 50, 54 (2d Cir. 2010) (citing Massaro

v. United States, 538 U.S. 500, 509 (2003)).

In reviewing the instant petition, the court is

mindful that “[a] document filed pro se is to be liberally

construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(internal quotation marks and citations omitted); Williams v.

Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (noting that courts

should review pro se habeas petitions with a lenient eye).

Accordingly, the court is obliged to interpret petitioner's

pleadings as raising the strongest arguments they suggest.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Martin v.

United States, 834 F. Supp. 2d 115, 119 (E.D.N.Y. 2011) (citing

Williams, 722 F.2d at 1050).

In ruling on a motion under § 2255, the district court

is required to hold a hearing "[u]nless the motion and the files

and records of the case conclusively show that the prisoner is

entitled to no relief." 28 U.S.C. § 2255(b). A hearing is not

required where the allegations are "vague, conclusory, or

palpably incredible." Machibroda 131 v. United States, 368 U.S.

487, 495 (1962). Therefore, to warrant a hearing, the motion

“must set forth specific facts supported by competent evidence,

raising detailed and controverted issues of fact that, if proved

at a hearing, would entitle him to relief.” Gonzalez v. United

States, 722 F.3d 118, 131 (2d Cir. 2013).

DISCUSSION

Petitioner filed the instant petition for a writ of

habeas corpus to vacate his conviction for violations of 18

U.S.C. § 1951(a) and 18 U.S.C. § 924(c). Petitioner brings the

writ on seven grounds, five of which are for his counsels’

alleged ineffective assistance during trial and on appeal, one

for alleged improper jury instruction by the court, and one for

alleged actual innocence of his sentence of brandishing a

firearm. The government argues that petitioner’s claims are

vague and conclusory, thereby meriting no habeas relief pursuant

to 28 U.S.C. § 2255. For the reasons stated below, the petition

is DENIED.

I. Ineffective Assistance of Counsel

The Sixth Amendment protects the right of a criminal

defendant “to have the Assistance of Counsel for his defense.”

U.S. Const. amend. VI. The Constitution thus requires that a

defendant receive “effective assistance of counsel.” McMann v.

Richardson, 397 U.S. 759, 771 (1970). In considering ineffective

assistance of counsel claims, the Second Circuit has held that a

defendant “need establish only that he has a ‘plausible’ claim

of ineffective assistance of counsel, not that ‘he will

necessarily succeed on the claim.’” 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)).

In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court articulated a two-prong test to determine whether

an attorney has provided ineffective assistance of counsel. “A

[petitioner] claiming ineffective assistance must (1)

demonstrate that his counsel's performance ‘fell below an

objective standard of reasonableness' in light of ‘prevailing

professional norms,’ and (2) ‘affirmatively prove prejudice’

arising from counsel's allegedly deficient representation.”

Grant v. Woods, 313 F. App'x 376, 377 (2d Cir. 2009) (citing

Strickland, 466 U.S. at 688, 693) (citations omitted). The

Strickland standard is both “highly demanding,” and “rigorous.”

Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Lindstadt v.

Keane, 239 F.3d 191, 199 (2d Cir. 2001).

The petitioner bears the burden of proving that both

Strickland prongs are met. Byrd v. Evans, 420 F. App'x 28, 30

(2d Cir. 2011) (citing Kimmelman, 477 U.S. at 381). In

considering the performance prong, a court must “indulge a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance.” Strickland, 466

U.S. at 689. Petitioners are tasked with overcoming “the

presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. (quoting

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

Under the prejudice prong, courts consider “whether

counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having

produced a just result.” Id. at 686. To establish prejudice, a

petitioner must demonstrate that “there is a reasonable

probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.” Henry v. Poole, 409

F.3d 48, 63–64 (2d Cir. 2005) (quoting Strickland, 466 U.S. at

695). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at

694. Where, as here, a petitioner challenges his sentence, “the

petitioner must show that but for counsel's ineffectiveness,

there is a reasonable probability that the sentence imposed

would have been different.” Martin, 834 F. Supp. 2d at 126

(citing United States v. Workman, 110 F.3d 915, 920 (2d Cir.

1997)).

