Key v. United States

| USDC SDNY

| DOCUMENT

ELECTRONICALLY FILED

i DOC #:

UNITED STATES DISTRICT COURT i} BATE Fite:

SOUTHERN DISTRICT OF NEW YORK

Se Soe □ tine

UNITED STATES OF AMERICA,

-against- | 12-Cr-712-1 (SHS)

18-Cv-7716 (SHS)

ROGER KEY,

Petendent

eg OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

In 2014, after a two-week trial, a jury convicted Roger Key of six

charges related to drug trafficking and two conspiracies to commit

murder-for-hire. This Court sentenced Key to life imprisonment plus 30

years. The U.S. Court of Appeals for the Second Circuit affirmed. United

States v. Babilonia, 854 F.3d 163 (2d Cir. 2017), cert. denied sub nom., 138 S.

Ct. 438 (2017). In 2018, Key, acting pro se, timely petitioned the Court to

vacate his sentence through two procedural mechanisms: 28 U.S.C. § 2255

and Federal Rule of Civil Procedure 60(b) and (d). (Doc. Nos. 640, 645.) For

the reasons that follow, petitioner’s motions fail to establish that he is

entitled to relief and are therefore denied.

I. BACKGROUND

In February 2014, Key was indicted on nine offenses in a superseding

indictment. (Doc. No. 330.) The indictment included charges related to a

narcotics conspiracy involving firearms (Counts I-II), the conspiracy and

attempted murder-for-hire of Matthew Allen—the abusive boyfriend of

Key’s lover Aisha Babilonia (Counts IIJ]~V)—and the conspiracy and

murder-for-hire of Terry Harrison, a rival drug dealer of Key’s (Counts

VI-IX).

In March 2014, Key proceeded to trial. The government put on a

substantial case revealing that Key became a high-level drug distributor in

Manhattan and the Bronx beginning in 2010, when he was released from a

period in custody. The government’s case also included significant

evidence that Key and others plotted to have Harrison and Allen killed.

The government called 25 witnesses, including six cooperating witnesses.

It introduced wiretap recordings of Key and coconspirators, narcotics

paraphernalia, the gun used in the Allen attempted murder, a GPS device

that coconspirators placed on Allen’s car, bank records, phone and cell site

records, and vehicular records. The defense elected not to call any

witnesses. On April 2, 2014, the jury rendered its verdict, convicting Key

on Counts I-VI (the drug trafficking charges, the Allen murder-for-hire

charges, and the conspiracy to commit the Harrison murder-for-hire) and

finding him not guilty on Counts VII-IX (the other Harrison murder-for-

hire charges).

In March 2015, the Court sentenced Key to life imprisonment on Count

I, 10 years concurrently on Counts III, IV, and VI, five years consecutively

on Count II, and 25 years consecutively on Count V. The Second Circuit

upheld Key’s convictions on direct appeal, observing the significant and

substantial evidence at trial against him. Babilonia, 854 F.3d at 181; id. at

173 (“The government called approximately 25 witnesses . . . and

introduced wiretap records and physical records, including narcotics

paraphernalia, a firearm, a photograph of items seized during the Car

Stop, cell site records, phone records, Department of Motor Vehicle

records, and bank records.”). The U.S. Supreme Court denied Key’s

subsequent petition for a writ of certiorari. Key v. United States, 138 S. Ct.

438 (2017). Within 28 U.S.C. § 2255(f)’s one-year limitation period, Key

filed the present motions. See Rosa v. United States, 785 F.3d 856, 859 (2d

Cir. 2015).

II. DISCUSSION OF KEY’s SECTION 2255 MOTION

Pursuant to 28 U.S.C. § 2255, the Court may vacate a petitioner's

judgment if it determines “that the sentence imposed was not authorized

by law or otherwise open to collateral attack, or that there has been such a

denial or infringement of the constitutional rights of the prisoner as to

render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b).

Petitioner raises three avenues for relief in his Section 2255 motion. First,

he offers myriad rationales for why his trial counsel’s representation was

constitutionally inadequate. Next, he maintains that recent Supreme Court

precedent renders one of the statutes that he was convicted of violating

impermissibly vague. Finally, Key asserts that if the Court disposes of

some of the counts against him, it must grant him a new trial on the

remaining charges, due to the prejudicial impact of trying the drug and

murder-for-hire charges simultaneously. As set forth below, none of

petitioner’s arguments state plausible claims for relief.

A. Ineffective Assistance of Counsel

Key’s central argument accuses his trial counsel of inadequate

representation. To succeed on a claim of ineffective assistance of counsel, a

petitioner must show that (1) his counsel performed below an objective

standard of reasonableness and (2) but-for the deficiencies in counsel’s

representation, there exists a reasonable probability that the proceeding’s

outcome would have differed. Morales v. United States, 635 F.3d 39, 43 (2d

Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 688, 692-94 (1984)).