When faced with an ineffective assistance of counsel

claim, the court must treat the allegation seriously and

determine whether a hearing is warranted. Under Section 2255,

“[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief,

the court shall cause notice thereof to be served upon the

United States attorney, grant a prompt hearing thereon,

determine the issues and make findings of fact and conclusions

of law with respect thereto.” Chang v. United States, 250 F.3d

79, 84 (2d Cir. 2001) (citing 28 U.S.C. § 2255). A court need

not hold a full evidentiary hearing if the defendant's assertion

is unsupported by the trial record and, as is the case here,

flatly contradicted by a detailed affidavit from his trial

lawyer. Id. at 86; Burkhardt v. Bradt, No. 12-CV-1919 (ADS),

2016 WL 7017363, at *10 (E.D.N.Y. Dec. 1, 2016) (“Section 2255

does not require ‘a full-blown testimonial hearing’ when the

district court can solicit written submissions sufficient to

adequately supplement the record.”). (See Savitt Ltr.; London

Decl.) Where there is sufficient evidence, the court is not

required to engage in “the delay, the needless expenditure of

judicial resources,” and the other burdens of a fruitless

hearing. Chang, 250 F.3d at 86; Lang v. United States, No. 02–

CR–1444, 2009 WL 4788430, at *2 (S.D.N.Y. Dec.9, 2009).

a. London’s Decision Not to Appeal on Double Jeopardy

Grounds

Petitioner claims that his state and federal

convictions are for the same offense, and therefore, London

provided ineffective assistance as petitioner’s trial counsel by

failing to raise a double jeopardy claim on appeal. (Pet. Mot.

1-6.) However, petitioner’s claim fails because his state and

federal convictions were not for the “same offense” according to

the standard set forth in Blockburger v. United States, 284 U.S.

299, 304 (1932).

The Fifth Amendment’s Double Jeopardy Clause provides

that “[n]o person shall . . . be subject for the same offence to

be twice put in jeopardy of life or limb[.]” U.S. Const. Amend.

V. Pursuant to Blockburger, “where the same act or transaction

constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof

of a fact which the other does not.” 284 U.S. at 304 (citing

Gavieres v. United States, 220 U.S. 338, 342 (1911)). “[T]he

critical double jeopardy inquiry is not factual, i.e., whether

the same conduct is at issue in charges brought under different

statutes, but legal, i.e., ‘whether the ‘offense’—in the legal

sense, as defined by Congress-complained of in one count is the

same as that charged in another.’” See also United States v.

Basciano, 599 F.3d 184, 198 (2d Cir. 2010) (quoting United

States v. Chacko, 169 F.3d 140, 147 (2d Cir. 1999)). “Multiple

counts based on identical facts, but different elements of law,

will not violate the double jeopardy clause.” United States v.

Walker, 314 F. Supp. 3d 400, 408 (E.D.N.Y. 2018) (citing

Gavieres, 220 U.S. at 342).

Applying the standards established by Blockburger and

Basciano, it is clear that defendant’s federal prosecution for

Hobbs Act robbery, conspiracy, and attempt, as well as the

federal firearm charge, 18 U.S.C. § 924(c), penalized different

conduct than the state charge on which petitioner was convicted.

Petitioner pleaded guilty in state court to attempted robbery in

the second degree in violation of New York Penal Law §§

160.10(1) and 110.00. (London Decl. ¶ 4.) A conviction for

attempted robbery in the second degree requires proof beyond a

reasonable doubt that defendant attempted6 to (1) forcibly steal

property and that (2) he was “aided by another person actually

present.” N.Y. Penal Law § 160.10(1).

Petitioner was charged and convicted in federal court for

Hobbs Act robbery, as well as conspiracy and attempt to commit

Hobbs act robbery. To convict a defendant under the Hobbs Act,

the government must prove beyond a reasonable doubt that the

defendant “obstruct[ed], delay[ed], or affect[ed] commerce or

the movement of any article or commodity in commerce,” by

robbery, extortion, or attempt or conspiracy to do the same. 18

U.S.C. § 1951(a). “Commerce” refers to interstate commerce, as

well as commerce within the District of Columbia or federal

territories. Id. § 1951(b)(3). Thus, petitioner’s convictions

for Hobbs Act robbery, conspiracy, and attempt each required the

government to prove a nexus with respect to interstate commerce

that his conviction for attempted robbery under New York law did

not. Likewise, petitioner’s conviction under 18 U.S.C. § 924(c)

required the government to prove that petitioner used, carried,

or possessed a firearm in furtherance of a crime of violence.

18 U.S.C. § 924(c)(1)(A). A conviction for second degree

robbery in New York, much less attempt, does not require the

use, carriage, or possession of a firearm, but only the use or

6 “A person is guilty of an attempt to commit a crime when, with intent

to commit a crime, he engages in conduct which tends to effect the commission

of such crime.” N.Y. Penal Law § 110.00.

threatened immediate use of physical force. See People v.

Lawrence, 141 A.D.3d 828, 830, 35 N.Y.S.3d 742, 745 (N.Y. App.

Div. 2016). Further, neither § 924 nor Hobbs Act robbery,

conspiracy, or attempt, require proof that petitioner was “aided

by another person actually present.” N.Y. Penal Law §

160.10(1).

Accordingly, the court finds that the statutory

provision underlying petitioner’s state conviction and federal

convictions each require proof of a fact that the other does

not, and that petitioner’s federal prosecution did not run afoul

of the Double Jeopardy Clause. London claims that she did not

assert a double jeopardy argument on appeal because she did not

believe “there was a viable factual basis for a post-conviction

claim that the federal indictment presented a double jeopardy

issue.” (London Decl. ¶ 4.) Given the comparison of the federal

and state provisions at issue, the court agrees. Thus, London’s

decision not to appeal petitioner’s conviction on double

jeopardy grounds did not fall below an objective standard of

reasonableness. Nor did her failure to bring such a claim

prejudice petitioner, as such a claim would have been futile.

In addition, petitioner’s reliance on United States v.

Mills, 412 F.3d 325 (2d Cir. 2005), is misplaced. Petitioner

argues that he had a right to counsel “prior to the admission of

the charges at the federal level even though he had plead[ed]

guilty in the State Court with different counsel,” and,

therefore, where counsel attaches, his guilty plea at the state

level should not have been admitted into evidence at the federal

level. (Pet. Reply 3-4.) In Mills, the Second Circuit held

that statements obtained in violation of a defendant’s right to

counsel in state proceedings must be suppressed in federal

proceedings as well where the two proceedings are for the “same

offense.” Id. at 327. The panel construed the term “same

offense” in accord with the Blockburger standard, and reasoned

that since “Sixth Amendment violations are offense specific . .

. evidence obtained in violation of the Sixth Amendment is not

admissible in subsequent prosecutions for the ‘same offense’ as

defined by Blockburger.” Id. at 330.

Petitioner does not appear to be arguing, least of all

meritoriously, that the statements he made in his state court

guilty plea violated his Sixth Amendment right to effective

assistance of counsel. In any event, because petitioner’s state

and federal proceedings were not for the same offense, as

defined by Blockburger, petitioner’s argument is unavailing.

b. London’s Decision Not to Seek a New Trial Based on

Jury Contamination

Petitioner claims that London rendered ineffective

assistance of counsel by failing to raise a motion for a new

trial in light of the “jury contamination” that resulted from

Juror Number Eight’s comments. (Pet. Mot. 7.) Petitioner

contends that excusing Juror Number Eight was insufficient to

cure the prejudice caused by “the comment, and demeanor the

juror had at the time, which spread in the eyes, ears and minds

of the other jurors during the trial.” (Id.) London states in

her declaration that she did not believe there to be a viable

argument for a new trial based on Juror Number Eight’s

statements, and that her review of the voir dire hearing

transcript “did not reveal a factual basis for challenging”

Savitt’s conduct. (London Decl. ¶ 6.)

In Remmer v. United States, the Supreme Court stated

that “[i]n a criminal case, any private communication, contact,

or tampering, directly or indirectly, with a juror during a

trial about the matter pending before the jury is, for obvious

reasons, deemed presumptively prejudicial.” 347 U.S. 227, 229

(1954). The presumption is not, however, conclusive, and the

“burden rests heavily upon the Government to establish . . .

that such contact with the juror was harmless to the defendant.”

Id. Where there are concerns regarding jury contamination, “the

trial court should not decide and take final action ex parte . .

., but should determine the circumstances . . . in a hearing

with all interested parties permitted to participate.” United

States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (quoting

Remmer, 347 U.S. at 229-30). Further, “the duty to investigate

[jury contamination] arises only when the party alleging

misconduct makes an adequate showing of extrinsic influence to

overcome the presumption of jury impartiality.” Id. In order

to succeed in a motion for a post-trial jury hearing, a party

must therefore present “clear, strong, substantial and

incontrovertible evidence . . . that a specific, non-speculative

impropriety has occurred.” United States v. Sun Myung Moon, 718

F.2d 1210, 1234 (2d Cir. 1983) (citing King v. United States,

576 F.2d 432, 438 (2d Cir.), cert. denied, 439 U.S. 850 (1978)).

Petitioner supports his claim of jury contamination

with prolix citation to the December 9, 2009 transcript of

counsel’s side bar, during which the court and the parties

discussed Juror Number Eight’s reported comments. (Pet. Mot,

ECF pp. 47-49 (citing Tr. 582-84).) Petitioner does not

otherwise identify any portion of the transcript excerpt, or any

other specific allegations, that would suggest Juror Number

Eight’s reported comments “spread in the eyes, ears and minds of

the other jurors during the trial.” (Pet. Mot. 21.) But to the

extent this concern was raised at sidebar on December 9, it was

assuaged the following day, in the petitioner’s presence, at the

December 10 voir dire hearing in which Juror Number Eight gave

clear and unequivocal testimony that he had not discussed his

concerns with any other juror:

THE COURT: All right. Do you have any reason to believe

that any of your fellow jurors share any of your concerns?