Key must overcome a “strong presumption” that his attorney’s conduct

fell within the acceptable range of professional assistance and constituted a

reasonable trial strategy. Weingarten v. United States, 865 F.3d 48, 52 (2d Cir.

2017) (citation omitted); United States v. Nunez-Polanco, 20 F. Supp. 3d 473,

477 (S.D.N.Y. 2014); United States v. Brunshtein, 545 F. Supp. 2d 357, 359-60

(S.D.N.Y. 2008). To satisfy the prejudice prong, Key must demonstrate a

probability that sufficiently undermines confidence in the verdict. Id. Key

fails to show that but-for the alleged deficiencies, considered alone or

cumulatively, his convictions or sentence would have differed.

1. Failure to Advise During Plea Negotiations

First, Key claims that he received ineffective representation during the

plea-bargaining process. “Defense counsel have a constitutional duty to

give their clients professional advice on the crucial decision of whether to

accept a plea offer from the government.” Pham v. United States, 317 F.3d

178, 182 (2d Cir. 2003). “Even if the trial itself is free from constitutional

flaw, the defendant who goes to trial instead of taking a more favorable

plea may be prejudiced from either a conviction on more serious counts or

the imposition of a more severe sentence.” Lafler v. Cooper, 566 U.S. 156,

166 (2012).

According to Key, his attorney learned about incriminating cell-site

location information (CSLI) evidence the night before trial. (Tr. 1317-18,

1356-63.)! Because counsel allegedly had not known about this evidence,

he did not investigate it. Thus, the attorney did not adequately advise Key

about the weight of the government's case against him during earlier plea

negotiations. In fact, Key alleges, he does not even recall his “lawyer

advising [him] of the plea offer or what it was.” (Doc. No. 660, Second Key

Aff. { 4.) Had Key known how inculpatory the CSLI was, he avers, he

would have “accepted the plea offer extended pre-trial.” (Id.; see also Doc.

No. 640, First Key Aff. ¥ 3.)

The Court “need not accept .. . at face value” Key’s uncorroborated

statements that his counsel failed to inform him about the government's

plea offer. Samet v. United States, 559 F. App’x 47, 49 (2d Cir. 2014). His

claim is particularly incredible since the government stated clearly on the

record during a pre-trial conference, at which Key was present, that an

oral plea offer was made and had been rejected. (Doc. No. 380, Hr’g Tr. 2,

76.)

Regardless, Key cannot establish that he suffered any prejudice. Key

must show a reasonable probability that a plea offer would have been

presented to and accepted by the Court, and that his conviction or

sentence would have been less severe. Fulton v. Graham, 802 F.3d 257, 266

(2d Cir. 2015). “[A] defendant may not rely solely on his own, self-

serving statement post-verdict that he would have accepted a more

favorable plea deal.” United States v. Bent, 654 F. App’x 11, 13 (2d Cir.

2016). Thus, Key’s promises, alone, that he would have pled are

1 The government disputes this characterization, contending that it produced cell

phone records on a rolling basis beginning in 2012. (Id. at 1358, 1361.) The exchange

Key references involves an exhibit—produced the night prior—about the previously

disclosed CSLI evidence, which the government called a demonstrative and the

defense characterized as an improper expert report. (Id. at 1317.) The Court admitted

this exhibit as a demonstrative. (Id. at 1362.)

insufficient. Additional “objective” evidence is required. Raysor v. United

States, 647 F.3d 491, 495 (2d Cir. 2011).

Such evidence “may include a significant sentencing disparity

between the sentence imposed and the sentence that effective counsel

would have obtained for the defendant.” Bent, 654 F. App’x at 13. Key

points to the sentence of Ruben Davis, a co-conspirator who pled and

received a 228-month sentence, as a plausible comparator. The

government contends that Davis’s plea offer is inapposite, because unlike

Key, Davis faced no charges related to murder-for-hire. (Doc. No. 93.)

Thus, Key received a more punitive pre-trial oral plea offer. Key’s

“suggestion that he would have received a sentence similar to those of his

cooperating co-defendants is based on pure speculation, particularly since

he has not demonstrated that he would have cooperated to a degree

satisfactory to the government.” Zandi v. United States, 460 F. App’x 51, 52-

54 (2d Cir. 2012) (rejecting, without a hearing, defendant’s argument,

based on his sworn affidavit, that he would have accepted a plea offer).

Because Key has not made any showing of “what sentence he would have

received pursuant to a plea agreement,” id. at 53, he has not demonstrated

that he experienced prejudice as a result of any deficiencies in his counsel’s

representation during plea bargaining.