THE JUROR: No.

THE COURT: Has anyone else discussed this or articulated

such a concern in your presence?

THE JUROR: No.

THE COURT: Have you discussed this with any other juror?

THE JUROR: No.

. . .

THE COURT: All right. Well, sir, again I would just direct

you not to discuss this with anybody.

THE JUROR. I won’t.

(Tr. 621-22.)

Savitt found Juror Number Eight’s testimony to be

“entirely candid,” but nevertheless requested the court excuse

Juror Number Eight “in the excess of caution” to avoid potential

prejudice to petitioner. (Id. 622-23.) Following Juror Number

Eight’s removal, the court addressed the remaining jurors by

informing them that Juror Number Eight had been excused, asking

by show of hands if they could be fair and impartial, and if

there were any other concerns the jurors harbored. (Id. 633-

34.) No hands were raised. (Id. 634.)

Petitioner proffers no other facts, such as affidavits

from the other jurors, to demonstrate that there was jury

contamination. If London were to have made this claim on

appeal, petitioner would have had to substantiate his claim, and

courts in the Second Circuit have consistently refused to allow

a defendant to investigate "jurors merely to conduct a fishing

expedition." Ianniello, 866 F.2d at 542 (quoting United States

v. Moten, 582 F.2d 654, 667 (2d Cir. 1978)). Accordingly,

petitioner has not demonstrated that London’s failure to move

for a new trial on appeal based on alleged jury contamination

rendered her performance unreasonable.

c. Savitt’s Failure to Secure Petitioner’s Presence

During the In Camera Hearing of Juror Number Eight

Relatedly, petitioner argues that Savitt rendered

ineffective assistance of counsel by failing to secure

petitioner’s presence at the “voir dire in Camera hearing” of

Juror Number Eight. (Pet. Mot. 11.) However, the trial

transcript indicates that petitioner was present during the

December 10, 2009 voir dire hearing:

(The following takes place out of the presence of the

jury.)

THE CLERK: . . . Please state your appearances.

. . .

THE DEFENDANT: Good morning.

. . .

THE COURT: . . . Let me just say this, we have asked Juror

Number Eight to be held downstairs in the central jury

room, he’s not in the jury room with the other jurors,

specifically for the purpose of conducting a voir dire of

this juror which we can do here in open court, unless

anyone has an objection about that.

. . .

(Juror Number Eight enters courtroom.)

(Tr. 608-12.)

Petitioner appears to actually be arguing that he should

have been present during the December 9, 2009 sidebar, where the

court and parties first addressed Juror Number Eight’s reported

comments, and not the December 10, 2009 voir dire hearing. This

inference is supported by petitioner’s claim that had he “been

present and heard the courtroom deputy say ‘the other jurors

were present,’. . . he would have asked counsel Mr. Savitt to

have the courtroom deputy bring out all the jurors that were

exposed to juror number 8’s utterance of fear by serving.”

(Pet. Mot. 11.) This quote is drawn from transcript of the

December 9, 2009 sidebar, (Tr. 584:23-24), not the voir dire

hearing. Therefore, interpreting petitioner’s pro se motion

“liberally” and construing his contentions “to raise the

strongest arguments presented,” Burgos v. Hopkins, 14 F.3d 787,

790 (2d Cir. 1994), the court will address petitioner’s claim

that he should have been present during the sidebar.

“Due process requires that a defendant be present at all

stages of the trial ‘to the extent that a fair and just hearing

would be thwarted by his absence, and to that extent only.’”

United States v. Rosario, 111 F.3d 293, 298 (2d Cir. 1997)

(quoting Snyder v. Massachusetts, 291 U.S. 97, 108 (1934)).

Rule 43 of the Federal Rules of Criminal Procedure codifies this

right, and provides that a criminal defendant shall be present

“at every stage of the trial.” Fed. R. Crim. P. 43(a); see also

Rogers v. United States, 422 U.S. 35, 38-39 (1975) (a criminal

defendant has the right to be present from the time that a jury

is impaneled until it is discharged after rendering the

verdict). However, a defendant’s right to be present may be

waived, either expressly or implicitly. United States v.

Fontanez, 878 F.2d 33, 36 (2d Cir. 1989); see also Fed. R. Crim.

P. 43(c)(1)(A). Defendant’s waiver must be made both knowingly

and voluntarily. United States v. Reiter, 897 F.2d 639, 642 (2d

Cir. 1990).

A criminal defendant may be found to have knowingly

and voluntarily made an implied waiver of the right to be

present through his conduct. United States v. Peterson, 385

F.3d 127, 138 (2d Cir. 2004) (criminal defendant waived right to

be present at judge’s meeting with a juror since defense counsel

and defendant did not object before the judge met with the juror

nor after the meeting was completed); United States v. Jones,

381 F.3d 114, 122 (2d Cir. 2004) (finding that defendant waived

his right to be present from an in chambers hearing because he

did not raise an objection, despite having the opportunity to do

so and “neither he, nor his old counsel, or his new counsel

raised the issue until” appeal); Cohen v. Senkowski, 290 F.3d

485, 491 (2d Cir. 2002) (criminal defendant waived his right to

be present “because neither he nor his counsel objected to his

absence from the pre-screening” of jurors).

The trial transcript supports the inference that

petitioner waived his right to be present during the December 9,

2009 sidebar:

THE COURT: Okay. Maybe – I don’t know if your client has a

right to be here during these discussions –

MR. SAVITT: I’ll give him a synopsis of what we’re

discussing but it seems to me that, you know, this is a

critical portion of the trial.

THE COURT: It is very critical.

MR. SAVITT: And he really should be present for these

discussions.

THE COURT: Yes.

. . .

MR. SAVITT: And I’m not objecting to the side-bar at all

because I will advise my client about our discussion right

now.

(Tr. 599.)

The colloquy between the court and Savitt, and the

relevant facts of petitioner’s case, virtually mirror the fact

pattern in Zaire v. Mitchell, No. 93 CIV. 6626 (MBM), 1996 WL

82391 (S.D.N.Y. Feb. 27, 1996). In Zaire, the court denied a §

2254 habeas petition that alleged violations of petitioner’s

Sixth and Fourteenth Amendment rights based on his non-presence

at a sidebar during voir dire. Id. at *1-2. The court held

that the petitioner had waived his right to be present at the

sidebar because his counsel was at the sidebar, petitioner was

present at trial when the sidebar occurred, and neither he nor

his counsel objected to his absence from the sidebar. Id. at

*2. Here, petitioner’s counsel was at the sidebar, petitioner

was present at trial, and neither he nor his counsel expressly

objected to his non-appearance at the sidebar. Savitt also

explicitly stated that he was “not objecting to the side[]bar at

all,” because he would advise petitioner of what occurred during

the sidebar. Petitioner thus knowingly and voluntarily waived

his right to be present at the December 9, 2009 sidebar, and

Savitt’s performance at the sidebar conformed to an objectively

reasonable standard of conduct.

Further, petitioner’s argument that his non-presence

at the sidebar was prejudicial strains all credulity and is

belied by his actual conduct. Petitioner claims that had he

been present at the sidebar, he would have asked Savitt to “have

the courtroom deputy bring out all the jurors that were exposed

to juror number 8’s utterance of fear by serving on the jur[y].

Petitioner would have then asked Counsel to sequester each juror

and call them one by one and inquire whether they can still set

[sic] impartial after hearing juror number 8’s utterance.”

(Pet. Mot. 11-12.) Petitioner was present during the actual

voir dire hearing of Juror Number Eight, which captured the

substance of Juror Number Eight’s comments, and thus, the

underlying issues discussed at the December 9 sidebar. Juror

Number Eight explicitly denied making any remarks to anyone

about his concerns. There is no indication that after Savitt

advised petitioner about what transpired at sidebar, petitioner

asked Savitt to have the courtroom deputy bring out all the

jurors, as he now claims he would have had he been present

during the sidebar.

Assuming petitioner had asked Savitt to conduct a voir

dire of each juror, Savitt’s failure to adhere to such a request

likely would not have been prejudicial. In fact, the government

and Savitt credibly contend that individual questioning of other

jurors would have likely caused greater prejudice to petitioner.