2. Failure to Suppress CSLI

Next, Key faults his trial counsel for not moving to suppress the CSLI,

which the government obtained without a search warrant supported by

probable cause. Four years after Key’s trial, the Supreme Court held that

the Fourth Amendment required such a warrant to collect CSLI. Carpenter

v. United States, 138 S. Ct. 2206, 2223 (2018). Although Key may wish that

his attorney had been more prescient, “attorneys are not required to

predict changes in the law.” United States v. Carrano, 340 F. Supp. 3d 388,

2 Moreover, the Court finds it particularly improbable that Key would have pled with

more knowledge of the CSLI given the mountain of evidence against him. See

Babilonia, 854 F.3d at 173 (listing the evidence at Key’s trial, including 25 witnesses,

wiretap, bank, phone, and Department of Motor Vehicle records, narcotics

paraphernalia, and a firearm).

397 (S.D.N.Y. 2018) (rejecting defendant’s Strickland argument that his

attorney should have preemptively moved to suppress CSLI before

Carpenter was issued).

Moreover, counsel’s lack of objection caused petitioner no prejudice.

“Where defense counsel’s failure to litigate a Fourth Amendment claim

competently is the principal allegation of ineffectiveness, the defendant

must also prove that his Fourth Amendment claim is meritorious and that

there is a reasonable probability that the verdict would have been different

absent the excludable evidence in order to demonstrate actual prejudice.”

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The government avers that

the CSLI evidence was obtained pursuant to orders issued under Section

2703(d) of the Stored Communications Act. The Second Circuit has held

that suppression is not required where law enforcement had collected

CSLI in good faith reliance on the then-existing legal regime. See United

States v. Herron, 762 F. App’x 25, 30-31 (2d Cir. 2019); United States v.

Chambers, 751 F. App’x 44, 46-48 (2d Cir. 2018); United States v. Zodhiates,

901 F.3d 137, 143-44 (2d Cir. 2018). In addition, as already discussed, the

significant amount of evidence presented at trial renders a different verdict

implausible even absent the CSLI.

3. Failure to Produce Witnesses Named in Opening Statement

Key is also critical of his trial counsel for promising two witnesses in

his opening remarks and then failing to produce them. In his opening

statement, defense counsel told the jury the evidence would show that

Babilonia received a text message from a man who implied that he had

killed Allen. (Tr. 39-41 (describing the text as stating “let’s leave what's in

the grave in the grave because I took care of your biggest headache”).) He

also told the jurors they would hear testimony from Michelle Smalls,

3 Key was charged with attempted murder-for-hire of Allen rather than murder-for-

hire itself because the individual tasked with murdering Allen failed to complete his

task in two ways: he shot the wrong person, and that person survived. See United

States v. Babilonia, 687 F. App’x 63, 66 (2d Cir. 2017); Def.-Appellant Babilonia’s Br. at

6-7, United States v. Babilonia, No. 14-3739 (2d Cir. Apr. 14, 2015). A few weeks later,

however, Allen was shot and killed. Id. at 7.

whose party promotion business with Key netted him $150,000. (Id. 45-46.)

Over the course of the trial, both Babilonia and Smalls stopped

cooperating with the defense. (Id. at 1442, 1092-93.) Trial counsel asked the

Court to direct the government to grant Babilonia immunity, or to allow

the text message to be admitted through a defense investigator. (Id. at

1443.) The Court recognized its lack of authority to order the government

to immunize a witness, and it excluded the text message on hearsay

grounds. (Id. at 1446, 1452.) With regard to Smalls, although she was

expected to testify at one point (id. at 1204), she never took the stand.

Key argues that his attorney’s actions harmed him in two ways. First,

Key claims that the failure to produce those two witnesses allowed the

jury to draw negative inferences from their absence. In support, he cites

First and Seventh Circuit cases that found prejudice where a critical

witness was named in an opening statement but never appeared. See

United States v. Gonzalez-Maldonado, 115 F.3d 9, 14-15 (1st Cir. 1997) (“If the

defense fails to produce promised expert testimony that is critical to the

defense strategy, a danger arises that the jury will presume that the expert

is unwilling to testify and the defense is flawed. . . . [T]he presumption

formed in the minds of the jury is prejudicial.”); Harris v. Reed, 894 F.2d

871, 877-79 (7th Cir. 1990); Anderson v. Butler, 858 F.2d 16, 17-19 (1st Cir.

1988) (“[L]ittle is more damaging than to fail to produce important

evidence that had been promised in an opening.”). Key believes that the

witnesses’ absences led the jury to disbelieve defense counsel's claims that

another person was responsible for Allen’s ultimate murder and that Key

earned substantial legitimate income through party promotions.

Moreover, Key continues, this inability to follow through likely led the

jury to distrust defense counsel in general, tainting the entire trial.

However, unlike in the cited cases, Babilonia and Smalls’s promised

testimony did not lie at the heart of Key’s defense. See United States v.