(Savitt Ltr. 3 (“The Court was correct in reaching the

conclusion that it is best not to tamper with an offhand remark

by one juror to a courtroom deputy because an individualized

inquiry of all the jurors would have actually instilled fear

where none was evident.”); Gov. Opp. 3-6 (citing Savitt Ltr.);

see also Juror Concern Ltr. 3 (“The government believes . . .

there is no need for the Court to conduct individual voir dire

of any of the other members of the jury. To the extent that a

statement made by the juror could have affected another juror,

the Court’s Final Jury Instructions may be the most appropriate

place to resolve that concern.”) (citation omitted).) The court

agrees that the approach ultimately taken—excusing Juror Number

Eight and confirming that the remaining jurors did not consider

their ability to render a fair and impartial verdict

compromised—allowed the issue to be “diffused gently and

appropriately.” (Savitt Ltr. at 3.) Thus, petitioner has

failed to adequately demonstrate prejudice under Strickland.

d. London’s Failure to Appeal on the Basis of Savitt’s

Stipulation to Interstate Commerce Element

At trial, Savitt stipulated that both the Satellite

Communications and Card Corner retail stores were “engaged in

interstate commerce,” (Tr. 470), a necessary element of Hobbs

Act robbery that the government has the burden of proving beyond

a reasonable doubt. See 18 U.S.C. § 1951(a). Petitioner argues

that London provided ineffective assistance of counsel by

failing to raise an ineffective assistance of counsel claim

against Savitt for his decision to stipulate to the interstate

commerce element necessary to prove a violation of Title 18

U.S.C. § 1951. (Pet. Mot. 15-16.)

To reiterate, courts “must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance . . . that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U.S. at 689 (quoting Michel, 350 U.S. at 101).

Therefore, “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually

unchallengeable.” Id. at 690. Cases in this circuit that have

decided ineffective assistance of counsel claims7 have held that

decisions made by defense counsel regarding stipulations

constitute “reasonable trial strateg[ies].” United States v.

Berkovich, 168 F.3d 64, 68 (2d Cir. 1999) (finding that because

defense counsel was also able to benefit from a stipulation, the

stipulation was part of a reasonable trial strategy.); Chen v.

United States, No. 03-CR-734-4 (DAB), 2016 WL 519617, at *6

(S.D.N.Y. Feb. 3, 2106) (finding that petitioner failed to

demonstrate that counsel’s failure to object to a certain

stipulation was objectively unreasonable).

Petitioner has failed to articulate even a single

reason why Savitt’s stipulations were objectively unreasonable.

London states that, based on her “legal research on the

interstate commerce element and [her] review of the trial

record,” she “did not believe there was a viable argument that

the items stolen during the course of the charged conduct had

such an insignificant effect on interstate commerce as to not

establish that element.” (London Decl. ¶ 8.) According to

London, she made a “tactical decision” not to pursue a claim of

ineffective assistance of counsel against Savitt for stipulating

7 Ineffective assistance of counsel claims in this circuit, for both

purposes of habeas petitions and direct appeals, use the same two-pronged

test from Strickland. See United States v. Nersesian, 824 F.2d 1294, 1320

(2d Cir. 1987).

that the targets of petitioner’s attempted and completed

robberies were engaged in interstate commerce. Id.

Petitioner claims he did not know or understand that

Savitt made the stipulation, and baldly asserts that but for the

stipulation the charges against petitioner “would have been

dropped.” (Pet. Mot. 16.) Petitioner was present, however,

when Savitt made the stipulation, and he did not object at the

time. Petitioner does not claim that Savitt never informed

petitioner of Savitt’s intention to stipulate. Moreover,

petitioner fails to articulate any basis to doubt the contents

of the stipulations themselves, i.e., that the retail stores in

question were not actually engaged in interstate commerce. At

bottom, it appears Savitt acted like most “[e]xperienced defense

attorneys” who “routinely stipulate to undisputed facts in order

to maintain credibility with the jury when challenging other

aspects of the prosecution case.” United States v. Gaskin, 364

F.3d 438, 469 (2d Cir. 2004).

Petitioner has failed to demonstrate that either

Savitt’s or London’s conduct fell below an objectively

reasonable standard or that, but for Savitt’s stipulation or

London’s decision not to appeal on the basis of Savitt’s

decision to stipulate, the charges against him actually “would

have been dropped.” Accordingly, petitioner’s claim that London

rendered ineffective assistance of counsel on appeal by failing,

in turn, to claim that Savitt rendered ineffective assistance of

counsel by stipulating to the interstate commerce element of the

Hobbs Act, fails.

e. Informant Jury Instruction

Petitioner’s fifth ineffective assistance of counsel

argument arises from Savitt’s purported “fail[ure] to raise the

proper informant jury instruction” at trial, and London’s

failure to assert Savitt’s alleged failure as a basis for

appeal. (Pet. Mot. 23.) Petitioner contends that there was no

proper informant jury instruction that would instruct the jury

to pay special attention to a cooperating individual because

they may have incentives to “fabricate a story in return for

freedom.” (Id. 25.) The court cannot discern whether

petitioner is claiming no instruction was given at all, or that

the instruction actually given was defective. If petitioner

asserts the former, his contention is patently wrong, as the

excerpts below demonstrate. If petition asserts the instruction

was defective, then his claim is belied by precedent.