Mittal, No. 98 CR. 1302, 2000 WL 1610799, at *4 (S.D.N.Y. Oct. 27, 2000)

(contrasting the degree of the omission in that case with the major

missteps in Harris and Anderson). Key was not charged with Allen’s

murder—just an earlier conspiracy and botched attempt. Whether a third

person ultimately murdered Allen was not critical to the jury’s

determination on whether Key earlier conspired to have Allen killed. In

addition, the jury heard testimony that Key made money promoting

parties, with Smalls or otherwise. (Tr. 1216-17, 1219, 1415-16.) Besides,

engaging in a legitimate business venture is not incompatible with also

having illicit dealings. Key has not shown how the addition of testimony

from Babilonia or Smalls would have created a reasonable probability of

his acquittal. He also has not demonstrated a general diminishment of the

jury’s trust in defense counsel—a particularly difficult feat when Key was

acquitted on three counts.

Petitioner’s second argument is that his counsel’s conduct deprived

him of his right to testify. According to Key, he prepared his testimony to

align with that of Babilonia and Smalls. When they did not testify, neither

could he, because he was not prepared to offer a different defense. (First

Key Aff. { 4.) “[D]efense counsel has a duty to inform the defendant” of

his right to testify, including apprising him “of the benefits and risks of

testifying.” Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011); United

States v. Siddiqui, 699 F.3d 690, 705 (2d Cir. 2012). A failure to advise can

support a Strickland claim, as long as the defendant can show “a

reasonable probability that [petitioner’s] proposed testimony would have

altered the outcome of the trial.” Rega v. United States, 263 F.3d 18, 21 (2d

Cir. 2001). Besides the conclusory statement contained in his affidavit, Key

fails to explain how the absence of these two witnesses impacted his

testimony and what his proposed testimony would have included. And

again, these witnesses’ proffered testimony does little to exculpate Key.

Petitioner has not demonstrated a reasonable probability that the jury’s

verdict would have differed. .

4. Failure to Ask the Jury to Find Drug Quantity Beyond a

Reasonable Doubt

Key claims his counsel was ineffective for failing to ask that the jury

render its findings on the drug quantities implicated in Count I beyond a

reasonable doubt.t Because these findings increased the minimum sentence

to mandatory life, he contends the jury had to determine the drug amounts

at issue under the beyond a reasonable doubt standard pursuant to Alleyne

v. United States, 570 U.S. 99 (2013).

The government correctly observes that the mandatory nature of the

life sentence pursuant to Section 841(b)(1)(A) followed most immediately

from the filing of two prior felony informations. See 21 U.S.C.

§ 841(b)(1)(A) (2010).5 Key’s argument, properly understood, is as follows:

but-for the jury’s finding that Key conspired to distribute 280 grams or

more of crack cocaine and 5 kilograms or more of powder cocaine, he

would have been sentenced under Section 841(b)(1)(B). That provision

contains no requirement mandating a life sentence for a defendant with

two or more prior felony informations. 21 U.S.C. § 841(b)(1)(B) (2010)

(setting a 10-year mandatory minimum for one prior felony drug

conviction). Key also notes that the while the Court charged the jury with

finding the drug quantity unanimously, it did not expressly instruct that

the quantity had to be proven beyond a reasonable doubt. (Tr. 1987-88.)

And the special verdict form did not specify standards of proof.

Yet, the Court did repeatedly task the jury with finding that the

government proved its case beyond a reasonable doubt. (E.g., id. at 1942,

1945-47, 1949.) When instructing the jury on Count I specifically, the Court

directed the jury to determine whether the alleged conspiracy, if found

beyond a reasonable doubt, involved cocaine or crack cocaine beyond a

reasonable doubt. (Id. 1973-87.) When juries are charged with deciding the

amount of drugs involved in an offense and also receive numerous

4 Key also asserts that the Court violated his rights in this regard, but that claim is

procedurally defaulted. He did not raise this argument on direct appeal and has

established neither cause, prejudice, nor actual innocence. See, e.g., Gupta v. United

States, 913 F.3d 81, 84 (2d Cir. 2019). Petitioner’s ineffective assistance of counsel

claim, though, may be raised for the first time on collateral review. See, e.g., Harrington

v. United States, 689 F.3d 124, 129 (2d Cir. 2012).

5 The First Step Act of 2018 lowered the mandatory minimums required under this

provision, but those changes are not retroactive. Pub. L. No. 115-391, § 401(a)(2), (c),

132 Stat. 5194.

instructions about the government's burden of proof, they are presumed to

understand that they are obligated to find the quantities under that

standard. See United States Delarosa, 314 F. App’x 331, 332-33 (2d Cir. 2008);

accord United States v. Rivera-Ruperto, 852 F.3d 1, 11-12 (1st Cir. 2017);

United States v. Barbour, 393 F.3d 82, 89 (1st Cir. 2004). In the context of the

entire charge, the jury undoubtedly understood that its quantity

determination had to be proven beyond a reasonable doubt. Key fails to

explain how any objection by his trial counsel to expressly include that

language in the charge would have been reasonably likely to impact the

verdict.