The record reflects that all draft jury instructions

were posted on the docket, affording counsel the opportunity to

discuss and raise objections to the instructions at a charging

conference, (see Tr. 91-99, 353-71), including the following

instruction regarding the only cooperating witness at trial,

filed on the docket on December 8, 2009:

Testimony of Cooperating Witnesses

You have heard the testimony of Garreth Hickman, who

testified under an agreement with the government…Under that

agreement, Mr. Hickman agreed to testify and the government

promised not to further prosecute him in a federal court

for his criminal conduct . . . [Y]ou should bear in mind

that a witness who has entered into such an agreement has

an interest in this case different from any ordinary

witness. A witness who realizes that he may be able to

avoid further prosecution for his criminal conduct by

giving testimony favorable to the prosecution may have

motive to testify falsely. Therefore, you must scrutinize

his testimony with caution and weigh it with great care.

(Criminal Case, ECF No. 43, Jury Instructions Draft 9.)

At trial, the court charged the jury with a

substantially identical instruction, but went beyond the draft

excerpt cited above by equipping the jury with suggested

questions with which to probe and critically assess the veracity

of the cooperator’s testimony:

You should ask yourselves whether the witness would

benefit more by lying, or by telling the truth. Was his

testimony made up in any way because he believed or hoped

that he would somehow receive favorable treatment by

testifying falsely? Or did he believe that his interests

would be best served by testifying truthfully? If you

believe that the witness was motivated by hopes of personal

gain, was the motivation one which would cause him to lie,

or was it one which would cause him to tell the truth? Did

this motivation color his testimony? If, after examining

his testimony, you decide to accept it, you may give it

whatever weight, if any, you find it deserves.

(Tr. 645-47.)

The court’s instruction in petitioner’s criminal case

comports with the standard in this circuit for cautionary

instructions concerning cooperating witnesses. In United States

v. Vaughn, the Second Circuit considered the propriety of the

following jury charge regarding a cooperator that had testified

against the defendant-appellant:

There has been evidence that Winston Barnett, who testified

at this trial, lied under oath at another proceeding. The

testimony of Winston Barnett should be viewed cautiously

and weighed with great care. However, it is for you to

decide how much of his testimony, if any, you wish to

believe.

You have heard testimony about an agreement between the

government and a witness, Winston Barnett. It is no concern

of yours why the government made an agreement with Winston

Barnett. Your sole concern is whether Winston Barnett has

given truthful testimony here in this courtroom before you.

In evaluating the testimony of Winston Barnett, you should

ask yourselves whether he would benefit more by lying or by

telling the truth. If, after scrutinizing his testimony,

you decide to accept it, you may give it whatever weight,

if any, you find it deserves.

430 F.3d 518, 521 (2d Cir. 2005). Then-Circuit Judge Sotomayor,

writing for the panel, acknowledged that “[a] more detailed . .

. cooperating witness instruction would not have been improper,”

and might have been prudent, id. at 524, but stopped short of

mandating that trial courts “do more than convey to the jury

that the testimony of cooperating witnesses should be subjected

to scrutiny in terms of their possible motivations, particularly

where defense counsel argues to the jury that a cooperating

witness’s interest in the case bears on his or her credibility.”

Id. at 523. The instruction in petitioner’s case went beyond

the bar set by Vaughn. The court provided the jury with

suggested questions in order to assist the juror with thoroughly

scrutinizing the cooperator’s testimony and gauging the

witness’s truthfulness.

In light of Vaughn, the petitioner cannot support his

claim that the jury was charged with an improper cooperating

witness instruction. The court also credits London’s assessment

that appealing on the basis of the court’s instruction would

have been futile. Accordingly, the court finds that both London

and Savitt’s performance adhered to the standards set by

Strickland, and that the court’s instruction was not prejudicial

to petitioner. Petitioner’s fifth ineffective assistance of

counsel claim thus fails.