5. Failure to Object to Prior-Offender Sentencing Enhancement

Key challenges the mandatory nature of his life sentence on another

ground: he believes his attorney should have objected to the Section

841(b)(1)(A) second-offender sentencing enhancement. When a person is

convicted of narcotics distribution pursuant to Section 841(a), with the

quantities of controlled substances outlined in subsection (b)(1)(A), a life

sentence must be imposed if the defendant has “two or more prior [final]

convictions for a felony drug offense.” 21 U.S.C. § 841(b)(1)(A) (2010).

Before trial, the government filed two prior felony informations pursuant

to 21 U.S.C. § 851. (Doc. Nos. 355, 366.) Had only one prior felony

information been filed, the statutory mandatory minimum on Count I

would have been 20 years. 21 U.S.C. § 841(b)(1)(A) (2010). Petitioner

argues that the offense specified in one of the prior felony informations did

not qualify as a “felony drug offense” for purposes of Section 841. Thus, he

says, the enhanced penalty was improperly applied, and his attorney was

ineffective for not objecting.

In 1995, Key was convicted in New York State court of three counts of

criminal sale of a controlled substance in the third degree, in violation of

New York Penal Law § 220.39. Key argues that Section 220.39 criminalizes

a broader category of conduct than the generic definition of a “felony drug

offense” for purposes of Section 841, rendering the use of the second prior

felony information to enhance his sentence improper.

Petitioner grounds his argument on Mathis v. United States, 136 S. Ct.

2243 (2016), decided after briefing but before oral argument in his direct

10

appeal. Mathis clarified and affirmed the existing analytical approach to

determine whether an offense constitutes a “violent felony,” for which

prior convictions carry a mandatory minimum under the Armed Career

Criminal Act (ACCA). Under that rule, the “categorical” approach, a past

crime can serve as an ACCA predicate only if its elements are the same as

or narrower than the elements of the generic version of the listed offense.

Id. 2247. The “categorical” approach applies to indivisible statutes, which

set out a single set of elements to define a single crime. Id. at 2248. For a

statute that lists elements in the alternative, defining multiple crimes, a

modified categorical approach must be taken, under which the particulars

of the past conviction come into play. Id. at 2249. Mathis clarified that

where statutes list different factual means of committing a single element,

the statute remains indivisible and the categorical approach is the correct

one. Id. at 2253, 2256. In support of his theory, Key also relies on Harbin v.

Sessions, 860 F.3d 58 (2d Cir. 2017), in which the Second Circuit determined

that a conviction for criminal sale of a controlled substance in the fifth

degree, in violation of New York Penal Law § 220.31, did not constitute—

under the categorical approach—an “aggravated felony” for purposes of

the Immigration and Nationality Act. Id. at 63-68.

Even assuming arguendo that the categorical analysis is appropriate

and applicable to New York Penal Law § 220.39, that statute’s elements do

not exceed the elements of the generic “felony drug offense.” Section

220.39 criminalizes “knowingly and unlawfully sell[ing]” one of a list of

types of substances.® Under the categorical approach, the elements are: (1)

knowingly and (2) unlawfully (3) selling (4) a substance that satisfies one

of those categories. Cf. Harbin, 860 F.3d 64-65. The definition of a “felony

drug offense” as used in Section 841(b)(1)(A) can be found in 21 U.S.C. §

802(44). See Burgess v. United States, 553 U.S. 124, 126 (2008). Section 802(44)

defines a felony drug offense according to two terms: (1) that it “is

punishable by imprisonment for more than one year”; and (2) that it

6 Section 220.39 has been amended since Key’s convictions in January 1995. 1995 N.Y.

Sess. Laws Ch. 75, § 7. (Doc. No. 366.) However, those changes do not affect the types

of substances enumerated. See id.

Lt

“prohibits or restricts conduct relating to narcotic drugs, marihuana,

anabolic steroids, or depressant or stimulant substances.”

On the first prong, Key was sentenced on these state charges to one to

three years’ imprisonment. (Doc. No. 366.) For the second, Key relies on

Harbin’s observation that the state law at issue there treated chorionic

gonadotropin as a controlled substance, while the federal law at issue did

not. 860 F.3d at 68. Harbin, however, involved federal and state statutes

that meaningfully differ from those involved in this case. Here, New York

law criminalizes the knowing and unlawful sale of narcotic drugs,

stimulants, hallucinogenic substances, LSD, methamphetamines, and

phencyclidine. N.Y. Penal Law § 220.39. Under Section 802(44), a felony

drug offense involves “narcotic drugs, marihuana, anabolic steroids, or

depressant or stimulant substances,” which include all of the controlled

substances named in the state statute. 21 U.S.C. § 802(44), (9), (16), (17),

(41). “By the plain terms of the relevant statutes, someone who has been

previously convicted of violating § 220.39(1) of the New York Penal Law is

someone who has ‘a prior conviction for a felony drug offense’ under §

851. There is no need to employ the ‘modified categorical approach’... .”

Williams v. United States, Nos. 03-cr-795, 14-cv-4055, 2017 WL 2389580, at *6

(E.D.N.Y. June 1, 2017) (rejecting petitioner’s claim that his conviction

under New York Penal Law § 220.39 could not serve as a predicate for the

prior-offender enhancement); see also Reeves v. United States, No. 96 CR 325,

2008 WL 4921764, at *3 (S.D.N.Y. Oct. 3, 2008) (striking down petitioner’s

argument that New York convictions for the criminal sale of a controlled

substance in the third degree, with sentences of one-to-three years, did not

qualify as a “felony drug offense” under Section 802(44)).