II. Improper Aiding and Abetting Jury Instruction

Petitioner claims that the trial court’s jury

instruction with respect to aiding and abetting “shifted” the

government’s burden of proof, thereby creating a “structural

error.” (Pet. Mot. 17-18.) The government contends that

petitioner has “fail[ed] to articulate how this alleged burden

shifting occur[ed] and cites to no law contravening the Court’s

‘aiding and abetting’ instruction.” (Gov. Opp. 5.) The court

agrees.

Petitioner argues that the court’s instruction

improperly shifted the government’s burden of proof by stating

that “the state of mind intent by Petitioner did not have to be

proven in order to find him guilty.” (Pet. Mot. 18.)

Petitioner purports to quote the court’s instruction to the jury

in his motion, but a review of the transcript reveals that

petitioner’s entire argument rests on his omission from the

court’s actual jury charge, which states:

It is important for you to understand what is and is not

sufficient to make one an aider and abetter. To find a

defendant guilty as an aider and abettor of a crime, you

must find that the government has proven beyond a

reasonable doubt that some person actually did commit the

crime charged . . . You must then determine whether the

defendant knowingly and willfully sought by his actions to

make any of those crimes succeed. I have already

instructed you on what it means to act knowingly and

willfully, and you should apply those definitions.

(Tr. 671-72 (emphasis for text omitted from petitioner’s

proffered charge).)

As is clear from the text of the court’s actual jury

charge with respect to aiding and abetting liability, the court

did instruct the jury that they had to find the government

proved petitioner had the requisite state of mind. Petitioner’s

claim thus lacks any basis in law or fact and does not warrant

relief.

III. Actual Innocence

Finally, the court addresses petitioner’s claim that

he is actually innocent of “brandishing a firearm” in violation

of 18 U.S.C. § 924(c). During sentencing, the court noted that

according to Harris v. United States, 536 U.S. 545 (2002),

brandishing “need not be alleged in the indictment submitted to

the jury, or proved beyond a reasonable doubt.” (Criminal Case,

ECF No. 127, Sentencing Tr. 21.) The court found that the

evidence at trial clearly established that petitioner brandished

a firearm in connection with the attempted robbery at Satellite

Communications and that petitioner should be subject to a seven-

year mandatory minimum consecutive sentence, instead of the five

year mandatory minimum. (Id. 20.)

Petitioner bases his claim of innocence on the recent

Supreme Court decision in Alleyne v. United States, 570 U.S. 99

(2013), (see Pet. Mot. 21-23), which overruled Harris, and held

that “facts that increase mandatory minimum sentences must be

submitted to the jury.” Alleyne v. United States, 570 U.S. 99,

117 (2013). The government contends the Supreme Court’s

decision in Alleyne does not apply retroactively to cases on

collateral review in the absence of any express statement of

retroactive application by the Supreme Court. (Gov. Opp. 6.)

The Second Circuit’s decision in United States v.

Redd, 735 F.3d 88 (2d Cir. 2013), conclusively resolves the

parties’ dispute in the government’s favor. In Redd, the

petitioner filed a § 2255 habeas petition claiming that the

district court violated the principle espoused by Alleyne when

it found by a preponderance of the evidence that the type and

quantity of drugs involved in the petitioner’s cocaine offense

warranted an increased mandatory minimum sentence. Id. at 89.

The Second Circuit explained that there are two categories of

new rules that may have retroactive effect: “[1] new substantive

rules that place ‘certain kinds of primary, private individual

conduct beyond the power of the criminal law-making authority to

proscribe’; [2] and new procedural rules that ‘are implicit in

the concept of ordered liberty.’” Id. at 91 (citations and

quotations omitted). The Second Circuit found that the rule

promulgated from Alleyne falls within neither of those

categories, and because the Alleyne rule is not retroactive on

collateral review, petitioner’s motion was groundless. Id. In

light of this clear precedent, the court denies petitioner’s

claim of actual innocence of brandishing a firearm.

CONCLUSION

Based on the foregoing, the petition for a writ of

habeas corpus is DENIED in its entirety. Petitioner has failed

to state a plausible claim for ineffective assistance of counsel

with respect to either his trial or appellate counsel.

Petitioner has also failed to state a plausible claim that the

court gave the jury improper jury instructions. Petitioner’s

claim that he is actually innocent for the sentence he received

for brandishing a firearm is contrary to precedent in this

circuit. Thus, no evidentiary hearing is warranted and the

petition for a writ of habeas corpus is DISMISSED.

The clerk is respectfully directed to send a copy of

this Memorandum and Order to the petitioner at his last known

address and note service on the docket.

SO ORDERED.

Dated: Brooklyn, New York

December 30, 2019

_________/s/ __________

Hon. Kiyo A. Matsumoto

United States District Judge