Thus, a violation of New York Penal Law § 220.39 constitutes a felony

drug offense that can serve as a predicate for the second-offender

sentencing enhancement. Cf. United States v. Roman, 464 F. App’x 32, 35 (2d

Cir. 2012) (finding that a “conviction for violation of New York Penal Law

§ 220.16(1) plainly qualifies as a felony drug offense under the categorical

approach,” where that law for criminal possession of a controlled

substance in the third degree contains a similar list to Section 220.39).

Because Key’s argument fails on the merits, he cannot establish any

prejudice caused by counsel’s omission of this argument at sentencing.

12

B. Impact of Johnson on Section 924(c) Conviction

In the wake of recent Supreme Court precedent finding similar

statutory language unconstitutionally vague, Key asks the Court to vacate

his conviction under Count V for violating 18 U.S.C. § 924(c): possessing,

using, or carrying a firearm during “any crime of violence or drug

trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The indictment set forth that

firearms charge in connection with Counts II and IV, which charged,

respectively, conspiracy to commit murder-for-hire and attempted

murder-for-hire. See 18 U.S.C. §§ 1958, 2. Section 924(c) defines a “crime of

violence” as a felony that “(A) has as an element the use, attempted use, or

threatened use of physical force against the person or property of another”

(the force clause) or “(B) that by its nature, involves a substantial risk that

physical force against the person or property of another may be used in

the course of committing the offense” (risk-of-force or residual clause). 18

U.S.C. § 924(c)(3).

The Supreme Court has struck down as unconstitutionally vague other

statutes’ risk-of-force clauses containing similar language. Sessions v.

Dimaya, 138 S. Ct. 1204, 1223 (2018) (striking the residual clause of 18

U.S.C. § 16(b)); Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (same

for 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act). Key

anticipates that Section 924(c)(3)’s risk-of-force clause suffers from the

same infirmity, an issue presently under consideration by the Supreme

Court. United States v. Davis, No. 18-431 (2019). He argues for vacating the

conviction because one of the predicate acts—Count III’s conspiracy

charge—does not qualify as a crime of violence under the force clause.

Although attempted murder-for-hire does, the jury did not return a special

verdict unanimously tying Count IV to the Section 924(c) conviction. See In

re Gomez, 830 F.3d 1225, 1227-28 (11th Cir. 2016).

Key’s claim is procedurally defaulted. Johnson, decided on June 2015,

was issued prior to Key filing his appellate brief in January 2016. Def.-

Appellant Key’s Br., United States v. Key, No. 15-1057 (2d Cir. Jan. 29,

2016). Yet he did not raise the Johnson argument. Thus, his argument is

defaulted. See Mayes v. United States, Nos. 1:12-CR-0385, 1:17-CV-6789,

2018 WL 4558419, at *4 (E.D.N.Y. Sept. 21, 2018) (finding a similar

13

argument likely procedurally barred where petitioner failed to raise the

argument in his direct appeal, filed after Johnson was decided); Forman v.

United States, Nos. 16 Civ. 5185, 15 Cr. 237, 2017 WL 1434477, at *2

(S.D.N.Y. Apr. 20, 2017) (finding procedural default where similar

argument was not raised on direct appeal); cf. Banol-Ramos v. United States,

Nos. 09cr498, 16cv3791, 16cv6522, 2018 WL 1441357, at *3 (S.D.N.Y. Mar.

22, 2018) (holding that petitioner’s Johnson argument was defaulted when

not raised in her direct appeal). That is, unless he can show good cause to

excuse the default and resulting prejudice or actual innocence. Gupta, 913

F.3d at 84; Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). Contrary

to Key’s assertion, “‘actual innocence’ means factual innocence, not mere

legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see

also United States v. Thorn, 659 F.3d 227, 234 (2d Cir. 2011). Even accepting

Key’s contention that his appellate counsel’s ineffectiveness for not raising

this issue on direct appeal suffices to show cause, see Morales v. United

States, 651 F. App’x 1, 5 (2d Cir. 2016), petitioner suffered no prejudice,

because his Johnson argument fails under controlling Second Circuit

precedent. While recognizing the similarities of the statutes involved in

Johnson and Dimaya, the Second Circuit has determined that Section

924(c)’s risk-of-force clause does not suffer from the same constitutional

flaws as its statutory cousins. United States v. Barrett, 903 F.3d 166, 175-77

(2d Cir. 2018).

C. Retroactive Misjoinder

Key argues that if the Court vacates the charges related to the alleged

murders-for-hire (Counts II-VI), then the Court should vacate the

narcotics offenses (Counts [-II).

“Retroactive misjoinder” exists when later developments, such as the

reversal of some of defendant’s counts of conviction, render the initial

joint pursuit of the charges improper. United States v. Hamilton, 334 F.3d

170, 181 (2d Cir. 2003). To qualify for a new trial on this ground, a

defendant must demonstrate compelling prejudice. Id. at 181-82. One

avenue to meet this burden is to show a prejudicial spillover from

evidence that was used to obtain a later-vacated conviction. Id. at 182. To

determine whether such spillover existed, the Court undertakes a three-

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part inquiry, considering: (1) whether the evidence supporting the

vacated count would inflame the jury into convicting on other counts; (2)

whether the vacated and remaining counts were similar; and (3) the

strength of the government’s remaining evidence. United States v. Jones,

482 F.3d 60, 78 (2d Cir. 2006). Key claims prejudicial spillover because the

murder-for-hire charges were significantly more egregious and

inflammatory than the drug charges, and the government's case centered

on evidence relating to those conspiracies. Because the Court is not

vacating Key’s conviction on any counts, this argument is foreclosed —just

as it was on petitioner’s direct appeal. Babilonia, 854 F.3d at 174 n.8.

D. Evidentiary Hearing and Appointment of Counsel

Finally, Key requests an evidentiary hearing and the appointment of

counsel. A petitioner is entitled to an evidentiary hearing— except where

“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). In particular,

“when the judge who tried the underlying proceedings also presides over

a § 2255 motion, a full-blown evidentiary hearing may not be necessary.”

Raysor, 647 F.3d at 494. “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).

No evidentiary hearing is necessary here because Key has not raised

any plausible claim for relief. See Puglisi v. United States, 586 F.3d 209, 213

(2d Cir. 2009). Petitioner has not put forth factual allegations that could

overcome the substantial record to show he has “suffered prejudice from

any hypothetical ineffective assistance of counsel.” United States v.

Huggins, Nos. 13-Cr-155, 18-Cv-5433, 2019 WL 697293, at *5 (S.D.N.Y. Feb.

20, 2019). Moreover, Key’s remaining claims for relief are foreclosed as a

matter of law.

Because Key’s request for an evidentiary hearing is denied, the Court

is not required to appoint counsel. Nappy v. United States, Nos. 13 CV 5888,

94 CR 656, 2013 WL 6405171, at *1 (S.D.N.Y. Dec. 5, 2013); see also Quinones

v. United States, 637 F. App’x 42, 45 n.4 (2d Cir. 2016). Although the Court

has the discretion to appoint counsel if “the interests of justice so require,”

is

18 U.S.C. § 3006A(a)(2)(B), that is not the case here, where Key’s claims

lack merit. See, e.g., Mason v. United States, Nos. 04 Civ. 2198, S 17 96 CR

126, 2009 WL 1250158, at *2-*3 (S.D.N.Y. May 6, 2009). Key’s application

for appointment of counsel is denied.

III. DISCUSSION OF KEY’S RULE 60 MOTION

In addition to his habeas petition, Key has filed a motion for relief

pursuant to Federal Rule of Civil Procedure 60(b) and (d). Pursuant to

Rule 60(b), a court may relieve a party from a final judgment on grounds

such as an opposing party’s fraud, a void judgment, or “any other reason

that justifies relief.” Fed. R. Civ. P. 60(b)(3), (4), (6). A Rule 60(b) motion for

relief as a result of fraud must be made within one year after the entry of

judgment. Fed. R. Civ. P. 60(c)(1). However, Rule 60(b)(4) and (6) motions

need only be made within a “reasonable time.” Id. Rule 60(d) also allows a

court, without any time constraint, to entertain an independent action for

relief from a judgment or to set aside a judgment for fraud on the court.

Fed. R. Civ. P. 60(d)(1), (3).

A district court has discretion in deciding whether to grant a Rule

60(b) motion. Pena v. United States, 334 F. Supp. 3d 578, 580 (S.D.N.Y. 2018).

For relief pursuant to Rule 60(b)(3), a movant must show, by clear and

convincing evidence, that the opposing party’s fraud or misconduct

prevented him from fully and fairly presenting his case. Koch v. Pechota,

632 F. App’x 24, 26 (2d Cir. 2016); State St. Bank & Tr. Co. v. Inversiones

Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004). A judgment is void

pursuant to Rule 60(b)(4) only if the court lacked personal or subject

matter jurisdiction, or if it acted in a manner inconsistent with due process.

City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 138 (2d Cir. 2011);

Chen v. United States, Nos. 03-CR-734-4, 12-CV-3904, 2016 WL 519617, at *3

(S.D.N.Y. Feb. 3, 2016). Relief under Rule 60(b)(6) is only warranted under

“extraordinary circumstances” or “extreme hardship.” Harris v. United

States, 367 F.3d 74, 81 (2d Cir. 2004) (citation omitted); see also Chen, 2016

WL 519617, at *3.

To obtain relief under Rule 60(d), movants must (1) establish that they

lack another available or adequate remedy; (2) demonstrate that they did

not cause the situation for which they seek equitable relief; and (3) show a

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recognized ground—like fraud, accident, or mistake—for the equitable

relief. In re Hoti Enters., L.P., 549 F. App’x 43, 44 (2d Cir. 2014). Because

such relief is only available to prevent “a grave miscarriage of justice,” any

alleged fraud on the court must seriously undermine the integrity of the

previous adjudication and must be established by clear and convincing

evidence. LinkCo, Inc. v. Naoyuki Akikusa, 367 F. App’x 180, 182 (2d Cir.

2010); King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002).

The thrust of Key’s Rule 60 motion centers on the allegedly improper

execution of the Oath of Office and Appointment Affidavit (“OOAA”) by

one of the prosecutors. Specifically, the copy that Key received pursuant to

FOIA of the OOAA for Assistant U.S. Attorney (AUSA) Abigail Kurland

was neither signed nor notarized. (Doc. No. 645, Ex. C.) Thus, Key argues,

Kurland’s participation in the case tainted the prosecution. In particular,

he contends that her presence in front of the grand jury, despite her lack of

authorization to serve as an attorney for the government, requires

dismissal of the indictment. See Fed. R. Crim. P. 6(d)(1) (only allowing to

be present while the grand jury is in session government lawyers,

witnesses, interpreters, and court reporters); United States v. Pignatiello, 582

F. Supp. 251 (D. Colo. 1981). But see United States v. Kilpatrick, 821 F.2d

1456, 1468 (10th Cir. 1987) (rejecting any “per se rule of dismissal for Rule

6(d) violations” absent prejudice).

First, Key’s motion, filed in November 2018, is untimely to the extent

he relies on Rule 60(b)(3). He made this motion over three years after this

Court entered its judgment in March 2015. Rule 60(c)(1) makes no

exceptions for the pendency of the appellate process. Scholastic Inc. v.

Stouffer, 217 F. App’x 15, 16 (2d Cir. 2007) (“The filing of an appeal does

not toll the one-year time period within which a Rule 60 motion alleging

fraud or newly discovered evidence must be filed.”); Tavarez v. United

States, No. 96 CR. 895, 2010 WL 2102636, at *2 (S.D.N.Y. May 18, 2010)

(“[T]Jhe time taken for an appeal does not toll the running of [the Rule

60(c)(1)] limitation period.”).

The Court may also dismiss Key’s Rule 60 motion on its merits.

Despite Key’s accusations, the government offers a simple and innocuous

explanation: the OOAA provided to Key pursuant to FOIA was partially

17

redacted. In its reply to Key’s records request, the Executive Office for

United States Attorneys specified that portions of records were withheld

pursuant to the “(b)(6)” exemption. (Doc. No. 645, Ex. B, at 1.) That

exemption applies to personnel and similar files that, if disclosed, “would

constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(6). (id. at 3.) In Kurland’s appointment affidavit, someone

handwrote “b6” on the signature lines for the appointee and officer. (Doc.

No. 645, Ex. C.) The government’s explanation—that these lines were

redacted in white and then labeled with the applicable FOIA exemption—

seems far more plausible than Key’s baseless speculations. Key replies that

the human resources specialist who allegedly signed the OOAA was not

authorized to do so, but he lacks support for this bald assertion. Key offers

no evidence that the human resources specialist was not a notary or an

employee otherwise delegated the authority to administer the oath. See

U.S. Office of Personnel Management, Guide to Processing Personnel

Actions, ch. 3, 319 (2017), □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

oversight/data-analysis-documentation/personnel-

documentation/processing-personnel-actions/gppa03.pdf.

Key has not presented sufficient evidence demonstrating that

Kurland’s OOAA was improperly executed—let alone that he was

prevented from presenting a full defense, that the integrity of his trial or

sentencing were undermined, or that the Court lacked jurisdiction over his

prosecution, which was led by a team of AUSAs. Key’s Rule 60(b) and (d)

motion is denied.

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IV. CONCLUSION

Because petitioner has not stated a claim for relief pursuant to either

28 U.S.C. § 2255 or Rule 60, Key’s motions are denied. Since he has not

made a substantial showing of a constitutional injury, a certificate of

appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State

Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). Additionally, the Court

certifies that any appeal from the Order would not be taken in good faith.

See 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 444-45

(1962).

Dated: New York, New York

May 31, 2019

SO ORDE : □

\

>

Sidney H. Stein, U.S.D,J.

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